John C. Getson v. Estate of Clara Inez Getson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION II

JOHN C. GETSON

APPELLANT

V.

ESTATE OF CLARA INEZ GETSON

APPELLEE

CA 99-875

AUGUST 30, 2000

APPEAL FROM THE GREENE

COUNTY PROBATE COURT

[NO. P98-59]

HONORABLE DAVID RAY

GOODSON, PROBATE JUDGE

AFFIRMED

This case concerns the probate judge's decision to strike appellant's motion to set aside an probate of a will and to contest a will. We affirm.

Clara Inez Getson died testate on February 24, 1998, leaving four adult children, one of whom was appellant John Getson. On May 15, 1998, her will was admitted to probate and a personal representative was appointed. Notice of the proceeding was sent to appellant by certified mail and received by him on May 16, 1998. Notice was also published in the Paragould Daily Press on May 22 and May 29, 1998.

On December 11, 1998, appellant appeared in Greene County Probate Court to attend a hearing on a motion he thought he had filed contesting the will and asking the court to set aside its May 15 order. However, no such motion was found in the court's records. Appellant's attorney immediately went to the office of probate clerk Linda Heritage and filed

the motion,1 adding the following language by hand: "ARCP 60(c)(3) provides for setting aside an order after 90 day [sic] for misprisons [sic] of the clerk. Original motion was sent to Pocahontas unopened by Linda Heritage."

On December 17, 1998, appellee moved to strike appellant's motion on the ground that it was time-barred by Ark. Code Ann. § 28-40-113(b)(2)(1987). That statute provides that, when notice of admission of a will to probate has been published in accordance with the law and a copy has been served on the contestant in accordance with the law, the contestant must file his objection to the probate of the will within three months after the first publication of notice or within forty-five days after notice was served on him, whichever is later. Appellant's motion was filed more than six months following his receipt of notice and the publication of notice.

A hearing on the motion to strike was scheduled for February 23, 1999. One day before the hearing, appellant's counsel, Tona DeMers, filed an affidavit in which she swore that she had attempted to file appellant's motion on July 22, 1998, but the filing was mishandled by the probate clerk. Her affidavit reads as follows:

On December 11, 1998, after discovering that the motion I had sent to the Greene County Probate Clerk had not been filed, I went to the Probate Clerk's office to refile another motion. While there, I discussed the situation with Linda Heritage and showed her the cover letter I had sent. It and the envelope containing the motion were addressed to the Greene County Probate Clerk, P. O. Box 62, Paragould, AR, 72451, but were sent to the attention of "Debbie Wise." Ms. Wise is the Randolph County Chancery Clerk. Ms.Heritage told me that she would have sent the envelope to Ms. Wise unopened, even though it was addressed to the Greene County Probate Clerk and had the correct address.

When I asked her about being told by someone that my motion had been received, she told me to ask for her personally, that people answer the phone in her office who do not work there.

Our record does not contain a copy of an envelope addressed to Debbie Wise, but it does contain an unsigned cover letter dated July 22, 1998, purporting to transmit a copy of the motion from attorney DeMers to the Greene County Probate Clerk, mistakenly identified as Debbie Wise.

When appellee's counsel received the DeMers affidavit, he took it to Greene County probate clerk Linda Heritage. Heritage then executed the following affidavit, which was filed in open court during the hearing:

I have reviewed the Affidavit of Tona DeMers attached hereto, and I do not believe it to be accurate. I have no memory of receiving any mail as described in the Affidavit from Ms. DeMers, and I do not believe that I did.

I remember very little of what Ms. DeMers exhibited to me in December, but I do remember that it was addressed to Debbie Wise in "Randolph County."

Had I received the mail as described in the Affidavit, I would have returned it to "sender." I would not have addressed an envelope and sent it to Debbie Wise in Randolph County.

Following the hearing, the probate judge ruled as follows:

Having listened to argument of counsel, considering the affidavit that's been filed by the probate clerk along with the affidavit filed by Miss DeMers, I don't find there's been any misprision by the clerk in this matter.

Miss DeMers states that she called the clerk's office at some time afterthis had been mailed, and that they indicated that it had been filed, yet Miss DeMers does not come forward with anything in her file reflecting that it ever got file-marked, that she ever received anything back from the clerk, that she ever got the original letter back, that anything ever happened after Miss DeMers said she sent it.

On March 25, 1999, the judge entered an order specifically finding that there was no "misconduct, neglect of duty or mistake by the clerk." It is from that order that appellant brings his appeal.

We note at the outset that this is a final appealable order. Almost all probate court orders are appealable, even if they are interlocutory. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000). Other than an order removing a fiduciary for failure to give a new bond or render an account or an order appointing a special administrator, a person aggrieved by an order of the probate court may obtain appellate review of the order. Id. See also Ark. Code Ann. § 28-1-116(a) and (b) (1987).

Appellant argues that, had it not been for the negligence of probate clerk Linda Heritage, his motion to set aside and to contest the will would have been filed within the three-month time limit. According to him, his motion was correctly sent to the Greene County probate clerk on July 22, 1998, but it misidentified the clerk as Debbie Wise, who is the Randolph County chancery clerk. He contends that, upon receipt of the motion by Heritage, she sent it unopened to Debbie Wise in Randolph County. In light of Heritage's conduct, he says, the probate court should not have stricken his motion.

Probate court orders are reviewed de novo on appeal. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). We do not reverse a probate court's findings of fact unlessthey are clearly erroneous. See id. Further, we defer to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. The evidence in this case is in conflict with regard to whether any actions by Heritage contributed to the untimely filing of appellant's motion. Heritage disputed appellant's version of events. She said in her affidavit that she did not believe she had received a letter addressed to Debbie Wise but that, if she had, she would have returned it to the sender. It was within the province of the probate judge to resolve the conflict in evidence in favor of appellee. See Knaus v. Relyea, 24 Ark. App. 7, 746 S.W.2d 389 (1988). He had before him not only the affidavit of Linda Heritage, but little proof by appellant that events happened as he claimed. There was no evidence that Debbie Wise had ever received the motion that was allegedly forwarded to her by Linda Heritage, nor was there any evidence that the motion had been filed in either Randolph County or Greene County or returned to sender. In light of these factors, we cannot say that the probate judge's decision was clearly erroneous.

We should also mention appellant's reliance on the case of Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963). There, a will was probated in Dallas County. The contestants-claimants mailed their pleadings to Dallas County in a timely manner but mistakenly captioned their pleadings "In The Probate Court of Garland County, Arkansas." The supreme court held that the clerical oversight would not vitiate the pleadings. Edwards v. Brimm can be distinguished from the case at bar in that there was no question in that case that a pleading contesting the will was actually transmitted to the proper court. Here, thereis a question as to whether appellant sent any pleading to any court in a timely manner.

Appellant's remaining argument is that the probate judge erred in allowing appellee's counsel to read the Heritage affidavit into the record while not allowing appellant to testify as to what Heritage said in the clerk's office on December 11. Appellant does not support this contention with convincing argument or citation to authority. Therefore, we decline to address it. See Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999).

Affirmed.

Koonce and Stroud, JJ., agree.

1 The motion challenged the probate of the will on the grounds that, inter alia, it was not signed by the decedent or properly attested by subscribing witnesses.