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Middleton v. Lockhart10/20/2005
This appeal arises from an order of the Circuit Court of Newton County directing that all the fees awarded pursuant to Ark. Code Ann. § 16-61-109 (1987) were to be paid by the plaintiffs and taxed as costs against the defendants, Kenneth G. Middleton and Lynn Carl Middleton, Kenneth Middleton's brother. This case has been on appeal before this court on two prior occasions. See Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001) (Middleton I); Middleton v. Lockhart, 355 Ark. 434, 139 S.W.3d 500 (2003). Now, appellant Lynn Carl Middleton asserts on appeal that the circuit court erred when it assessed as costs to the defendants the fees awarded pursuant to § 16-61-109, because such an award of costs was specifically precluded by an earlier decision of this court. In addition, appellant Kenneth G. Middleton filed a pro se brief asserting (1) that the circuit court erred in granting opposing counsel's motion for the appointment of attorney under Rule 17(c) to represent appellant and (2) that this court should remove Judge John Lineberger on the basis of bias. We find no error and affirm.
We reiterate the facts as they were set forth in our opinion in the direct appeal. Middleton I, supra. On February 22, 1991, Kenneth G. Middleton was convicted of the first-degree murder of his wife, Katherine, and sentenced to life without parole for the murder, plus 200 years for armed criminal action. On February 27, 1991, Kenneth entered into a contract to convey a tract of land known as the Middleton homeplace to Lynn Carl Middleton, Kenneth's brother. On March 7, 1991, a warranty deed conveying the land was filed. Additional transactions around this same time make it clear Kenneth was liquidating his assets. On March 11, 1991, Kenneth sold his cattle for $19,000. On March 26, 1991, Kenneth conveyed 265 acres of land to Rocky Lee McCutcheon and Sheila Marie McCutcheon.
Prior to these transfers, Kenneth had been sued on July 19, 1990, by Katherine's siblings in a wrongful-death action. Trial of the wrongful-death action in Missouri was set for May 26, 1992. On the day of trial, no one appeared on behalf of Kenneth, which resulted in a judgment against him for $1,350,000. Lockhart v. Middleton, 863 S.W.2d 367 (Mo.Ct.App.1993). The trial court concluded there was ample evidence Kenneth transferred or conveyed all, or substantially all, of his assets as of early 1991, and that due to Kenneth's refusal to comply with discovery, the record did not reflect what, if any, assets he might have retained. The court then considered the transfers and found the conveyance of the 265 acres was for a reasonably equivalent value. Thus no claim of resulting insolvency could be made as to this transfer. However, the trial court found that the Middleton homeplace was not transferred for a reasonably equivalent value. The trial court then found Kenneth abandoned any homestead right he claimed when he murdered his wife and ordered the Middleton homeplace sold at execution sale.
Both Kenneth and his brother, Lynn, raised an asserted marriage homestead-exemption of Kenneth and Katherine as a defense to execution on the Middleton homeplace. Kenneth and Katherine were married in April of 1974. At that time, Kenneth already owned the tract of land referred to as the Middleton homeplace, which is located in Newton County. When the land was conveyed to him in 1973, he noted on the deed that he would offer the land to a brother or sister before it would be sold to anyone else. This deed also contained a provision reserving the right to live in the house to Oshia Middleton for the remainder of her life. The land was in Kenneth's name and remained so until Kenneth transferred it shortly after his conviction. During th
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