Amant v. Callahan

• Decision Date: 07 July 2000
• Citation: 341 Ark. 857,20 S.W.3d 896
• Court: Arkansas Supreme Court

341 Ark. 857

20 S.W.3d 896

Charles AMANT v. George M. CALLAHAN

99-1009

SUPREME COURT OF ARKANSAS

July 7, 2000, Opinion Delivered

Wright, Lindsey & Jennings LLP, by: H. Keith Morrison, for appellants.

Terry P. Diggs, for appellee.

LAVENSKI R. SMITH, Justice.

LAVENSKI R. SMITH, Justice. This is a probate case. Appellants Charles and Muriel Amant, as estate devisees, assert that the Garland County probate court erroneously granted fees to the administrator, the estate attorney, and estate accountants. Appellants contend that the Full Faith and Credit Clause of the U.S. Constitution as well as the doctrine of res judicata preclude the award of fees because they had been previously sought and denied in an Oklahoma probate court. They also assert that the trial court erred in granting these fees because they are excessive under the statutes, and because they were untimely sought under the applicable statutes. We find merit in appellant's Full Faith and Credit argument and, accordingly, reverse.

Facts

In 1984, Tude Mitchell Ray, a lifelong Oklahoma resident, moved to Garland, County, Arkansas, at the age of eighty-one. Over the course of his long life, Mr. Ray amassed a sizeable ] estate valued in excess of one million dollars despite being illiterate. From 1929 until the early 1940's he acquired approximately 1,722 acres of land and mineral rights in Oklahoma. Mr. Ray had twelve children. In 1983, nine of his children commenced an action in Oklahoma to have him declared incompetent to handle his affairs. Two of his children, Muriel Amant and Gus Ray, cared for Mr. Ray during the pendency of the incompetency proceedings. They did not live in Oklahoma, but rather in Missouri and Arkansas, respectively. After coming to Arkansas, Mr. Ray retained the services of Attorney George M. Callahan of Hot Springs to represent him in the incompetency proceedings in Oklahoma. Callahan succeeded, and on May 2, 1986, the Oklahoma Court of Appeals overturned the Oklahoma District Court's finding of incompetency, and instructed the district court to dismiss the proceeding.

Apparently, in May 1985, Callahan drafted a will for Mr. Ray. The will listed Callahan and a Mr. Meacham of Clinton, Oklahoma as coexecutors. Mr. Ray's will left his estate to his sons Gus and Peter, and his daughter Muriel. The will excluded the nine children involved in the incompetency proceedings, provided ] for $ 60.00 per month for Pete Ray, granted Muriel Amant mineral rights in what is referred to as the "Section 32 property," and granted the residue to Gus Ray. However, prior to having Callahan draft his will in 1985, Mr. Ray had already transferred the "Section 32 property" to Muriel, and additional mineral rights to Muriel's husband Charles in 1984.

On August 22, 1986, Tude Mitchell Ray died testate at the age of eighty-three in Hot Springs. On that same day, Callahan entered the will in probate. At the time of his death, Mr. Ray owned a house and a small amount of personal property in Arkansas. However, the bulk of his 1.3 million dollar estate consisted of real property and real-property interests in Oklahoma, where he had lived almost all of his life. Thus, the domiciliary probate case was established in Arkansas. Pursuant to the will, the probate court appointed Callahan personal representative for the estate. Callahan charged the estate $ 125.00 per hour for his services as personal representative. Callahan, although an attorney himself, retained Charles Lincoln as attorney for the estate. Lincoln also charged $ 125.00 per hour for his services. Additionally, Callahan also ] retained an accounting firm to handle the finances of the estate. In the course of the probate process, substantial accounting fees were paid to Luebben and Associates, the accounting firm hired by Callahan.

On September 1, 1987, a mortgagee on some Oklahoma estate property filed an ancillary probate action in Custer County, Oklahoma. At some point, the Oklahoma court substituted Callahan as a co-personal representative in the ancillary action There were also two actions to compel return of the property transferred to Muriel and Gus in 1984, ostensibly to avoid gift taxes that would have to be paid otherwise. On June 15, 1988, LaVone Keeton, one of the excluded children, challenged the will in the district court in Oklahoma, asserting she had a valid will bequeathing the "Section 32 property" to her. The matter was litigated, and Callahan prevailed, bringing this matter to an end in 1989. On November 21, 1988, Charles and Muriel Amant and Gus and Roberta Ray entered into a "Family Settlement Agreement," to resolve their disputes with Callahan.

The record reflects that even following the execution of the Family Settlement Agreement, the estate continued to languish in the courts. ] Callahan first submitted an inventory for the estate in 1992. The vast majority of the legal proceedings occurred in Oklahoma where Mr. Ray owned the bulk of his property. During the course of the probate proceedings, and for reasons unstated in the record, Callahan comingled the funds of the domiciliary and ancillary probate proceedings. This apparently led to some consternation on the part of the Oklahoma probate court as to the handling of the estate. The devisees and the executor battled extensively over aspects of the probate, but after approximately seven years, the Oklahoma proceedings wound down.

On July 23, 1993, Callahan filed his Final Account and Petition to close out the ancillary probate in Oklahoma. Callahan included requests for $ 36,827.87 in personal representative's fees for "services rendered in the probate proceeding pending in Garland County, Arkansas and the ancillary probate proceeding before this Court"; $ 8,808.11 for attorney's fees to the law firm of Lincoln and Lawson; and $ 11,730.00 for accounting services to Luebben and Associates. On December 16, 1994, Oklahoma Probate Judge Robert W. Collier issued his order approving the final account and closing ] the ancillary probate. In his order, Judge Collier declined to pay all the fees requested by Callahan's petition. Instead, Judge Collier ordered that Callahan's fees for administering the estate had been paid already by his receipt of $ 70,000 from the probate court of Garland County. Judge Collier transferred $ 8,808.11 to Arkansas to pay Lincoln and Lawson and awarded Luebben and Associates only $ 8,000 of its requested fees. No one appealed the order of the Oklahoma probate court.

Interestingly, during the pendency of the Oklahoma proceeding, Callahan filed a "Petition for Allowance and Payment of Fees to Attorneys and Accountants for the Estate" on March 29, 1994, seeking many of the same fees previously sought in Oklahoma. After much litigation, the Garland County Probate Court granted Callahan's petition on September 10, 1996. The Court found the fees sought were the same fees sought in Oklahoma, with the exception of $ 9,355.18 sought in additional fees. No one appealed this finding. The probate court also found Lincoln had already received the $ 8,000.00 transferred by the Oklahoma probate court and then granted Callahan $ 22,184.23, Lincoln $ 15,280.10, and Luebben and Associates ] $ 18,545.55. Because the estate assets had been depleted, Callahan then sought and received an order from the court requiring the Amants to return a portion of the estate assets distributed to them to enable the estate to pay the fees ordered. The court entered this order on April 16, 1999. The Amants objected and timely initiated the instant appeal after the court issued its Order of Final Distribution and Closing Estate on August 10, 1999.

Standard of Review

We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous.Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera...