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Williamson v. Williamson

Court of Appeals of Arkansas, Division IV

April 4, 2018



          Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellee.


         Appellant Brady Williamson ("appellant" or "son") appeals from the Searcy County Circuit Court's final judgment entered after a bench trial in favor of appellee John J. Williamson ("appellee" or "father"). On appeal, appellant contends that (1) appellee failed to make a prima facie case during his case-in-chief; (2) the trial court impermissibly shifted the burden of proof to appellant; (3) the judgment is not supported by the weight of the evidence; (4) the trial court erred by allowing recovery for funds never included in the complaint; and (5) the trial court erred in granting appellee attorney's fees and costs. We affirm, in part, and reverse and remand, in part.

         Appellee lives in Saint Joe, Arkansas. Appellant is appellee's son and lives in Oxford, Mississippi. Father was arrested for terroristic threatening and was detained in the Searcy County Law Enforcement Center. It is undisputed that father subsequently executed a durable power of attorney on September 9, 2010, to give son the right to act on his behalf during this period. Subsequently, a judgment of acquittal by reason of mental disease or defect was entered in that case on October 1, 2010, and father was committed to the Arkansas State Hospital, where he was later released in November 2010.

         After his release, father alleged that son had breached his fiduciary duty under the durable power of attorney and had converted father's money and property for his personal use. Therefore, father filed his complaint on September 9, 2013, for breach of fiduciary duty and conversion. In his complaint, he sought a judgment for moving expenses in recovering some of his property; unauthorized checks that were given by son to son's wife; unauthorized disposition of his retirement benefits; unauthorized disposition of cash funds taken from his safe; unauthorized disposition of firearms, ammunition, and weapons that belonged to him; attorney's fees and costs; and punitive damages.

         Son filed his answer generally denying the allegations. The events took place in late 2010, and the trial commenced almost five years later. Discovery disputes and other matters arose. A bench trial was held over an eighteen-month period on May 15, 2015, February 24, 2016, and October 9, 2016.

         Deputy Lang Holland testified that when father was arrested, several firearms, accessories, and ammunition were taken into custody by the sheriff's department. Deputy Holland testified that because father refused to have his firearms sold at public auction, his son was called to retrieve the items.

         Father testified and admitted that he gave his son a power of attorney. Father's home was a cabin located on fifteen acres in Saint Joe, Arkansas. Father further testified that he gave his son specific verbal instructions to store his personal belongings in "PODs"; take care of his dog; pay his bills, including home insurance; and list his home for sale for $150, 000. Father testified that he had been incarcerated and detained at the hospital from May through November 2010, for a total of six months. According to father, after his release, son picked him up from the hospital but told father that father could not return to his cabin because son had rented the cabin in Saint Joe to some hunters. Father stayed with his great aunt in Mississippi and later in a trailer on her lot. Father discovered that his belongings had been moved to son's home in Oxford, Mississippi, son had changed the mailing address on his banking accounts to his personal address, son had written checks from father's accounts to son's wife, and son had retained two of his retirement checks and social security checks that totaled $11, 382. Therefore, father revoked the durable power of attorney on November 17, 2010. Furthermore, father testified that he paid expenses to retrieve his belongings from Mississippi from his son. Father explained that some of his property was still missing, including $900 in cash that was stored in his gun safe and his firearms.

         On cross-examination, despite alleging that some of his social security checks were converted, father admitted that he did not have the bank statements from that time. However, a bank employee had provided him with pictures of some of the personal checks that son had written to son's wife. Son's counsel subsequently objected at one point to any testimony regarding the social security checks as the complaint had not specifically alleged that son had converted those moneys. Counsel explained that had there been such allegations, there would have been further discovery as to the social security checks. Father's counsel responded that it would move to "amend the pleadings to conform with the proof." The trial court ruled that it would take the objection and motion to conform with the proof under advisement "as we proceed" and allowed father to put forward any evidence and testimony he wished regarding the subject. Father testified that he had received the same amount, $1897, from the Social Security Administration every month that was directly deposited. However, father testified that after he was incarcerated, "they were given, sent, mailed to [appellant]" instead for "about seven months." Father additionally testified that the Social Security Administration told him that his checks were being sent to son and that it was not until February 2011 that his social security benefits were once again sent to him.

         Regarding the condition of the cabin, father admitted that there were only plywood subfloors and that the cabin was unfinished. Father testified that "the hall and the kitchen and living room [only had] subfloor. And the stairs, well, they were bare and they put carpet on it." When asked whether he would agree that the cabin was unfinished, appellee responded, "[e]verything but the floors . . . [s]ome floors."

         Son testified and admitted that he had changed the mailing addresses on father's bank accounts so that they would be mailed to his own residence in Mississippi. He testified that father told him to take all of his personal effects from the basement in the cabin to his home. Son testified that he had paid the home insurance and repaired and remodeled his father's cabin as he was requested to do by his father. Son further admitted that there was $900 in cash in the safe and that after he renovated the cabin, he had rented the cabin for $200, but he stated that he did not deposit either amount in the bank. Son explained that he had the retirement checks mailed to him, but he did not believe that he contacted the Social Security Administration. Son additionally admitted that several checks were written to his wife, but son explained that the moneys were spent on the renovation and repair of father's cabin. However, son did not have any receipts to support his claim that the checks were spent on cabin-renovation expenditures because he claimed that he gave the receipts to appellee back in 2010 or early 2011. Instead, son testified that he had bank statements that contained some form of documentation. Appellee's counsel objected and requested a continuance since that documentation had not been provided in discovery. The trial court granted a continuance and instructed both parties to supplement discovery, including any further information regarding the social security checks.

