dissenting. I disagree with the majority that we can simply amend Rule 56(c) of our Rules of Civil Procedure relating to summary judgment, add a new category of proof, and apply it to the case at hand. The effect of doing that is to blindside opposing counsel by changing the summary-judgment rules while the case is pending on appeal. For that reason, I dissent.
In the present case, two wills of the decedent, Don McMann, are at issue: a 1998 Will naming Melba Laird as executrix and a 1995 Will naming Sandra Shelnut as executrix and executed as part of a reciprocal-will plan with his wife, Dixie McMann. The probate court held a hearing In the Matter of the Estate of Don McMann, deceased, and entered an order admitting the 1995 Will to probate.
Sandra Shelnut then sued in Chancery Court to enjoin the Lairds from taking possession of the decedent’s common stock and prayed for an order for them to return any common stock or other assets owned by Don McMann at the time of his death. She then moved for summary judgment and attached the transcript from the probate hearing in support of her motion. The Lairds contested the motion on the basis that there was no “admissible evidence” supporting Sandra’s motion in the form of depositions, answers to interrogatories, affidavits, or admissions. The chancellor, nonetheless, agreed with Sandra and granted her motion. In that order, the chancellor stated that he based his decision on the court orders and the transcript from the probate case. The probate transcript contained testimony from John Lovell, the attorney who drafted the 1995 Will and a friend of Sandra’s husband. Mr. Lovell testified that in his opinion, Don McMann had testamentary capacity and had not been coerced into executing the 1995 will.
A transcript from another proceeding is not listed as something to be considered under our Rule 56(c). That rule plainly states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact.” Our case law has emphasized the importance of these Rule 56(c) parameters:
“Moreover, by going beyond the pleadings, discovery, and affidavits, the trial court erred for purposes of summary judgment, and the procedure followed did not fall within the specific parameters of Rule 56.”
Godwin v. Churchman, 305 Ark. 520, 524, 810 S.W.2d 34, 36 (1991). In Godwin, the trial court held a hearing and took testimony from all parties and accepted exhibits. That is what we said was inappropriate for summary judgment purposes, unless waived by the parties. See also Montgomery Ward & Company, Inc. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981) (refusing to consider, on review, oral testimony taken at a hearing for a motion for summary judgment on the basis that there was no provision for the taking of such testimony in Rule 56).
A practicing attorney reading our Rule 56(c) and the Godwin case would reasonably have concluded that previous trial testimony was inappropriate for summary-judgment purposes, absent his agreement that the trial court could consider it. Trial testimony may well be more reliable than an affidavit for summary-judgment purposes, but if we are to change our civil rules, let’s do so prospectively and not in the middle of a case. That is what we typically do. See, e.g., In Re Arkansas Rules of Civil Procedure, 347 Ark. Appx. 1048 (Jan. 24, 2002) (per curiam).
For these reasons, I respectfully dissent.
Imber, J., joins.