Jones v. Abraham

999 S.W.2d 698, 67 Ark. App. 304, 1999 Ark. App. LEXIS 608
CourtCourt of Appeals of Arkansas
DecidedSeptember 29, 1999
DocketCA 98-1076
StatusPublished
Cited by17 cases

This text of 999 S.W.2d 698 (Jones v. Abraham) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Abraham, 999 S.W.2d 698, 67 Ark. App. 304, 1999 Ark. App. LEXIS 608 (Ark. Ct. App. 1999).

Opinion

John Mauzy Pittman, Judge.

This case involves an alleged oral contract to make a will between two sisters, both deceased, Sarah Klerekoper and Frances Abraham. This case returns to us after trial on remand from our decision in Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997). Sarah Kler-ekoper and Frances Abraham were daughters of John Turner Abraham, who died in 1949. Ms. Klerekoper died in 1975 and Ms. Abraham died in 1994. The issue at trial was whether appellants could prove by clear, cogent, satisfactory, and convincing evidence that their mother, Sarah Klerekoper, entered into an oral contract in 1973 or 1974 with her sister, Frances Abraham, whereby Ms. Klerekoper assigned to Ms. Abraham her one-fifth share of their father’s estate, which was settled in 1990 by family agreement, in return for Ms. Abraham’s promise to prepare a will in which she would leave all her property to appellants. In February 1974, Sarah Klerekoper filed an assignment in probate court in which she assigned to Frances Abraham all of her interest in their father’s estate. In November 1987, Frances Abraham executed her will. Therein, she left one-fourth of all her property to appellants and the remainder to appellees, who are appellants’ first cousins.

At trial, the Clark County Chancery Court granted appellees’ motion to dismiss. Appellants appeal this decision. Appellees, as cross-appellants, appeal the chancery court’s denial of their requests for attorney’s fees and litigation expenses. We affirm on appeal and cross-appeal.

We handed down our opinion in Jones v. Abraham, supra, in June 1997. Insofar as is pertinent to this appeal, we there reversed the chancery court’s grant of appellees’ motion for summary judgment concerning whether appellants had shown there was a genuine issue of material fact to be decided regarding the alleged oral contract to make a will, and we remanded for trial. This case was tried before the chancery court in December 1997 with appellants as plaintiffs. After they presented their case in chief, appellees’ counsel moved to dismiss appellants’ case. The chancery court heard argument from counsel on appellees’ motion and took the matter under advisement overnight. The next day, the chancellor announced a decision in appellees’ favor in which he set forth findings of fact and explained in detail why he was granting appellees’ motion to dismiss appellants’ case. On January 29, 1998, the chancery court handed down an order granting appellees’ motion to dismiss that, in large part, recited the explanation the chancellor had given from the bench when he initially granted appellees’ motion to dismiss. It is this order that appellants challenge on appeal.

In its January 29, 1998, order the chancery court denied appellees’ request for an award of attorney’s fees. Subsequently, appellees moved, pursuant to Ark. R. Civ. P. 68, for an award of litigation expenses on the basis of an offer of judgment that they had filed in October 1997. Appellees also renewed their previous requests for an award of attorney’s fees. On March 3, 1998, the chancery court handed down an order denying appellees’ Rule 68-based motion for award of expenses and their renewed request for attorney’s fees. It is this order that appellees, as cross-appellants, challenge on cross-appeal.

Appellants raise four issues on appeal. Cross-appellants raise five issues on cross-appeal. We will review the appellants’ four allegations of error and then review the cross-appellants’ five allegations of error.

First, appellants assert that the chancery court erred in weighing the credibility of witness testimony when it granted appellees’ motion to dismiss. Second, appellants allege that the chancery court erred in determining that they had to present clear, cogent, satisfactory, and convincing evidence of the oral contract to make the will at issue to surmount appellees’ motion to dismiss. Third, appellants contend that the chancery court erred in determining that they had not presented a prima facie case that Sarah Klerekoper and Frances Abraham had entered into an oral contract whereby Ms. Abraham agreed to prepare a will leaving all of her property to appellants. Fourth, appellants maintain that the chancery court erred in refusing to consider the testimony of certain witnesses that Sarah Klerekoper stated that Frances Abraham had offered to make a will in favor of appellants if Ms. Klerekoper transferred her one-fifth share of the estate of their father, John Turner Abraham, to Ms. Abraham.

The standards governing our review of a chancery court’s decision are well established. Although we try chancery cases de novo on the record, we do not reverse unless we determine that the chancery court’s findings were clearly erroneous. Ark. R. Civ. P. 52(a); Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A chancery court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing a chancery court’s findings, we defer to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). However, we do not defer to a chancery court’s conclusion on a question of law. If the chancery court erroneously applied the law and the appellant suffered prejudice as a result, we will reverse the chancery court’s erroneous ruling on the legal issue. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

For their first allegation of error, appellants maintain that the chancery court erred in granting the motion to dismiss that appellees made at the conclusion of appellants’ presentation of their case-in-chief. According to appellants, the chancery court erred in granting appellees’ motion to dismiss because it weighed the credibility of one of appellants’ witnesses and also considered some of appellants’ evidence in the light favorable to appellees. Recendy, we set forth the standard that a chancery court is to apply when considering a defendant’s motion for directed verdict or motion to dismiss the plaintiffs case:

The supreme court has recently set forth the analytical framework that a chancery court is to follow when evaluating a defendant’s motion for directed verdict. A chancery court is to evaluate the motion by deciding whether, if the proceeding were a jury trial, the evidence would be sufficient for the case to go to the jury. See Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998). In its evaluation of the plaintiffs case, the chancery court is not to assess the credibility of the testimony presented by the plaintiffs witnesses. Id. To determine whether the plaintiff has presented a prima facie case, the trial court must view the evidence in the light most favorable to the plaintiff, as the non-moving party, and give the evidence its highest probative value, taking into account all reasonable inferences deducible from the evidence. Bradford v. Verkler, 273 Ark.

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Bluebook (online)
999 S.W.2d 698, 67 Ark. App. 304, 1999 Ark. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-abraham-arkctapp-1999.