Queen Levingston et al. v. Felicia Stovall et al.

Annotate this Case
ca04-942

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

QUEEN LEVINGSTON, ET AL.

APPELLANTS

V.

FELICIA STOVALL, ET AL.

APPELLEES

CA04-942

March 9, 2005

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CV-04-31]

HON. DAVID F. GUTHRIE,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

Gary Stovall was killed when his motorcycle collided with a front-end loader owned and operated by Kraus Construction Company. Appellee Felicia Stovall, decedent's wife, sought and was granted appointment as personal representative of decedent's estate, and thereafter filed a wrongful death claim against Kraus. Appellant Queen Levingston, together with other heirs of the decedent, filed an emergency motion to remove Felicia Stovall as personal representative pursuant to Ark. Code Ann. § 28-48-105(a)(1) (Repl. 2004).1 Appellants subsequently moved to intervene. That motion was denied on the grounds that appellants failed to show that the personal representative was not adequately representing appellants' interest, and this appeal followed.

Arkansas Code Annotated § 16-62-102(b) (Supp. 2001) provides that every wrongful-death action shall be brought by and in the name of the personal representative of the deceased person; if there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. It is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful-death claim. Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002). The personal representative is obliged to provide adequate representation to all beneficiaries, and failure to do so may result in the circuit court removing the personal representative, or rejecting or disallowing contracts entered into by the representative. Id. Because it is likely that the personal representative will be a beneficiary, conflicts often arise among beneficiaries of a wrongful-death action. Nevertheless, the attorney bringing the wrongful-death action does so on behalf of the all the beneficiaries; although hired by the personal representative, the attorney bringing the wrongful-death action owes a duty to present the claim of each beneficiary fairly and should not attempt to get a more favorable distribution for one at the expense of another. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). Should the personal representative or chosen attorney fail to provide adequate representation, any beneficiary may apply to the circuit court to either not approve or disallow the contracts entered into by the representative. Id.; see Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Here, the appellants argue that the trial judge erred in denying their motion to intervene, asserting that intervention is required because their interests are not being adequately represented. The beneficiaries are free to obtain their own counsel, at their own expense, to see that their interests are protected. Holmes v. McClendon, supra. However, the mere fact of simultaneous representation of the personal representative and the surviving relatives does not, in and of itself, amount to a conflict of interest that entitles the beneficiaries to intervene in a wrongful-death claim; there must instead be positive proof that the beneficiaries' interests were not adequately represented by the personal representative. Brewer v. Lacefield, supra.

The question on appeal, then, is whether the trial judge erred in finding that there was no positive proof that appellants' interests were not adequately represented by the personal representative. We hold that the trial judge did not err in so finding. As we noted in our opinion in the companion case, CA04-690, appellants have failed to show that the personal representative has mismanaged the estate or neglected to perform any duty pertaining to the office. Although it is true that the attorney chosen by the personal representative did not set out the individual claims of the appellants in the initial complaint filed against Kraus Construction, he explained that he did so because it was necessary for tactical reasons - i.e. preservation of evidence -- to file a complaint as quickly as possible, and that he did so with the intent to amend it later to include all the claims. An amended complaint enumerating appellants' claims was in fact filed by the personal representative, and there is no compelling evidence to indicate that the attorney for the personal representative is attempting to obtain a more favorable distribution at appellants' expense. Furthermore, although appellants correctly note that there has been a good deal of animosity and tension between the personal representative and the appellants, it is not at all clear that this state of affairs was not entirely of appellants' own making. On this record, we cannot say that the trial judge erred in finding no positive proof that appellants' interests were not adequately represented by the personal representative, and we affirm.

Affirmed.

Gladwin and Vaught, JJ., agree.

1 We have today affirmed the denial of appellants' motion to remove the personal representative in a separate appeal. Levingston v. Stovall, CA04-690 (not designated for publication).