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                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No. CV-14-711



                                                    Opinion Delivered   March 4, 2015

  CARL BEAVERS, SR.                      APPEAL FROM THE VAN BUREN
                               APPELLANT COUNTY CIRCUIT COURT
                                         [NO. PR-2011-69]
  V.
                                       HONORABLE H.G. FOSTER, JUDGE
  TINA WILLIAMS, as executrix of the
  Estate of Emma Gene Shipp, deceased  REVERSED AND REMANDED
                              APPELLEE

                           BRANDON J. HARRISON, Judge

       Carl Beavers, Sr. appeals a Van Buren County Circuit Court order that granted

summary judgment to Tina Williams and awarded her $11,895 in attorney’s fees as a Rule

11 sanction. Because the parties’ dispute over Emma Gene Shipp’s last will and testament

presents genuine issues of material fact that need to be decided by a fact-finder, we reverse

the summary judgment and remand. We also reverse the Rule 11 sanction because the

circuit court abused its discretion in finding a violation on this record.

                                        I. Background

       Emma Gene Shipp lived in Clinton, Arkansas before she died in 2011. She had no

children, and her husband predeceased her. Shipp’s 2007 will names two beneficiaries:

her brother Carl Beavers, Sr. and her caregiver Tina Williams. The circuit court admitted

Shipp’s will to probate and appointed Williams as executrix.                Soon after, Beavers



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petitioned the court to set the will aside, alleging that Williams had exercised undue

influence over Shipp.

       In August 2012, Williams moved the court for Rule 11 sanctions, attorney’s fees,

and costs, because Beavers’s petition to set the will aside had “no basis in fact.” Beavers

countered, among other things, that Williams failed to respond to his amended petition to

set aside the will and that the Rule 11 motion appeared to be “retaliatory in nature.”

       More than one year later, in October 2013, Williams moved for summary

judgment.    In due course, the court convened a hearing on Williams’s motions for

summary judgment and Rule 11 sanctions. In April 2014, the court granted Williams

summary judgment against Beavers’s petition; it also found a Rule 11 violation and issued

a sanction in the form of $11,895 in attorney’s fees. Beavers appeals that order.

       He has raised these points on appeal:

       • Summary judgment was improper because genuine issues of material fact
       exist on whether Shipp was unduly influenced to will her estate to Williams.

       • The circuit court abused its discretion in granting Williams’s Rule 11
       motion because Williams offered no evidence to support it.

       • The court abused its discretion in finding a Rule 11 sanction and awarding
       nearly $12,000 in attorney’s fees because it did not explain how the fee
       amount was determined and why it was appropriate.

                                 II. The Summary Judgment

       To support her motion for summary judgment, caregiver Williams filed seven

affidavits. All the affiants stated that they knew Shipp personally. The gist of these

affidavits—which are rather rich in testimonial detail—was that Shipp met with a lawyer

alone to make her will; that her express wish was to give the bulk of her estate to Tina


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Williams so long as Williams remained her caregiver until Shipp’s death; that Shipp had a

strained relationship with her brother Carl Beavers, Sr.; that Shipp was a strong-willed,

capable woman who never cowed to anyone and never lost her mental capacity; and that

Shipp was not unduly influenced by Tina Williams. In Williams’s view, Beavers’s petition

to set aside the will “constitutes a cynical attempt . . . to obtain the assets of his sister’s

estate through intestacy[.]”

       In response, Beavers presented five affiants: Shipp’s sister, two cousins, and two

childhood friends.    These affidavits—which admittedly lack the factual precision and

narrative thrust of Williams’s affidavits—essentially assert that Shipp feared being alone

with no one to provide for her daily care; that Williams took Shipp to “obtain her will

and assisted in its procurement;” and that the will was a “product of some undue influence

exercised during extended private times when only the two of them were together.”

Beavers maintained that his affidavits create a genuine issue of material fact on undue

influence.

       A circuit court should only grant summary judgment when it is clear that there are

no genuine issues of material fact to be litigated and the moving party is entitled to

judgment as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268

S.W.3d 885 (2007). Once a moving party has established a prima facie entitlement to

summary judgment, the opposing party must meet proof with proof and demonstrate the

existence of a material issue of fact. Id. On appeal, we determine if summary judgment

was appropriate based on whether the evidentiary items presented by the moving party in

support of its motion leave a material fact unanswered. Id. This court views the evidence

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in the light most favorable to the party against whom the motion was filed, resolving all

doubts and inferences against the moving party. Id.

       With the well-known standard stated, we turn to Arkansas law relevant to the

petition to set the will aside. The party contesting the validity of the will has the burden

of proving by a preponderance of the evidence that the testator lacked mental capacity

when the will was executed or that the testator acted under undue influence. Looney v.

Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). But if a beneficiary under the will

is the one who actually drafts or procures the will, then the beneficiary must prove beyond

a reasonable doubt that the will was not the result of undue influence and that the testator

had the mental capacity to make the will. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d

701 (1979). Simply put, the person contesting the will based on undue influence normally

bears the burden of proof, but a rebuttable presumption of undue influence is created if

the person contesting the will can prove that the beneficiary drafted or procured the will.

Bell v. Hutchins, 100 Ark. App. 308, 268 S.W.3d 358 (2007).

       Undue influence is the “malign influence which results from fear, coercion, or any

other cause that deprives testator of his free agency in the disposition of his property.”

