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Yarbrough v. Powell

Court of Appeals of Arkansas, Division IV

April 8, 2015

TERRY ALLEN YARBROUGH, APPELLANT
v.
JANE POWELL, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION. NO. 60CV10-3405. HONORABLE MACKIE M. PIERCE, JUDGE.

James Howard Smith, for appellant.

Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellee.

ROBERT J. GLADWIN, Chief Judge. GLOVER and HOOFMAN, JJ., agree.

OPINION

Page 330

ROBERT J. GLADWIN, Chief Judge

Appellant Terry Yarbrough appeals from an order denying his posthearing motions to dismiss the complaints filed against him by his sister, appellee Jane Powell. Jane cross-appeals from the circuit court's denial of her motion for attorney's fees. We dismiss the appeal and cross-appeal for lack of a final order.

Terry and Jane are the children of the late Betty Yarbrough. Before Betty died, she and Jane owned and operated Bee Jay's Hairstyling Academy, a cosmetology school. In 2008, Betty and Jane severed their business relationship, though Jane retained her forty-percent interest in the company. Betty then brought Terry into the business and amended her living trust to distribute her sixty-percent ownership to him upon her death. The trust named Terry and his brother Denzil as trustees upon Betty's death and, among other

Page 331

things, provided for distribution of certain real property.[1]

Following Betty's death in 2009, Jane sued Terry for an accounting of the trust's assets, distributions, and expenses, in particular with regard to the real property. She later filed a supplemental complaint, adding Bee Jay's as a defendant and accusing Terry of spending company funds for personal matters and failing to pay Jane her share of the company's profits. Jane asked for an accounting; for Terry's removal as an officer; for appointment of a receiver; and for damages. Terry, who was represented by counsel at the time of these filings, answered that a trust accounting was underway and that the allegations against him with regard to Bee Jay's were untrue.

In November 2011, Terry's attorney withdrew from representation. Shortly thereafter, Jane propounded requests for admission to Terry, asking that he admit, among other things, to stealing money from Bee Jay's, inflating expenses, and using company money for personal expenses, loans, and vacations. Terry, who was proceeding pro se, did not answer the requests, and Jane moved that they be deemed admitted. The court subsequently did so.

Around this same time, Jane filed a " Second Supplemental Complaint," alleging that Terry had signed a document releasing a mortgage that secured a loan to him from Bee Jay's. Jane asked that the release be set aside and for various other relief. Neither Terry nor Bee Jay's answered the second supplemental complaint, and Jane asked for a default judgment thereon.

After several hearings, the circuit court granted Jane a default judgment on her second supplemental complaint; granted her a $400,000 judgment against Terry based on Terry's operation of Bee Jay's; found that Jane was entitled to an accounting; dissolved Bee Jay's; and appointed a receiver to wind up the company. The court also ...


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