Lewis Cole v. Gloria Cole

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

LEWIS COLE

APPELLANT

V.

GLORIA COLE

APPELLEES

CA01-895

MARCH 6, 2002

APPEAL FROM THE LONOKE COUNTY PROBATE COURT

[NO. P97-232]

HONORABLE PHILLIP WHITEAKER, PROBATE JUDGE

AFFIRMED

Appellant Lewis Cole, administrator of the estate of his deceased father, Daniel Stewart, brings this pro se appeal from two probate orders.1 The first order re-opened the estate upon a petition by Lewis's sister, appellee Gloria Cole. The second order directed Lewis to respond to discovery propounded by Gloria. We affirm both orders.

Lewis was appointed administrator of his father's estate on March 5, 1998. On May 15, 2000, he filed a final accounting that reflected that approximately $30,613 would be distributed among three heirs: Lewis, Gloria, and another sister, Edna Johnson. The

accounting also reflected that $12,860.44 had been disbursed from the estate between July1997 and April 2000. Among the disbursements were amounts paid to Lewis individually or to his CPA firm for reimbursement of funeral expenses, administrator fees, accounting services, lawn care of the decedent's home, and painting and repair work on the home. Edna approved of the accounting, but Gloria filed an objection on May 30, 2000, and petitioned to remove Lewis as administrator on the grounds that he had engaged in self-dealing and had made several disbursements without providing receipts or evidence of what services were rendered.

On June 12, 2000, Lewis appeared before the probate judge and apparently presented him with the final accounting.2 The judge entered an order closing the estate without mentioning Gloria's objection. On October 4, 2000, Gloria filed a motion to set aside the court's order on the basis that she had not received notice of a hearing. On November 20, 2000, the judge set aside his previous order, declaring that, "the court erroneously entered an order approving accounting and closing the estate...without holding any hearing on Gloria Cole's objection."

After the estate was re-opened, Gloria served Lewis with interrogatories and requests for production seeking receipts and documentation for disbursements from the estate and a description of what work was performed in connection with the disbursements. Lewis responded that he would provide the information upon the receipt of $4,000 to cover the cost of producing the requested materials. Thereafter, Gloria filed a motion to compel, which the judge granted, ordering Lewis to answer the discovery by March 31, 2001. In response,Lewis sent a handwritten note to Gloria's attorney stating, "RUSH me your check for $4,000 so that I can get you the additional information requested by 3-31-01. If I have not received your check within five days, I will assume that you agree with me that the information you already have is adequate."

Upon receipt of that note, Gloria filed a motion for contempt. A hearing was held and Lewis, although he was not held in contempt, was ordered to respond to the discovery by June 15. He now appeals from that order and from the November 20, 2000 order reopening the estate.3

Probate proceedings are reviewed de novo, but we will not reverse the probate court's findings unless they are clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). Further, we give due regard to the opportunity and the superior position of the probate judge to determine the credibility of witnesses. Id.

Lewis makes seven arguments on appeal: 1) Gloria's motion to set aside was never actually filed; 2) Gloria had notice of the June 12 hearing in which the accounting was approved and the estate closed; 3) Gloria's objection to the final accounting contained unsubstantiated allegations; 4) certain language in the accounting mandated that any objections be presented to Lewis before being filed with the court; 5) the accounting is not objectionable because neither the probate judge nor Edna Johnson challenged the accounting; 6) the discovery propounded by Gloria was an attempt to waste time andincrease the cost of litigation; and 7) sanctions should be imposed on Gloria and her attorney for frivolous legal proceedings. None of these arguments are supported by convincing legal authority. No case, statute, or legal treatise is cited or referred to in the argument portion of the appellant's brief. We will not consider the merits of an argument if an appellant fails to cite any convincing legal authority in support of his argument, unless it is apparent without further research that the argument is well taken. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). The fact that appellant is proceeding pro se does not mean that we relax our standards on such a matter. Pro se appellants are held to the same standards as licensed attorneys. See Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000); Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998).

In any event, were we to reach the merits of the appeal, we would affirm. The record contains a file-marked copy of Gloria's motion to set aside, complete with certificate of service to Lewis. Further, nothing in the record indicates Gloria had notice of the June 12 hearing in which the estate was closed. As to Lewis's arguments that Gloria's petition contained unsubstantiated allegations and that neither the probate judge nor Edna Johnson objected to the accounting, these issues concern the merits of Gloria's objections, which have not yet been addressed by the probate judge. They are therefore premature. See generally State v. Lester, 343 Ark. 662, 38 S.W.3d 313 (2001) (holding that premature arguments are not reached). Also, there is no merit to Lewis's claim that Gloria was required to forgo her right to file an objection to the accounting merely because the accounting askedthat objections be discussed with Lewis.

Regarding Gloria's discovery requests, the probate judge did not abuse his discretion in requiring Lewis to answer them. See 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992) (holding that a trial judge has wide discretion in matters related to discovery). Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending action. Ark. R. Civ. P. 26(b)(1). Gloria's interrogatories and requests for production are relevant to Gloria's objection in that they sought receipts for and descriptions of work performed for the estate. Therefore, there was no error in compelling Lewis to answer them.

Finally, having decided that Lewis's points on appeal are not well-taken, we decline to sanction Gloria or her attorney as requested by Lewis.

For the reasons stated, the order of November 20, 2000, which reopened the estate, and the order of June 12, which ordered Lewis to comply with discovery requests, are affirmed.

Bird and Griffen, JJ., agree.

1 An executor, administrator, or guardian, as such, has no right to conduct probate proceedings, except in matters where his personal rights as representative are concerned, as , for instance, where misconduct is charged. Arkansas Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954). In this case the appellant may proceed pro se due to the allegations of self-dealing and issues of contempt of court.

2 The record contains no transcript of what occurred.

3 Although the orders appealed from are interlocutory, most probate orders are appealable pursuant to Arkansas Code Annotated section 28-1-116(a) and (b) (1987); see also Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).