Mark Banks, as Administrator of the Estate of Dayna Banks, Deceased v. Robert J. Landry, Jr., as Personal Representative of the Estate of Robert J. Landry, Sr., Deceased
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ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CA08-25
MARK BANKS, AS ADMINISTRATOR
OF THE ESTATE OF DAYNA BANKS,
DECEASED
APPELLANT
Opinion Delivered
June 25, 2008
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
[NO. PR2005-202]
V.
HONORABLE PAMELA
HONEYCUTT, JUDGE
ROBERT J. LANDRY, JR., AS
PERSONAL REPRESENTATIVE OF
THE ESTATE OF ROBERT J.
LANDRY, SR., DECEASED
APPELLEE
REVERSED AND REMANDED
DAVID M. GLOVER, Judge
1.
EXECUTORS & ADMINISTRATORS – APPELLANT’S CLAIM SUBSTANTIALLY COMPLIED
WITH CLAIM STATUTE – TRIAL COURT ERRED IN DENYING APPELLANT’S CLAIM .– Where
appellant filed an affidavit to claim against the appellee estate, the appellate court
held that there was substantial compliance with Ark. Code Ann. § 28-50-103, and
therefore, the trial court erred in denying appellant’s claim against the appellee estate;
based on the noted “deficiencies” found by the trial court, the appellate court deduced
that the trial court therefore determined that the claim was sufficient with respect to
the remaining statutory requirements; and, the supreme court’s comments in Jones
v. Arkansas Farmers Ass’n regarding the overall purpose of the statutes could not be
ignored; that purpose was specified to effect and facilitate the payment of just claims
and not to defeat a claim based on a technicality.
Appeal from Craighead Circuit Court; Pamela Honeycutt, Judge; reversed and
remanded.
Paul N. Ford; Law Office of David H. Williams, by: David H. Williams; and Brian
G. Brooks, Attorney at Law, by: Brian G. Brooks, for appellant.
Cahoon & Smith, by: David W. Cahoon, for appellee.
In this case, appellant, Mark Banks, as administrator of the estate of Dayna Banks,
deceased, appeals from two orders, the August 22, 2007 order denying his claim against the
Landry estate and the October 4, 2007 order denying his motion to alter or amend the
judgment of the trial court. We reverse and remand.
Background
The facts are essentially undisputed. On June 23, 2005, five persons were killed in an
airplane crash. Among them were Dr. Robert J. Landry and Dayna Banks. Appellee, Robert
J. Landry, Jr., was appointed administrator of his father’s estate. He published the requisite
notice to heirs and creditors on July 11, 2005.
On January 9, 2006,1 appellant filed an affidavit 2 (“the claim”) to claim against the
Landry estate. It provided:
I, Mark Banks, Administrator of the Estate of Dayna Banks, Deceased, do swear that
the claim against the estate of Robert Landry, deceased, is correct, that nothing has
1
The statute of nonclaim ran on January 11, 2006.
2
The trial court’s ruling that the affidavit as “the claim should not be denied for
failure to file a separate claim form” was not appealed.
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been paid or delivered toward the satisfaction of the claim except as noted, that there
are no offsets to this claim, to the knowledge of this affiant, except as therein stated,
and that the sum of the claim is a contingent amount as result of wrongful death claim
is now justly due (or will or may become due as stated). I further state that if this
claim is based upon a written instrument, a true and complete copy, including all
endorsements, is attached.
The claim was signed by appellant, whose signature was notarized. Attached to the claim was
the order filed in the Banks estate, approving the retainer agreement between the estate and
an attorney to “represent Mark E. Banks, Patrick M. Banks, Joy and Jack Tanner, and the
estate in their claim(s) against any insurance company of Dr. Robert Landry, the pilot of the
airplane; and any manufacturer and/or mechanic service of the airplane of Dr. Robert Landry,
for damages and personal injuries resulting from the death of Dayna Banks on June 23, 2005.”
The retainer agreement, though itself not attached, provided in pertinent part:
Clients retain attorney to represent them as their attorney at law to settle,
adjust, file and prosecute by suit in the proper courts, or otherwise dispose of, their
claim against any insurance company of Dr. Robert Landry and the manufacturer and/or
mechanic service of the airplane of Dr. Robert Landry, for damages and personal injuries
resulting from the death of Dayna Tanner Banks on June 23, 2005.
