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Miesner v. Estate of Allred

Court of Appeals of Arkansas, Division I

June 21, 2017

SHERRY ANN MIESNER APPELLANT
v.
ESTATE OF JOYCE EDNA PRIEST ALLRED, DECEASED, RELYANCE BANK, BELINDA DIANE ALLRED, AND JANET HERRING APPELLEES

         APPEAL FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13PR-15-16] HONORABLE HAMILTON H. SINGLETON, JUDGE

          Robert S. Tschiemer, for appellant.

          C. Thompson "Tom" Owens, for appellee.

          BRANDON J. HARRISON, Judge

         Sherry Miesner appeals from a Cleveland County Circuit Court order that approved a family-settlement agreement, distributed assets, and awarded various costs and fees to Relyance Bank, as administrator of the Estate of Joyce Edna Priest Allred, deceased. On appeal, Miesner argues (1) that the petition for appointment of a personal representative was filed by a nonlawyer, so all the subsequent orders are null and void, and (2) the family-settlement agreement is unenforceable. We affirm the circuit court's decision.

         I.

         A detailed history of the case leading to this appeal is needed to understand it. Joyce Allred was married to Lewis Franklin Allred, Sr., and they had three children together- Sherry Miesner (appellant), Janet Herring, and Lewis Franklin Allred, Jr. Lewis Franklin Allred, Sr., passed away sometime before 2001. Joyce apparently executed a will in 2001. In it, she named Janet to serve as personal representative, made some specific bequests to certain grandchildren and great-grandchildren, and left the residue of her estate to her three children equally. The record also contains a Joyce Allred Trust Agreement dated 13 July 2010. That trust is revocable, and Joyce is named as grantor and initial trustee. Her daughters are named as successor trustees. Schedules A, B, and C attached to the trust document describe real property in Arkansas. The document directs that certain distributions be made to the trust's beneficiaries on Joyce's death. Joyce's signature is notarized, acknowledged, and dated 13 July 2010. A quitclaim deed dated 13 July 2010 (but not filed until 14 August 2015) reflects that some real property was deeded to the revocable trust. Joyce also executed a durable power of attorney (effective 13 July 2010) appointing Janet Herring as her attorney in fact.

         Moving forward chronologically, the record also contains a document titled "Allred Family Settlement Agreement" (Agreement) dated 29 March 2012. It is an agreement between Joyce, Sherry, Janet, and Lewis, Jr. The Agreement states, "[T]o avoid controversy between her children, [Joyce] believes that an independent limited guardian of her estate should be appointed to manage her financial affairs during her remaining lifetime." The Agreement referenced a civil-interpleader lawsuit filed in the Cleveland County Circuit Court regarding Joyce's accounts at Edward Jones Company and Simmons First National Bank.

         The Agreement states, in part:

In consideration of the cessation of the Interpleader Action and to avoid any further controversy regarding the management of the financial affairs of Joyce E. Allred during her remaining lifetime and after her death the parties agree as follows:
(i) Upon execution of this Agreement by all parties and as expeditiously as possible, Joyce E. Allred will Petition the Cleveland County Circuit Court for the appointment of Pine Bluff National Bank, or other appropriate financial institution, as Limited Guardian for the purpose of managing her financial affairs and payment of all properly presented bills related to her care. Pine Bluff National Bank will take control and manage the financial affairs of Joyce E. Allred pursuant to this Limited Guardianship of her Estate. The Limited Guardian will have authority to review all transactions from June 1, 2010 forward and take any actions it deems appropriate with respect to any transactions, other than the advances addressed below in this Agreement.
(ii) At the death of Joyce E. Allred, and irrgardless [sic] of any Will, pay on death designations, joint ownership designations or beneficiary designations to the contrary, the remaining assets of Joyce E. Allred (other than the jewelry described in item (iii)), from all sources, including life insurance, annuities, bank accounts, brokerage accounts, et. cet . . . ., after payment of all valid claims and expenses of administration will be distributed as follows:
(A)The first $ 170, 000.00[1] in cash or other assets will be distributed, divided equally to Lewis Franklin Allred, Jr., and Sherry Miesner to equalize advances already made to Janet Herring.
(B)The remaining assets (other than the jewelry described in item (iii)) will be distributed, divided equally, between Lewis Franklin Allred, Jr., Sherry Miesner and Janet Herring.
(iii) At the death of Joyce E. Allred, or if she elects, during her life, Joyce E. Allred's jewelry will be divided equally between Sherry Miesner and Janet Herring
. . . .
All parties agree that, after the settlement is executed, this Agreement is a complete settlement between the parties regarding the financial affairs of Joyce E. Allred during her remaining life and after her death and that no legal proceedings of any kind may be instituted by any one or more of them against the other for actions related, in any way, to the administration of the financial affairs of Joyce E. Allred during her life and after her death or any transfers of property between the parties as contemplated in this Agreement.
. . . .
(b) The terms of this Agreement will bind and benefit the parties and their successors in interest.

