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SIDES v. HAYNES

March 16, 1960

CHARLOTTE ISABEL SIDES, PLAINTIFF,
v.
JAMES T. HAYNES AND J. GUY HENDERSON, INDIVIDUALLY, AND JAMES T. HAYNES AND J. GUY HENDERSON, CO-EXECUTORS OF THE ESTATE OF N.J. HENDERSON, DECEASED, DEFENDANTS.



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 Tennessee.

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
  common."

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:


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