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Wingate-Mickles v. Harris

Court of Appeals of Arkansas, Division III

May 11, 2016



The Henry Firm P.A., by: Matthew Henry, for appellant.

Frances Morris Finley, for appellee.


Appellant Meegan Wingate-Mickles appeals an order entered on July 7, 2015, by the Pulaski County Circuit Court ordering her, as executrix of the estate of Emrich Swonia, to pay the attorney's fee of Frances Morris Finley, a previous attorney for the estate who had filed a successful will contest, in the amount of $6, 989.64.[1] She argues that (1) Ms. Finley's claim was improperly filed and not authorized by law; (2) Ms. Finley's affidavit was not pursuant to any contract with the former executrix; (3) Ms. Finley's actions on behalf of the estate were in bad faith and were against the wishes of the testator; and (4) the trial court did not have jurisdiction to order appellant to pay the fees out of her own funds. We reverse and remand.

I. Facts and Procedural History

This case arises from the death of Mr. Swonia on July 8, 2014. Appellee Marquita Harris had known Mr. Swonia for most of her life-he was the longtime companion of her grandmother. She considered him family and referred to him as "Grandfather, " but there was conflicting testimony as to whether she and Mr. Swonia were on good terms at the time of his death. In 2011, Mr. Swonia apparently gave appellee a will dated May 10, 2011, and told her to keep it. Mr. Swonia also gave appellee instructions as to where the keys to his Cadillac Escalade were and instructions as to insurance and other things she would need to know upon his death. Appellant, a relative, was named as a beneficiary of the will, which made her an interested party who had the authority to open a probate estate pursuant to Arkansas Code Annotated section 28-40-107 (Repl. 2012).

Shortly after Mr. Swonia died, conflict arose between appellee and appellant over Mr. Swonia's belongings and estate. In early September 2014, appellee contacted Ms. Finley by telephone regarding Mr. Swonia's estate. Ms. Finley explained appellee's options, but nothing was decided at that time. Later, appellee updated Ms. Finley on the conflict with appellant, after which Ms. Finley checked with the Pulaski County Circuit Clerk and found that no probate estate had been opened.

On September 15, 2014, appellee, with the assistance of Ms. Finley, filed a petition for the probate of Mr. Swonia's will and appointment of executrix, and she was subsequently appointed on September 19, 2014. Shortly after that, Ms. Finley received a telephone call asking whether she was a probate lawyer. The caller then proceeded to ask a legal question and in the process told Ms. Finley her name-it was appellant; whereupon, Ms. Finley immediately stopped the conversation and informed appellant that she could not discuss the matter with her because she represented appellee and would consider such a conversation a breach of ethics. On October 19, 2014, a notice of probate of will and filing of claim was first published, with a corresponding proof of publication filed with the trial court on December 29, 2014.

In the meantime, on October 29, 2014, appellant, through attorney Wayne Ball, filed a contest of the will and petitioned for the probate of a new will, the removal of the executrix, and a request to be appointed executrix in this matter. The estate contained no cash and had only real and personal property to be distributed, the majority of which was Mr. Swonia's house and a 2010 paid-in-full Cadillac Escalade.[2] Appellee filed a response on November 3, 2014, and on the same day, Mr. Ball filed lengthy interrogatories and requests for admissions, which were timely answered. In contrast, on or about December 29, 2014, appellee propounded discovery requests to appellant, but she failed to respond.

On or about the first week in December 2014, Mr. Ball called Ms. Finley and asked if the matter could be set for hearing, but Ms. Finley asked if they could wait until January 27, 2015, to discuss setting a hearing or settling the matter because of personal health reasons. On January 8, 2015, Matthew Henry entered his appearance in the matter on behalf of appellant. On February 2, 2015, Ms. Finley filed a motion to dismiss the will contest for lack of prosecution and for lack of a rational basis in law.

While serving as executrix of the estate, appellee received an offer to buy Mr. Swonia's house, and despite the fact that there was a pending will contest, she filed with the trial court three petitions for authority to sell Mr. Swonia's house and deposit the money in a blocked account pending the settlement of the will contest either by court order or agreement. On March 3, 2015, the trial court held a hearing on the contest of the will and appellee's petition to sell real estate. Appellee was present with her attorney; however, appellant did not appear. The trial court heard testimony from appellee concerning the proposed sale but decided to continue the hearing to another day when appellant could be present. There is no order in the record related to this hearing.

On June 17, 2015, the trial court held a hearing on all the pending issues-the contest of will and petition for probate of will, removal of the executrix, appointment of new executrix, executrix's petition for authority to sell real estate and the objection thereto, appellee's motion to dismiss for lack of prosecution and appellant's response thereto, and appellee's motion to strike the reply brief and appellant's answer thereto. It is clear from the abstract of the hearing that this was a confusing situation, and the trial court was unclear about what was being dealt with and what procedures were being followed by the parties.

Following the hearing, the trial court ruled in favor of the June 7, 2012 last will presented by appellant as the governing document, removed appellee as executrix, and appointed appellant to serve in her place, with Mr. Henry to proceed as attorney for the estate. The trial court also advised that, because appellee and her attorney, Ms. Finley, had expenditures related to the estate, they should file claims against the estate for those expenditures and that they would be entitled to reimbursement for those expenditures. The trial court further advised that if appellant as the successor executrix wanted to contest those ...

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