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Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document 2023.06.22 15:13:12 -05'00' DIVISION III No. CV-20-133 2023.001.20174 KEITH MAGNESS, DEREK MAGNESS, Opinion Delivered: March 10, 2021 AND BRANDON MAGNESS APPELLANTS APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FIFTH DIVISION [NO. 60CV-19-1233]

HONORABLE WENDELL GRIFFEN, JOY KAYE SIMMONS GRADDY, JUDGE INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WILMA UNDERWOOD DUPREE APPELLEE REVERSED AND REMANDED

KENNETH S. HIXSON, Judge

Appellants Keith Magness, Derek Magness, and Brandon Magness appeal from the

Pulaski County Circuit Court’s order dismissing their complaint without prejudice for lack

of subject-matter jurisdiction in favor of appellee Joy Kaye Simmons Graddy, individually

and as executrix of the estate of Wilma Underwood Dupree. On appeal, appellants argue

that the circuit court erred in dismissing their complaint for lack of subject-matter

jurisdiction. We agree and reverse and remand for further proceedings.

I. Relevant Facts

Mancil E. Dupree and Wilma Underwood Dupree were married, and each brought

a child into the marriage. Mancil had a daughter, Carolyn Sue Magness, and Wilma had a

daughter, Joy Kay Simmons Graddy (appellee or Graddy). In 1970, Mancil and Wilma

created the Mancil and Wilma Dupree Trust Agreement (the trust) and conveyed several tracts of property to the trust. The trust became irrevocable after the death of either settlor,

Mancil or Wilma. Mancil died in 1998, and Wilma became the surviving settlor. The trust

provided that at the death of the surviving settlor, the trust shall terminate and the principal

and income was to be distributed in equal parts to Mancil’s daughter, Carolyn Sue Magness,

per stirpes, and Wilma’s daughter, Graddy, per stirpes. Carolyn Sue Magness died in 2001

and was survived by her children Keith Magness, Derek Magness, and Brandon Magness

(the appellants herein). Wilma died four years later on September 4, 2015. Appellants

alleged that they were entitled to their mother’s share of the trust’s principal and income

per stirpes after Wilma’s death per the terms of the trust. Appellants alleged that appellee

filed a petition to probate Wilma’s estate on October 22, 2015, and served as the executrix

of the estate. Appellants were not provided notice of the probate proceedings. Appellants

alleged that while appellee was serving as executrix, she improperly included their share of

the trust property as property of Wilma’s estate and conveyed it to herself. Additionally,

appellants alleged that appellee improperly included the proceeds of a certificate of deposit

with an approximate value of $157,000 as part of Wilma’s estate property in the final

accounting, which appellants argued was actually Mancil’s personal property and should

have passed to appellants as Mancil’s heirs. Appellants further alleged that on March 3, 2017,

the probate court filed an order approving the final accounting and ordered that all property,

both real and personal, was to be distributed to appellee. Thus, appellants filed their

complaint for conversion on the part of appellee and the estate and for improper distribution

of property, and they requested that a constructive trust be imposed.

2 Appellee filed a motion to dismiss appellants’ complaint pursuant to Arkansas Rule

of Civil Procedure 12(b)(6) on March 25, 2019. She argued that appellants’ claims were

barred by the statute of limitations, were barred by Arkansas Code Annotated section 28-

40-113(b)(2)(D) (Repl. 2012), and were an improper collateral attack of the order in probate

case No. 60PR-15-1969. Appellee alleged the following dates from the probate case were

relevant to this case:

(1) Wilma Dupree died on September 4, 2015; (2) Wilma Dupree’s final will and testament was admitted to probate on October 30, 2015; (3) Notice of probate and appointment of personal representative was published on November 4, 2015, and November 11, 2015; (4) The Estate of Wilma Underwood Dupree was distributed and closed on March 3, 2017; and (5) Defendant acknowledged receipt of distribution on March 22, 2017.

Appellee more specifically argued the following in her motion to dismiss:

7. Now, over three years since Wilma Dupree’s death and the admission of her will to probate, Plaintiffs [appellants] seek to enforce the terms of the trust and also to recover funds from a Bank of America N.A. Certificate of Deposit that was not included in the trust.

8. Plaintiffs’ claims are barred by

(b)(2)(D), which provides that, even when there is no notice, a person’s “grounds for objection [to a will] must be filed within three (3) years after the admission of the will to probate.” Wilma Dupree’s last will and testament was admitted to probate October 30, 2015, and thereafter notice was published. More than three years have passed between the admission to probate and filing of Plaintiffs’ Complaint.

