Connie J. MONTIGUE, Appellant
Donna JONES, Appellee
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[NO. 66GPR-12-17], HONORABLE SHANNON L. BLATT, JUDGE
Law Firm, P.L.C., Van Buren, by: Frank W. Booth, Van Buren
& Gramlich, LLP, by: G.E. Bryant III "Trae," for
appellant, Connie Montigue, and the appellee, Donna Jones,
are sisters. Their father, Freddie Graham, died in 2011. In
2013, Montigue, individually and as the personal
representative of her fathers estate, filed a petition for a
declaratory judgment seeking to void several transfers of
real and personal property that Mr. Graham made to Jones in
the years and months before his death. Montigue alleged that
Jones applied undue influence on her father, who,
particularly in the months before his death, also lacked the
mental capacity to execute the transfers. Jones filed a
counterclaim for a judgment declaring that the transfers
extinguished any interest that Montigue had in her fathers
bench trial, the circuit court granted Joness motion for a
directed verdict and entered a final order denying Montigues
petition for a declaratory judgment. The order also granted
Joness counterclaim. We reverse the circuit courts judgment
and remand the case for further proceedings.
Starting in 1997, Mr. Graham executed a series of documents
that transferred, or purported to transfer, his
twenty-three-acre property in Lavaca, Arkansas, to Jones. The
first was a warranty deed that he executed on April 21, 1997.
Mr. Graham purportedly transferred the property to Jones in
exchange for "one dollar and other valuable
consideration." There is no indication, however, that
the deed was recorded.
Graham next executed a warranty deed on April 22, 2003. In
exchange for one dollar, the deed purported to transfer the
same twenty-three-acre property to himself and Jones as
"joint tenants with right of survivorship, and not as
tenants in common." Like the first, there is no
indication that this deed was recorded.
little over two years later, on October 5, 2005, Mr. Graham
executed a beneficiary deed providing that the
twenty-three-acre property would transfer to Jones at his
death. Unlike the previous two deeds, the beneficiary deed
was recorded the following day.
Jones followed the beneficiary deed with a last will and
testament, which he executed on January 19, 2007. The
document appointed Jones as the executor of Mr. Grahams
estate, and it bequeathed "whatever vehicle [he] own[s]
at the time of [his] death" to Jones. It also bequeathed
various items of personal property to Joness son, Brian,
including Mr. Grahams John Deere tractor, a utility trailer,
a four-wheel ATV, and "all guns which [he] own[s] at
[his] death." Significantly, Mr. Graham also bequeathed
all the rest, residue and remainder of [his] estate, whether
real, personal or mixed and wheresoever situated or to which
[he] may in any way be entitled at the time of [his] death to
[his] daughters, Donna R. Jones and Connie J. Montigue, to
share and share alike equally among the two of them.
Graham also executed a declaration in which he acknowledged
the prior beneficiary deed to Jones and stated the following:
The purpose of this [declaration] is to establish in writing
that it is my desire that Donna R. Jones hold a $ 50,000.00
interest in said real property in trust for my daughter,
Connie J. Montigue. That Donna R. Jones shall not be
obligated to pay any sum or interest to Connie J. Montigue
until such time as such real property is sold. Donna R. Jones
is instructed that upon said property being sold that she is
to pay to Connie J. Montigue the sum of $ 20,000.00 within a
reasonable period of time after closing. That Donna R. Jones
is directed to pay an additional $ 20,000.00 to Connie J.
Montigue one (1) year thereafter. Donna
R. Jones is further instructed to pay the sum of $ 10,000.00
to Connie J. Montigue one (1) year thereafter for a total
payment of $ 50,000.00 to Connie J. Montigue.
Graham apparently was hospitalized for a stomach infection on
or about December 8, 2008. While hospitalized, he executed a
durable power of attorney that appointed Jones as his
attorney-in-fact. The power of attorney authorized Jones
"to do any and all necessary acts concerning the
management of [Mr. Grahams] estate," as well as
"the right to approve or authorize medical treatment,
surgery, the giving of medication, or other related health
durable power of attorney was followed by a ratification that
Mr. Graham and Jones executed on December 15, 2008. The
ratification provides, in pertinent part, that
it is [Mr. Grahams] intent and that he has conferred with
his daughter, Donna R. Jones, and that she understands that
her ownership of [the twenty-three-acre property] by virtue
of the Beneficiary Deed is subject to the terms of this
Declaration and subject to the terms of the original
declaration as ratified by this agreement and that she
consents and agrees to the terms of the original Declaration
of Freddy R. Graham in so far as it pertains to this
particular real property and she agrees, understands, and
ratifies the terms of this ratification of such declaration
of Freddy R. Graham.
To-wit: Donna R. Jones shall be entitled to hold the real
property for so long as she desires, but that in the event
said real property is sold that she shall pay Connie J.
