Skaggs v. Cullipher, CA96-258
| Decision Date | 02 April 1997 |
| Docket Number | No. CA96-258,CA96-258 |
| Citation | 941 S.W.2d 443,57 Ark.App. 50 |
| Parties | Howard SKAGGS, Appellant, v. Charles Edward CULLIPHER, Appellee. |
| Court | Arkansas Court of Appeals |
David J. Potter, Texarkana, for appellant.
William G. Wright, Edward M. Slaughter, Arkadelphia, for appellee.
Appellant Howard Skaggs entered into a compromise settlement with appellee Charles Cullipher to avert litigation of a will contest. Skaggs and Cullipher were subsequently appointed co-administrators of the estate. Skaggs sought to bring wrongful death and survival actions against Cullipher some nine months after petitioning that the estate be closed, but prior to completing all steps necessary to close the estate. Skaggs appeals a probate court order granting Cullipher's motion for summary judgment and motion to dismiss the wrongful death and survival actions. We reverse the probate court's findings that the estate was closed by operation of law, and that the settlement agreement precluded the wrongful death action, and remand.
On October 3, 1992, Sophia Morris Cullipher died a few hours after being run over by a combine operated by her husband, Charles Edward Cullipher, the appellee in this case. Mrs. Cullipher had prepared a Last Will and Testament that could not be found after her death. On October 8, 1992, Mrs. Cullipher's brother, Howard Skaggs, the appellant in this case, filed a petition in Miller County Probate Court to restore the lost will and appoint him as executor. Filed with his petition was a hand written draft and a typed copy of the will, both prepared by Mrs. Cullipher's attorney. These documents named Howard Skaggs as executor and primary beneficiary, and left Charles Cullipher, the decedent's spouse, nothing.
On October 23, 1992, Cullipher filed a petition opposing probate of the alleged lost will. The petition prayed that an intestacy be declared and that Cullipher be appointed administrator. Since Mrs. Cullipher had no lineal descendants, Cullipher was the sole heir at law. On November 5, 1992, the Miller County Sheriff's Department began an investigation into the death of Mrs. Cullipher, but ultimately, no criminal charges were ever filed against Cullipher.
On November 6, 1992, Cullipher joined the devisees of the lost will in a settlement styled "Memorandum Agreement," that averted litigation of the will contest, and recited as its purpose to avoid "the expenses, delay, and uncertainties of outcome in litigation involving [the] lost will." Accordingly, it purported to be a "compromise and settlement of all matters involved in the administration and distribution of the estate of the decedent." Parties to the Memorandum Agreement included Skaggs, his spouse, daughter, son-in-law, and two minor grandchildren, one of Mrs. Cullipher's three living sisters, and Cullipher. However, several potential beneficiaries under the Arkansas Wrongful Death Statute, Ark.Code Ann. § 16-62-102(d) (1987), including Mrs. Cullipher's mother, two sisters and two brothers, were not made parties to the settlement. The Memorandum Agreement was filed along with a petition for approval of the settlement in the Probate Court of Miller County and was approved by an order which also appointed Skaggs and Cullipher as co-administrators.
Administration of the estate proceeded to distribution of the inventoried assets and payment of attorney's fees, and the co-administrators petitioned to close the estate. An order was entered on July 1, 1993, approving final distribution and discharge of the personal representatives and closing of the estate "upon report of such payments and distribution." No such reports were ever filed.
On March 10, 1994, after engaging new counsel, Skaggs filed a wrongful death complaint in Miller County Circuit Court, and moved in Miller County Probate Court to reopen the estate to pursue a survival action and wrongful death claim. The motion was granted on March 14, 1994, by order which reopened the estate, authorized Skaggs to proceed against Cullipher in his individual capacity, and barred Cullipher from serving as co-administrator. However, on October 18, 1994, the Miller County Probate Court granted Cullipher's motion to dismiss and for a judgment as a matter of law and motion for summary judgment to enforce the family settlement agreement. The order stated that the estate of Mrs. Cullipher was deemed closed by the July 1, 1993, order and directed Skaggs to dismiss with prejudice his wrongful death action pending in Miller County Circuit Court.
