ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

ERNESTINE SCHONES

APPELLANT

V.

SAMUEL W. FRANCE and MELVA FRANCE KOVACH

APPELLEES

CA 00-1163

May 2, 2001

APPEAL FROM THE CHANCERY COURT OF WASHINGTON COUNTY, ARKANSAS

[E-99-1784]

HON. WARREN KIMBROUGH (Ret.),

CHANCERY JUDGE ON ASSIGNMENT

AFFIRMED

This is an appeal from a summary judgment. Appellant, Ernestine Schones, argues that justiciable issues of material fact as to the capacity and competency of her mother, Lenora France, to validly execute a warranty deed with the proper knowledge and intent to dispose of her property remained, and therefore the trial court erred in granting summary judgment in favor of appellees. We disagree and affirm the chancery court in all respects.

Appellant and the appellees, Samuel France and Melva France Kovach, are all children born of Lenora and Lemuel France. Additionally, Lemuel Max France, James Kelly France, and Earnest France are children of the Lenora and Lemuel France union. Rex France is a child of Lemuel France, from a previous marriage. Lemuel's will, executed on April 18, 1991, specifically devised all of his property to his wife Lenora France, in fee simple. However, if Lenora France were to predecease Lemuel, or they were to die simultaneously, all of his property was to be divided between Samuel France and Melva France Kovach, per stirpes. Following the death of LemuelFrance on November 25, 1991, Lenora France became the sole owner of approximately ninety acres of land near the town of Winslow, Arkansas.

Lenora France executed her last will and testament on March 4, 1992. She acknowledged that she had six children with her deceased husband, all being over the age of majority. To four of her children, Lenora Max France, James Kelly France, Ernest France, and appellant Earnestine France, she bequeathed one dollar ($1.00) each. She left all of her real property to two of her adult children, appellees, Samuel France and Melva France Kovach. On October 21, 1992, in an effort to avoid probate, Lenora France executed a warranty deed conveying her property to Samuel France and Melva France Kovach, as joint tenants with the right of survivorship, with a life estate reserved in favor of herself. The deed was filed of record with the clerk in Washington County, Arkansas on October 21, 1992. On July 4, 1997, Lenora France passed away.

Attorney Truman Smith drafted the warranty deed in question. Smith had been employed for several years by Lenora and Lemuel France to handle various legal matters for the couple. He testified that he found no mental deficiency or lack of knowledge or desire on the part of Lenora France when she came into his office to see him about drafting the warranty deed of her property to avoid probate.

Appellant alleged, in a complaint filed on October 15, 1999, that appellees exercised undue influence and coercion upon Lenora France, in the execution of the warranty deed. Specifically, the appellant argued that the appellees transported Lenora France to the attorney's office and influenced her actions in connection with the deed, and thus the transfer of property was not freely and voluntarily completed by their mother. In response, on January 19, 2000, appellees denied the allegations of coercion and undue influence and counterclaimed for title to the property transferred to them (by Lenora France in the warranty deed) be quieted in them. On March 5, 2000, appelleesfiled a motion asking the chancery court to dismiss appellant's complaint pursuant to Rule 12 of the Arkansas Rules of Civil Procedure, and stating that the appellant's claim was barred by the statute of limitations. In the alternative, appellees asked the chancellor to grant their summary judgment motion upon a review of the pleadings, discovery, briefs of counsel, exhibits, depositions of the parties, and the affidavit and deposition of attorney Truman Smith. The appellees also asked the chancery court to quiet title to the property concerned in the two of them, and order appellant to pay the fees and costs associated with the litigation.

The chancery court granted the motion for summary judgment, relying heavily on the language in Lemuel's and Lenora's 1991 and 1992 wills and the testimony of Truman Smith. He also awarded costs to appellees in the amount of $500.00. From the chancellor's grant of summary judgment, comes this appeal.

