FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54PR-06-198]
HONORABLE KATHLEEN BELL, JUDGE
Schieffler Law Firm, by: Edward H. Schieffler, for appellant.
Brock, for appellee.
W. GRUBER, CHIEF JUDGE.
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.
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.
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.
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 distributed 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.
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 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.
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.
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.
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 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).
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