| Appellant Joy Richardson appeals from the judgment of the Faulkner County Circuit Court awarding her brother, Jim Brown, $33,828.38 plus an additional $23,249.03 in attorney’s fees and costs. We affirm in part and dismiss for lack of jurisdiction in part.
Patricia Brown was the mother of Richardson, Brown, and Sharon Little.
Richardson answered and counterclaimed, asserting that, as executrix of their mother’s estate, she sold the vehicle with Brown’s knowledge and acquiescence and delivered a check to Brown for half of the sales price of the car. Richardson alleged that the other half of the proceeds was divided among Patricia’s grandchildren, again with Brown’s agreement. In her counterclaim, Richardson asserted that Brown had misrepresented to her that he would divide one-half of the proceeds of the sale of the car and, as a result, she had agreed that Brown would receive more than $13,000 from an annuity to which Richardson was the sole beneficiary. Richardson also moved to transfer venue of the case from Faulkner County to Pulaski County, where she was a resident.
Brown subsequently amended his complaint to allege that, in addition to converting the proceeds from the sale of the car, Richardson had, within days of Patricia’s death, withdrawn funds from a bank account that she shared jointly with her mother. In a second amended complaint, Brown added his sister, Sharon Little, as a defendant and asserted that the three siblings had an agreement, in accordance with their mother’s wishes, that upon Patricia’s death, multiрle financial accounts would be combined and equally divided among the children outside of the probate process. The accounts included two Arvest Bank accounts with a combined total balance of more than $104,000; a Jackson National Life Insurance annuity Rwith a $100,000 death benefit; and a MetLife IRA account valued in excess of $36,000. Brown’s complaint alleged that Richardson refused to pay Brown his full one-third share of these funds. Specifically, Brown asserted that Richardson’s actions breached the siblings’ agreement that the funds would be equally divided after Patricia’s death and that Richardson converted funds that should have been his.
The circuit court dеnied Richardson’s motion for change of venue to Pulaski County in a written order entered on July 7, 2010. The case then proceeded to a bench trial on July 12, 2011. At the conclusion of the trial, the court announced its ruling from the bench. The court first found that Brown owned the car and was
On August 18, 2011, Brown filed a motion seeking attorney’s fees in the amount of $37,534.03 and costs of $728.60. The court entered an order on September 14, 2011, awarding Brown $22,520.43 in attor-' ney’s fees and $728.60 in costs. The court’s order noted that it had reduced the amount of fees requested to sixty percent because the court found that Brown prevailed on only three of the five breach-of-contract claims he pled.
Richardson filed her notice of appeal on August 31, 2011, and she now raises four points for reversal. Richardson contends that the trial court erred in 1) denying her motion for change of venue; 2) finding that Brown was entitled to the proceeds from the sale of the car; 3) determining that there was an express contract to divide the Arvest bank accounts and Jackson National Life Insurance annuity equally;
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the court’s findings are clearly erroneous, or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor,
Richardson’s first point on appeal is that the circuit court erred in not granting her motion for change of venue and transferring the case to Pulaski County. Before reaching the merits of her argument, however, we must first address a threshold question raised by Brown, who argues that Richardson waived the objection to venue by filing a counterclaim. Generally, an objection to venue is waived if it is not raised properly or if affirmative relief is sought. See, e.g., Loewer v. Nat’l Bank of Ark.,
A counterclaim is compulsory if it exists when the clаim is filed, arises out of the same transaction or occurrence as the opposing party’s claim, and does not require the presence of third parties over whom the court cannot acquire jurisdiction. Ark. R. Civ. P. 13(a). Richardson’s counterclaim was compulsory in that both her claim about the distribution of Patricia’s assets аnd Brown’s claim about the improper sale of the car arose out of the same family discussions about portions of Patricia’s property passing outside of probate. Richardson’s counterclaim thus arises out of the same transaction or series of events as Brown’s complaint, making her counterclaim cоmpulsory. Because Richardson’s counterclaim was compulsory, she did not waive her objection to venue. Ark. Game & Fish Comm’n v. Lindsey, supra.
We are nonetheless unable to reach the merits of Richardson’s venue argument. In her motion for change of venue, Richardson stated only that the matter should be transferred to Pulaski County because shе was a resident there, the cause of action arose there, all witnesses reside in Pulaski County, and the “official records” and other matters related to the case were on record in Pulaski County. On appeal, however, Richardson raises questions concerning whether the general venue provision, Arkansas Codе Annotated section 16-55-213(a) (Repl. 2005), repealed by implication a prior, more specific venue provision found in Arkansas Code |-Annotated section 16-60-111(a)(1).
