The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is the third in a series of actions in which the
plaintiff, Charlotte Isabel Sides, seeks to gain possession of a
motel located in Hot Springs, Arkansas, and known as "King Arthur
Courts." The case is now before the court on the defendants'
motion for summary judgment filed February 25, 1960, pursuant to
Rule 56, Fed.R.Civ.P., 28 U.S.C.A., on the ground that all
matters embraced in the plaintiff's complaint have been
adjudicated, and such adjudication is res judicata.
Upon the filing of the motion for summary judgment the parties
were advised by letter dated February 26, 1960, written by the
Judge of this court, that the court desired to dispose of the
motion at the earliest possible time, and requested the attorneys
for the defendants to proceed at once to prepare and serve brief
of the defendants in support of the motion on the attorney for
the plaintiff, and that if the attorney for plaintiff desired to
file a brief in opposition to the motion that he proceed to do so
within ten days after receipt of the brief from the attorneys for
the defendants. They were advised further that in the event the
attorneys for the defendants did not desire to file a brief, they
should advise the court and the attorney for the plaintiff so
that he could proceed to file brief of plaintiff.
To provide a procedure for the expeditious consideration and
determination of motions filed in the various divisions of the
Western District of Arkansas, the court on February 8, 1949,
adopted Local Rule 8, which provides that unless otherwise
ordered, motions shall be submitted and determined upon the
record and motion papers. The Rule further provides that at the
time of filing a motion, the movant, if he desires to file a
brief in support of the motion, shall serve on the opposing party
and file with the court such brief simultaneously with the filing
of the motion. The opposing party is required to serve and file
within ten days from the time a copy of the motion and supporting
papers have been served upon him his statement and reasons in
opposition to the motion, along with citation of authorities upon
which he relies.
The attorneys for the defendants advised the court and the
attorney for the plaintiff on February 26 that they did not
desire to file a brief in support of the motion. More than ten
days have expired since the attorney for the plaintiff received
such information, and he has not filed any response and brief in
opposition to the motion, and the court under paragraph (c) of
Local Rule 8 is authorized to proceed to the consideration and
disposition of the motion.
The following facts are disclosed by the pleadings and
attachments thereto, and are not in dispute.
N.J. Henderson was the owner and operator of King Arthur Courts
at the time of his death on March 5, 1957. Mr. Henderson died
testate and domiciliary administration of his estate was
instituted in the County Court of Lauderdale County, Tennessee.
Ancillary proceedings were instituted in the Probate Court of
Garland County, Arkansas, on March 20, 1957. On March 25, 1957,
the will was admitted to probate and letters of administration
were issued to the defendants, James T. Haynes and J. Guy
Henderson, as co-executors of the estate of N.J. Henderson,
deceased. The co-executors are citizens and residents of
Item six of N.J. Henderson's will provides:
"I hereby will, give and devise unto my faithful
and loyal friend, Charlotte Isabel Sides, in
appreciation of the devotion and loyalty she has
shown to me, my Motel located on and at 1501-03
Central Avenue, Hot Springs, Arkansas, known as `King
Arthur Courts', for and during her natural life with
remainder in fee at her death to my five children,
namely, Nell H. Portis, Ruth H. Smith, Ella Mae H.
Escue, Roland Henderson and Sammy Henderson. To have
and to hold said above described motel property,
including an adjoining vacant lot on the West Side
thereof, unto the said Charlotte Isabel Sides, for
and during her natural life and upon her death to the
full and absolute fee simple title in and to the same
to vest in my said children, Nell H. Portis, Ruth H.
Smith, Ella Mae H. Escue, Roland
Henderson and Sammy Henderson as equal tenants in
Prior to the death of N.J. Henderson the plaintiff, Charlotte
Isabel Sides, a resident and citizen of Hot Springs, Arkansas,
had been the manager of the motel. Immediately upon the death of
Mr. Henderson, the defendants, in their capacity as co-executors
of the estate under the will of decedent, secured possession of
the motel and have operated it continuously since that date. The
plaintiff has received no rents or profits from the operation. On
May 7, 1957, the defendants as co-executors obtained an order
from the Probate Court authorizing them to continue operation of
the motel for a period of three months from April 18, 1957.
Thereafter, on September 17, 1958, December 30, 1958, March 30,
1959, June 22, 1959, and September 22, 1959, the co-executors
filed with the court their petition for authority to continue the
operation of the motel for periods of three months at a time.
On May 13 1957, the defendants as co-executors were advised by
registered letter from the District Director of the Internal
Revenue Service in Nashville, Tennessee, of a tax claim against
the estate of N.J. Henderson, deceased, in the amount of
$343,663.28. The letter also advised the defendants of their
liability as co-executors. On April 2, 1958, the defendants were
advised in more detail of the tax liability of the decedent.*fn1
On June 12, 1958, the plaintiff by her attorneys, Sam L.
Anderson and Hendrix Rowell, filed a petition in the Probate
Court of Garland County seeking reimbursement for the use and
enjoyment of the motel property by the defendants; attorney's
fees; a general accounting; punitive damages; attachment of a
bank account; and possession of the motel. This action was
directed against the defendants individually and as co-executors.
On July 9, 1958, the Probate Court of Garland County held a
hearing on the merits of the petition and response thereto. Oral
testimony was introduced and exhibits were received in evidence.
Following the hearing, the Probate Court made and entered an
order providing, inter alia:
"It is, therefore, by the court, considered,
ordered, adjudged and decreed that James T. Haynes
and J. Guy Henderson, co-executors of the estate of
N.J. Henderson, deceased, were and are rightfully in
possession and entitled to retain possession
of the real and personal property known as `King
Arthur Court', and they are hereby authorized and
directed, to continue the operation of the business
known as `King Arthur Court' for the use and benefit
of the estate for an additional term of three months
from and after July 2, 1958, and to report their
actions to this court; that James T. Haynes and J.
Guy Henderson be dismissed as parties to said
petition as this court has no jurisdiction over said
individuals, and all allegations of the petition
filed on behalf of Charlotte Isabel Sides are
dismissed as to the said James T. Haynes and J. Guy
Henderson; that all allegations contained in the
petition filed by Charlotte Isabel Sides relating to
damages against James T. Haynes and J. Guy Henderson,