         Trial resumed on February 24, 2016. Father rested his case without any further testimony or evidence, and son moved for a directed verdict.[1] The trial court denied the motion, and the trial continued.

         Son called Andrea Val Matty as a witness. Matty testified that she operates Buffalo River Cabins. Her parents sold father the property on which his cabin was built, and she was familiar with the cabin. Matty testified that son had asked her whether she would consider cleaning the cabin when father was not there. She thought that father was either in jail or in Little Rock at the time, but she did not know. Matty testified that the cabin was "filthy" and "disgusting" at that time and that she had cleaned the cabin. More specifically, she testified that there was junk everywhere, brown paper on the windows, no flooring except the plywood subfloor, and a lack of home furnishings. Photographs were introduced that were taken after son cleaned, remodeled, and renovated the cabin. Matty testified that the photographs introduced by son accurately reflected the condition of the cabin after the renovations and remodeling.

         Vincent Neil Johnson testified that he had previously done carpentry work for father. He had completed the exterior building, roof, siding, windows, doors, and the basement. However, Johnson testified that when he left, the cabin was ready for the next set of contractors to complete the plumbing, sheet rock, and flooring.

         Son testified in his case-in-chief that when father was incarcerated, his relationship was good with father. Son claimed that father gifted him all of his tools and firearms. He additionally testified that father told him to pay the insurance and to prepare the cabin to either be sold or rented. Son testified that he and his wife cleaned and remodeled the cabin. According to son, they installed hardwood flooring and carpeting, painted, made curtains, installed plumbing, and added furnishings. Although he did not take any photographs of the cabin before or during the remodel, son provided several photographs depicting the finished cabin. Son testified at length regarding all of the furnishings and materials that he had purchased to complete the cabin. Although he was unable to produce the original receipts for the furnishings, he provided his handwritten list of what he purchased and the associated costs. Son testified that he had his bank statements that showed purchases at gas stations and at various stores and withdrawals from ATMs that he claimed were associated with the improvements to father's cabin. Son further testified that he had given all the original receipts to appellee in a manila envelope years earlier without keeping any copies. However, son was able to provide email documentation from eBay that stated that a memory foam mattress costing $299.99 was shipped. Another email stated that a "1911 Arkansas Color Map Missouri map on back" had been won on eBay. Son claimed that those items were purchased for the cabin.

         Son explained that he paid cash to get better deals on the furnishings and renovations. Therefore, he wrote several checks to his wife from father's account so that she could deposit them in their personal account to pay for items. The September 13, 2010 check written to appellant's wife for $3, 572 contains a handwritten notation on the memo line that the check was for "Flooring, Beds, Bedding." The September 18, 2010 check for $5, 000 states that it was for "Home Furnishings - see list." The September 30, 2010 check for $1, 750 states that it was for "Carpet/Upstairs Bath install." The October 31, 2010 check for $200 does not contain any notation on the memo line. The November 2, 2010 check for $400 states that it was for "heater supplies." Finally, the November 11, 2010 check for $400 states that it was for "Finish Home Ready to Rent/Sale."

         Regarding father's claim that checks were missing, son testified that he remembered giving father two checks back. However, he was not sure whether the checks were from father's social security or retirement, but he was certain that they would not have been deposited into his personal account. Son provided bank statements from his father's account that showed that there were checks deposited from the U.S. Treasury for social security into father's bank account. Those bank statements show that five separate social security check deposits were made into father's bank account during a time period spanning from May 12, 2010, to September 15, 2010. Son denied that he contacted the Social Security Administration and advised them to stop depositing or mailing father's social security checks to him as father alleged.

         On cross-examination, son testified that the rent he obtained from renting the cabin was deposited into his personal account but was used toward remodeling father's cabin. He explained that father told him to take the $900 in cash that was contained in the gun safe and to use it. He additionally claimed that father was not permitted to possess any of his firearms and admitted that he took the firearms to his home in Mississippi. Regarding the retirement checks, a handwritten notation was introduced in which father had written "Entergy replaced 4 checks of 6 checks. They were sent by mail to Brady [son]. They were not directly deposited. Brady spent 2. Each Entergy retirement checks were $1197 per month."

         At the close of trial, the parties agreed to submit written closing arguments and motions. In father's position statement, he reiterated the same arguments presented at trial and alleged that he was entitled to a judgment of $34, 451.46 in damages and $8, 751.07 in attorney's fees and costs.

         Son filed a written motion for dismissal. In his motion, he argued that the durable power of attorney authorized him to act on his father's behalf and generally that he had not acted outside the scope of the power of attorney and did not self-deal with his father's property.

         The trial court issued a letter opinion stating that it was finding in favor of father and that it was also awarding attorney's fees and costs but declining to award any punitive damages. The letter opinion did not state the amount of damages to be awarded. The trial court further stated,

The Court finds that under the totality of all of the circumstances and the testimony from the witnesses, the Plaintiff has established a breach of the fiduciary duty created by the power of attorney. While counsel for Defendant makes the best case possible under the circumstances, many of the facts and circumstances set out in her Memorandum Brief in Support of Motion illustrate many matters either not addressed or for which no reasonable explanation is offered. Given the scrutiny given the parties' relationship under ...

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