Lucas v. Wash. Cnty.
| Decision Date | 02 December 2020 |
| Docket Number | No. CV-18-620,CV-18-620 |
| Citation | 614 S.W.3d 840,2020 Ark. App. 540 |
| Parties | Joseph LUCAS, an Individual; Glen Lucas, an Individual; Robert Lucas, an Individual; Barbara Johnson, an Individual; Thomas Lucas, an Individual; and David Abbott, an Individual, Appellants v. WASHINGTON COUNTY; Pamela Vitko, as Personal Representative and on Behalf of the Laura Lee Broderick Estate; Cecily Lennard Lucas, as Personal Representative and on Behalf of the John P. Lucas Estate; and Victoria Gilbertie, Appellees |
| Court | Arkansas Court of Appeals |
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Fayetteville, by: Curtis E. Hogue and M. Scott Hall, for appellants.
Howerton Law Firm, Fayetteville, by: Wendy R. Howerton, for appellees.
This appeal involves a dispute over an estate that escheated to Washington County. Two groups of the decedent's cousins filed petitions seeking to claim a share of the estate. The circuit court dismissed the petition of one group of cousins—referred to as the Lucas heirs1 —and divided the estate among the remaining cousins—referred to as the Broderick heirs.2 The dispositive issue is whether the Lucas heirs properly effected service on Washington County. We hold that they did and reverse the circuit court's dismissal order and remand for further proceedings consistent with this opinion. We also deny the Broderick heirs’ motion to dismiss the appeal.
The decedent, Carl John Smith, died intestate on July 20, 2010, leaving an estate worth approximately $822,000. Because he had no spouse or immediate descendants, an order declaring the funds escheated to Washington County was entered in April 2012.
Approximately five years after Smith's death, it was discovered that he had four first cousins. Two of those cousins, Laura Broderick3 and John P. Lucas, survived him. John P. Lucas died in 2016 and was survived by his wife, appellee Cecily Lucas; and two grandchildren from a prior marriage, appellant David Abbott and Christine Alexander, a nonparty. John P. Lucas's estate was administered in Florida, and his will left his entire estate to his widow, Cecily.
The remaining first cousins, Joseph E. Lucas and Robert J. Lucas, did not survive Smith's death. They were survived, however, by their own children: appellants Joseph Lucas, Glen Lucas, Robert Lucas, Barbara Johnson, and Tom Lucas; and appellee Victoria Gilbertie.4
Broderick was the first to file her petition seeking her share of the decedent's estate on May 16, 2017. On July 19, 2017, Gilbertie and Cecily Lucas filed separate petitions seeking their shares of the decedent's estate. None of the Broderick heirs specified the share of the estate they were seeking. Nor did they mention the petition filed by the Lucas heirs or serve their petitions on them. Each Broderick heir filed a proof of service stating that service of the petition was effected on the prosecuting attorney by certified mail, restricted delivery and claimed personally by the prosecutor.
On July 3, 2017, the Lucas heirs filed their petition seeking their per stirpes share of the decedent's estate. The Lucas heirs’ petition mentioned Broderick and her petition but did not make her a party or serve their petition on her. The Lucas heirs did not attempt to serve their petition on the prosecuting attorney as required by the escheat statutes. Their failure to do so lies at the heart of this appeal.
Washington County filed a response to each petition through its county attorney without objecting to service or jurisdiction, admitting the allegations about the decedent's estate but denying the other material allegations.
The four petitions were consolidated into the case filed by the Lucas heirs by order entered on November 3, 2017. After the court consolidated the cases, the Broderick heirs sought to intervene in the Lucas heirs’ case, claiming intervention of right because all parties were claiming an interest in the decedent's estate. The Lucas heirs responded to the motion to intervene arguing that it was untimely and should be denied because the Lucas heirs were seeking only 5/12ths of the decedent's estate and not any portion of the estate to which the Broderick heirs were entitled.5
The circuit granted the motion to intervene, finding that the Broderick heirs had a right to intervene because they were also claiming an interest in the decedent's estate. The court further found that permissive intervention would have also been proper and that, in either case, the motion was timely, and the Lucas heirs would not be prejudiced by the intervention.
The Broderick heirs filed a motion to dismiss the Lucas heirs’ petition due to the Lucas heirs’ failure to serve the prosecuting attorney pursuant to Arkansas Code Annotated section 28-13-110 (Repl. 2012). The Broderick heirs argued that section 28-13-110 should be strictly construed and that the failure to serve the prosecutor as required in subsection (a)(1)(b) resulted in the petition being a nullity and the circuit court lacking subject-matter jurisdiction over the Lucas heirs’ claims.