The appellees, as the moving parties below, carried the burden of proving that there was no issue of material fact to be litigated. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998). However, once the party bearing the burden had established a prima facie entitlement to a summary judgment with affidavits, depositions, and other supporting documentation, the party resisting the motion must have demonstrated by meeting proof with proof that there was a genuine issue of material fact for the court to consider. Flentje v. First Nat'l. Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). On appellate review, this court must determine if summary judgment was proper based on whether the evidence presented left a material question of fact unanswered. While once considered a drastic remedy, we note that summary judgment is now viewed as a tool in the trial court's efficiency arsenal. Flentje, supra.

In response to appellant's first claim, appellees correctly assert that the burden of provingmental incapacity is borne by the party alleging mental incapacity. Theil v. Mobley, 233 Ark. 167, 265 S.W.2d 507 (1954). In assessing whether or not appellant carried her burden, it is important to note that mental capacity must be adjudged at the time the instrument was executed. Id.

First, Sam France testified that his mother, who did not drive, called him and asked that he and his sister Melva take her to the law office of her family attorney, Truman Smith, to have a warranty deed prepared. Smith testified that Lenora was very clear that she wanted the warranty deed executed in order to avoid probate, and understood the ramifications of such action. Additionally, Smith testified that Lenora was comfortable with a life estate in the property. Sam France testified that his mother told him that she had excluded certain children intentionally, based on her belief that they had treated her poorly and her disapproval of some of their life choices. Notably, Smith testified that Lenora had "her wits about her and was fully aware of what she was doing and why." He testified further that "She showed no signs of senile dementia and she did not appear to be under undue influence or emotional pressure of any kind." When Smith was asked if there was anything that led him to question Lenora's competency, he replied "No." There was no medical testimony or evidence offered to support a diagnosis of senile dementia. When appellant was asked in her deposition if she could supply evidence to support her accusation, she responded that "the mother I knew would have never done what she did."

After reviewing appellant's allegations that her mother lacked the requisite mental capacity to execute a warranty deed, we find that appellant failed to meet "proof with proof" and therefore, failed to carry her burden of proof relating to her complaint of lack of mental capacity.

Next, appellant asserts that once she proved appellees procured the deed the burden shifted to them to prove that they did not unduly influence or coerce Lenora. However, facts reflected that appellant failed to prove that appellees procured the deed. While she did establish that appelleesdrove their mother to the law office and were present when Lenora executed the deed in their favor, this is not procurement. A beneficiary who is merely present when a will or deed1 is drafted does not, by his presence, procure the will or deed. Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971). Additionally, the attorney, Smith, testified that Lenora "did not appear to be under undue influence or emotional pressure of any kind." Appellant has failed to offer any proof in support of her undue influence and coercion allegations, and thus the chancellor correctly found that no issues regarding undue influence or coercion remained unanswered.

Finally, the final remaining issue of testamentary intent will not be addressed on appeal, because it was not properly raised below. Appellant did not plead a lack of testamentary intent as grounds for challenging the warranty deed. It is well settled that an argument that is not raised at the trial court level will not be considered for the first time on appeal. B.A.R. Enterprises, Inc. v. Palin Manufacturing Company, Inc., 312 Ark. 500, 850 S.W.2d 322 (1993). However, had we considered appellant's allegation that it was her mother's intent that the property be divided between all of the children, we would have found no error.

Appellant specifically stated that it was her mother's intention that once the deed had been executed in favor of appellees that they were to share the property equally with their siblings. Aside from the fact that this assertion is counter-indicated from the warranty deed, testimony from Sam France, and from the prior wills, it is irrelevant. Appellant's own argument states that the mother intended to execute the deed in favor of appellees. Even if the mother would have liked for the appellees to share the property with their siblings, without a constructive trust imposed against them, they are not legally required to do so. Further, attorney Smith testified that Lenora fully understoodthe ramifications of executing a warranty deed.

We find that the evidence presented left no material question of fact unanswered and that the chancery court correctly granted summary judgment.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Although procurement most often arises in the context of a will, this doctrine can be extended to a deed as well. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981).