Richardson v. Brown

423 S.W.3d 630, 2012 Ark. App. 535, 2012 WL 4477223, 2012 Ark. App. LEXIS 649
CourtCourt of Appeals of Arkansas
DecidedSeptember 26, 2012
DocketNo. CA 11-1189
StatusPublished
Cited by2 cases

This text of 423 S.W.3d 630 (Richardson v. Brown) 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
Richardson v. Brown, 423 S.W.3d 630, 2012 Ark. App. 535, 2012 WL 4477223, 2012 Ark. App. LEXIS 649 (Ark. Ct. App. 2012).

Opinion

DOUG MARTIN, Judge.

| Appellant Joy Richardson appeals from the judgment of the Faulkner County Circuit Court awarding her brother, Jim Brown, $33,828.38 plus an additional $23,249.03 in attorney’s fees and costs. We affirm in part and dismiss for lack of jurisdiction in part.

Patricia Brown was the mother of Richardson, Brown, and Sharon Little.1 When Patricia died on January 7, 2008, a dispute arose among the children as to the disposition of certain property that Patricia jointly owned with her children and intended to pass outside the normal probate process. On October 1, 2009, Jim Brown filed a complaint in the Faulkner County Circuit Court alleging that he and his mother had jointly owned a 2000 Buick |2LeSabre,2 but Richardson sold the vehicle two days after their mother’s death without his permission and converted the proceeds to her own benefit.

Richardson answered and counterclaimed, asserting that, as executrix of their mother’s estate, she sold the vehicle with Brown’s knowledge and acquiescence and delivered a check to Brown for half of the sales price of the car. Richardson alleged that the other half of the proceeds was divided among Patricia’s grandchildren, again with Brown’s agreement. In her counterclaim, Richardson asserted that Brown had misrepresented to her that he would divide one-half of the proceeds of the sale of the car and, as a result, she had agreed that Brown would receive more than $13,000 from an annuity to which Richardson was the sole beneficiary. Richardson also moved to transfer venue of the case from Faulkner County to Pulaski County, where she was a resident.

Brown subsequently amended his complaint to allege that, in addition to converting the proceeds from the sale of the car, Richardson had, within days of Patricia’s death, withdrawn funds from a bank account that she shared jointly with her mother. In a second amended complaint, Brown added his sister, Sharon Little, as a defendant and asserted that the three siblings had an agreement, in accordance with their mother’s wishes, that upon Patricia’s death, multiple financial accounts would be combined and equally divided among the children outside of the probate process. The accounts included two Arvest Bank accounts with a combined total balance of more than $104,000; a Jackson National Life Insurance annuity Rwith a $100,000 death benefit; and a MetLife IRA account valued in excess of $36,000. Brown’s complaint alleged that Richardson refused to pay Brown his full one-third share of these funds. Specifically, Brown asserted that Richardson’s actions breached the siblings’ agreement that the funds would be equally divided after Patricia’s death and that Richardson converted funds that should have been his.

The circuit court denied Richardson’s motion for change of venue to Pulaski County in a written order entered on July 7, 2010. The case then proceeded to a bench trial on July 12, 2011. At the conclusion of the trial, the court announced its ruling from the bench. The court first found that Brown owned the car and was entitled to 100% of the proceeds from the sale, or $6850. In addition, the court found that there was an express contract among the siblings to divide the Arvest accounts among them. Those accounts had a combined balance of $104,527.37, from which the court subtracted $450 that Brown acknowledged receiving, leaving a balance of $104,077.37, which, once divided into thirds, resulted in $34,692.46 for Brown’s share. As Brown had already received $16,666.66, the court found that Richardson owed him $18,025.80.3 The court further found that there had been an express agreement among the siblings regarding the Jackson Life account and that, while Richardson had disbursed to Brown and Little approximately $33,333.34 from that account, Brown was still entitled to an additional $6,738.32 from that account.4 In total, Brown was |4awarded $33,828.38 against Richardson, plus postjudgment interest. A written order memorializing the trial court’s rulings was entered on August 4, 2011.

On August 18, 2011, Brown filed a motion seeking attorney’s fees in the amount of $37,534.03 and costs of $728.60. The court entered an order on September 14, 2011, awarding Brown $22,520.43 in attor-' ney’s fees and $728.60 in costs. The court’s order noted that it had reduced the amount of fees requested to sixty percent because the court found that Brown prevailed on only three of the five breach-of-contract claims he pled.

Richardson filed her notice of appeal on August 31, 2011, and she now raises four points for reversal. Richardson contends that the trial court erred in 1) denying her motion for change of venue; 2) finding that Brown was entitled to the proceeds from the sale of the car; 3) determining that there was an express contract to divide the Arvest bank accounts and Jackson National Life Insurance annuity equally;5 and 4) awarding attorney’s fees and costs to Brown.

When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the court’s findings are clearly erroneous, or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104 Ark.App. 262, 290 S.W.3d 626 (2009). [5A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870. In conducting its review of a circuit court’s findings of fact, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the appellee. Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003). Appellate courts give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Combs v. Stewart, 374 Ark. 409, 288 S.W.3d 574 (2008). A circuit court’s conclusion on a question of law, however, is reviewed de novo and is given no deference on appeal. Id.

Richardson’s first point on appeal is that the circuit court erred in not granting her motion for change of venue and transferring the case to Pulaski County. Before reaching the merits of her argument, however, we must first address a threshold question raised by Brown, who argues that Richardson waived the objection to venue by filing a counterclaim. Generally, an objection to venue is waived if it is not raised properly or if affirmative relief is sought. See, e.g., Loewer v. Nat’l Bank of Ark., 311 Ark. 354, 844 S.W.2d 329 (1992) (defendant waived venue objection by filing a permissive counterclaim). In Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987), the supreme court held that the filing of a third-party complaint constitutes a waiver of a venue objection, but “the assertion of a compulsory counterclaim does not constitute a waiver of objection to venue because of the non-voluntary character of the compulsory counterclaim.” Lindsey, 292 Ark. at 319, 730 S.W.2d at 477.

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Bluebook (online)
423 S.W.3d 630, 2012 Ark. App. 535, 2012 WL 4477223, 2012 Ark. App. LEXIS 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-brown-arkctapp-2012.