# Nunnenman v. Estate of Grubbs > Court of Appeals of Arkansas · January 27, 2010 · 2010 Ark. App. 75 URL: https://www.frixlaw.com/law-library/cases/5110435 ## Case - **Full name:** Chrissey NUNNENMAN v. ESTATE OF Donald T. GRUBBS - **Court:** Court of Appeals of Arkansas - **Decided:** January 27, 2010 - **Citations:** 2010 Ark. App. 75; 374 S.W.3d 75; 2010 Ark. App. LEXIS 83 - **Precedential status:** Published - **Opinion:** Dissent by Hart - **Judges:** Agree, Gladwin, Glover, Hart, Marshall, Pittman, Vaught - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5110435 ## Opinion text JOSEPHINE LINKER HART, Judge, dissenting. In theory, logic is the lifeblood of appellate practice. This fact should apply to any argument made, and hopefully, to the opinions that decide the appeals. 1 I contend that the trial court must be affirmed because both of Ms. Nunnenman’s points on appeal are so logically flawed that they simply cannot bring |7about the relief that the majority has decided to give her. The majority apparently agrees, because, contrary to the practice of this court and our supreme court, rather than addressing the argument actually made by the appellant, they crafted their own, far more coherent argument. Call me old-fashioned, but I think it is important, if only in a dissent, to address the appellant’s real argument, if only to do homage to 174 years’ worth of cases. Nunnenman first argues that the trial judge erred by considering the “handwritten note” as evidence of Mr. Grubbs’s intention to change his beneficiary. She asserts that the note was in appearance and content a will and was therefore revoked by the document that was admitted to probate as a will. Alternatively, she contends that if the “handwritten document” was not a will, it was an attempt to make an inter vivos gift, and it fads to meet the requirements for such a gift. Finally, she argues that the note should not have been relied on by the trial court because the authenticity of the handwritten document is questionable. This argument must fail for a number of reasons. First and foremost, the trial court did not find that the note was a will or a gift inter vivos. I decline to speculate whether I would have found such a finding clearly erroneous — I do not have to. The simple truth is that the trial court made neither finding. I believe that the majority has made an obvious mistake of fact. Second, I contend that the first part of Nunnenman’s argument depends on two faulty premises. The first faulty premise is that the pay-on-death designation in the IRA had the conclusive effect of vesting ownership in the account, absent some limited exceptions, outside |8of probate. This basic assumption does not square with Hall v. Superior Federal Bank, 303 Ark. 125 , 794 S.W.2d 611 (1990). In Hall, the true owner established an investment account with another person who had not contributed as “joint tenants with right of survivorship.” Additionally, there was a pay-on-death designation on the signature card providing that “upon the death of either of us, all securities, funds, and property in the account shall be the sole property of the survivor.” The supreme court held, however, that these designations were not “conclusive” on the question of how the deceased intended to dispose of the account at her death. The supreme court distinguished investment accounts from simple bank accounts, which, in accordance with statutory law, pass outside of probate by virtue of the joint tenancy with right of survivorship. Likewise, I find a lapse of logic when Nunnenman argues that the note must either be a will or a gift inter vivos to have any bearing on this case. Again, the Hall case speaks directly to this issue. There, the supreme court held that it was permissible to accept parol evidence regarding the donative intent of a deceased with regard to an investment account, even in the absence of fraud. 303 Ark. at 132 , 794 S.W.2d at 615 . As the trial court in the instant case correctly found, the note functioned as a statement of Grubbs’s intent regarding the disposition of his IRA. I submit that the note was exactly that— parol evidence of Grubbs’s donative intent. Accordingly, Nunnenman’s assertion that the note qualified as neither a will nor a gift inter vivos is not dispositive of this case. |flMost troubling, however, is the majority’s treatment of the third part of Nunnen-man’s first point where she argues that it was error to use the note because the authenticity of the note was “questionable.” She asserts that authentication of the handwriting was inadequate for it to be admitted to probate as a holographic will and that the witnesses who testified that the writing was Grubbs’s should not be believed. In the first place, the issue before us is not whether the note should or should not have been admitted to probate as a holographic will — it was not. As noted previously, it was simply a piece of evidence regarding Grubbs’s donative intent. The question, therefore, is whether the trial court properly admitted the document into evidence. The admission of evidence is left to the sound discretion of the trial court, and we will not reverse an eviden-tiary decision absent an abuse of that discretion. Metzgar v. Rodgers, 83 Ark. App. 354 , 128 S.W.3d 5 (2003). It is axiomatic that a determination of the authenticity of the note, and subsequently its admissibility, was well within the trial judge’s discretion. Finally, to the extent that Nunnenman challenges the credibility of the witnesses, it is again axiomatic that appellate courts in Arkansas defer to the trial court’s evaluation of the credibility of the witnesses. O’Fallon v. O'Fallon ex rel. Ngar, 341 Ark. 138 , 14 S.W.3d 506 (2000). The majority is clearly wrong when it undertakes to find facts on the authenticity of the note. While it is true that the trial court stated in its findings that the note appeared to be “dubious,” however, stating that the note appeared to be dubious, and actually finding that the note was dubious are two different matters. Suffice it to say that the trial court obviously | infound it to be authentic. This was clearly a mistake of fact on the part of the majority. Further, I am unaware of any authority that gives the majority the authority to substitute its own findings for those of the trial court, or simply trump the trial court’s evidentiary rulings when the appellant does not first argue that admission of this piece of evidence was an abuse of discretion. For her second point, Nunnenman argues that the trial judge erred in finding that the handwritten note and the will, considered together, effected a change in the beneficiary of Mr. Grubbs’s account. She cites Arkansas law regarding life insurance policies and asserts that the law created by Pedron, v. Olds, 193 Ark. 1026 , 105 S.W.2d 70 (1937), and its progeny should control. Though this argument is well presented, I contend that it should have failed because, like Nunnenman’s first argument, it relies on authority that is inapplicable to the case at bar. While it is our responsibility to search for relevant authority when we affirm a trial court’s ruling — we must affirm if a trial court is right for any reason — it is quite a significant departure for this court to search for authority to reverse a trial court. Simply stated, we should have declined to apply the law concerning life insurance policies to the case at bar because the thing in question is an IRA, not a life insurance policy. The differences between a life insurance policy and an IRA with a pay-on-death designation are profound. In the first place, with certain exceptions not germane to this discussion, life insurance policies always pay money to a designated beneficiary; that is their purpose. Conversely, a pay-on-death designation in an IRA is a contingency that few of us hope will Inoccur. Moreover, life insurance policies are governed by a different statutory scheme than pay-on-death designations. Ordinarily, when an appellant fails to cite the applicable authority, we summarily decline to consider the point on appeal. Indeed, the writing judge recently used this very procedural bar — albeit in an unpublished case—in Phillips v. Cavanaugh Free Will Baptist Church, Inc., CA05-1010, 2007 WL 1277900 (Ark.App. May 2, 2007). 2 However, rather than apply this procedural bar, the majority not only credited Nunnenman’s use of clearly inapplicable authority, but also engaged in extensive research to uncover the main ease that it relies on, Alexander v. McEwen, 367 Ark. 241 , 239 S.W.3d 519 (2006). I am certainly no fan of procedural bars. However, I insist that, if nothing else, the law must be even-handed. I therefore expect that this court will now extend this research service to all appellants. . For a brilliant treatment of this subject, see Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist's Decisions in Criminal Procedure Cases, 59 U. Colo. L.Rev. 741 (1988). . I am reminded of the story of Saint Paul on the road to Damascus. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5110435. Public record. Not legal advice.