The Lucas heirs responded to the motion to dismiss, arguing that the circuit court had subject-matter jurisdiction, which is determined by the pleadings. They further argued that Washington County accepted service or waived service by filing an answer. The Broderick heirs filed a reply to the Lucas heirs’ response.
The Broderick heirs also filed a motion for judgment on the pleadings. The motion argued that they had complied with section 28-13-110, that the statute required service of the petition on the prosecuting attorney, that the prosecutor had not filed an answer, and that the county had filed an answer stating that it had no means of denying their claims. The motion did not mention the Lucas heirs or their petition in any way.
On January 23, 2018, the circuit court granted the motion to dismiss, dismissing the Lucas heirs’ petition with prejudice. The order did not explain the court's reasoning but simply stated that the court had reviewed the Broderick heirs’ motion and brief, the Lucas heirs’ response and brief, and the Broderick heirs’ reply brief. The Lucas heirs filed a notice of appeal from the order granting the motion to dismiss on January 24.
The Lucas heirs timely filed a motion for reconsideration, arguing that if dismissal was warranted, it should be without prejudice. The motion further argued that the court had the authority to correct mistakes and that the court should allow a dismissal without prejudice so the Lucas heirs could have the advantage of the savings statute. Attached to the motion was an affidavit from Brian Lester, the county attorney, stating that he had accepted service of the Lucas heirs’ petition on behalf of Washington County.
In their response to the motion for reconsideration, the Broderick heirs argued that dismissal of the Lucas heirs’ petition with prejudice was not an error or a miscarriage of justice; rather, they argued that dismissal with prejudice was required where there was no compliance with the statutory service requirements and no birth certificates or other proof of the Lucas heirs’ relationship with the decedent were attached to the petition.
On March 7, 2018, the circuit court granted the Lucas heirs’ motion for reconsideration, vacated the January order of dismissal, and dismissed the Lucas heirs’ petition without prejudice to allow them to refile their petition under that savings statute.
On April 6, 2018, the Broderick heirs filed their own motion for reconsideration, asking the circuit court to reconsider the order granting the Lucas heirs’ motion for reconsideration. The Broderick heirs argued that dismissal with prejudice was required because the Lucas heirs never timely commenced their original claim because they never attempted or completed service on the prosecuting attorney as required under section 28-13-110. They further argued that because the Lucas heirs never timely commenced their action before the statute of limitations expired, the circuit court lacked jurisdiction over the Lucas heirs’ claim.
On April 23, 2018, the Lucas heirs responded to the Broderick heirs’ motion. In their response, they asserted that the merits of the law required that the dismissal be without prejudice so that they could have the benefit of the savings statute.
The circuit court granted the Broderick heirs’ motion for reconsideration without explanation on April 25, 2018. This time the dismissal of the Lucas heirs’ petition was with prejudice.
The Lucas heirs filed their notice of appeal from the dismissal with prejudice on April 27, 2018.
The circuit court entered judgment on the pleadings in the Broderick heirs’ cases on June 22, 2018. That order awarded Broderick and Cecily Lucas $352,339.65 each and Gilbertie $117,446.63 from the decedent's estate. The Lucas heirs filed their notice of appeal from the judgment on the pleadings on July 23, 2018.
Although the Lucas heirs argue six points,6 we find that two points are dispositive—(1) whether service of process was waived by the responding party, Washington County; and (2) whether the Broderick heirs should have been allowed to intervene. We answer both questions in the affirmative. Because we reverse on the service issue, it is unnecessary to discuss the remaining points.
In cases where the appellant claims the circuit court erred in granting a motion to dismiss, the appellate court reviews the circuit court's ruling de novo. Holliman v. Johnson , 2012 Ark. App. 354, 417 S.W.3d 222. Whether the circuit court correctly interpreted an Arkansas statute is a question of law that the appellate court reviews de novo. Id. This court gives the circuit court's ruling no deference on appeal. Tucker v. Sullivant , 2010 Ark. 170, 370 S.W.3d 812. The first rule in considering the meaning and effect of a statute is to construe it just as it...
To continue reading
Request your trial
-
Robbins v. Lemay
...court erred in granting a motion to dismiss, the appellate court reviews the circuit court's ruling de novo. Lucas v. Washington Cty. , 2020 Ark. App. 540, 614 S.W.3d 840. In reviewing a dismissal order under Rule 12(b)(6), we look to the four corners of the complaint, treat the facts alleg......