Looney, 310 Ark. at 711, 839 S.W.2d at 533. To prove undue influence, the moving

party must show an influence over the donor such that it overcame the donor’s free will

and caused the donor to make a donative transfer that he or she would not otherwise have

made due to fear, fraud, or overreach. See Carpenter v. Layne, 2010 Ark. App. 364, 374

S.W.3d 871. Undue influence is not usually proven directly and may be inferred from

facts and circumstances. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). Arkansas

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courts look at many factors when deciding undue-influence issues, including the testator’s

physical and mental condition, the opportunity of the beneficiary “to mold the mind of

the testator to suit his or her purposes,” the existence of suspicious circumstances, and

whether the property disposition is a natural one. See id.; see also Pyle v. Sayers, 344 Ark.

354, 39 S.W.3d 774 (2001). Cases involving undue influence frequently depend on the

credibility of witnesses. Pyle, 344 Ark. at 361, 39 S.W.3d at 779.

       The question here is whether the summary-judgment record, on a plenary review,

supports the circuit court’s order that no material factual dispute exists as to whether Shipp

was unduly influenced to will her estate to caregiver Williams. Viewing the evidence in

the light most favorable to the losing party (Beavers), and without weighing the evidence

or determining the affiants’ credibility, we conclude that Beavers has identified some

genuine issues of material fact that prevent summary judgment.

       Beavers argues that there is a material-fact dispute on whether “Shipp’s

overwhelming fear of being abandoned as her health declined—a fear she confided to at

least five of her closest friends and family members—caused her to trade her estate for

Williams’s promise to care for her.” The affidavits Beavers filed support this point. They

all essentially state that Shipp had a sizeable “fear of being left alone” without a caregiver.

Shipp’s cousin, Veda Trawick, also stated in her affidavit that her personal observation of

Shipp’s physical and mental condition raised questions for her about the circumstances

surrounding the making of the will. These statements create a fact question about Shipp’s

susceptibility to undue influence.




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       The affidavits raise another factual dispute on undue influence: the opportunity to

exert undue influence. Beavers argues that Williams’s status as a caregiver and car driver

for Shipp provided an opportunity to exert undue influence. Shipp’s sister, Betty Ruth

Bonds, stated in her affidavit that “[a]s far as I know, after Emma Gene Shipp hired

[Williams], no one took Emma Gene Shipp anywhere except Tina Williams . . . Williams

took Emma Gene Shipp to obtain her will.” Affiant James Beavers also claimed that

Williams exerted undue influence over Shipp “during extended private times when only

the two of them were together.” Betty Ruth Bonds characterized Williams as becoming

“very bossy.” Shipp’s friend, Verniece Harness, reported that Shipp had planned on firing

Williams and that she believed Williams had “tricked [Shipp] into making her Last Will

and Testimony.” Finally, Veda Trawick, Shipp’s first cousin, questioned whether Shipp

made an unnatural property disposition. Trawick’s affidavit states that Shipp “had in her

possession many of the items that had belonged to their mother and father that should

have gone to her brother” and “[i]t is strange, indeed, that she would pass all of these

assets to her caregiver to the exclusion of any of her family.”

       These statements, read as a whole, establish a genuine and material factual dispute

on undue influence. That Williams presented more factually robust affidavits does not, in

and of itself, justify the summary judgment on this record.        On the whole, Beavers

presented enough affiant testimony to survive summary judgment. 2 David Newbern, et

al., Arkansas Civil Practice and Procedure § 26:4, at 552 (5th ed.) (“The quantum of evidence

that the non-moving party must produce to defeat a motion for summary judgment does




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not appear to be particularly great.”). We therefore reverse the court’s grant of summary

judgment.

                                   III. The Rule 11 Violation

       The circuit court’s determination that a Rule 11 violation occurred is directly

linked to its summary-judgment ruling. In its one order, the court stated: “there is no

basis in fact to support the motion to set aside the will filed herein by Carl Beavers, Sr.

Accordingly, the Court hereby awards Tina Williams her attorney fees.” To obtain an

attorney’s fee pursuant to Arkansas Rule Civil Procedure 11, the moving party must show

that an attorney or party signed a pleading not grounded in fact, not warranted by existing

law or good-faith argument for a change in the law, or that it was filed for an improper

purpose. Ark. R. Civ. P. 11 (2014); Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940

(1997). A Rule 11 sanction is supportable when a party pursues a claim that is not

grounded in fact and only when it is patently clear that the claim has no chance of success.

Chlanda, 329 Ark. at 41, 945 S.W.2d at 941. We review a circuit court’s determination of

whether a Rule 11 violation has occurred under an abuse-of-discretion standard. Weaver

v. City of W. Helena, 367 Ark. 159, 238 S.W.3d 74 (2006).

       We agree with Beavers that the court abused its discretion in finding a Rule 11

violation on this record. Sanctions are not appropriate just because a court disagrees with

a party’s position or the evidence a party presents. Chlanda, supra. Beavers’s petition to set

aside the will was sufficiently grounded in fact and warranted by existing law to avoid a

Rule 11 sanction. So we reverse the determination that Rule 11 was violated and the

related attorney’s fee sanction.

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      Reversed and remanded.

      WHITEAKER and VAUGHT, JJ., agree.

      George Carder, P.A., by: George Carder; and Brett D. Watson, Attorney at Law,

PLLC, by: Brett D. Watson, for appellant.

      Graddy & Adkisson, LLP, by: William C. Adkisson, for appellee.




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