Williams v. Hall

• Citation: 98 Ark. App. 90,250 S.W.3d 581
• Decision Date: 28 February 2007
• Docket Number: No. CA 06-502.,CA 06-502.
• Parties: Raymond Franklin WILLIAMS and Ricky Allen Williams, Appellants, v. Randy HALL; Law Offices of Gary Green; South Sheridan Water Association; and Homer Davis, Representative of the Estate of Ethel Davis, Deceased, Appellees.
• Court: Court of Appeals of Arkansas

250 S.W.3d 581

98 Ark. App. 90

Raymond Franklin WILLIAMS and Ricky Allen Williams, Appellants, v. Randy HALL; Law Offices of Gary Green; South Sheridan Water Association; and Homer Davis, Representative of the Estate of Ethel Davis, Deceased, Appellees.

No. CA 06-502.

Court of Appeals of Arkansas.

February 28, 2007.

Harrill & Sutter, PLLC, by: Raymond Harrill, Little Rock, for appellants.

Barber, McCaskill, Jones & Hale, P.A., by: Micheal L. Alexander and David W. Sterling, Little Rock, for appellee South Sheridan Water Ass'n.

Law Offices of Gary Green, Little Rock, by: Bryce Brewer, for appellee Randy Hall.

JOHN MAUZY PITTMAN, Chief Judge.

This appeal is from a probate court's refusal to set aside the confirmation of a judicial sale of land, inherited and held as tenants in common by the decedent's grandsons, to satisfy an attorney's lien for his representation of only one of the grandsons in a will contest. Because the trial court erred in refusing to set aside the confirmation of sale, we reverse and remand for further proceedings consistent with this opinion.

On June 12, 2002, the Estate of Ethel Davis was opened after a petition for appointment of personal representative filed by Homer Davis, the decedent's brother-in-law. Ms. Davis was survived by several relatives, including her daughter-in-law, Faye Williams Thompson, and her grandsons, appellants Raymond Franklin Williams (Franklin) and Ricky Allen Williams. On July 23, 2002, Franklin, through his attorney, appellee Randy Hall, with the Law Offices of Gary Green, filed a petition to contest his grandmother's will. On September 16, 2003, Franklin, represented by Mr. Hall; Mr. Davis, as executor of the estate; and Ms. Thompson entered into a settlement agreement wherein Franklin agreed to dismiss his will contest and Ms. Thompson disclaimed her interest in Ms. Davis's estate. The effect of Ms. Thompson's disclaimer was that appellants held Ms. Davis's real property, less one acre to be awarded to another beneficiary, as tenants in common.

By letter dated October 16, 2003, Mr. Hall informed Franklin that he was terminating their attorney-client relationship. On November 25, 2003, Mr. Hall filed a notice of attorney's lien upon Franklin's recovery in the probate proceeding, including Ms. Davis's real property. A hearing was held on the attorney's lien on December 4, 2004. Franklin appeared pro se at the hearing, and Mr. Davis appeared with counsel. Mr. Hall and Bryce Brewer, with the Law Offices of Gary Green, were also there. Ricky, who was in prison, did not attend. At the conclusion of this hearing, the trial court indicated that it would sell both appellants' interests at the judicial sale to satisfy Mr. Hall's lien. On January 13, 2005, Franklin and Ricky, "through his Power Of Attorney, Eric Waddell," filed a pro se notice of appeal protesting the sale of Ms. Davis's real property. They did not pursue this appeal further.

On February 10, 2005, the circuit judge entered an order finding that Franklin had executed a valid and enforceable contingency agreement with the Law Offices of Gary Green to represent his interest as the beneficiary of the estate; that this contract entitled the Law Offices of Gary Green to an attorney's fee and an attorney's lien on the real property; that Sally Wiggins, according to the will, was entitled to one acre of the real property; and that the remainder of the real property should be sold to satisfy the lien. This order provided for a commissioner of the court to conduct the sale at the Grant County Courthouse after advertising the time, terms, and place of sale for twenty or more days by publication in a Grant County newspaper on at least two insertions. The order provided that the sale to the purchaser would foreclose all of the right, title, claim, interest, equity, and estate of Franklin and Ricky and that Franklin would pay all costs of the suit. The trial court concluded with the following decree:

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that the proceeds of the sale of the real property shall be paid to the following parties:

a) one half of the proceeds to Ricky Williams;

b) of the remaining one half of the proceeds, 35% to Law Offices of Gary Green;

c) remainder to Franklin Williams.

Costs of the sale and the Commissioners' fee shall be charged to Franklin Williams.

