This is an appeal from the Saline County Chancery Court’s order granting appellee’s motion for summary judgment. On appeal, the appellant argues the court erred in granting summary judgment because its decision was not based upon the record as required by Arkansas law, but upon a trial in probate court, which is not a рart of this record; and because the record reflects genuine issues of material fact. In the alternative appellant argues that even if the triаl court did not err in granting appellee’s motion for summary judgment in finding a constructive trust, its finding that $738,000 was the proper amount of damages is clearly erroneous. We affirm.
Appellant, Melba Laird is Don McMann’s sister. Appellee, Sandra Shelnutt is his stepdaughter from his marriage to Dixie McMann. On June 23, 1995, Don McMann and his wife Dixie executed reciprocal wills that were prepared by John Lovell, a Benton attorney. Their wills appointed Sandra Shelnutt executrix. After the death of the survivor, the rеsidue of their estate was left to Sandra Shelnutt. The wills contained a clause stating “they agreed that neither would alter, amend, or change their wills or do any аct or suffer any omission which would defeat the testamentary plan outlined in their wills ‘except by mutual agreement at the time when both of us are alive.’ ”
On January 29, 1998, $900,000 in funds from an investment account in the name of Don McMann, his wife, Dixie, and Sandra Shelnutt as joint tenants with rights of survivorship, were evenly split as between Sandra Shelnutt and Don McMаnn. Dixie McMann died February 2, 1998, and following her death, Don added appellant to his account as a joint tenant with right of survivorship. Don also executed a new will on July 14, 1998, naming appellant as his executrix and heir.
Don died June 5, 1999, and appellee was appointed executrix of his estate pursuant to the June 23, 1995, will. Appellant contested the will and sought to probate the 1998 will; however the probate court gave effect to the 1995 will. Appellant appealed arguing the probate court lacked subject-matter jurisdiction to enforce the will contract. We recently held in an unpublished opinion, that the probate court lacked subject-matter jurisdiction to enforce the contract and reversed and remanded the case. Laird v. Shelnutt, CA 00-1226 (Ark. App., Sept. 5, 2001).
Appellee brought an action to impose a constructive trust against the property that was once in the joint account held by Don and appellant, which cаn be traced to two separate trusts, the Melba Laird Trust and the Max Laird Trust. Appellee argued that Don and Dixie had an agreement that Don would leave рroperty to be transferred by will. Appellee moved for summary judgment, alleging all questions of fact were resolved in probate court. Appellee suрported her motion with the transcript of the probate court proceeding. The chancery court issued an order granting appellee’s motiоn for summary judgment, ordering a constructive trust to be placed on a $738,000 investment account owned by appellant.
A trial court’s grant of summary judgment is proper whеn it is clear there are no issues of material fact to be tried. Tackett v. McDonald’s Corp.,
Appellant argues the trial cоurt erred in granting summary judgment because its decision was not based upon the record required by Arkansas law, but on a trial in probate court, which is not part of the rеcord and because the record reflects genuine issues of fact. We must point out that appellant failed to abstract the disputed transcript, аnd appellee corrected the deficiency in her brief. We hold that the probate transcripts were a part of the record because the trial court stated in its order that it relied on the transcripts from the probate proceeding in rendering its decision and because the probate trаnscripts are part of the certified record filed with our clerk’s office.
Matters to be considered in summary-judgment proceedings include affidavits, depositions, admissions, and answers to interrogatories. UMLIC 2 Funding Corp. v. Butcher,
Affidavits submitted in support of, or opposing, summary judgment are never subject to cross-examination. Farmers Union Oil Company of Williston v. Harp,
It was proper for the trial court to rely on the transcripts in rendering its deсision to grant summary judgment. After reviewing the pleadings, affidavits, documents and exhibits filed in support of the motion for summary judgment in a fight favorable to appellant, we hоld there were no issues of material fact to litigate; therefore, the trial court’s grant of summary judgment was proper.
Appellant argues, in the alternativе, that even if the trial court did not err in granting appellee’s motion for summary judgment in finding a constructive trust, its finding that $738,000 is the proper amount of damages is clearly errоneous. Appellee presented the testimony of Martin Northern, a stock broker and registered investment advisor. He testified that he was able to trace $493,249.18 originally in Don McMann’s account to trust accounts in the names of appellant and her husband. He also testified that appellant never contributed to the accounts. Northern further testified that the accounts contained $737,791.96 that formerly belonged to Don McMann. Appellant challenges this calculation; however, she failed to offer any proof that this calculation was in error. We hold that the trial court’s valuation of the trust at $738,000 was proper.
Appеllant failed to abstract the probate transcript. Appellee’s attorney filed a motion for attorney’s fees because he corrected the deficiency. We believe he is entitled to attorney’s fees in the amount of $1,500.
Accordingly, we affirm.