Massey v. Fulks

• Decision Date: 17 February 2011
• Docket Number: No. 10–364.,10–364.
• Citation: Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389 (Ark. 2011)
• Parties: Kevin MASSEY, Father of L.M., A Minor, Appellant v. Morris Dee FULKS and James Winters, Executors of the Estate of Derek Cockayne, Deceased; and the Estate of Derek Cockayne, Appellees.
• Court: Arkansas Supreme Court

2011 Ark. 4

376 S.W.3d 389

Kevin MASSEY, Father of L.M., A Minor, Appellant

v.Morris Dee FULKS and James Winters, Executors of the Estate of Derek Cockayne, Deceased; and the Estate of Derek Cockayne, Appellees.

No. 10–364.

Supreme Court of Arkansas.

Jan. 13, 2011.

Rehearing Denied Feb. 17, 2011.

Gregory Klebanoff, Fayetteville, for appellant.

Murphy, Thompson, Arnold, Skinner & Castleberry, Batesville, by: Blair Arnold, for appellee.

COURTNEY HUDSON HENRY, Justice.

AppellantKevin Massey appeals the order of summary judgment entered by the Stone County Circuit Court ruling that his claim against appellees, the Estate of Derek Cockayne and the executors of the estate, Morris Dee Fulks and James Winters(collectively the “Estate”), was barred by the statute of non-claim.Our court of appeals previously affirmed the circuit court's decision.Massey v. Fulks,2010 Ark. App. 272, 373 S.W.3d 903.Thereafter, we granted appellant's petition for review.For reversal, appellant argues that he was a known or reasonably ascertainable creditor who had two years in which to file his claim because the Estate failed to give him actual notice of the non-claim deadline.Appellant also contends that our decision in Dodson v. Charter Behavioral Health System of Northwest Arkansas, Inc.,335 Ark. 96, 983 S.W.2d 98(1998), should be overruled because it is contrary to the relevant statutory provisions contained in the probate code.We find merit in appellant's first point on appeal, but we decline his invitation to overturn Dodson.Accordingly, we reverse and remand the circuit court's decision and vacate the opinion issued by the court of appeals.

The record reflects that on September 25, 2007, Derek Cockayne died of a self-inflicted gunshot wound to the head as the police were executing a warrant for his arrest on charges of sexual misconduct involving an eleven-year-old minor, L.M.On October 1, 2007, the Probate Division of the Stone County Circuit Court admitted Cockayne's will to probate and appointed Fulks and Winters as co-executors of the Estate.On October 3, 2007, the Estate published a notice to creditors in the Stone County Leader in accordance with the requirements of Arkansas Code Annotated section 28–40–111(Repl.2004).The notice was published again on October 10, 2007.

Counsel for appellant, who is L.M.'s father, wrote a letter to the Estate's attorney on January 23, 2008.In this letter, counsel advised that appellant was contemplating filing suit against the Estate based on Cockayne's alleged inappropriate behavior with L.M.On February 11, 2008, appellant, on behalf of L.M., filed suit against the Estate in the Circuit Court of Stone County, asserting claims of battery, false imprisonment, and outrage.On February 21, 2008, the Estate filed an answer in which it denied the material allegations contained in the complaint.

On March 19, 2009, the Estate filed an amended answer and a motion for summary judgment.In these pleadings, the Estate asserted that the six-month non-claim period set forth in Arkansas Code Annotated section 28–50–101(a)(2)(Repl.2004) had expired on April 3, [2011 Ark. 3]2008, and that, although appellant had filed a complaint in circuit court within the non-claim period, he had neglected to file a claim against the Estate in probate court.Based on the decision in Dodson, supra, the Estate argued that appellant's claim was now barred because the complaint filed in circuit court did not satisfy the filing requirements of the non-claim statute.In opposing the motion for summary judgment, appellant contended that he was a known or reasonably ascertainable creditor who was entitled to actual notice pursuant to Arkansas Code Annotated section 28–40–111(a)(4)(A); that the Estate failed to provide him with such notice; and that Arkansas Code Annotated section 28–50–101(h) allowed him two years in which to file a claim because notice was not given.Appellant maintained that Dodson did not address the question of whether the non-claim period was extended for two years when a creditor who is identified during the non-claim period is not afforded actual notice.In reply, the Estate contended that the issue was decided in Dodson based on the view expressed by the dissenting opinion that the plaintiffs were entitled to actual notice as reasonably ascertainable creditors.

