Alexander v. First Nat. Bank of Fort Smith

• Court: Arkansas Supreme Court
• Writing for the Court: ADKISSON
• Citation: Alexander v. First Nat. Bank of Fort Smith, 646 S.W.2d 684, 278 Ark. 406 (Ark. 1983)
• Decision Date: 21 February 1983
• Docket Number: No. 82-207,82-207
• Parties: Mildred M. ALEXANDER et al., Appellants, v. FIRST NATIONAL BANK OF FORT SMITH, Appellee.

Page 684

646 S.W.2d 684

278 Ark. 406

Mildred M. ALEXANDER et al., Appellants, v. FIRST NATIONAL BANK OF FORT SMITH, Appellee.

No. 82-207.

Supreme Court of Arkansas.

Feb. 21, 1983.

Rehearing Denied March 28, 1983.

Thomas S. Stone, Little Rock, and Edward B. Helms, Oklahoma City, Okl., for appellants.

Rose Law Firm by W. Dane Clay, Little Rock, for appellee.

ADKISSON, Chief Justice.

This is the third appeal arising from the will of Fred Alexander, in which he left one-half of this estate to his widow, Mildred, with the residue in trust for his two children, Mary and Caruth II, with Mildred as trustee. Caruth II died, and his widow sued Mildred for an accounting on behalf of her son Caruth III who was a beneficiary of the trust. On the first appeal we removed Mildred as executrix and remanded for a full and final accounting of the estate. Alexander, Ex'x v. Alexander, Ex'x, 262 Ark. 612, 561 S.W.2d 59 (1978). The second appeal resulted when Mildred filed her own purported full and final accounting and the Executor in Succession, the First National Bank of Fort Smith, filed its own accounting. The trial court approved the Bank's accounting, but deferred action on the various claims for attorney's and executor's fees. Mildred appealed the trial court's approval of the Bank's accounting, and we affirmed in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). During the second appeal, after notice of appeal was filed in the trial court but before the record was filed in this Court, the trial court held a hearing on the various claims for attorney's and executor's fees. The following awards were made which are the subject of this appeal:

$7,000 to the First National Bank of Fort Smith as Executor in Succession

$17,176 to Mr. W. Dane Clay as attorney for the Executor in Succession for his work from May 26, 1978--June 5, 1981

$30,540 to Mr. W. Dane Clay for his work for Caruth III from 1970--May of 1978, one-half to be paid by the widow and her daughter.

Appellants first argue that the trial court was without jurisdiction to award attorney's fees since at the time of the award the notice of appeal had been filed. However, we stated in Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958) that the trial court retains jurisdiction of the case until the record is filed and the appeal is docketed. This had not yet been done in this case when the award was made. Furthermore, matters that are collateral or supplemental to the trial court's judgment are left within the trial court's jurisdiction even though an appeal has been docketed. Bleidt v. 555, Inc., 253 Ark. 348, 485 S.W.2d 721 (1972). Here, the award of attorney's and executor's fee was collateral to the appeal from the trial court's decision to uphold the Bank's accounting.

Appellants next argue that the probate court's judgment as to a $30,570.00 attorney's fee awarded to Mr. Clay should be reversed because the ruling made from the bench by the trial judge at the June 22, hearing as to the fee is inconsistent with his actual order concerning the fee. At the hearing, the following exchange took place:

The Court: All right. I divided your claim in half.

I am considering the duplicity and all of the other matters, so that you are entitled to Fifteen Thousand Two Hundred Eighty Five Dollars ($15,285.00) in that connection for recovery of assets for the trust and for the estate, and I am surcharging that one-half against Mildred Alexander, and one-half against Mary Mildred Alexander.

Mr. Clay: All right. What you are saying is the total fee allowed is only one-half of what I asked for?

The Court: The total fee is ... $15,285.00...

However, the trial court's order in this regard filed July 8, 1981, states:

... That considering all of the facts and circumstances made known to the Court herein, the fees and expenses claimed in this connection by Mr. Clay as attorney in the amount $30,570.00 are found to be reasonable and should be allowed. That however only one-half of this sum or the amount of $15,285.00 would be surcharged to Mrs. Mildred Alexander and her daughter, Miss Mildred Alexander, jointly or severally, for which judgment should be granted against these parties and such interest as may be distributed to them from decedent's estate herein. That in so doing the Court recognizes that Mr. Clay's services were necessary and were effective to protect the interest of the residual heir and beneficiary Caruth Alexander, III; and also of benefit indirectly to the estates of Caruth Alexander and Dorothy Alexander. That therefore the other one-half of the requested fees and expenses to be surcharged, i.e. $15,285.00, should be charged to or received from Caruth Alexander, III, beneficiary of both his parents' estates.

The pronouncement from the bench made at the June 22, 1981, hearing is inexplicably different from the order which was later entered on July 8, 1981. The court apparently changed its mind after its pronouncement from the bench following the June 22, hearing. In...