Lookadoo v. Switzer
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 853
ARKANSAS COURT OF APPEALS
DIVISIONS IV & I
No. CA09-1342
Opinion Delivered DECEMBER 15, 2010
STEVE LOOKADOO
APPELLANT
V.
GREGORY L. SWITZER,
KATHERINE SWITZER MILLER,
DOUGLAS K. SWITZER, and KAY
MCCOLLUM SWITZER REVOCABLE
TRUST
APPELLEES
APPEAL FROM THE ARKANSAS
COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
[PR-08-67]
HONORABLE DAVID G. HENRY,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Steve Lookadoo appeals the September 1, 2009 order of Arkansas County Circuit
Court, Probate Division, granting summary judgment for the trustees of the Kay McCollum
Switzer Revocable Trust (Kay’s Trust) and dismissing his petition to construe the trust. After
reviewing the facts in the light most favorable to the party resisting summary judgment, Acuff
v. Bumgarner, 2009 Ark. App. 854, we affirm the decision of the circuit court.
On November 22, 2007, Kay created Kay’s Trust and executed a pour-over will. She
was trustee and successor trustees were her three adult children, who are appellees in the
present case. Kay’s Trust directed that, following her death and end of the administration of
her estate, the trustees retain her Arkansas County farm in a separate trust for Steve’s use and
benefit (Steve’s Trust) during his lifetime, if at her death he “was in a relationship” with her.
Cite as 2010 Ark. App. 853
Under the terms of the trust, the trustees were instructed to determine in their “sole and
absolute discretion,” after consulting with the children, the existence of this relationship.
In January 2008 Kay died in Oklahoma. Her will was admitted to probate and her
children appointed as executors. As permitted by the trust, the trustees changed the situs of
the trust and the applicable law to Oklahoma. In April 2008 the children as executors of the
estate filed in the Oklahoma court an application for construction and/or interpretation of
testamentary documents, referring to both the will and Kay’s Trust, and requesting permission
to encumber the farm for administrative expenses and estate taxes. Steve filed a response and
objection, asserting that as a beneficiary of Kay’s Trust he would be directly affected by the
relief the executors sought, which also would defeat the trust’s directives. The executors
moved to dismiss his response and objection, stating that he was not a beneficiary but had a
mere expectancy based on a condition precedent. They stated that they had no intention of
creating Steve’s Trust because of their determination, which they had made after consulting
with each other as Kay’s children, that at her death there was no relationship between Steve
and her.
In August 2008 Steve filed a petition to construe the trust in the Arkansas County
Circuit Court. He asserted in the petition that jurisdiction for construction of Kay’s Trust lay
in Arkansas County because the corpus was located there and that the actions of Kay’s
children were as beneficiaries rather than trustees. He asked the court to determine that he
had a relationship with Kay at her death and to prohibit the trustees from using the farm as
-2-
Cite as 2010 Ark. App. 853
collateral. In February 2009, upon the trustees’ motion to dismiss Steve’s petition, the court
stayed the Arkansas proceeding pending resolution of the relationship issue in the Oklahoma
court.
In May 2009 the trustees requested summary judgment in the Arkansas action on the
basis that the Oklahoma court had granted summary judgment in their favor and confirmed
their decision that there was no relationship between Steve and Kay. Steve filed a response
and motion for summary judgment, asserting that Arkansas had jurisdiction because the case
involved title to Arkansas real estate and that the Oklahoma order did not constitute res
judicata or collateral estoppel.
In its September 1, 2009 order granting the trustees’ motion for summary judgment
and denying Steve’s summary-judgment motion, the circuit court found as a matter of law
that his petition to construe the trust was barred by res judicata and collateral estoppel. The
judgment incorporated a letter opinion rejecting Steve’s contention that the case involved a
determination of title to Arkansas real estate, over which the Arkansas court had exclusive
jurisdiction, and that Arkansas real estate law applied. The court noted that Kay’s Trust gave
the trustees sole and absolute discretion to determine whether a relationship existed at the
time of her death, a condition precedent to establishing Steve’s Trust. The court further noted
that “pursuant to the trust, legal title to the farm is held by the trustees and will remain so
until the assets are ultimately distributed according to the trust terms.”
