Ferguson v. Ferguson
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-1260
NORMA FERGUSON
APPELLANT
V.
LARRY JAMES FERGUSON,
EXECUTOR OF THE ESTATE OF L.J.
FERGUSON
APPELLEE
Opinion Delivered September
2, 2009
APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT,
[NO. CV2005-208-2]
HONORABLE RANDY WRIGHT,
JUDGE
AFFIRMED ON DIRECT APPEAL
AND CROSS-APPEAL
LARRY D. VAUGHT, Chief Judge
In a Texas probate proceeding, appellant Norma Ferguson obtained a $106,952.35
judgment against her late husband’s estate for attorney fees and expenses. The executor of the
Texas estate, appellee Larry Ferguson, did not pay the judgment. As a result, Norma filed
several proceedings in Hempstead County, Arkansas, where her husband had owned real
property, and asked the Hempstead County Circuit Court to order certain Arkansas property
sold, with the proceeds going to satisfy her Texas judgment. The court refused to do so, and
Mrs. Ferguson filed this appeal, arguing that the court’s refusal was error. On cross-appeal,
executor Larry Ferguson argues that the circuit court lacked jurisdiction to hear the
proceedings below. We affirm on direct appeal and cross-appeal.
Norma Ferguson married L.J. Ferguson in 1993. They resided in Texas, but L.J. also
owned land in Arkansas. The record indicates that two of L.J.’s Arkansas tracts were his
separate property and that a third tract, consisting of 106.5 acres, was acquired during his
marriage to Norma. In 1994, L.J. executed a will that devised the Texas marital homestead
to Norma and the remainder of his real-estate interests, including the Arkansas property, to
the children of his first marriage, Larry Ferguson, Lyle Ferguson, and Virginia Ferguson
Letchworth. The will named Larry Ferguson as executor.
L.J. died in 1998, and his will was admitted to probate in Texas. The Texas probate
court presided over a dispute concerning Norma’s entitlement to the Texas homestead
property and certain personalty, and the parties initially settled their differences. However, an
additional dispute arose over the scope of the settlement. The Texas probate court ruled
against Norma in the dispute, but an appellate court reversed and remanded. Ferguson v.
Ferguson, 111 S.W.3d 589 (Tex. Ct. App. 2003). Upon remand, the probate court awarded
Norma $106,952.35 in attorney fees and expenses against the Texas estate.
While the Texas litigation was pending, Larry Ferguson filed a petition in Hempstead
County, Arkansas, to probate L.J.’s will as a muniment of title to the Arkansas realty. On
October 10, 2000, the probate court granted the petition without appointing a personal
representative or otherwise administering an Arkansas estate and closed the proceeding
pending the filing of the requisite notices. However, following the Texas court’s attorney-fee
award of June 2004, Norma filed pleadings in the Arkansas probate case and she instituted two
other actions in Hempstead County in an attempt to recover on the Texas judgment. In the
probate case, Norma asked the court to appoint her as executrix, to award her a one-half
interest in the 106.5 acres, and to sell the tract to satisfy her $106,952.35 Texas attorney-fee
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award. In the other actions, Norma asked the Hempstead County Sheriff to levy the Arkansas
property and schedule it for sale and she petitioned the circuit court to, among other things,
perfect her title to one-half interest in the 106.5 acres and to sell the property, dividing the
proceeds one-half to her and one-half to Larry, Lyle, and Virginia.
In a 2007 order, the Hempstead County Circuit Court consolidated the three actions
and declared the 106.5-acre tract to be community property owned “in the undivided onehalf” by Norma and in the other half by Larry, Lyle, and Virginia (one-sixth to each of them).
The court then ordered the tract appraised, after which the parties had thirty days to divide
the property in kind or otherwise settle their issues with respect to the property. The court
stated that, if no settlement could be reached, it would order a public sale of the property.
Approximately one year later, the property remained unsold and the parties returned
to court. The court addressed what appeared to be the sole remaining issue with respect to
the 106.5-acre tract: whether the sale proceeds could be used to satisfy Norma’s Texas
judgment. After hearing testimony from Larry Ferguson that he had not paid the $106,952.35
because there were no assets remaining in the Texas estate, the court ordered the 106.5 acres
sold. However, the court ruled that “the assets of the estate that are administered in Arkansas
shall not be used to satisfy a judgment from Texas.” Norma appeals from that ruling and
argues that the circuit court erred in refusing to order Larry Ferguson to sell Arkansas land to
pay the Texas attorney-fee judgment.1 Executor Larry Ferguson argues on cross-appeal that
1
Virtually all probate orders are appealable, with certain exceptions not applicable here.