Mr. Hall filed a motion to strike the January 2005 notice of appeal filed by Franklin and Ricky on the ground that they had failed to comply with the Rules of Appellate Procedure and had failed to file the record on appeal with the Arkansas Supreme Court Clerk. Mr. Hall requested that the court set a new sale date to enforce his lien. On November 8, 2005, the circuit court granted the motion to strike, ordered that Franklin's and Ricky's appeal be dismissed, and directed that the property be sold on December 15, 2005, "at the Grant County Courthouse lobby after notice as in foreclosure...."

On November 14, 2005, another notice of commissioner's sale was filed. This notice provided that, in accordance with the November 8, 2005, order, the commissioner would sell the property to the highest bidder at the courthouse on December 15, 2005. The proceeds of the sale would be paid as follows:

a) one half of the proceeds to Ricky Williams;

b) of the remaining one half of the proceeds, 35% to Law Office of Gary Green plus its costs;

c) remainder to Franklin Williams. Costs of the sale and the Commissioners' fee shall be charged to Franklin Williams.

This sale is being made for the purposes of foreclosure.

The proof of publication filed on December 6, 2005, stated that the notice of the sale had been published on November 30, 2005, and December 7, 2005, in the Sheridan Headlight.

The property was sold at the Grant County Courthouse on December 15, 2005, to the highest bidder, South Sheridan Water Association, for $34,000. On January 9, 2006, at 2:40 p.m., the circuit court entered an order approving the report of sale, confirming the sale in all respects, and directing the personal representative to execute and deliver a deed to the purchaser. This order found that the sale was conducted and was in all respects in compliance with applicable statutes and orders of the court and that it was "in the best interest of the estate and all interested parties." At 2:41 p.m., on January 9, 2006, the executor's report of sale was filed.

On February 7, 2006, Franklin and Ricky, represented by attorney Raymond Harrill, filed a motion to set aside the January 9, 2006, order confirming the sale of the property pursuant to Ark. R. Civ. P. 60. They alleged that the sale was not conducted in accordance with Ark.Code Ann. §§ 28-51-301 through 305 (Repl. 2004) and Ark.Code Ann. § 28-51-109(b) (Repl.2004); that the process was so defective as to render the sale void; and that they had been denied due process. They also noted that, because title to realty vests in the devisees immediately upon the testatrix's death,¹ appellants were interested parties as defined by the statutes and were entitled to notice of all proceedings that would affect the disposition of the property. Through Mr. Harrill, on February 8, 2006, appellants filed a notice of appeal from the order confirming the sale of the real property entered on January 9, 2006.

In his response to the motion to set aside the order confirming the sale, Mr. Hall argued that appellants had failed to properly pursue the appeal from the November 8, 2005, order and that the sale was properly accomplished under the foreclosure statutes. Mr. Hall also stated that both appellants were in attendance at the December 15, 2005, sale and that they should have objected to the foreclosure sale before the confirmation of sale was filed.

Appellee South Sheridan Water Association intervened in this action in February 2006. The circuit court held a hearing on the motion to set aside the court's order of confirmation on March 7, 2006. Appellants appeared in person and with their attorney at this hearing, where they urged the court to set aside the confirmation because Ricky was not a party to the sale. The South Sheridan Water Association moved for execution of a deed.

On April 24, 2006, the circuit court entered an order denying the motion to set aside and made the following findings:

It is the finding of this Court that the sale of the land in this matter was a judicial sale ordered by the Court, that the sale of the land was in substantial compliance with all applicable statutes and codes, that the sale occurred at a public auction and there being no dispute, the Petitioners were in attendance at the auction[.] [I]t is the finding of this Court that there is no basis to set aside the Order previously entered in this matter, that the sale of the property was in substantial compliance with the Court's Order and all applicable statutes and codes, and therefore the motion should be, and hereby is DENIED.

The circuit court also entered an order confirming the sale on April 24, 2006, making the following findings:

1. Pursuant to a previous Order of this Court, a Commissioner was appointed for the purpose of conducting a judicial sale and the Court's previous Orders are incorporated herein by reference.

2. That as a court-appointed judicial sale, a Commissioner was appointed for the purpose of conducting the sale and the Court is satisfied that the sale was conducted in all respects in compliance with the applicable statutes and previous Orders of this court and was in the best interest of the estate and other interested parties.

3. That the verified Report of Sale prepared by the Personal Representative is accepted by this Court as the Report of the Commissioner and is therefore in substantial compliance with the Court's previous Orders and all other applicable statutes and Orders of this Court and the Court further finds that the Personal Representative did not directly or indirectly acquire any...