In her second point on appeal, Richardson urges that the circuit court erred in determining that Brown was entitled to the proceeds from the sale of their mother’s car. Richardson does not dispute that the car was titled in her mother and brother’s names at the time of Patricia’s death, nor that Brown was the owner of the vehicle upon their mother’s death. She argues, however, that the evidence introduced at trial demonstrated that Brown agreed that the proceeds of the sale should be divided among Patricia’s grandchildren. In addition, Richardson contends that the evidence showed that Brown received $3000 frоm the sale of the car to distribute to his children and that Brown also accepted $450 of the remaining proceeds to pay for a family dinner. Thus, Richardson asserts, the evidence showed that |RBrown agreed to the sale and division of the proceeds, and the circuit court erred in finding otherwise.
As Brown points out, however, the only testimony indicating that he agreed to the sale of the car came from Richardson and her husband. In its ruling, the circuit court indicated that it felt the matter came down to a credibility issue, noting that it was clear that Brown firmly believed that he did not get the $3000, and Richardson firmly believed that Brown did get the money. Ultimately, the court found that Richardson owed Brown the money from the sale of the vehicle, but it credited Richardson with the $3000. In these circumstances, we hold that the circuit court weighed the credibility of the witnesses, as is its duty. Conflicts in the testimony are for the circuit court to resolve, and we will defer to the circuit judge’s superior position to judge and determine the credibility of witnеsses. Dewitt v. Johnson,
Richardson’s next two arguments pertain to the Arvest bank accounts and life insurance annuity, in that she contends that the circuit court erred in determining that there was an express contract or agreement to divide the funds equally. As to the two Arvest accounts, Richardson asserts that she and her mother held the money market account as a joint account with right of survivorship, and her sister and mother held the preferred club account in the same fashion.
While it is true that the creation of a joint bank account with right of sur-vivorship, in the absence of fraud, is conclusive evidence of the parties’ intent that the account should pass to the survivor on the death of the other, see Williams v. Davis,
In finding that an agreement existed, the circuit court relied on Richardson’s admission and testimony. Although there was conflicting testimony regarding an agreement between the parties, we must recognize the circuit court’s superior position to judge thе credibility of witnesses and resolve any conflict in the testimony. Such a finding is usually conclusive, | ^especially where, as here, the credibility of witnesses is involved. See Firstbank of Ark. v. Keeling,
Richardson’s final argument on appeal concerns the trial court’s award of attorney’s fees to Brown. Brown has filed a motion to dismiss this portion of thе appeal because Richardson failed to file a notice of appeal from the order awarding attorney’s fees.
The underlying judgment was entered on August 4, 2011. Brown timely filed his motion for attorney’s fees on August 18, 2011, and Richardsоn filed her response to Brown’s motion for fees on August 31, 2011. Richardson also filed her notice of appeal from the judgment on that same date. The notice of appeal, however, did not mention the issue of attorney’s fees. The circuit court issued a separate judgment awarding Brown’s attorney’s fees on September 14, 2011, and Richardson failed to file an amended notice of appeal after the entry of the fee award.
The supreme court has held that, where an order granting or denying attorney’s fees is entered after entry of the judgment, the issue of attorney’s fees is a collateral matter. Craig v. Carrigo,
Affirmed in part; dismissed in part.
Notes
. Little, while a named defendant below, is not a party on appeal.
. Brown attached to his complaint a copy of the vehicle’s title, showing that it was titled in the names of "Brown, Patricia C. or James D.”
. In its oral ruling from the bench, the court stated that Brown was owed $11,230.50. The court corrected its math and included the proper computation in its subsequent written order.
. The court made other findings that are not raised as issues in this appeal. For example, the court found that there was not enough evidence to find that a contract existed regarding the MetLife' account, and thus, that account belonged solely to Richardson upon her mother’s death. The court further awarded Richardson $1,363.90 for legitimate expenses incurred during the sale of Patricia’s home, and the court credited Richardson with $3000 that thе court determined Richardson had already given to Brown.
.Richardson raises these issues as separate points on appeal, but because her arguments are essentially the same, we treat them together.
. Section 16-55-213(a) allows a plaintiff to file a civil action in the county in which a substantial part of the events giving rise to the claim occurred, the county in which the defendant resides, or the county in which the plaintiff resides. Section 16-60-111 provides that an action on a debt, account, or note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.
. After Patricia’s death, Sharon Little added Richardson to the preferred club account.
. Richardson did not respond to Brown's motion to dismiss.