In addition to receiving briefs, the circuit court entertained counsels' arguments on May 26, 2009.At the hearing, appellant also advised the court that he had filed a claim against the Estate on April 16, 2009.The circuit court granted the Estate's motion for summary judgment.In its written order dated June 1, 2009, the court stated that appellant“failed to file a claim against the Estate of Derek Cockayne within six (6) months after the date of the first publication of Notice to Creditors; and that by virtue of ACA § 28–50–101(a) and (f), the Statute of Non–Claim, and further by virtue of the Supreme Court's decision in Dodson v. Charter Behavioral Health System of Northwest Arkansas, Inc.,335 Ark. 96, 983 S.W.2d 98(1998), the Court finds that [the Estate's]Motion for Summary Judgment, should be, and hereby is, granted.”

Appellant filed a timely appeal to our court of appeals.In affirming the circuit court's decision, the court of appeals considered the decision in Dodson to be controlling because of the factual similarities between Dodson and the present case.The court of appeals also believed that the Dodson court had implicitly rejected the argument that the non-claim period is extended by two years when a known or reasonably ascertainable creditor is not given actual notice.We subsequently granted the appellant's petition for review.When we grant a petition for review, we consider the appeal as though it had been filed originally in this court.Orr v. Hudson,2010 Ark. 484, 374 S.W.3d 686.

In his first argument on appeal, appellant asserts that he was a known creditor as of the time he filed his complaint in circuit court and obtained service upon the Estate and that he was entitled to actual notice under Arkansas Code Annotated section 28–40–111(a)(4)(A).Further, appellant maintains that, because he did not receive actual notice, he had two years in which to perfect his claim against the Estate pursuant to Arkansas Code Annotated section 28–50–101(h).

This case comes to us from an order of summary judgment.A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law.Sw. Energy Prod. Co. v. Elkins,2010 Ark. 481, 374 S.W.3d 678.Normally, we determine if summary judgment is proper based on whether evidentiary items presented by the moving party leave a material fact unanswered, viewing all evidence in favor of the nonmoving party.Hisaw v. State Farm Mut. Auto. Ins. Co.,353 Ark. 668, 122 S.W.3d 1(2003).However, in cases such as this where the parties do not dispute the essential facts, we simply determine whether the moving party was entitled to judgment as a matter of law.Jackson v. Blytheville Civ. Serv. Comm'n,345 Ark. 56, 43 S.W.3d 748(2001).

Appellant's arguments are based on Arkansas Code Annotated section 28–50–101andsection 28–40–111.¹Section 28–50–101, the non-claim statute, provides in relevant part:

(a)(1) ... all claims against a decedent's estate ... whether due or become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, or the heirs and devisees of the decedent, unless verified to the personal representative or filed with the court within (3) months after the date of the first publication of notice to creditors.

(2) However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.

....

h) claims of Known or reasonably ascertainable Creditors barred.Notwithstanding any other provisions of this section to the contrary, the claims of all known or reasonably ascertainable creditors shall be barred at the end of two (2) years from date of first publication of notice to creditors, even if they have not been provided actual notice in accordance with § 28–40–111(a)(4).

As pertinent here, Arkansas Code Annotated section 28–40–111 provides:

(a)(1)(A) Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his or her appointment to be published stating the date of his or her appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him or her, within three (3) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.

(B) However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of notice, or they shall be forever barred and precluded any benefit in the estate.

....

(4)(A) Within one (1) month after the first publication of the notice, a copy of the notice shall also be served upon each heir and devisee whose name and address are known and upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative....

....

(C)(1) If thereafter, the names and addresses of any such creditors are ascertained, a copy of the notice shall be promptly served upon them.

In addition to Dodson, two other decisions of this court merit discussion.In the case of In re Estate of Spears,314 Ark. 54, 858 S.W.2d 93(1993), the Bowlings and the decedent, prior to his death, exchanged properties.As part of the...