Thursday, November 8, 2018

Oral Agreements to Divide a Decedent's Property Violate the Statute of Frauds

The 8th Circuit Court of Appeals recently rendered an unpublished opinion, Kiddie v. Copeland, Case No. 17-2814, involving the statute of frauds, and its application to an agreement to divided a deceased grandfather's property.  First, what is the statute of frauds anyway and why should you care?

The statute of frauds is a common law rule that has been codified in most states, and requires that certain contracts must be in writing to be enforceable.  Among those contracts affected, are:

(1) contracts to answer for the debt of another (Ark. Code Ann. 4-59-101);
(2) agreements to be made in consideration of marriage (Ark. Code Ann. 4-59-101);
(3) agreements that are not to be performed within one year from the date of the agreement (Ark. Code Ann. 4-59-101);
(4) agreements for the sale, lease, or transfer of land (Ark. Code Ann. 4-59-101--102);
(5) contracts for the sale of goods over $500.00 (Ark. Code Ann. 4-2-201; and
(6) contracts to make a will or devise, entered into after June 17, 1981 (Ark. Code Ann. 28-24-101).

The statute of frauds has a long history that dates before the United States was a country. Like much of our current law, we inherited the statute of frauds from England. Arkansas has adopted and codified the rule within three separate statutes.  The upshot of the rule is that certain contracts, to be enforceable, must be in writing.  While there are exceptions, for the most part, it is a hard and fast rule that the list of agreements, noted above,  must be written, and signed by the party "to be charged", i.e. the party whom you desire to enforce the contract against.

You care about the statute of frauds, so you don't fall into the trap of relying on an oral promise that may be unenforceable. Kiddie involved such a situation.

Kiddie was an appeal of a United States District Court decision that was heard in The Harrison Division of the Western District of Arkansas.  In Kiddie, the plaintiff claimed that defendants breached an oral agreement that was alleged to have been made between the plaintiff and three defendants, and pertained to the means by which the plaintiff's grandfather's property was to be divided upon his death. The district court found the supposed agreement, even if it occurred, was not enforceable, because it was unwritten, and therefore, it violated the statute of frauds, as codified at Ark. Code Ann. 28-24-101 (relating to agreements to make a devise).

A little planning could have established the disposition of his estate, and avoided the lawsuit completely. The grandfather could have avoided the dispute among the grandchildren if he had left behind a valid estate plan, which could have included a last will and testament and a revocable or irrevocable trust.  Indeed, it would have saved all parties involved a substantial amount in attorneys fees and costs, as well.

C. Michael Daily is an Arkansas estate planning, real estate, and probate attorney with the long-established law firm of Daily & Woods, P.L.L.C., and is licensed to practice in all cities in Arkansas including Fort Smith, Fayetteville, Springdale, Bentonville, Lowell, Rogers, and Bella Vista. You can follow C. Michael Daily via social network using any of the social network links in the right hand column of the page.  You can also contact Mr. Daily by telephone at 479-242-3953, or by e-mail at mdaily@dailywoods.com. 

Disclaimer:  This blog is for informational purposes, is certainly not to be considered legal advice and is absolutely not a substitute for any of the benefits that are associated with the attorney-client relationship. Your situation is unique--if you need an attorney, contact C. Michael Daily for assistance.

Thursday, June 28, 2018

Daily & Woods attorneys to Speak at 2018 Arkansas Bar Association Best of CLE

Daily & Woods attorneys have been chosen to speak at the Arkansas Bar Association's "Best of CLE" on June 28-29, at the Chancellor Hotel, in Fayetteville, Arkansas.

Thomas A. Daily will present an hour CLE on Board of Trustees v. Andrews: Arkansas Newest Court-Ordered Crisis-Tsunami or Just Another Wave, at 8:30 AM on Thursday June 28, 2018.  As a preview, also see this write-up on how Andrews is affecting litigation against the State of Arkansas.

C. Michael Daily will present an hour CLE on Oil & Gas Lease Covenants--What you See and What you Don't See, at 2:00 PM on Friday June 29, 2018.

Registration for both events is still available through the Arkansas Bar Association's website, or at the door.

C. Michael Daily is an Arkansas estate attorney with the long-established law firm of Daily & Woods, P.L.L.C., and is licensed to practice in all cities in Arkansas including Fort Smith, Fayetteville, Springdale, Bentonville, Lowell, Rogers, and Bella Vista. You can follow C. Michael Daily via social network using any of the social network links in the right hand column of the page.  You can also contact Mr. Daily by telephone at 479-242-3953, or by e-mail at mdaily@dailywoods.com. 

Disclaimer:  This blog is for informational purposes, is certainly not to be considered legal advice and is absolutely not a substitute for any of the benefits that are associated with the attorney-client relationship. Your situation is unique--if you need an attorney, contact C. Michael Daily for assistance.

Friday, April 13, 2018

It's Good to be King. Arkansas Sovereign Immunity Wins Again in Arkansas Community Corrections v. Barnes, 2018 Ark. 122.



The Arkansas Supreme Court made itself abundantly clear in a new opinion rendered this week. As stated in Arkansas Community Correction v. Barnes, 2018 Ark. 122, the Court clearly meant its prior holding in Bd. of Trs. v. Andrews, 2018 Ark. 12, 535 S.W.3d 616: you simply cannot sue the state of Arkansas. 

So, I guess it really is good to be king.  This week's victim: The Arkansas Whistle-Blower Act.

Here's some background:

In Andrews, the Board of Trustees of the University of Arkansas argued that it was immune from suits for claims filed against it under the Arkansas Minimum Wage Act based on the doctrine of sovereign immunity. Andrews, 2018 Ark. 12, at 2-3.  In Andrews, the Court held that the Arkansas General Assembly cannot waive the State's immunity, and any statute providing that the State could be made a defendant in a lawsuit goes beyond the scope of the legislature's power. 

The Arkansas Supreme Court reached this conclusion by interpreting the Constitution "exactly as it reads", finding that the "drafters of the current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead used the word 'never.'" Id. at 10-11.

Quick civics lesson: The constitution trumps legislative action.

The unconstitutional law in Andrews was the Arkansas Minimum Wage Act.  The AMW Act is not the only offending law. Andrews foreshadowed the ultimate demise of numerous laws enacted by the legislature that give private citizens the right to sue the State. A number of these laws involve actions taken by  administrative agencies. Andrews may not have expressly ended the life of each of these laws, but the Court placed them on notice.





The decision in Barnes resulted in a fatality-style victory for the State.  This week's victim was the Arkansas Whistle-Blower Act.  In Barnes, the Arkansas Supreme Court confirmed that Andrews was not a fluke.  The Court wasn't kidding--you really cannot sue the State of Arkansas.  Since the Whistle-Blower Act (like the Arkansas Minimum Wage Act) allows one to "claim injunctive relief, reinstatement, compensation, and attorneys fees" under Ark. Code Ann. 21-1-605 (Repl. 2016), it expressly authorizes a right of action against the State, which is prohibited by the Arkansas Constitution. 

More concerning than the unconstitutionality of these laws is the unfortunate reality that Arkansas citizens, who once felt protected under the Arkansas Minimum Wage Act or the Arkansas Whistle-Blower Act, have no right of action against the State, even under the text of the laws that were designed by the State to arguably protect public employees from wrongful and retaliatory behavior.