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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-81
HOWARD GRAHAM, D.G. GRAHAM, OPINION DELIVERED JANUARY 28, 2015
JR., NETTIE WHITLOW, BETTY
WILLIAMS, TRAVASTINE AUSTINE,
BLANCHE LUMPKIN, D.K. GRAHAM,
SR., WILLIE PITTARD, LISA APPEAL FROM THE DESHA
McGOWAN, and DANIEL GRAHAM, COUNTY CIRCUIT COURT
JR. [NO. CV-2012-80-3]
APPELLANTS
V.
HONORABLE DOUG SCHRANTZ,
JUDGE
STEVEN ARZO FRENCH, WILLIE LEE
GRAHAM, RUTH ANN GRAHAM,
VESSIE HUDSON, AHIGA HUDSON,
VELMA WOODS, and MAMIE BEAL AFFIRMED
APPELLEES
ROBERT J. GLADWIN, Chief Judge
On September 30, 2013, the Desha County Circuit Court dismissed appellants’
complaint to set aside a sale and cancel a deed. On appeal appellants argue that they have
standing to bring the suit and that they have alleged facts sufficient to state a cause of action.1
We affirm the circuit court’s order dismissing the complaint.
Willie Morse Graham bequeathed 180 acres in Desha County, Arkansas, to her nine
children. Her will stated that the bequeathed property was “to be considered family property
1
This is the second time this appeal has been presented, as rebriefing was ordered on
October 29, 2014, due to omissions in the appellate brief. Graham v. French, 2014 Ark. App.
578.
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and [could] only be sold by an agreement of all of [her] surviving children.” Six of the nine
children requested a partition of the 180 acres in a 2005 lawsuit filed in Desha County
Circuit Court (Graham I),2 and three children objected to the partition action. Steven Arzo
French was allowed to intervene in Graham I because he was the holder of a lease on the
subject property. Graham I ended with the trial court finding that Willie Graham’s will
provision violated the rule against unreasonable restraints at common law. However, the trial
court found that the will’s terms were consistent with Arkansas Code Annotated section 18-
60-413 (Repl. 2003) regarding partition, which should be strictly construed. Section
18-60-413 requires that no partition or sale of land devised by any last will and testament
shall be made contrary to the intention of any testator. Thus, the trial court denied the
partition complaint in Graham I as contrary to Willie Graham’s will.
On August 17, 2012, appellant Howard Graham, the child of D.G. Graham, who was
one of the nine children of Willie Graham, filed the complaint herein against appellees, the
six heirs of Willie Graham who had sought partition in Graham I and Steven Arzo French.
Appellants sought to set aside a sale and cancel a deed claiming that appellees had acted
contrary to the order entered January 8, 2007, in Graham I by conveying through warranty
deed to Steven Arzo French their undivided 8/9 interest in the 180 acres. Appellants sought
cancellation of the deed as violative of Graham I.
On October 18, 2012, appellees, grantors to the warranty deed, filed a motion to
dismiss alleging that the complaint failed to state facts upon which relief could be granted
2
Graham v. Graham, CIV 2005-212-1, Desha County Circuit Court.
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pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2012). Appellees argued that the
provision of Willie Morse Graham’s will at issue only prevents a sale unless consented to by
“an agreement of all of my surviving children.” They claimed that the surviving children
were named in the will. They argued that Howard Graham, plaintiff, was not a surviving
child, but an heir to D.G. Graham, deceased child of Willie Graham. Therefore, they claim,
Rule 12(b)(6) applied because Howard Graham had no standing to contest the deed he
wanted to set aside. Further, appellees argued that even if Howard Graham could establish
an ownership interest in the property, he would continue to enjoy his undivided share and
any rights of co-tenancy that he ever had. Appellees argued that the deed he wanted set
aside did nothing to change the nature of his ownership interest.
A judgment was filed on September 30, 2013, wherein the trial court considered
appellants’ contention that the grandchildren, or heirs of D.G. Graham, had to consent to
the sale under the provisions of Willie Graham’s will. The trial court determined that the
restriction on the right of alienability was given to her surviving children and that this power
was personal to only those surviving children and not to other heirs. Next, the trial court
considered Arkansas Code Annotated section 18-60-413 and determined that the statute
limits petitions “under this act” to “any persons having any interest in, and desiring a division
of, land held in joint tenancy, in common . . .” The court found that there was no desire
to divide land in the 2007 conveyance to French; instead, there was a conveyance of
undivided shares. Thus, the trial court found no partition, as the conveyance was of the
undivided interest of the heirs, except for D.G. Graham. D.G. Graham’s heirs retained their
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respective undivided interests. Therefore, the trial court dismissed the complaint and
amended complaint with prejudice. Appellants filed a timely notice of appeal, and this appeal
followed.