Ark. Code Ann. § 28-1-116(a) and (b) (Repl. 2004); Ark. R. App. P. - Civ. 2(a)(12) (2009).
Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005). Where an order includes findings
regarding probate matters, the appellate court will consider it an appealable order. See Carmody
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the Hempstead County Circuit Court lacked subject-matter jurisdiction to make any rulings
with regard to the 106.5 acres. Because the cross-appeal presents an issue of subject-matter
jurisdiction, and consequently, affects this court’s power to hear the appeal, Craig v. Traylor,
323 Ark. 363, 915 S.W.2d 257 (1996), we address the cross-appeal first.
Cross-Appeal - Subject Matter Jurisdiction
Cross-appellant argues that the circuit court lacked jurisdiction to order the sale of the
106.5 acres and, consequently, lacked jurisdiction to order payment of the attorney-fee award
from the proceeds of a sale. In the proceedings below, cross-appellant accepted the property
division and did not object to the property’s sale. Ordinarily, he would be barred from
asserting an argument on appeal that he did not make at the trial level. See generally BBAS, Inc.
v. Marlin Leasing Corp., 104 Ark. App. 63, ___ S.W.3d ___ (2008). However, to the extent
that his argument raises questions of subject-matter jurisdiction, such questions are always
open and may be challenged for the first time on appeal. Muldoon v. Martin, 103 Ark. App.
64, 286 S.W.3d 201 (2008).
Cross-appellant argues that the circuit court lacked jurisdiction because only a probate
court has the power to approve claims submitted for payment from a decedent’s estate. Our
law prior to July 1, 2001, made a distinction between circuit and probate courts. However,
that distinction was abolished by Amendment 80 to the Arkansas Constitution. Amendment
80, which was in effect when the circuit court ruled on the matters now at issue, merged
circuit and chancery courts into circuit courts so that circuit courts would have jurisdiction
v. Raymond James Fin. Servs., 373 Ark. 79, 281 S.W.3d 721 (2008).
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over all matters previously cognizable in circuit, chancery, probate, and juvenile courts. See
Smith v. McCracken, 96 Ark. App. 270, 240 S.W.3d 621 (2006). The circuit judge in this case
was therefore empowered to hear all matters within the jurisdiction of a circuit court, which
included probate matters.2
Cross-appellant also contends that because the probate division in this case was the first
to exercise jurisdiction over the Arkansas property the circuit division lacked authority to
adjudicate any interests in the property. See Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754
(1959) (holding that, when courts have concurrent jurisdiction, the court that first acquires
jurisdiction has the right to adjudicate the matter at issue). This argument does not persuade.
Following Amendment 80, the question of whether one division may rule on a matter already
decided by another division is not an issue of subject-matter jurisdiction—both divisions have
subject-matter jurisdiction. See Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008). The
question is simply whether one division may usurp another’s authority in addressing a
particular matter. See Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008). Because no
issue of subject-matter jurisdiction is presented on this question, cross-appellant may not raise
it for the first time on appeal. In any event, the circuit court in this case ultimately
consolidated the actions from all divisions, both probate and circuit, into the present case.
Cross-appellant also claims that the circuit court lacked jurisdiction to rule on the
ownership of the Arkansas property because the probate court had issued a final order in
2
Cross-appellant cites Kidwell v. Rhew, 371 Ark. 490, 268 S.W.3d 309 (2007), where our
supreme court stated that a probate court is a court of special and limited jurisdiction. The
court’s statement is general in nature and refers to pre-Amendment 80 cases.
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November 2000 closing the estate and distributing the Arkansas property. However, the
November 2000 order did not administer an estate, distribute property, or close an estate. It
simply allowed L.J.’s will to be probated as a muniment of title, then closed that particular
proceeding. These facts distinguish the present case from Bender v. Bean, 52 Ark. 132, 12 S.W.
180 (1889), cited by cross-appellant, where the supreme court held that an attempt to
distribute the property of an estate after closure of administration and the discharge of the
administrator was ineffective. Here, there was no closure of an administered estate. In fact,
Norma filed pleadings in the probate case in 2001 and 2007, and the record indicates that the
circuit court appointed Larry Ferguson as executor of the decedent’s Arkansas estate in 2008.
Thus, the administration of the Arkansas estate was not closed but was ongoing.3
We therefore conclude that the circuit court had jurisdiction to act, and we affirm on
cross-appeal.