Steve appeals the order, asserting that the pertinent question before us is whether Kay’s
-3-
Cite as 2010 Ark. App. 853
Trust or Steve’s Trust is title holder of the farm. He argues that the Oklahoma court could
not construe Kay’s Trust because “it related only to the Arkansas farm, the sole asset, which
was Arkansas real estate,” and that the Arkansas circuit court should have decided whether the
trustees breached their fiduciary duty in deciding that he lacked the required relationship with
Kay. Steve asserts that summary judgment for the trustees was improper because res judicata
does not apply to decisions of foreign courts affecting title to Arkansas real estate. Additionally,
he complains that the Oklahoma decision was on appeal when the Arkansas court rendered
its summary-judgment decision.
In Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 582, 864 S.W.2d 244, 246 (1993),
our supreme court rejected an argument that an order on appeal was not final. Noting the
close relationship between finality for purposes of appeal and finality for purposes of res
judicata, the Wilson court stated that res judicata was designed to prevent a party’s ability to
“clog the courts and harass an adversary with suits on a claim already decided.” Id. In Reed v.
Allen, 286 U.S. 191, 199 (1932), the Supreme Court ruled that “where a judgment in one
case has successfully been made the basis for a judgment in a second case, the second judgment
will stand as res judicata, although the first judgment be subsequently reversed.”
The Arkansas court ruled in the present case that application of Arkansas real estate law
was not required, explaining as follows:
Pursuant to the trust, legal title to the farm is held by the trustees and will remain so
until the assets are ultimately distributed according to the trust terms. The existence
of a relationship between Mr. Lookadoo and Ms. Switzer is a condition precedent to
whether or not the farm will be administered as a separate trust.
-4-
Cite as 2010 Ark. App. 853
The Oklahoma court rightly decided this case as a matter of trust administration, not
one of title to Arkansas real estate, and the Arkansas court properly rejected Steve’s argument
that it must determine title to the Arkansas farm. Steve presents no convincing argument and
cites no authority pertaining to the Arkansas court’s findings regarding res judicata and finality
of the Oklahoma action. We find no merit to Steve’s argument regarding a lack of finality in
the Oklahoma action.
Affirmed.
V AUGHT, C.J., and R OBBINS and G LOVER, JJ., agree.
H ART and B AKER, JJ., dissent.
JOSEPHINE L INKER H ART, Judge, dissenting. The majority has made a fundamental
mistake of law: it has decided a case over which it never acquired jurisdiction to consider.
Generally, Appellate courts of this state only have jurisdiction over final orders. Ark. R. App.
P.–Civ. 2(a)(1). Under Rule 2(a)(1), an appeal may be taken from a final decree entered by
the circuit court that dismisses the parties from the court, discharges them from the action,
or concludes their rights to the subject matter. It is axiomatic that failure to dispose of all the
issues renders the order not final, and therefore we are without jurisdiction. E.g., Ramsey v.
Beverly Enterprises, Inc., 375 Ark. 424, 291 S.W.3d 185 (2009).
Jurisdiction is an issue we are bound to consider even though the parties have not raised it.
Deutsche Bank Nat’l Trust Bank v. Austin, 2010 Ark. App. 753, ___ S.W.3d ___.
While it is true that Lookadoo’s petition filed in Arkansas County was styled,
-5-
Cite as 2010 Ark. App. 853
PETITION TO CONSTRUE TRUST, and in part does pray that the trial court do so, that
is not all that it does. The petition also includes as a separate count a cause of action for breach
of an oral lease to the farm.
Under the Arkansas Rules of Civil Procedure, all that is required is “(1) a statement
in ordinary and concise language of facts showing that the court has jurisdiction of the claim
and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the
relief to which the pleader considers himself entitled.” Ark. R. Civ. P. 8(a). In addition to
reciting that the Farm was situated in Arkansas County, under a subsection of Lookadoo’s
Arkansas County Petition titled “Lease of Farm” Lookadoo recites the following:
22. For several years prior to Kay’s death, Steve had an oral agreement with Kay for
lease of the Farm by which he had sole discretion to, and did, conduct the Farming
operations by dealing with government agencies, establishing a bank account for, and
payment of, Farm expenses and deposits of Farm income, and a limited Power of
Attorney for dealing with the U.S. and Arkansas governmental entities regarding
programs for the Farm. During this time, Steve and Kay borrowed funds from Farmers
and Merchants Bank of Stuttgart to finance farming operations with Kay securing the
loan with a mortgage on the Farm. All such loans were paid by Steve’s farming
operations.
