Josh Sanford v. Tim Murdoch
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SUPREME COURT OF ARKANSAS
No.
JOSH SANFORD,
08-265
Opinion Delivered 6-19-08
APPELLANT,
VS.
TIM MURDOCH,
APPEAL FROM THE POPE COUNTY
CIRCUIT COURT, NO. PF-2007-269,
HON. GORDON W. “MACK”
MCCAIN, CIRCUIT JUDGE,
APPELLEE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
Appellant Josh Sanford, an attorney with the Sanford Law Firm, PLLC, of Russellville,
appeals from an order of the circuit court, ordering him to pay $2,492.11 in attorney-ad-litem
fees to Timothy W. Murdoch, an attorney-ad-litem appointed for Marilyn Martin, who was
Sanford’s former client. We affirm the circuit court’s order.
Since 2004, Sanford had represented and advised Martin in a variety of legal matters,
including the planning of her estate.1 As such, documents relevant to her financial and estate
planning were in Sanford’s possession. Included in these documents was Martin’s Last Will
and Testament, executed on November 21, 2002, which left all of her property to the
Marilyn Ann Martin Living Trust, also executed on November 21, 2002. Upon the death
of the settlor of the trust, the trust estate would go to Martin’s mother, Emily Echols, if living,
Many of the facts in this case are gleaned from the attorney-ad-litem report prepared
by Timothy W. Murdoch.
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for whom Martin was the guardian and caregiver, and then to the S.P.C.A. No-Kill Center
in Las Vegas, Nevada. The Living Trust was amended on July 2, 2004, naming Marilyn
Martin as trustee and two friends as successor trustees.
In June of 2007, Martin first reported to her primary care physicians in Russellville that
she was having difficulty concentrating and expressing herself and was suffering from memory
lapses. Soon thereafter, Martin was diagnosed with a malignant brain tumor, and her
communication, comprehension, and memory problems continued to worsen. Martin,
however, decided to forego medical treatment and seek hospice care.
On August 17, 2007, Sanford was granted a durable power of attorney by Martin to
handle her affairs. The following day, the Martin Living Trust was amended, naming Sanford
as trustee upon the death or incapacity of the settlor, and providing for the trustee to hold the
entire estate for the benefit of Emily Echols upon the death of the settlor.2 Upon the death
of Emily Echols, ten percent of the estate would go to the S.P.C.A. No-Kill Center and the
remaining ninety percent would be divided equally between two friends.
Sometime after Martin’s diagnosis, Martin’s niece, June Morgan, and her husband,
Robert, traveled to Arkansas from California to visit Martin. On August 25, 2007, Martin
revoked Sanford’s power of attorney and granted a durable power of attorney to Morgan.
Martin then executed a new Last Will and Testament on August 31, 2007, in California,
Presumably, this amendment was made by Sanford under the durable power of
attorney, but the record before us does not specifically show this.
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leaving her entire estate to Morgan.3 Morgan then requested that Sanford deliver the financial
and estate planning documents in his possession to her. Sanford refused and contested
Martin’s competency at the time his power of attorney was revoked.
On September 13, 2007, Morgan, through local counsel, filed a Petition for AnteMortem Probate and for Ex-Parte Relief. The petition requested that the circuit court
declare Martin’s August 31, 2007 will valid and effective and order Sanford to produce the
documents in question. On September 20, 2007, the circuit court entered an order
appointing Timothy W. Murdoch as attorney-ad-litem for Martin for the purpose of
determining her mental competency. At the same time, the circuit court ordered Sanford to
provide Murdoch with all documents in his possession belonging to Martin and also ordered
Morgan to provide Murdoch with Martin’s medical records so that Murdoch could determine
whether Martin was competent to receive her financial and estate planning documents.
On October 1, 2007, Sanford filed a motion to dismiss Morgan’s Petition for AnteMortem Probate and argued that because Martin had moved to California with Morgan, the
circuit court did not have jurisdiction to determine the validity of the will. On October 6,
2007, Martin died in California.
Her mother, Emily Echols, continued to live near
Russellville.
On October 11, 2007, Murdoch filed an ad-litem report in which he ultimately
concluded that the financial and estate-planning documents should be returned to Martin’s
It appears the new will, according to the ad-litem report, was executed in California,
but, again, the record before us is inconclusive on this point.
