dissenting. The majority in this case has decided that appellant’s “claim” against the Landry estate was sufficient because appeUant substantially complied with the statutory requirements for fifing a valid claim against an estate pursuant to Arkansas Code Annotated section 28-50-103 (Repl. 2004). I would affirm the trial court’s determination that the “claim” filed by appellant did not substantially comply with the requirements of the statute; therefore, I must respectfully dissent.
Arkansas Code Annotated section 28-50-103 provides:
(a) No claim shall be allowed against an estate on application of the claimant unless it shall be in writing, describe the nature and the amount of the claim, if ascertainable, and be accompanied by the affidavit of the claimant or someone for him or her that the amount is justly due or, if not yet due, when it will or may become due, that no payments have been made on the claim which are not credited, and that there are no offsets to the claim, to the knowledge of the affiant, except as stated in the claim.
(emphasis added). As the majority explains, in this case appellant filed only an affidavit of claim against the Landry estate on January 9, 2006, and attached to this affidavit a copy of the order filed in the Banks estate that approved the retainer agreement between the estate and its attorney. Appellant represented to the trial court that the order constituted his claim. In examining the requirements for the contents of a claim under section 28-50-103, the trial court made the following findings. With respect to the deficiency of the contents of the claim and affidavit, the court found the affidavit to be deficient in that the amount of the claim was not provided. The court also noted that, under the statute, if the claim is founded on a written instrument, the original or a copy thereof must be attached to the claim. The court stated:
Even though a complaint may not have been prepared at the time the affidavit of claim was filed, one and one-half years have passed since that time, and a written complaint still has not been filed in this estate, nor, as far as this Court can ascertain, has a complaint been served, nor has the affidavit of claim been amended to put the estate on notice of the amount claimed. . . . Therefore, it appears to this Court that although some of the requirements to be included in a “claim” pursuant to A.C.A. § 28-50-103 have been complied with, others have not been substantially complied with in this case.
Also, with regard to appellant’s authority to proceed against the assets of the Landry estate, the court agreed with appellee’s argument and found that (1) the parties did not anticipate suing the estate individually at the time the retainer agreement was obtained and the affidavit was filed; (2) the order approving representation authorized suit against the insurance company and the manufacturer/mechanic only, and not the personal estate of Landry; and (3) the language in the “retainer contract” is what the order was based upon, and it specifically authorized appellant’s attorney to proceed only against any insurance company of Dr. Landry and the manufacturer and/or mechanic service of the airplane. In conclusion, the court stated: “Because the order approving the retainer agreement and the language in the retainer agreement itself did not authorize suit against the assets of the estate; the affidavit was deficient to serve as notice to Landry Estate that the Banks’ estate was proceeding against the individual assets of the Landry estate.”
It is clear from the plain language of section 28-50-103 that the statute contemplates both a claim and an affidavit of claim to be filed. In this case, there is no question that appellant filed an affidavit of claim, but appellant failed to file anything that would qualify as a claim under the statute. I agree with appellant that under Turner v. Meek, 225 Ark. 744, 284 S.W.2d 848 (1955), it could have filed either a copy of the tort complaint or a “signed statement giving all the details ordinarily found in a complaint” to fulfill the “claim” requirement; the problem is appellant filed neither in this case. And, for reasons elucidated by the trial court above, I cannot agree with the majority’s conclusion that the affidavit itself can also serve as the “claim” as contemplated by the statute. I therefore respectfully dissent.
I am authorized to state that Judge Griffen joins in this dissent.