The opinion
Cite as 2021 Ark. App. 119
Elizabeth Perry ARKANSAS COURT OF APPEALS
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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.
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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 Ark. Code Ann. § 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.” 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
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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
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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?
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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
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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, 2009 Ark. 224, 309 S.W.3d 179. 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, 359 Ark. 8, 194 S.W.3d 178 (2004). The basic rule of
statutory construction is to give effect to the intent of the legislature. Calaway v. Practice
Mgmt. Servs., Inc., 2010 Ark. 432. When the language of a statute is plain and unambiguous,
this court determines legislative intent from the ordinary meaning of the language used. Id.
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. Id. 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. Id. 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., 323 Ark. 237, 240, 914 S.W.2d 312, 314 (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, 2020 Ark. App. 310, 601 S.W.3d 146.
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rules of statutory interpretation. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (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, 2018 Ark. 94, 541 S.W.3d 410. Furthermore, we will not read into a statute language
that was not included by the legislature. Id.
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, 2017 Ark. 59, 513
S.W.3d 239. It is well settled that subject-matter jurisdiction is a court’s authority to hear
and decide a particular type of case. Id. A court obtains subject-matter jurisdiction under
the Arkansas Constitution or by means of constitutionally authorized statutes or court rules.
Id. 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, 310 Ark. 342, 352–53, 836 S.W.2d 853, 858 (1992).
Our determination of whether a court has subject-matter jurisdiction is based on the
pleadings. Perroni, supra.
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
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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.
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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.” Ark. Code Ann. § 28-
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
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of, the other.” Patterson v. Isom, 338 Ark. 234, 239, 992 S.W.2d 792, 796 (1999)
(quoting Tortorich v. Tortorich, 324 Ark. 128, 131, 919 S.W.2d 213, 214 (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, 225 Ark. 68, 71–72, 279 S.W.2d
557, 560 (1955) (quoting 14 Am. Jur. Courts § 243 (1938)).
Foster v. Hill, 372 Ark. 263, 266, 275 S.W.3d 151, 154 (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.
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