9. Now, over three years have passed, and Plaintiffs’ claims are barred. Any judgment by this Court in favor of Plaintiffs would be a collateral attack on the Probate Court’s distribution ordered in 60PR-15-1969 and would be improper.

Appellants filed a response to the motion on April 4, 2019, explaining that because

they were not contesting Wilma’s will, appellee’s assertion that their complaint was untimely

and an impermissible collateral attack pursuant to Arkansas Code Annotated section 28-40-

113(b)(2)(D) was in error and inapplicable. Instead, appellants argued that they were

3 questioning appellee’s acts of selling and transferring assets through the estate that should

not have been distributed under the will in the first place. Appellants alleged that their

complaint was proper under Arkansas Code Annotated section 28-53-110 (Repl. 2012).

They further alleged that their complaint was timely because Wilma’s estate was distributed

and closed on March 3, 2017, according to the estate documents, and their complaint was

filed on March 1, 2019, within the time prescribed by section 28-53-110. Appellants

additionally argued that a judgment in their favor would not constitute a collateral attack on

the probate court’s orders because the dispute between appellants and appellee was outside

the scope of the probate court’s jurisdiction. They explained that conversion and improper

distribution under section 28-53-110 were tort actions that the probate court lacked

jurisdiction to resolve.

Appellee filed a reply wherein she disagreed that section 28-53-110 was applicable

and further claimed that, even if applicable, appellants’ claims were untimely. Appellee

alleged that the two-year statute of limitations referenced in section 28-53-110 commenced

on the date of the executrix’s deed and not on the date of the order of final distribution and

that the appellants’ complaint was, therefore, untimely. Moreover, appellee argued that

section 28-53-110 states that the probate court has proper jurisdiction—not the circuit

court. Citing Arkansas Code Annotated section 28-53-105 (Repl. 2012), appellee further

argued that the order of final distribution was a final adjudication of the matter and served

as a bar to any subsequent attacks of the probate court’s order. She contended that the

probate court has exclusive jurisdiction to review its own orders, and the probate court has

full jurisdiction to hear all matters previously cognizable by circuit, chancery, probate, and

4 juvenile court after the passage of amendment 80 to the Arkansas Constitution. In summary,

appellee argued that the circuit court lacked jurisdiction, appellants’ claims were barred by

the statute of limitations, and appellants’ complaint should be dismissed.

A hearing on the motion to dismiss was held on August 2, 2019. Although the

parties presented their arguments as set out in the pleadings, much of the oral argument

centered on another option proposed and contemplated by the circuit court. The circuit

court proposed that it transfer the case back to the probate division. The circuit court

inquired whether the parties would be “prejudiced” if it transferred the case rather than

reaching the merits of the parties’ arguments regarding jurisdiction and the statute of

limitations. It specifically noted that by doing so, an appeal from a decision would have “a

more complete record” than if it had been decided by the circuit court. Appellants’ counsel

stated that although appellants would not be prejudiced by the transfer, appellants did not

think a transfer was necessary because section 28-53-110 expressly states that a party can

challenge a distribution in the probate division or in any other court of proper jurisdiction.

Therefore, appellants requested that the motion to dismiss be denied. At the conclusion of

the hearing, the circuit court orally ruled that it would not rule on the motion to dismiss

but would transfer the case to the probate division. In explaining its reasons for doing so,

the circuit court stated the following:

So I’m not sure how either side is going to be harmed and if there is an appeal from whatever decision Judge Moore [the circuit court judge assigned at the time to the probate division] were to make, the record would be more complete before Judge Moore than it would likely to be if this Court would do it because if this Court took the matter up and there was a question about whether this Court had jurisdiction, that could give rise to an interlocutory appeal, could it not?

5 I mean that would raise the issue of the possibility of interlocutory appeal and further delay. I’m trying to save the lawyers and your clients that situation. It’s not that I don’t want to work, okay? I don’t want you thinking I’m lazy.

It’s just that I would rather have you decide the case -- have the case decided by a judge that both sides concede, whether you agree with that decision or not, would have jurisdiction given this is an issue of improper distribution. If both contends this is an issue of improper distribution and whether or not there’s an improper distribution, a matter in an estate is plainly something that’s governed by this probate code. It’s plainly a 28-53-110 question. . . . I am going to transfer this case.

(Emphasis added.)