(Emphasis added.)
The appellee denied the claim and the following year filed a petition to determine that
no claim against assets of the (Landry) estate could be made and to discharge the (Banks)
claim. However, in the interim, the appellee had identified the claim as valid in a separate
pleading in opposition to an unrelated claim. Following a hearing, the trial court denied the
claim by its August 22, 2007 order. In the order the trial court found that there was not
substantial compliance with certain provisions of Arkansas Code Annotated section 28-50-103
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(Repl. 2004) required to be included in a claim. In particular, the order provided:
Therefore, because the order approving the retainer agreement and the
language in the retainer agreement itself did not authorize suit against the assets of the
estate, the affidavit was deficient to serve as notice to the Landry Estate that the Banks
Estate was proceeding against the individual assets of the Landry Estate. This is
especially true, when coupled with the fact that the affidavit did not contain an amount
of claim, the specific names of the plaintiffs and defendants in the wrongful death
claim, or other pertinent information that would have put the estate on notice that the
claim was against the separate assets of the Landry Estate as opposed to liability
coverage. Therefore, the claim as to the separate assets of the Landry Estate is denied.
THEREFORE, this court directs that no claim against any assets of this estate
(other than as to any applicable insurance funds mentioned herein) can be made by the
Estate of Dayna Banks, and those claims are hereby dismissed with prejudice.
This appeal followed the subsequent October 4, 2007 order.
Standard of Review
The standard of review is straight forward. We review probate proceedings de novo,
and we will not reverse the decision of the trial court unless it is clearly erroneous. Dillard v.
Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). When reviewing the proceedings, we give due
regard to the opportunity and superior position of the trial judge to determine the credibility
of the witnesses. Id. Similarly, we review issues of statutory construction de novo, as it is for
this court to decide what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722
(2000). We are not bound by the trial court’s decision; however, in the absence of a showing
that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
Discussion
The preliminary purpose of “claim against estate” is to provide reasonable notice to
the administrator of the pending estate of relevant information regarding the claim, with
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which the administrator can make an informed decision.
Arkansas Code Annotated section 28-50-103 (Repl. 2004), provides:
(a) No claim shall be allowed against an estate on application of the claimant unless
it shall be in writing, describe the nature and the amount of the claim, if ascertainable,
and be accompanied by the affidavit of the claimant or someone for him or her that
the amount is justly due or, if not yet due, when it will or may become due, that no
payments have been made on the claim which are not credited, and that there are no
offsets to the claim, to the knowledge of the affiant, except as stated in the claim.
(b) If the claim is contingent, the nature of the contingency shall be stated also.
(c) If the claim has been assigned after the death of the decedent, the affidavit
required in this section shall be made by or on behalf of the person owning the claim
at the date of death of the decedent and by or on behalf of the assignee.
(d) If a claim is founded on a written instrument, the original or a copy thereof with
all endorsements must be attached to the claim.
(e) The original instrument must be exhibited to the personal representative or court,
upon demand, unless it is lost or destroyed, in which case its loss or destruction must
be stated in the claim.
Applying the above section, the trial court determined that the order approving the
retainer agreement and the language in the retainer agreement did not authorize suit against
the assets of the estate, thus concluding that the claim was deficient to serve notice to the
Landry Estate that the Banks Estate was proceeding against the individual assets of the Landry
Estate. In reaching that conclusion, the trial court stated, “[t]his is especially true, when
coupled with the fact that the affidavit did not contain an amount of claim, the specific names
of the plaintiffs and defendants in the wrongful death claim, or other pertinent information
that would have put the estate on notice that the claim was against the separate assets of the
Landry Estate as opposed to liability coverage.”
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We can deduce from the above-noted “deficiencies” that the trial court therefore
determined that the claim was sufficient with respect to the remaining statutory requirements:
1) it was in writing in the form of the affidavit, 2) it stated the nature of the claim, i.e., a
wrongful-death action, 3) it stated that the “amount” was justly due or will or may become
due as stated, 4) it stated that no payments had been made on the claim, and 5) it stated that
no offsets existed to the claim. In our view, the order attached to the claim, at the least,
fleshed out the specific incident, i.e., the airplane crash on June 23, 2005, supporting the
claim. While the trial court accurately noted that the claimant was not correct in asserting
that the wrongful-death claim was a contingent claim,3 it does not appear that the trial court
regarded that as a deficiency.
