Barbara S. Morse v. Sentry Life Insurance Co., Sentry Insurance of Alma, and Wilroy Lewis

Barbara S. MORSE v. SENTRY LIFE INSURANCE
CO., Sentry Insurance of Alma, and Wilroy
Lewis

97-831                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Appeal & error -- review on appeal limited to record as
     abstracted -- failure to abstract critical document precludes
     supreme court from considering issues concerning it. -- Review
     of a case on appeal is limited to the record as abstracted in
     the briefs; Arkansas Supreme Court Rule 4-2(a)(5)(1997)
     requires that an abstract contain material parts of the
     pleadings, proceedings, facts, documents, and other matters in
     the record as are necessary to an understanding of all
     questions presented to the court for decision; if an abstract
     fails to aid in gaining an understanding of the issues on
     appeal, the supreme court may affirm for noncompliance with
     the rule; the judgment from which the appeal is raised,
     including relevant factual findings, is an essential part of
     the abstract; failure to abstract a critical document
     precludes the court from considering any issues concerning it. 
     
2.   Appeal & error -- abstract insufficient -- meaningful review
     impossible. -- From the abstract before the court, it was
     impossible to determine whether any genuine issues of material
     fact remained regarding the elements of misrepresentation; 
     the supreme court was left resorting to conjecture with
     respect to the trial court's specific factual findings;
     matters both in the trial court's findings of fact and
     conclusions of law and in appellant's affidavit were not
     abstracted; without an abstract of such pleadings and
     documents, the supreme court was unable to conduct a
     meaningful review of appellant's assignments of error.

3.   Appeal & error -- abstract flagrantly deficient -- case
     affirmed. -- Because appellant submitted a flagrantly
     deficient abstract, the circuit court's order granting summary
     judgment was affirmed.


     Appeal from Crawford Circuit Court; Floyd G. Rogers, Judge;
affirmed.
     Phyllis Ann Atha, for appellant.
     Bethell, Callaway, Robertson, Beasley & Cowan, for appellees.

     Ray Thornton, Justice.
     This case presents the question whether appellee Sentry Life
Insurance Company (Sentry) was obligated to pay appellant Barbara
Morse the proceeds of her late husband's life insurance policy. 
Wilroy Lewis, an agent for Sentry and a family friend of the
Morses, approached Gary and Barbara Morse in 1993 about obtaining
their insurance business.  The Morses opted to transfer their home,
automobile, business, and life insurance to Sentry.  On December
21, 1993, Sentry issued a $60,000 life insurance policy to Gary
Morse, naming Barbara Morse as the primary beneficiary.  Mr. Morse
transferred the cash value of two policies, a $40,000 Southern Farm
Bureau Life Insurance policy and a $10,000 Central States Health
and Life Insurance policy, to the Sentry insurance policy.
     On May 9, 1995, Gary Morse committed suicide.  Under the
Sentry policy, if an insured commits suicide within two years from
the policy date, Sentry's liability is limited to the premiums paid
prior to the insured's death.  Sentry refused to pay the proceeds
of the policy to Mrs. Morse, citing the policy's suicide-exclusion
provision; however, Sentry did refund to Mrs. Morse premiums paid
on the policy in the amount of $11,644.97.
     Mrs. Morse filed suit against Sentry, Sentry Life Insurance
Company of Alma, and Wilroy Lewis.  In her complaint, Mrs. Morse
claimed that Sentry, through its agent, Mr. Lewis, misrepresented
the benefits, advantages, conditions, and terms of the insurance
policy that the Morses purchased.  She alleged that Mr. Lewis led
them to believe that the Sentry policy would be "a continuation of
coverage" when they purchased the life insurance policy.  Mrs.
Morse claimed that these misrepresentations misled the Morses about
the consequences of transferring their existing policy from Farm
Bureau to Sentry.
     Sentry filed two motions for summary judgment.  The second
motion included the deposition of Randy Bradley, a Farm Bureau
agent, who testified that the Morses had been apprised of the
adverse consequences of transferring a life insurance policy ten
years earlier.  The circuit court granted Sentry's second motion
for summary judgment, and this appeal followed.
     Mrs. Morse raises two issues for reversal.  She asserts that
the trial court erred in granting summary judgment because Mr.
Lewis misrepresented the terms of the life insurance policy and
because genuine issues of material fact existed, making summary
judgment inappropriate.  We are unable to reach either of these
arguments because Mrs. Morse has failed to provide us with an
abstract of the orders and documents essential to our understanding
of the issues.
     Our review of a case on appeal is limited to the record as
abstracted in the briefs.  Hooker v. Farm Plan Corporation, 331
Ark. 418, 419, ___ S.W.2d ___ (1998).  The Arkansas Supreme Court
Rules require that an abstract should contain "material parts of
the pleadings, proceedings, facts, documents, and other matters in
the record as are necessary to an understanding of all questions
presented to the Court for decision."  Ark. Sup. Ct. R. 4-2(a)(5)
(1997).  If an abstract fails to aid us in gaining an understanding
of the issues on appeal, this court may affirm for noncompliance
with the rule.  Ark. Sup. Ct. R. 4-2(b)(2); see also Hooker, 331
Ark. at 419, ___ S.W.2d at ___.  The judgment from which the appeal
is raised, including relevant factual findings, is an essential
part of the abstract.  National Enterprises., Inc. v. REA, 329 Ark.
332, 947 S.W.2d 378 (1997).  Failure to abstract a critical
document precludes this court from considering any issues
concerning it.  Id.
     Mrs. Morse has condensed a 160-page record into a four-page
abstract.  We note that the Sentry life insurance policy or policy
application, upon which this case is based, is not abstracted. 
Only a small portion of the text of the insurance contract appears
in the abstract of appellees' answer to Mrs. Morse's complaint. 
Also, the trial court set forth detailed findings of fact and
conclusions of law in a seven-page order that Mrs. Morse condenses
to less than one-half of a page, which fails to include any
findings of fact.
     From the abstract before the court, we cannot determine
whether any genuine issues of material fact remained regarding the
elements of misrepresentation, such as whether the Morses
justifiably relied on Mr. Lewis's misrepresentations.  Furthermore,
we are left resorting to conjecture with respect to the trial
court's specific factual findings.  Specifically, in her briefs,
Mrs. Morse refers us to the record regarding matters both in the
trial court's findings of fact and conclusions of law and in her
affidavit that are not abstracted.  Without an abstract of such
pleadings and documents, we are unable to conduct a meaningful
review of Mrs. Morse's assignments of error.
     Because Mrs. Morse submitted a flagrantly deficient abstract,
we affirm the circuit court's order granting summary judgment.