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estate and that Martin was competent when she revoked Sanford’s power of attorney and
executed the new will. In his report, Murdoch stated that after interviewing both lay
witnesses and Martin’s physicians, he observed that the lay testimony was somewhat at odds
with the medical testimony. Several lay witnesses believed that Martin “did not know what
was going on” by late August of 2007. Martin’s physicians, on the other hand, and
specifically Dr. Michael Kaploe, Martin’s primary care physician, indicated that though Martin
was aphasic, she was “still decisional” and had no problems understanding matters during an
August 27, 2007 clinic visit. Murdoch gave considerable weight to Dr. Kaploe’s opinion, as
Dr. Kaploe had been Martin’s primary care physician for several years, and Murdoch believed
that Dr. Kaploe was in the best position to determine Martin’s cognitive status.
On October 25, 2007, the circuit court conducted a hearing with Sanford and
Murdoch present, at which time Sanford told the court that he had no objection to attorneyad-litem fees being paid to Murdoch. The issue as to who would pay the fees was not
discussed. Murdoch was orally discharged as attorney-ad-litem by the circuit court at the
same hearing.
On October 29, 2007, Murdoch filed a motion for payment of fees for his ad-litem
work. Morgan responded that Sanford should be ordered to pay Murdoch’s attorney’s fees
because his refusal to produce Martin’s financial and estate planning documents and his
questioning of her mental competency necessitated the need for an attorney-ad-litem.
Sanford replied that Martin’s estate was the proper party to bear the expense of Murdoch’s
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ad-litem work, as there was no legal authority for the circuit court to assess the fees against
any party other than Martin’s estate.
On October 30, 2007, the circuit court entered an order, ruling that based on
Murdoch’s ad-litem report, Morgan was entitled to possession of all of Martin’s property.
The circuit court also directed Murdoch to provide the court with a Verified Fee Petition.
On November 7, 2007, the circuit court ordered Sanford to pay Murdoch’s ad-litem fee in
the amount of $2,492.11. Sanford then filed an objection to that order and contended that
there was no statutory basis for an assessment for other ad-litem work under these
circumstances in a probate proceeding. In addition, Sanford argued that the circuit court
lacked authority to appoint an attorney-ad-litem for Martin, and even if there was authority
to do so, the circuit court failed to make a determination that Martin was incompetent first,
as required by statute. As a final point, Sanford claimed that the circuit court violated
Arkansas Code Annotated § 28-1-112 (Repl. 2004), when it appointed an attorney-ad-litem
without notice, without a hearing, and without adequate time to respond to the underlying
petition.4
Sanford first urges in this appeal that a circuit court does not have the authority to
appoint an attorney-ad-litem in an ante-mortem probate case or in a replevin case, because
the appointment of an attorney-ad-litem is limited to those types of cases identified by law,
The facts of this case, as taken from the record, are sparse, as none of Martin’s estate
and financial planning documents were included in the record. The current status of the
Martin Living Trust and Emily Echols are unclear from the record.
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and there is no authority in the Ante-Mortem Probate Act or any of the replevin statutes that
allows for the appointment of an attorney-ad-litem. Sanford insists that in order to appoint
an attorney-ad-litem, there must be statutory authority to do so. In the alternative, Sanford
contends that even if the circuit court had the authority to appoint an attorney-ad-litem in
this case, the circuit court erred by not first making a determination that Martin was
incompetent. Sanford asserts that a circuit court is generally prohibited by statute from
appointing an attorney-ad-litem unless there is an unrepresented interest, inadequate
representation, or the potential client is incompetent. He maintains that Murdoch was
appointed as Martin’s attorney-ad-litem without a finding that Martin was incompetent,
which is made clear by the fact that Murdoch was appointed for the purpose of determining
Martin’s competency. Thus, Sanford insists that the decision appointing an attorney-ad-litem
in this case was in error and should be reversed.
Murdoch responds as the only named appellee and asserts that he does not take a
position on Sanford’s arguments.
The standard of review in probate proceedings is clear:
This court reviews probate proceedings de novo on the record, but it will not
reverse the decision of the circuit court unless it is clearly erroneous. Bullock v.
Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006); Craig v. Carrigo, 353 Ark. 761,
121 S.W.3d 154 (2003). In conducting our review, we give due regard to the
opportunity and superior position of the trial judge to determine the credibility
of the witnesses. Bullock, supra.
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Seymour v. Biehslich, 371 Ark. 359, 361, __ S.W.3d __, __ (2007). Probate orders may be
appealed during the course of a probate administration regardless of whether the estate has
been closed. See Ark. Code Ann. § 28-1-116 (Repl. 2004).