Direct Appeal - Payment of the Texas Judgment
On direct appeal, appellant argues that the circuit court erred in refusing to order
executor Larry Ferguson to pay her administrative claim for attorney fees, as awarded by the
Texas court, and refusing to sell sufficient Arkansas land to pay the judgment. Appellant points
out that Arkansas law permits claims for expenses of administration to be paid out of estate
assets, see Ark. Code Ann. §§ 28-50-106(a)(1) and -113(c) (Repl. 2004), and she contends that
the Texas judgment awarding fees and expenses is res judicata and entitled to full faith and
3
The administration of an estate, from the filing of the probate petition until the final
distribution and the discharge of the personal representative, shall be considered one proceeding
for jurisdictional purposes. Ark. Code Ann. § 28-40-101(a) (Repl. 2004).
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credit in an Arkansas court. See generally Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896
(2000). While appellant’s argument could be well taken in some contexts, it does not apply
here.
Arkansas law considers the estates of a decedent in separate jurisdictions as restricted
in their operations. A grant of administration in a foreign state does not embrace the assets of
a decedent in Arkansas. See Miller v. Oil City Iron Works, 184 Ark. 900, 45 S.W.2d 36 (1931).
Accordingly, the foreign state’s judgment is entitled to full faith and credit in Arkansas only
so far as it concerns property in the foreign state. See Torian v. Smith, 263 Ark. 304, 564
S.W.2d 521 (1978). The foreign judgment is not entitled to full faith and credit or a res
judicata effect on matters pertaining to the Arkansas assets of a decedent. Id., 564 S.W.2d 521.
The Arkansas Supreme Court has consistently considered the administration of a
decedent’s estate in another state to be wholly independent of an Arkansas estate. In Turner
v. Risor, 54 Ark. 33, 15 S.W. 13 (1890), the decedent owned property in Arkansas and
Louisiana. A Louisiana resident recovered a judgment on a claim against the Louisiana estate.
Our supreme court held that the claimant’s presentation of the claim in Louisiana was not the
same as presenting it in Arkansas. The court expressly rejected the idea that the estates in both
states constituted one entity and stated that a judgment obtained against one estate furnished
no right of action against the other estate to affect assets received by the latter.
In Torian, supra, the decedent owned property in Arkansas and Mississippi. The probate
court in Mississippi issued a ruling regarding payment of estate taxes on the will’s devises. The
Arkansas probate court refused to apply the Mississippi ruling to the Arkansas estate. Our
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supreme court affirmed, ruling that the Mississippi decision was entitled to full faith and credit
only so far as it concerned property situated in Mississippi. Further, in Amant, our supreme
court recognized that an award of fees by an Oklahoma probate court was entitled to full faith
and credit and could not be altered by an Arkansas court because the Oklahoma order
“concerned disposition of the [decedent’s] real property located in Oklahoma over which
only the Oklahoma court had in rem jurisdiction.” Amant, 341 Ark. at 862, 20 S.W.3d at 899.
See also Kyle v. Ribelin, 188 Ark. 264, 65 S.W.2d 46 (1933). Texas courts are in accord with
Arkansas. A claim against an estate in Texas is a judgment in rem and operates only on the
assets over which the court has jurisdiction. See 29 Tex. Jur. 3d Decedents’ Estates § 562; Reily
v. Hare, 280 S.W. 543 (Tex. Comm’n App. 1926).
Norma cites the United States Supreme Court case of Carpenter v. Strange, 141 U.S.
87 (1891), for the proposition that a judgment against an executrix in one state binds the
executrix in another state. The Court in Carpenter ruled that an executrix in New York was
in privity with the testator and that, when she was later appointed executrix in Tennessee, she
was bound by a New York judgment. However, Carpenter differs from the case at bar because
Carpenter dealt with a judgment obtained by a creditor of the testator, rather than a judgment
obtained against an estate for administrative fees and expenses. While the ruling in Carpenter
could, under some circumstances, allow a judgment that has its origins in a claim against a
testator to travel to wherever the testator’s property was situated, that is not equally true of
a judgment for fees and expenses incurred in the administration of a particular estate. Norma
also notes that some legal commentators have opined that laws such as Arkansas’s regarding
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the separate identities of decedents estates in different states, should be abandoned. Norma
urges us to disregard or overrule our case law on this basis, but this court does not have the
authority to overrule supreme court cases. See Horton v. Horton, 71 Ark. App. 251, 29 S.W.3d
367 (2000).
For these reasons, we affirm the circuit court’s order.
Affirmed on direct appeal and cross-appeal.
PITTMAN and GLADWIN, JJ., agree.
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