Montigue the sum of $ 50,000.00.
on December 15, Mr. Graham executed a series of beneficiary
deeds in Joness favor that transferred minerals and mineral
rights that he owned in Crawford, Sebastian, Logan, Johnson,
and Franklin Counties.
years later, on March 3, 2011, Mr. Graham suffered a stroke
and was hospitalized. Shortly thereafter, on March 11, Mr.
Graham executed two bills of sale that transferred to Jones
the personal property that he bequeathed in his will.
Specifically, he signed documents that transferred his 2009
Chevrolet pick-up truck to Jones and his four-wheeler,
tractor, guns, and crossbow to his grandson, Brian Jones.
Mr. Grahams release from the hospital, on March 18, Jones
filled out an application on his behalf for the Fountain of
Youth adult day-care facility in Fort Smith. On the
medical-history portion of the application, Jones explained
that while Mr. Graham had not been diagnosed with dementia or
Alzheimers disease, he nonetheless had suffered a "mini
stroke in the brain" that caused "cognitive issues
... and confusion." Jones wrote that Mr. Grahams mental
state was such that he "[did] not converse a lot unless
communicated with," and regarding Mr. Grahams abilities
for verbal communication, Jones noted that the staff of the
facility "might not get an answer relevant to the
question." Jones also indicated that the staff of the
facility needed to help Mr. Graham take his medication
because he did not understand their names, purposes, dosages,
or safety precautions. Jones further provided that the
Fountain of Youth staff was not authorized to disclose Mr.
Grahams health information to Montigue, Montigues two
daughters, or to Mr. Grahams ex-wife, Lila Cobb.
Finally, on April 4, 2011, Mr. Graham executed yet another
deed regarding his twenty-three-acre property in Lavaca. In
this warranty deed, Mr. Graham transferred title to the
property to Jones in fee
simple, and he revoked "any Beneficiary Deed, any
Declaration of Trust, or other document effecting (sic) title
to [the] property."
Graham died on November 20, 2011. Montigue was appointed
administrator of his estate on October 30, 2012. Almost a
year later, on July 13, 2013, Montigue filed a petition for a
declaratory judgment in which she alleged that an unexecuted
2005 draft of Mr. Grahams last will and testament
established that Mr. Graham intended to divide all his
property equally between his two daughters. Montigue further
alleged that Mr. Graham and Jones were in a fiduciary
relationship "under one or more powers of
attorney," and after 2005, Mr. Jones signed "a
number of instruments" while "acting under
[Joness] guidance and improper influence," resulting in
"the conveyance of essentially all of the estate ... to
Jones." According to Montigue, Mr. Grahams stroke in
2011 "[made] him even more dependent on [Jones] and
[placed] her in an even stronger position of influence"
when Mr. Graham executed the last warranty deed on April 4,
2011. For these reasons, Montigue sought a judgment declaring
any interest [Mr. Graham] may have had in any real estate in
2005 which was subsequently conveyed to [Jones] in
contradiction to the express intent of [Mr. Graham] that the
property be divided equally between [Jones and Montigue]
[was] void and that all of the real estate owned by [Mr.
Graham] or which [Mr. Graham] had an interest in 2005 at the
time the [unexecuted] will was drafted be declared to be a
part of the probate estate herein.
Montigue amended her petition for a declaratory judgment on
December 23, 2015, after discovering that Mr. Graham actually
executed a will in 2007. In addition to a judgment declaring
the property transfers void, Montigue sought an alternative
judgment declaring that Jones holds title to the assets in
trust and that Jones, according to Mr. Grahams testamentary
intent, "should distribute one-half of such assets [and
income] to herself and one-half ... to Montigue."
filed a counterclaim for a declaratory judgment on March 21,
2016. Jones alleged that "[o]n or about April 21, 1997,
[Mr. Graham] began finalizing his estate plan with a series
of deeds, beneficiary deeds, will, declaration, ratification,
power of attorney, and bill[s] of sale[.]" She asserted
that Mr. Graham "intended to avoid probate if
possible" and "engaged in significant efforts to
plan his estate accordingly." Jones further alleged that
Mr. Graham "already knew that [his twenty-three-acre]
property would pass to [Jones] at the time of his death with
[Montigue] having a monetary interest in the property if it
was ever sold," and "the only reason" for Mr.
Graham to execute the last warranty deed on April 4, 2011,
was "to revoke any interest [Montigue] may have in the
disputed property." Consequently, Jones requested a
judgment quieting title to her and declaring that the
warranty deed that Mr. Graham executed on April 4, 2011,
extinguished Montigues interest. Jones alternatively
requested a judgment declaring that Montigue was entitled to
only $ 50,000 after the sale of the property as Mr. Graham
provided in the December 15, 2008 ratification.
Shortly before trial, Montigue filed a motion for partial
summary judgment alleging that there was no genuine issue of
material fact as to whether Jones and Mr. Graham were in a
confidential relationship. Montigues motion was principally
based on Joness admission, in her answer to Montigues
initial petition for a declaratory ...