As an initial matter, this court must determine whether Sanford’s argument regarding
court authority to appoint Murdoch as attorney-ad-litem is moot. See Honeycutt v. Foster, 371
Ark. 545, __ S.W.3d __ (2007). As a general rule, appellate courts of this state will not
review moot issues, as doing so would be to render an advisory opinion, which this court will
not do. See Kinchen v. Wilkins, 367 Ark. 71, 238 S.W.3d 94 (2006). This court has said that
“a case becomes moot when any judgment rendered would have no practical legal effect upon
a then-existing legal controversy.” Id. at 74, 238 S.W.3d at 97. Nevertheless, this court
recognizes two exceptions to the mootness doctrine: (1) issues that are capable of repetition,
yet evading review and (2) issues that raise considerations of substantial public interest which,
if addressed, might prevent future litigation. See Kinchen, supra.
In the case at hand, we hold that Sanford’s argument on this point is moot. Murdoch
was appointed as Martin’s attorney-ad-litem, and an ad-litem report was filed, finding that
Martin was competent during the time period in dispute and was entitled to the documents
in question. The circuit court ordered the documents returned, and the financial and estate
planning documents once in Sanford’s possession have now been provided to Morgan.
Before the ad-litem report was even filed, Martin moved to California where she passed away
soon after on October 6, 2007. Murdoch was then discharged as attorney-ad-litem on
October 25, 2007.
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Based on these facts, even if this court were to hold that the circuit court erred by
appointing an attorney-ad-litem for Martin, the judgment would have no effect on the
controversy. The attorney-ad-litem’s work is over and cannot be undone, and the underlying
dispute regarding Martin’s competency has been resolved and the documents returned.
Moreover, this issue does not fall within either of the two exceptions to the mootness
doctrine. Therefore, Sanford’s first point on appeal is moot and will not be addressed by this
court. Similarly, we conclude that a ruling by this court on whether the circuit court erred
by appointing an attorney-ad-litem without notice, a hearing, and adequate time to respond
would have no practical effect on the controversy and would be purely advisory. Thus, we
hold that the issue raised by Sanford regarding violation of his due-process rights is also moot,
and we will not address it.
We next turn to Sanford’s contention that the circuit court erred by assessing
Murdoch’s ad-litem fee against him, which is a distinct and separate issue from the circuit
court’s authority to appoint an attorney-ad-litem in the first place. He claims that ad-litem
fees may only be awarded when expressly authorized by statute and that neither the AnteMortem Probate Act nor the replevin statutes authorize the award of attorney-ad-litem fees.
He insists that Murdoch’s ad-litem fee should be paid by Martin’s estate, because Murdoch
was appointed to represent Martin’s interest. As noted above, Murdoch is the only appellee
to file an appellate brief, and he states that he does not take a position on Sanford’s arguments.
Sanford’s argument on the fee point consists of a mere two paragraphs. He cites to one
case for the proposition that attorney’s fees may only be awarded when expressly authorized
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by statute, and he points out that the Ante-Mortem Probate Act and this state’s replevin
statutes do not grant a circuit court the authority to award attorney-ad-litem fees. Based on
this, he concludes that Murdoch’s ad-litem fee should have been assessed only against Martin’s
estate, but he cites no authority for this proposition. Nor does he cite this court to authority
for the proposition that an attorney-ad-litem’s fee is the equivalent of an award of attorney’s
fees in a contested matter or authority demonstrating to this court how an attorney-ad-litem
in similar probate situations is usually paid in connection with a contested issue. Moreover,
he does not assert that Murdoch’s role was that of a master or fact-finder and that his fee for
services is more in the nature of a necessary expense incurred by the estate. In short, this
point is not sufficiently developed by Sanford for appellate review, and this court will not do
the research on appellant’s behalf. This court has repeatedly said that it will not consider an
assertion of error if the appellant makes no convincing argument or cites no legal authority
to support it, unless it is apparent without further research that the argument is well taken.
See Hendrix v. Black, __ Ark. __, __ S.W.3d __ (April 24, 2008); Chiodini v. Lock, __ Ark. __,
__ S.W.3d __ (April 3, 2008); Thomas v. Avant, 370 Ark. 377, __ S.W.3d __ (2007); Wilson v.
Weiss, 370 Ark. 205, __ S.W.3d __ (2007).
We note, in addition, that the appointment of the attorney-ad-litem was precipitated
by Sanford’s challenge to Martin’s competency. We further observe that Sanford specifically
told the circuit court during an October 25, 2007 hearing, at which Murdoch was present,
that he had no objection to ad-litem fees being paid to Murdoch but only objected
subsequently when the court ordered him to pay the fees. Hence, it appears he conceded that
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the court had the authority to assess ad-litem fees in this case but only contests the fact that
he should pay them. Again, he presents this court with no case law or persuasive argument
on why this should be the case. See Hendrix, supra. Accordingly, we find no abuse of
discretion by the circuit court, and we affirm.
Affirmed.
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