On August 7, 2019, the circuit court filed an order to transfer the action to the

Fifteenth Division, the division of the circuit court that probated Wilma’s estate (hereafter

referred to as the “probate division”). The circuit court explained that the “action involves

allegations of improper distribution in an estate and application of the statute of limitations.”

It further stated that “in the interest of justice and judicial economy,” it was ordering that

the “action be transferred to the Probate Division for adjudication pursuant to Arkansas

Rule of Civil Procedure 18(b)(2).” However, the probate division subsequently declined

to accept the transfer, stating that it did not hear civil cases. Thereafter, counsel for appellee

requested that the circuit court dismiss the action without prejudice for lack of subject-

matter jurisdiction. On November 26, 2019, the circuit court filed an order dismissing

appellants’ complaint without prejudice stating that appellants’ complaint sought relief “for

improper distribution, among other claims” and that it did “not have subject-matter

jurisdiction over this controversy.” This appeal followed. 1

1 Appellants allege we have jurisdiction to hear this appeal despite the fact that the circuit court’s order dismissed their complaint without prejudice. We agree. Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure–Civil provides that “[a]n appeal may be taken

6 II. Standard of Review

The issue presented on appeal is one of statutory interpretation. This court’s rules

regarding statutory construction are clear and well established. We review issues of statutory

interpretation de novo and are not bound by the circuit court’s determination. Brock v.

Townsell,

,

. However, we will accept a circuit court’s

interpretation of the law unless it is shown that the court’s interpretation was in error.

Cockrell v. Union Planters Bank,

,

(2004). The basic rule of

statutory construction is to give effect to the intent of the legislature. Calaway v. Practice

Mgmt. Servs., Inc.,

. When the language of a statute is plain and unambiguous,

this court determines legislative intent from the ordinary meaning of the language used.

In considering the meaning of a statute, we construe it just as it reads, giving the words their

ordinary and usually accepted meaning in common language.

We construe the statute

so that no word is left void, superfluous, or insignificant, and we give meaning and effect to

every word in the statute, if possible.

If the language of a statute is clear and

unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the

from a circuit court to the Arkansas Supreme Court from . . . [a]n order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action.” Our supreme court has “interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. The order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it.” Doe v. Union Pac. R.R. Co.,

,

(1996). Here, the circuit court’s order did just that. The probate division refused to accept the transfer, and the circuit court concluded it did not have subject-matter jurisdiction, leaving appellants with no remaining avenue to obtain relief. Because the order being appealed in this case concluded the parties’ rights to the subject matter at issue, we have jurisdiction to hear the appeal. See Stow v. Montgomery,

,

.

7 rules of statutory interpretation. Brown v. State,

,

(2009). It

is axiomatic that this court strives to reconcile statutory provisions to make them consistent,

harmonious, and sensible in an effort to give effect to every part. Ark. Dep’t of Corr. v.

Shults,

,

. Furthermore, we will not read into a statute language

that was not included by the legislature.

III. Subject-Matter Jurisdiction

The key issue is whether the circuit court had subject-matter jurisdiction over

appellants’ claims that the appellee improperly distributed property in the administration of

Wilma’s estate. Subject-matter jurisdiction is the power of the court to hear and determine

the subject matter in controversy between the parties. Perroni v. Sachar,

,

. It is well settled that subject-matter jurisdiction is a court’s authority to hear

and decide a particular type of case.

A court obtains subject-matter jurisdiction under

the Arkansas Constitution or by means of constitutionally authorized statutes or court rules.

An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter “under any

circumstances” and is “wholly incompetent to grant the relief sought.” J.W. Reynolds

Lumber Co. v. Smackover State Bank,

, 352–53,

(1992).

Our determination of whether a court has subject-matter jurisdiction is based on the

pleadings.

Appellants argue on appeal that the circuit court erred in dismissing their complaint

for lack of subject-matter jurisdiction. They specifically argue that their claims arise from

the improper distribution of their property during Wilma’s probate proceedings and that

the circuit court has subject-matter jurisdiction under the facts of this case pursuant to

8 Arkansas Code Annotated section 28-53-110. Appellee argues that, despite the language in

section 28-53-110, only the probate division had subject-matter jurisdiction to adjudicate

claims arising from an improper distribution; therefore, appellee argues dismissal for lack of

subject-matter jurisdiction was proper. 2 While we acknowledge that the circuit court

attempted to transfer the case to the probate division for reasons of judicial economy, when

the probate division declined the transfer, the circuit court erred in dismissing the complaint

for lack of subject-matter jurisdiction.