The proper standard of review of the circuit court’s order is that of a motion for
summary judgment. Rule 12(b) of the Arkansas Rules of Civil Procedure states:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent to such
a motion by Rule 56.
Ark. R. Civ. P. 12(b). Appellants included with their complaint several exhibits, which the
trial court did not exclude from its consideration when it dismissed their complaint with
prejudice. Therefore, the trial court considered matters outside of the pleadings, and the
motion to dismiss was converted to a motion for summary judgment. Morgan v. Turner, 2010
Ark. 245, 368 S.W.3d 888.
Ordinarily, upon reviewing a court’s decision on a summary-judgment motion, we
would examine the record to determine if genuine issues of material fact exist. However, in
a case such as this one, which does not involve the question of whether factual issues exist
but rather an issue of law, we simply determine whether appellees were entitled to judgment
as a matter of law. Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876.
I. Standing
Appellants contend that they have standing to bring this action as heirs of D.G.
Graham. Appellants argue that a claimant who has a personal stake in the outcome of a
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controversy has standing. Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264
S.W.3d 465 (2007). Appellants assert that D.G. Graham was a listed surviving child in Willie
Graham’s last will and testament. Appellants are D.G. Graham’s heirs, and his devise from
Willie Graham passed to them. Appellants contend that they therefore have a personal stake
in the outcome of this controversy and standing to bring this action.
We agree with appellants’ contention that they have standing in this action.
However, the trial court did not make a finding that appellants had no standing. Instead, the
trial court ruled as follows:
In Willie Morse Graham’s Last Will, she specifically named her nine children. She
limited the restriction upon the right of alienability of the sale of the 180 acres to her
surviving children. The Court concludes that this power was personal to only the
surviving children and not to other heirs.
Inasmuch as appellants are seeking to appeal the trial court’s finding that they do not have
the power to restrict the sale of the 180 acres, we do not find appellants’ arguments
convincing. Appellees contend, and we agree, that setting aside the deed conveying the 8/9
interest to French will in no way benefit appellants. Appellants will have the same collective
1/9 interest they had before their complaint was filed and after this suit is over, regardless of
the outcome of the litigation.
Also, appellees contend that the trial court found that the provision in Willie
Graham’s will that appellants are trying to enforce does not include appellants because they
are not children of Willie Graham, but grandchildren. Therefore, because appellants are not
“surviving children,” they have no right to restrict an alienation pursuant to the will.
Appellants have not shown where the trial court misinterpreted the will; thus, appellants have
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not met their burden of demonstrating error. Finally, because this is not a partition action,
Arkansas Code Annotated section 18-60-413 does not apply. Thus, a tenant in common is
not prohibited from conveying his undivided interest in real property pursuant to this
section.
II. Sufficiency of Complaint
Appellants argue that the trial court’s dismissal of their complaint was in error because
they pled sufficient facts to entitle them to the requested relief. The complaint alleged that
the conveyance to French was unlawful in light of the January 8, 2007 trial court order in
the 2005 partition lawsuit. Also, appellants assert that their complaint alleged that Willie
Graham wanted the property to remain in the family unless the surviving children agreed
otherwise. Finally, the complaint alleged that the option contract to purchase the land was
void because the terms of the will prohibited any conveyance absent unanimous consent of
the nine devisees. In reference to the partition statute, appellants cited American Fidelity Fire
Insurance Co. v. Builders United Construction, Inc., 272 Ark. 179, 613 S.W.2d 379 (1981),
where the Arkansas Supreme Court affirmed the lower court’s grant of summary judgment
on the grounds that contracts in violation of a statute are void even though not expressly
declared so. Because appellants neither offer convincing argument nor cite applicable law
to support their arguments, our review is precluded. Adams v. Adams, 2014 Ark. App. 67,
432 S.W.3d 49.
Affirmed.
VIRDEN and HIXSON , JJ., agree.
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McKissic & Associates, PLLC, by: Jackie B. Harris, for appellants.
Stephen L. Tisdale, P.A., by: Stephen L. Tisdale; Melinda French; and William L. Owen,
P.A., by: William L. Owen, for appellees.
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