         The Agreement is signed by Joyce E. Allred, Belinda D. Allred as "Attorney-In-Fact For Lewis Franklin Allred, Jr., " Sherry Miesner, and Janet Herring.

         In June 2012-about two months after the Agreement had been executed-Lewis, Jr., died. More than two years later, in December 2014, his mother Joyce died.

         II.

         On 10 July 2015, Relyance Bank filed a petition for appointment of a personal representative in the probate division of the Cleveland County Circuit Court. The petition states that Joyce died intestate around 21 December 2014 and that the bank's "interest in the estate is that of Guardian of the Estate of Joyce Edna Priest Allred, now deceased." The petition names Miesner and Janet as Joyce's surviving heirs at law and lists their addresses as "unknown." It also states that Joyce's estate contains no real property and more than $25, 000 of personal property. Relyance asked the court to waive any bond requirement and to appoint it to administer the estate. The petition is signed by Richard Metcalf, EVP, for Relyance Bank. His signature is notarized. No attorney signature appears on the document.

         On 23 July 2015, the circuit court appointed Relyance as administrator of Joyce's estate, finding that she had died intestate and that the petition was unopposed. In August 2015, the Cleveland County Herald published an advertisement notifying the public that any claims against Joyce's estate must be made within six months and sent to Relyance Bank c/o Owens Law Firm. In January 2016, Belinda Allred (Lewis, Jr.'s widow) filed a claim for $85, 000 and for one-third of the estate's assets. She attached the Agreement to her claim. Relyance objected to Belinda's claim. The objection is signed by C. Thompson Owens as attorney for Relyance Bank.

         In February 2016, Relyance filed a petition to approve the Agreement and asked the court to ratify it. It asked for an administrative fee of $15, 000 and an attorney's fee of $8, 788.76 to be paid before any other claims or distributions. The circuit court was asked to distribute the remaining assets of the estate "pursuant to the Agreement."

         Next, Relyance asked the court to deny Belinda's claim against the estate. This new petition was signed by Richard Metcalf, as senior vice president and trust officer of Relyance Bank. Metcalf also signed a verification, and his signature was notarized. A certificate of service signed by attorney Tom Owens was attached to the February 2016 petition.

         In March 2016, Miesner filed a pro se affidavit objecting to Belinda's receiving any money from the estate because she was "not privy" to the Agreement. She alleged that the "successors in interest" phrase in the Agreement was ambiguous and the Agreement was silent on what was to be done if "one kinship should predecease the testator or another kinsman." Attached to Miesner's objection was Joyce's 2001 will. Also attached were two attorney-correspondence letters from April and July 2015 proposing, and rejecting, a settlement offer from Miesner and Janet to Belinda. Miesner also objected to the administrative fee Relyance requested and asked the court to "remedy the situation at hand" regarding a $66, 854.87 annuity from Protective Life Insurance Co. that had been deposited in her personal account because she was the named beneficiary of the policy. Miesner also claimed that there was another annuity with Protective Life Insurance Co. to which she was not a named beneficiary and that Relyance had not deposited that annuity into the estate's account. Miesner attached documentation of the annuity and a letter from Protective Life Insurance Co. indicating that Miesner and Lewis, Jr., were the named beneficiaries.

         In April 2016, Relyance asked the court to order Miesner to turn over to the estate any life-insurance proceeds she had received although Miesner was the designated beneficiary on the life-insurance contract. This petition was signed by Chris Cummings, vice president and trust officer for ...


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