Dawson v. Dawson

Cite as 2017 Ark. App. 584

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-992

Opinion Delivered: November 8, 2017
LUETTA DAWSON
APPELLANT
APPEAL FROM THE PHILLIPS
V. COUNTY CIRCUIT COURT
[NO. 54PR-06-198]
RAY DAWSON, JR.
APPELLEE
HONORABLE KATHLEEN BELL,
JUDGE

AFFIRMED

RITA W. GRUBER, Chief Judge

This appeal stems from a probate case that was initially opened in 2007 and dismissed

in 2011. The Phillips County Circuit Court reopened the case in January 2016 pursuant to

a request by appellant, Luetta Dawson. She appeals from the circuit court’s subsequent order

setting aside and vacating its order reopening the estate and its order of partial distribution

of an asset. We affirm.

Appellant’s husband, Ray H. Dawson, died on June 11, 2006. On December 29,

2006, appellant filed a petition to probate his will and to appoint her as personal

representative, and the circuit court entered an order admitting the will to probate and

appointing her executrix on January 8, 2007. In January, notices were published in a local

newspaper, and two claims were filed against the estate on February 1, 2007: one on behalf

of Helena National Bank in the amount of $180,010.38 and one by Fuller Seed, Inc., in the

amount of $15,648.57. The record contains no other pleadings or orders until 2011.
 Cite as 2017 Ark. App. 584

On September 16, 2011, the circuit court entered a “Notice of Rule 41(b)” stating

that certain cases, listed in an attachment to the notice, were subject to dismissal pursuant to

Rule 41(b) of the Arkansas Rules of Civil procedure for no action having been taken in the

cases for over twelve months. The notice stated that any case not scheduled for trial within

thirty days “will be dismissed unless, by written order, the case is allowed to remain open.”

The notice then stated that the cases listed in the “Attachment” will be “dismissed on

October 28, 2011, unless they are allowed to remain on the active docket by court order.”

The record does not contain the “Attachment” listing the cases. But appellant’s attorney

responded to the Rule 41(b) notice on September 30, 2011, requesting that his cases be left

on the docket because there were “undetermined matters in process, which are necessary

before the Estates are closed.” He listed seven cases, including “Ray H. Dawson, Estate,

No. PR-2006-198.”

After 2011, the record contains no pleadings, orders, or documents until January 5,

2016. On that date, appellant filed a petition to reopen the estate, explaining that the estate

had been “closed under Rule 41(b) on September 30, 2011, because of inactivity,” that

appellant’s attorney had retired, and that appellant had discovered an asset—an LLC solely

owned by the decedent—that should be distributed. Appellant also filed a petition for partial

distribution stating that she was the individual distributee under the decedent’s will and

requesting that the court distribute all his interest in the asset to her. The court entered two

orders on January 5, 2016: one reopening the estate and one distributing all of decedent’s

interest in the LLC to appellant under the decedent’s will.

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On February 26, 2016, appellee, Ray Dawson, Jr., the son of the decedent, filed a

motion to vacate the orders reopening the estate and distributing decedent’s interest in the

LLC, contending that the orders were void because the court did not have jurisdiction over

the matter. He alleged that, after the estate was opened in 2006, notice was published in the

newspaper 1 and claims were filed against the estate but that the estate had never been

administered and no action had been taken to probate the will and distribute the assets in

the estate. He alleged that the case was dismissed pursuant to Rule 41(b), effective as of

October 28, 2011, and that no appeal had been taken from that dismissal. According to

appellee, Arkansas Code Annotated section 28-53-119 allows an estate to be reopened only

after the estate “has been settled and the personal representative discharged.” He argued that

the estate had never been settled and the personal representative had not been discharged;

rather, he stated, the case had been dismissed. Therefore, he argued, the probate court had

no jurisdiction to reopen the estate pursuant to the probate code. Further, he alleged that

the five-year statute of limitations for admitting a will to probate had run when appellant

petitioned to reopen the estate. See Ark. Code Ann. § 28-40-103(a). He concluded by

arguing that the circuit court had no jurisdiction over the parties because he had never been

served by mail or any other manner as required by Ark. Code Ann. § 28-1-112, the executor

failed to follow the procedures set forth in the probate code, and the matter had been

dismissed for more than a year and the statute of limitations had run.

