LAURA L. GRAHAM, INDIVIDUALLY AND AS BENEFICIARY OF THE SAMUEL R. LUDINGTON, JR., REVOCABLE LIVING TRUST AGREEMENT U/D DECEMBER 8, 2006APPELLANT
LANA LOUISE UNDERWOOD, TRUSTEE AND BENEFICIARY OF THE SAMUEL R. LUDINGTON, JR., REVOCABLE LIVING TRUST AGREEMENT U/D DECEMBER 8, 2006APPELLEE
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCV-15-409] HONORABLE JAMES O. COX, JUDGE
Richard F. Hatfield, P.A., by: Richard F. Hatfield, for
Jackson & Moll, PLC, by: Mark Moll and Kathryn A. Stocks,
Gladwin and Brown, JJ., agree.
F. VIRDEN, JUDGE
Laura Graham filed a complaint against her sister, appellee
Lana Underwood, to cancel amendments their now deceased
father, Samuel R. Ludington, made to a trust agreement.
Graham alleged that the amendments were the product of undue
influence by Underwood. Underwood filed a motion for summary
judgment. Following a hearing, the Sebastian County Circuit
Court granted summary judgment to Underwood and granted
Underwood's motion to strike affidavits that were
untimely submitted by Graham. Graham argues that the trial
court abused its discretion in not allowing further evidence
and that summary judgment was inappropriate. We affirm.
Background and Procedural History
(Sam) and Elizabeth Ludington have two children, Graham and
Underwood. On December 8, 2006, Sam executed a revocable
living trust agreement, which provided that, if Elizabeth
predeceased him, the daughters would receive equal shares of
his estate. On July 31, 2013, Sam amended the trust to make a
specific devise of all his stock in Eastern Tank Services,
Inc., and Johnson County Disposal Well Services, Inc., to
Underwood. Elizabeth died suddenly on August 22, 2013.
made a second amendment to the trust on December 19, 2013, to
direct that his Sandalwood Apartments property be sold and
the proceeds distributed in the following manner: one-half to
Underwood "outright and free of trust"; one-sixth
to the trustee of the Laura Lynn Graham Trust; and one-sixth
to the trustees of trusts set up for each of Graham's two
daughters. Sam died on April 3, 2014.
filed a complaint against Underwood on May 1, 2015, alleging
that Underwood had exercised undue influence over Sam to
amend the trust agreement. Specifically, she alleged that she
and Sam had a good relationship, that Sam was greatly
affected by his wife's death and was influenced by
Underwood to execute amendments changing the distribution
"basically all to [Underwood], " that Underwood was
"very forceful, and Sam was in deep distress over his
wife's death, as they were very close, " and that
Underwood "constantly misrepresented Laura's actions
to Sam and harassed him to execute the Trust
Amendments." Underwood answered the complaint, generally
denying the allegations, pointing out that Elizabeth was
still living at the time Sam made the first amendment, and
asserting that it was well known that Sam did not approve of
Graham's "lifestyle and some of her life
then moved for summary judgment and attached to her motion
deposition testimony of Graham and Polly Lawson, Sam's
business partner. In her response to Underwood's motion,
Graham submitted exhibits including, among other things,
deposition testimony from her, Underwood, Underwood's
husband Delbert, and Lawson; affidavits from Don and Debbie
Bradshaw; and memos and handwritten notes from attorney Randy
McGinnis, who had assisted Sam with his estate planning. On
May 4, 2016, a hearing was held on Underwood's motion.
Evidence Supporting and Opposing Summary Judgment
Graham's deposition, she said that Underwood had been
very forceful and controlling all of her life, that Underwood
had harassed their parents her whole life to get what she
wanted, that she nagged and bullied their parents, and that
she would yell, throw fits, and threaten to make their
parents' lives miserable.
conceded that Sam had told her that he wanted Underwood to
take over as the owner of Eastern Tank when he died and that
she knew why. She explained, "I have a master's
degree in English and I like to teach college. I like to
write books. He knows that. He understood my passion. She
wanted to run his company, Eastern Tank."
testified that she was not aware of any of the amendments to
Sam's trust at the time they were made. Graham said that,
although her mother had told her that Underwood was trying to
persuade Sam to change his will, she had no personal
knowledge that Underwood had unduly influenced their father.
Graham was asked,
Q: So you never saw [Underwood] do anything that you would
consider to be-to have unduly influenced [Sam] to sign the
first, second or third Amendment?
A: All I know is her behavior our whole lives. I don't
see why her behavior would have ...