CONNIE J. MONTIGUE APPELLANT
DONNA JONES APPELLEE
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[NO. 66GPR-12-17] HONORABLE SHANNON L. BLATT, JUDGE
Law Firm, P.L.C., by: Frank W. Booth, for appellant.
Medlock & Gramlich, LLP, by: G.E. Bryant III
"Trae," for appellee.
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 father's 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
validly extinguished any interest that Montigue had in her
bench trial, the circuit court granted Jones's motion for
a directed verdict and entered a final order denying
Montigue's petition for a declaratory judgment. The order
also granted Jones's counterclaim. We reverse the circuit
court's judgment and remand the case for further
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. Graham's
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 Jones's son, Brian,
including Mr. Graham's John Deere tractor, a utility
trailer, a four-wheel ATV, and "all guns which [he]
own[s] at [his] death." Significantly, Mr. Graham also
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. Graham's] estate," as well as
"the right to approve or authorize medical treatment,
surgery, the giving of medication, or other related health
The 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. Graham's] 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.
December 15, Mr. Graham executed a series of beneficiary
deeds in Jones's 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. Graham's 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 Alzheimer's disease, he nonetheless had
suffered a "mini stroke in the brain" that caused
"cognitive issues . . . and confusion." Jones wrote
that Mr. Graham's mental state was such that he
"[did] not converse a lot unless communicated
with," and regarding Mr. Graham's 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.
Graham's health information to Montigue, Montigue's
two daughters, or to Mr. Graham's ex-wife, Lila Cobb.
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. Graham's 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
[Jones's] guidance and improper influence,"
resulting in "the conveyance of essentially all of the
estate . . . to Jones." According to Montigue, Mr.
Graham's 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 that
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.
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. Graham's
testamentary intent, "should distribute one-half of such
assets [and income] to herself and one-half . . . to
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 Montigue's 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.
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. Montigue's motion was
principally based on Jones's admission, in her answer to
Montigue's initial petition for a declaratory judgment,
that she had power of attorney and "for several years
acted in a fiduciary relationship as an advisor to [Mr.
Graham]." The circuit court denied the motion.
case proceeded to a final hearing on September 19, 2017. On
direct examination by Montigue's counsel, Jones testified
that Mr. Graham was hospitalized for two days following his
stroke on March 3, 2011. She "took him to [her]
house" after he left the hospital, and he stayed in
Jones's home for three weeks. Jones also acknowledged
that she "had exclusive control" of her father at
that time, including when she made the statements concerning
Mr. Graham's diminished cognitive ability on the
application for the Fountain of Youth. She further testified
that she withheld authorization for the Fountain of Youth
staff to share Mr. Graham's health information with
Montigue, her daughters, and Ms. Cobb because Montigue and
the others "never came around [or] cared about him
thereafter testified about the circumstances surrounding Mr.
Graham's execution of the last warranty deed on April 4,
Q. Where was the-was the Warranty Deed Prepared? What was the
A. It was in Greenwood, Arkansas, at the Walter Law Firm.
Q. Okay. And were you present when the deed ...