Before entry of its order, the trial court spent considerable time in a letter opinion
discussing the retainer agreement and the order approving the retainer agreement, the gist of
which has been previously described, i.e., that in both the agreement and the order, the
wording limited the attorney’s authorization to proceeding against the insurance company
only and not the estate separate from the insurance limits.
In Jones v. Arkansas Farmers Ass’n, 232 Ark. 186, 334 S.W.2d 887 (1960), our supreme
court reached the conclusion that any possible noncompliance on the part of appellee had
been waived by the executrix by failing to deny the claim or to object to its form until the
statute of nonclaim had run. In reaching that conclusion, the supreme court commented:
3
A tort claim is an unliquidated claim, not a contingent claim. See Turner v. Meek,
225 Ark. 744, 284 S.W.2d 848 (1955).
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We think it is unnecessary to decide (and we do not here decide) whether in
this instance appellee’s claim was sufficiently described to meet the requirements of the
statute, because we have reached the conclusion that the executrix waived any possible
noncompliance on the part of appellee by failing to deny the claim or to object to its
form until the statute of nonclaim had run. As heretofore noted, the last day for filing
claims was April 25, 1959 and the executrix did not deny appellee’s claim until May
28, 1959. There are several sections of the statutes (§ 62-2601, § 62-2602, § 62-2603,
and § 62-2604) which deal with the filing of claims against an estate. It appears to us
that the overall purpose of these statutes is to effect and facilitate the payment of just
claims against an estate within the specified time and not to defeat a just claim on a
technicality that might entrap the claimant. The rule which we think achieves the
above purpose, and which we hereby approve, is well stated in 21 Am.Jur., Page 593,
§ 373, Form and Requirements of Claim. It is there stated: “If there is any uncertainty
in a claim filed against a decedent’s estate, it is incumbent on the personal
representative to call for clarification. Where no objection is made by the executor or
administrator against the sufficiency of the form in which a claim is stated he may be
deemed to have waived the insufficiency. If he relies on defects in form in refusing
to allow a claim, he should make known his objection seasonably.”
232 Ark. at 187-88, 334 S.W.2d at 888 (emphasis added). Although the court in Jones
decided that case on the basis of waiver, rather than the sufficiency of the claim, the court’s
comments regarding the overall purpose of the statutes cannot be ignored. That purpose was
specified to effect and facilitate the payment of just claims and not to defeat a claim based
on a technicality. This stated purpose is supported by the following discussion contained in
Executors & Administrators, 31 Am. Jur. 2d § 624 (2002):
The contents of a claim should be liberally construed, since the statutes were
not intended to make it easier to avoid payment of a just claim, but were intended to
make a claimant set forth his claim with such particularity that the personal
representative would be fully advised as to just what was claimed. Accordingly, a
claim need not be in any particular form; it is sufficient if it states the character and
amount of the claim, enables the representative to provide for its payment, and serves
to bar subsequent claims by reason of its particularity of designation.
Although a claim against an estate must be in writing, the presentation of a
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claim is neither a formal nor technical proceeding. A claim must be brought to the
attention of the fiduciary by some action by or on behalf of the claimant, but the form
of the presentation is of little importance so long as it furnishes sufficient information
of the extent and character of the claim. A demand filed in probate court is not to be
judged by the strict rules of pleading applied to a petition in the circuit court, and it
is sufficient if it gives reasonable notice to the legal representative of the estate of the
nature and extent of the claim and is sufficiently specific so that a judgment thereon
will be res judicata of the obligation on which it is based. A claim is sufficient if it
indicates the nature and amount of the demand in such a manner that the executors
and probate court can act advisedly on it. A note or contract need not be attached to
the claim unless the claim is based upon a written note or contract.
[1] Here, the question presented can be summarized as follows: whether the trial
court erred in concluding that there was not substantial compliance with the statutory
requirements to file a valid claim against an estate pursuant to Arkansas Code Annotated
section 28-50-103. We conclude that there was substantial compliance, and, therefore, that
the trial court erred in denying appellant’s claim against the Landry estate.
Reversed and remanded for proceedings consistent with this opinion.
H ART, R OBBINS and B AKER, JJ., agree.
G RIFFEN and H EFFLEY, JJ., dissent.
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