Skaggs raises the following four issues in his appeal from the October 18, 1994, order: (1) the court erred in finding the estate was closed or that it lacked jurisdiction to reopen the estate; (2) the court erred in granting summary judgment; (3) the court erred in finding that the Memorandum Agreement settled and released Cullipher from the wrongful death cause of action filed on behalf of the statutory heirs; and (4) the court erred in finding that the Memorandum Agreement settled and released the estate's survival cause of action against Cullipher.
Skaggs first argues that the trial court erred in finding the estate was closed. He argues alternatively that even if the estate was closed, the court erred in finding that it lacked jurisdiction to re-open the estate based upon Ark.R.Civ.P. 60(b), because Ark.Code Ann. § 28-53-119(a)(1) (1987) specifically provides for reopening a probate estate. We do not reach the issue of whether the probate court had jurisdiction to reopen the estate because we agree that the estate was not closed.
In its order granting Cullipher's motion for summary judgment and motion to dismiss, the probate court found as a matter of law that the estate of Mrs. Cullipher was closed by its July 1, 1993, order even though certain ministerial duties had not been discharged. Skaggs argues that the estate was never closed, because the July 1, 1993, order required the filing of a report of final payments and distribution to officially close the estate. It is undisputed that the report was never filed. Skaggs further points to the fact that the probate court acknowledged that the estate was open in a Memorandum Opinion of September 28, 1994, when it directed him to complete the "ministerial duties" of the administrator and close the estate within thirty days. This language was inexplicably omitted in the October 18, 1994, order.
On the other hand, Cullipher contends that the trial court was correct in finding the estate closed for either of two reasons: (1) failure to file the administrator's final report as required by the plain language of the July 1, 1993, order did not leave the estate open "for all purposes," and the probate court retained jurisdiction, if at all, only for the specific and limited purpose of accepting the filing of the final report; or (2) assuming the estate remained open for all purposes, the estate was closed by operation of law due to the failure of Skaggs to timely execute his duties as co-administrator.
We do not agree with either of Cullipher's contentions. He cites no authority to support his contention that the estate remained open for only a "limited purpose." With regard to his second contention, Cullipher offers Ark.Code Ann. § 28-52-103 (1987) as authority for the proposition that the estate at some time closed through operation of law; this argument is not persuasive. Although § 28-52-103 provides that a probate court may compel an administrator to discharge his or her lawful duties, nowhere does the statute provide for the closing of an estate independent of affirmative action by a probate court.
Further, Cullipher's assertion that Skaggs's failure to timely close the estate in contravention of Ark.Code Ann. § 28-52-102(a) (1987) allows the estate to be deemed closed on equitable doctrines is equally unpersuasive. This statute merely states "a personal representative shall close the estate as promptly as practicable." Id. Moreover, this argument ignores the fact that Cullipher was a co-administrator of the estate along with Skaggs, and also did not file the final report required to close the estate, and does not explain why justice demands that the probate court relieve Cullipher of a burden created by his own inaction. Clearly, Cullipher could have sought closure of the estate by filing the final report, or the probate court could have compelled completion of the remaining ministerial duties and then ordered the estate closed. Neither course of action was taken, and we know of no authority by which an open estate may be closed other than by order of the probate court.
Skaggs next argues that the trial court erred in granting a summary judgment on disputed issues. In a memorandum opinion, the probate court found that Skaggs was aware, or should have been aware of the legal claims that allegedly existed for the wrongful death of Mrs. Cullipher at the time he signed the family settlement agreement. Skaggs contends that he was not aware that the estate had a cause of action against Cullipher until he consulted with his present attorney. We do not find any merit to this argument because ignorance of one's legal rights cannot be asserted as a basis for the failure to pursue a cause of action. See Wilson v. G.E. Capital, 311 Ark. 84, 87, 841 S.W.2d 619, 620-21 (1992).
Skaggs's third assertion is that the court erred in finding that the Memorandum Agreement settled and released the cause of action for wrongful death filed on behalf of the statutory heirs. In its memorandum opinion, the trial court found that the Memorandum Agreement that averted litigation of the will contest was a family settlement agreement as a matter of law. The trial court also found that the agreement was enforceable and should be enforced, and that the wrongful death action pending in circuit court was in contravention...
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...due to lack of consideration if the reciprocal promise is merely not to contest the will.”). 19.Compare Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443, 447 (1997) (stating family agreements resolving estate and will matters “are afforded a legal status distinct from typical contracts,......
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