Wilson v. Pulaski Bank & Trust

383 S.W.3d 919, 2011 Ark. App. 383, 2011 Ark. App. LEXIS 408
CourtCourt of Appeals of Arkansas
DecidedMay 25, 2011
DocketNo. CA 10-1152
StatusPublished
Cited by4 cases

This text of 383 S.W.3d 919 (Wilson v. Pulaski Bank & Trust) 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
Wilson v. Pulaski Bank & Trust, 383 S.W.3d 919, 2011 Ark. App. 383, 2011 Ark. App. LEXIS 408 (Ark. Ct. App. 2011).

Opinion

ROBIN F. WYNNE, Judge.

| ¶ This is an appeal from the grant of summary judgment. Appellant Carol Cal-away Wilson, as the personal representative of the estate of Richard Calaway, her deceased brother, sued appellee Pulaski Bank & Trust (bank) for fraud and negligence in allowing appellee Margarita Cala-way, the decedent’s widow, to have her name added to the decedent’s account with the bank. Wilson amended her complaint and asserted a claim against Calaway and sought to impose a constructive trust on the proceeds of a life insurance policy Cal-away received that Wilson contended should have gone to the decedent’s daughter by a prior |2marriage. The Pulaski County Circuit Court granted separate motions for summary judgment filed by the bank and Calaway. This appeal challenges those rulings. We affirm.

In 2003, the decedent was a divorced father raising his then-minor daughter, Malissa Calaway. He was also an administrative law judge with the Workers’ Compensation Commission. In August 2003, Hartford issued a life-insurance policy to the decedent. The policy provided for benefits in the amount of $250,000, and the decedent’s daughter was the designated beneficiary. Louise Logue was the writing agent on the policy. In October 2004, the decedent changed the policy’s beneficiary to the “Estate of Richard Cala-way, Carol Wilson as Trustee and Executrix under Last Will and Testament of Richard Calaway.”

The decedent was diagnosed with terminal lung cancer in October 2004, causing him to change the beneficiary on the Hartford policy to his sister, as trustee for his daughter. Wilson contends that at the same time, the decedent executed a will leaving everything he owned in trust to his daughter. The decedent married Calaway in March 2007. On December 14, 2007, the decedent executed a change of beneficiary form on his insurance policy, naming Calaway as the sole beneficiary. The decedent sought to change his will to leave his estate to Calaway, or to a friend. However, the will was not executed.

On December 20, 2007, the decedent was admitted to the hospital for complaints of stomach pain and headaches. Wilson contends that he was also having trouble with short term memory and difficulty following a line of thought. Dr. David Lipschitz, who admitted decedent to the hospital, stated that from that date until his death, the decedent was incapable |sof making decisions about his finances or other important matters. The decedent died on April 24, 2008. Calaway received the proceeds of the Hartford policy and removed approximately $19,000 that remained in the decedent’s account at the bank.

On June 6, 2008, Wilson filed suit against the bank, alleging that the bank was negligent in allowing Calaway to add her name to the bank account held by the decedent without requiring the decedent to verify that he, in fact, authorized the addition. Wilson also alleged that the estate lost approximately $41,000 because Cala-way wrote checks on the account. The prayer requested that the funds removed by Calaway be returned to the estate and declared to be the sole property of the estate. The bank answered and denied the material allegations.

Wilson amended her complaint to add Calaway and Hartford Insurance Company as defendants.1 In addition to the claim contained in the original complaint, the amended complaint alleged that Cala-way fraudulently added her name to the account, knowing that the decedent lacked the mental capacity to authorize her to do so, and that she forged his name on the account agreement in order to add her name to the account. The complaint further alleged that Calaway fraudulently obtained the proceeds of the Hartford insurance policy. The bank and Calaway separately answered the amended complaint and, likewise, denied the material allegations.

|40n August 25, 2009, the bank filed its motion for summary judgment, asserting that deposition testimony showed that the majority of the funds in the account were used to pay the decedent’s expenses and obligations and that Wilson knew Calaway could write checks on the decedent’s account prior to his death. The bank also asserted that the fraud claim must fail because Wilson admitted that she had no actual facts, just her belief, to support the allegation that Calaway acted fraudulently in having her name added to the account. The bank also filed a motion for summary judgment on its cross-claim against Cala-way based on the arguments made in the motion for summary judgment against Wilson.

On September 11, 2009, Calaway filed her motion for summary judgment as to Wilson’s claim regarding the bank account and insurance proceeds. In support of the motion, Calaway submitted the affidavit of Louise Logue, the agent who sold the decedent the Hartford policy. Logue stated that the decedent had made an appointment to meet with her to discuss the change of beneficiary; that the meeting with the decedent lasted two hours; that during the meeting the decedent appeared to fully understand the conversation, was not disoriented or confused, and was not acting under duress or undue influence. Logue further stated that the change of beneficiary form was properly executed in the manner required by Hartford. Finally, Logue asserted that she did not know and had never met Calaway. Calaway also asserted that Wilson acknowledged in her deposition testimony that she had no knowledge of how Calaway’s name came to be added to the decedent’s account and that she had nothing to dispute Calaway’s version of how Calaway’s name was added to the account. | sCalaway also supplemented her motion with a report from a forensic handwriting analyst concluding that the decedent “probably” wrote his name on the challenged change of beneficiary form for the insurance policy and on the bank’s account agreement.

Wilson responded to Calaway’s motion for summary judgment and filed her own motion for summary judgment against the bank. She argued that Calaway’s version of how her name was added to the account could not be possible because the account agreement was dated January 3, 2008, at a time when the decedent lacked the capacity to execute such a document.

On November 12, 2009, Wilson amended her complaint for a third time. The complaint included only two counts: a fraud count alleging that Calaway fraudulently added her name to the decedent’s account at the bank, and a count seeking to impose a constructive trust on the proceeds from the Hartford policy. The bank answered the amended complaint and denied the material allegations of the complaint. The bank also incorporated its prior answers and motion for summary judgment, and renewed its motion for summary judgment. Calaway also denied the material allegations of the complaint. She likewise incorporated her prior answers and motion for summary judgment, and renewed her motion for summary judgment.

By order entered on December 9, 2009, the circuit court granted the bank’s motion for summary judgment on Wilson’s fraud claim in her second amended complaint. The court | f,also granted Calaway summary judgment on the fraud claims and on the claim to the life insurance benefits.

On June 21, 2010, Calaway filed a motion for summary judgment on the claims contained in the third amended complaint.

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383 S.W.3d 919, 2011 Ark. App. 383, 2011 Ark. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-pulaski-bank-trust-arkctapp-2011.