dissenting. My reasons for dissenting are twofold. First, I agree with Justice Brown’s dissenting opinion. Summary-judgment proceedings are governed by Rule 56 of our Rules of Civil Procedure, and a transcript from another proceeding is not listed as something to be considered under Rule 56(c). Second, even assuming that the chancellor properly considered the testimony from the probate court proceedings, I must conclude that genuine issues of material fact remain to be litigated. Both of these points of error have been raised and argued throughout the course of this case.
The moving party here, Sandra Shelnut, claims that she submitted “documentary proof of the entitlement to summary judgment being in the form of transcripts and findings of fact, . . . thus establishing the prima facie case.” (Emphasis added.) Specifically, she relies on findings in the chancellor’s opinion letter dated April 10, 2000, and in the probate court’s order entered on April 19, 2000. As mentioned in the majority opinion, the probate court’s order has been reversed by the Arkansas Court of Appeals on the basis of lack of subject-matter jurisdiction. Laird v. Shelnut ex rel. Estate of McMann, Slip Op., No. CA 00-1226 (Ark. App. Sept. 5, 2001), pet. for review denied.
Furthermore, Sandra Shelnut suggests that the issues of material fact in this case “are resolved” by the transcripts of Mr. Lovell’s testimony in the probate court proceedings. Mr. Lovell testified that Dixie McMann called him and stated she and her husband wanted to visit with him about making their wills. Fie went to their house because Dixie indicated Don “had maybe had surgery. Or he had a problem .... And that she was kind of sickly.” Furthermore, he agreed to visit with the McManns at their home because of his friendship with Alfred Shelnut. While Mr. Lovell did not recall ever representing Alfred Shelnut, he admitted that he may have answered questions for him. Mr. Lovell also confirmed that he had represented several members of Alfred’s family, including his parents, his brothers, his niece and nephew, and his daughter. Mr. Lovell further testified that Sandra was present during the second visit with the McManns and that during this visit Alfred pulled up in front of the house. According to Mr. Lovell, he told the Shelnuts that under the reciprocal wills all.of the McManns’ assets would go to them after the second death.
While Mr. Lovell also testified that he was satisfied the McManns had testamentary capacity and that he had no indication they had been unduly influenced, this court is required to view his testimony in the light most favorable to the Lairds and resolve all doubts in their favor. Viewing the evidence in favor of the Lairds, I must conclude that Mr. Lovell’s testimony is sufficient to raise issues of fact as to whether the 1995 will and the property deeds were the result of undue influence exerted by the Shelnuts over Don McMann.
The chancery court concluded there were no unresolved questions of fact because “all the facts pertaining to this proceeding have been litigated fully and were completely addressed to this Court in the form of the various filings herein.” (Emphasis added.) The standard is whether there is evidence sufficient to raise a fact issue, rather than evidence sufficient to compel a conclusion on the part of a fact finder. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). Therefore, a review of a summary judgment is not a “sufficiency of the evidence” determination. Id. The chancellor ruled that the issues had been “litigated fully,” an improper process in the summary-judgment context, and in so doing, committed prejudicial error. For these reasons, I respectfully dissent.
Glaze and Brown, JJ., join in this dissent.