Arkansas Code Annotated section 28-53-110 provides the following:

(a) Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitations, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return any property improperly received, which is other than money, and its income since distribution if he or she has the property and to return an amount equal to any money improperly paid with interest at six percent (6%) per annum. If he or she does not have the property, then he or she is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him or her.

....

(c) Any suit or proceeding to recover property improperly distributed or the value thereof may be instituted in the circuit court in which administration is pending or was had, or in any other court of proper jurisdiction.

(d) Any suit or proceeding to recover property improperly distributed or the value thereof, money improperly paid, and income or interest, as the case may be, shall be barred three (3) years after the decedent’s death or two (2) years after the time of distribution or payment, whichever last occurs.

(Emphasis added.)

2 Appellee alleged below in paragraph 8 of her answer and in her motion to dismiss that appellants’ claims are barred by Arkansas Code Annotated section 28-40-113(b)(2)(D), which provides that even when there is no notice, a person’s “grounds for objection [to a will] must be filed within three (3) years after the admission of the will to probate.” Appellee has abandoned this argument on appeal.

9 Here, appellants filed their claims in circuit court to recover property arising from

improper distribution in an estate alleging that the circuit court had jurisdiction pursuant to

Arkansas Code Annotated section 28-53-110 in that the circuit court was an “other court

of proper jurisdiction.” Appellee would have us disregard the phrase “in any other court of

proper jurisdiction” and hold that appellants were required to file their complaint in the

probate division to the extent they were permitted to do so under the statute. The language

in section 28-53-110 is clear and unambiguous, and it is unnecessary to resort to rules of

statutory interpretation. The subject matter of the courts for improper distribution of

property in the administration of an estate is clearly set forth in subsection (c) of section 28-

53-110 in the disjunctive by the use of the word “or.” “Any suit . . . to recover property

improperly distributed . . . may be instituted in the circuit court in which administration is

pending or was had, or in any other court of proper jurisdiction.”

-

53-110(c) (emphasis added). Thus, under these facts and pursuant to the plain language of

section 28-53-110(c), either division of the circuit court has subject-matter jurisdiction, and

the circuit court erred in dismissing appellants’ complaint for lack of subject-matter

jurisdiction.

In her responsive brief on appeal, appellee apparently confuses our supreme court’s

explanation of the common-law rule on concurrent jurisdiction as being synonymous with

subject-matter jurisdiction. However, our supreme court has specifically stated that the

common-law rule is “wholly unrelated to subject-matter jurisdiction” and explained the

rule as follows:

“Where concurrent jurisdiction is vested in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without interference

10 of, the other.” Patterson v. Isom,

,

(1999) (quoting Tortorich v. Tortorich,

,

(1996)). “[W]hen a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no coordinate authority is at liberty to interfere with its action.” Askew v. Murdock,

, 71–72,

(1955) (quoting 14 Am. Jur. Courts § 243 (1938)).

Foster v. Hill,

,

(2008). Therefore, even if we were

to apply this rule under the facts of this case, it is undisputed that the probate division of the

circuit court had completed the probate proceedings and closed the estate. And further, the

probate division refused to accept jurisdiction of appellants’ complaint when the circuit

court filed an order to transfer the case to the probate division.

In conclusion, we must reverse and remand the circuit court’s order dismissing

appellants’ complaint for lack of subject-matter jurisdiction for further proceedings

consistent with this opinion. 3 & 4

Reversed and remanded.

GLADWIN and VAUGHT, JJ., agree.

Rose Law Firm, by: David S. Mitchell, Jr., and Bourgon B. Reynolds, for appellants.

McDaniel, Wolff & Benca, PLLC, by: Bart W. Calhoun and Scott Richardson, for appellee.

3 Appellee alternatively requests us to affirm on the merits of the arguments she raised in her motion to dismiss filed on March 25, 2019, pursuant to Arkansas Rule of Civil Procedure 12(b)(6), including her argument that the statute of limitations under section 28- 53-110 barred appellants’ claims. However, because the circuit court dismissed this case for lack of subject-matter jurisdiction, this issue was not ruled on by the circuit court below; therefore, we decline to consider this argument. 4 Appellee also argues that the appellants’ cause of action is an improper collateral attack of the probate court’s order in probate case No. 60PR-15-1969. However, because the circuit court dismissed this case for lack of subject-matter jurisdiction, this issue was also not ruled on by the circuit court below; therefore, we decline to consider this argument.

11