23. As part of the lease, Steve made the annual note payments on the acquisition of the
Farm to Merchant and Farmers Bank mortgage secured by the Farm, dated January 13,
1992, recorded January 14, 1992 in the Deed Records in Arkansas County (Exhibit
6).
24. In February 2008, Steve requested that the Switzer Children continue his
agreement with Kay pursuant to Article FOURTH (b), but they refused to do so. In
June 2008, without conferring with Steve, as required by Article FOURTH (b), the
Switzer Children’s attorney informed him that the Farm had been leased to a third
party for the 2008 crop year.
25. Arkansas law provides that in the case of an oral lease, failure of the Lessor to give
-6-
Cite as 2010 Ark. App. 853
written notice by certified mail to the Lessee to discontinue an oral lease by June 30
of a calender year permits the Lessee to farm for the next calender year on the terms
of the existing lease. No such notice was given to Steve by Kay who was the Lessor
until her death. Therefore, Steve had a right to lease the Farm for 2008.
26. No such notice was given to Steve by the Switzer Children as Trustees before June
30, 2008, thus he had a right to operate the Farm in 2009 on the 2007 terms.
I submit that this quoted language is sufficient to set forth a factual allegation of a breach of
a farm lease. It is settled law that on appeal, we are obligated to construe pleadings liberally
in favor of the pleader, and every reasonable inference and intendment are indulged in his
favor. Helms v. Vaughn, 250 Ark. 828, 467 S.W.2d 399 (1971).
Furthermore, this issue cannot be res judicata. It is black-letter law that under the
doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits
by a court of competent jurisdiction bars another action by the plaintiff or his privies against
the defendant or his privies on the same claim or cause of action. Francis v. Francis, 343 Ark.
104, 31 S.W.3d 841 (2000). I am mindful that res judicata bars not only the relitigation of
claims which were actually litigated in the first suit, but also those which could have been
litigated. Id. However, the test in determining whether res judicata applies is whether matters
presented in a subsequent suit were necessarily within the issues of the former suit and might
have been litigated therein. Id.
In the instant case, it would have been impossible for the Oklahoma court to have
disposed of Lookadoo’s claim for breach of a farm lease when it construed the trust. The
Switzer children filed their petition to construe the trust in Oklahoma on April 14, 2008, and
-7-
Cite as 2010 Ark. App. 853
Lookadoo alleged that the action for breach of the farm lease did not accrue until June of
2008. Moreover, the Oklahoma action only concerned the issue of whether Steve and Kay
were in a relationship, the condition precedent for the creation of Steve’s trust.1 It is
completely silent regarding the farm lease that Lookadoo claims was breached. Accordingly,
whether or not Steve’s Trust ever comes into being does not cut off Lookadoo’s rights to his
oral farm lease unless the lessor acts in accordance with Arkansas law. Because Kay’s children
were purporting to act in their capacity as Trustees, it was proper for Lookadoo to ask the
Arkansas County Circuit Court to “construe the trust,” if only to see that it granted them no
such power.
Because the court of appeals never acquired jurisdiction to hear this appeal, I submit
that the majority’s opinion is simply void. See Arkansas Const. & Excavation, LLC v. City of
Maumelle, 2009 Ark. App. 874. Accordingly, I believe the majority erred when it endeavored
to analyze the merits of Lookadoo’s arguments. It is not our practice to issue advisory
opinions. Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008).
1
The fourth article states in pertinent part:
Following the death of the Grantor and the end of the administration of the
estate of the Grantor, as determined in the sole and absolute discretion of the
Trustees, if STEPHEN L. LOOKADOO is then living and was in a
relationship with the Grantor at the time of the death of the Grantor, as
determined by the Trustees after consulting with the Grantor’s Children, the
Trustees shall retain . . . the farm . . . in a separate trust (hereinbefore and
hereinafter referred to as “Steve’s Trust”) for the use and benefit of STEPHEN
L. LOOKADOO.
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.