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He contends that, although he was listed by name and address in the original petition
for probate of the will and appointment of personal representative, he was never served with
notice of the proceedings and had no knowledge of them.
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After holding a hearing on the motion, the circuit court entered an order on March

31, 2016, finding that it had no jurisdiction to enter the orders reopening the estate and

distributing the asset. It granted appellee’s motion to set aside and vacate the orders, finding

that the case had been dismissed on October 28, 2011, and appellant had not refiled or

reopened the estate within one year from that date. The court also found that an estate may

be reopened under Ark. Code Ann. § 28-53-119 only after the estate has been settled and

the personal representative discharged. Because this estate had not been settled and the

personal representative discharged, the requirements under the code had not been met to

authorize reopening the estate.

We review probate proceedings de novo but will not reverse the decision of the

probate court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d

722 (2007). A finding is clearly erroneous when, although there is evidence to support it,

the appellate court is left on the entire evidence with the firm conviction that a mistake

has been committed. Estate of Taylor v. MCSA, LLC, 2013 Ark. 429, at 3, 430 S.W.3d 120,

122. Furthermore, while we will not reverse the circuit court’s factual determinations

unless they are clearly erroneous, we are free in a de novo review to reach a different result

required by the law. Id.

For her first argument, appellant contends that the circuit court should not have

dismissed the case under Rule 41(b) in 2011. She argues that the notice in the record failed

to include the attachment listing the cases for dismissal, that the record fails to show who

was notified and no proof of service was filed regarding the Rule 41(b) certificate, and that

the court failed to make any findings on her attorney’s request for the case to remain on the

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active docket. Appellant neither appealed from the 2011 dismissal of the case nor filed a

motion to set aside or vacate the dismissal, and it is too late now to argue that the circuit

court erred in dismissing it. See Ark. R. App. P.–Civ. 4 (requiring notice of appeal to be

filed within 30 days from entry of the order appealed).

She also argues that the court erred in setting aside the order reopening the estate

under Ark. Code Ann. § 28-53-119 because there was a newly discovered asset and “just

cause” for reopening the estate. Arkansas Code Annotated section 28-53-119 allows the

probate court to reopen an estate in certain circumstances. Specifically, it provides:

If, after an estate has been settled and the personal representative discharged, other property
of the estate is discovered, or if it appears that any necessary act remains unperformed
on the part of the personal representative, or for any other proper cause, the court,
upon the petition of any person interested in the estate and without notice or upon
such notice as it may direct, may order that the estate be reopened.

Ark. Code Ann. § 28-53-119(a)(1) (Repl. 2012) (emphasis added). The statute authorizes

reopening of an estate that “has been settled and the personal representative discharged.”

Here, as the court found, the estate was dismissed for failure of the executrix to administer

the estate. It was not settled, and the personal representative was not discharged. Therefore,

section 119 does not apply here.

Finally, appellant contends that because the five-year statute of limitations has run

for admitting a will to probate and the court found the estate could not be reopened, the

decedent is deemed to have died intestate. She argues that public policy does not favor

intestacy when a will exists. However, this issue is not before us. The circuit court made no

findings regarding distribution of the decedent’s assets, nor did the court find that the

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decedent had died intestate. The circuit court simply vacated its orders reopening the estate

and distributing the asset on the basis that it had no jurisdiction to enter those orders.

Affirmed.

HIXSON and MURPHY, JJ., agree.

Schieffler Law Firm, by: Edward H. Schieffler, for appellant.

Andrea Brock, for appellee.

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