Garcia v. Estate of James M. Duvall
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SUPREME COURT OF ARKANSAS
No.
08-845
ERNEST GARCIA, BEVERLY GARCIA,
AND PATSY DURHAM,
APPELLANTS;
Opinion Delivered FEBRUARY 12, 2009
VS.
APPEAL FROM THE YELL COUNTY
CIRCUIT COURT, NORTHERN
DISTRICT; NO. PR-2005-66; HON.
TERRY M. SULLIVAN, JUDGE;
ESTATE OF JAMES M. DUVALL,
APPELLEE;
AFFIRMED.
DONALD L. CORBIN, Associate Justice
Appellants Ernest and Beverly Garcia and Patsy Durham appeal the order of the Yell
County Circuit Court denying and dismissing with prejudice their claims against Appellee
Estate of James M. Duvall. Their sole point on appeal is that the circuit court erred in finding
that their claims were barred by the statute of nonclaim, codified at Ark. Code Ann. § 28-50101 (Repl. 2004).1 This court assumed jurisdiction of this case, as it involves a potential issue
of statutory interpretation; our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(6). We
affirm.
A review of the record reveals that prior to his death on November 15, 2005, James
Duvall entered into two separate contracts, one with Appellants Ernest and Beverly Garcia,
and the other with Appellant Patsy Durham. The Garcia contract consisted of a handwritten
contract, in which Mr. Duvall sold a house, as is, to the Garcias for $55,000. Five hundred
dollars was due on January 1, 2002, to be followed by a payment of $1,000 in February 2002,
1
The General Assembly amended section 28-50-101(a)(1) by Act 231 of 2007, and provided for a
six-month nonclaim period. Because the nonclaim period at issue here arose in 2006, the prior version of
section 28-50-101(a)(1) providing for a three-month nonclaim period is applicable here.
and monthly payments thereafter of $450 at an interest rate of 8.5 percent per annum. The
Durham contract was typewritten and provided for the sale of certain real property to
Ms. Durham for $12,000, with monthly payments of $150 at a rate of 8 percent per annum.
Following Mr. Duvall’s death, personal representatives were appointed for his Estate,
and on April 19, 2006, a notice of appointment of co-administrators was published in the Yell
County Record. On August 21, 2007, the Appellants filed a complaint in Yell County
Circuit Court against the Estate, its personal representatives, and Mr. Duvall’s heirs.
Appellants sought certification of a class action and alleged two bases for relief: (1) violation
of the usury provision in the Arkansas Constitution, article 19, section 13; and (2) violation
of the Arkansas Deceptive Trade Practices Act. On September 5, 2007, the Estate filed an
objection and disapproval of the claims made by the Appellants. Specifically, the Estate
asserted that the claims were not made within the time set forth by the nonclaim statute, and,
thus, were barred.
Pretrial briefs were submitted to the circuit court by both sides, and the circuit court
then held a hearing and allowed the parties to argue their respective positions. After taking
the matter under consideration, the circuit court filed a letter opinion, finding:
The claimants in this case contend that usury cases are a special category for
purposes of measuring the commencement of a limitation period for a claim
based on usury but the claimant has cited no pertinent statutory or case law
authority that a claim for usury is an exception to the application of the non
claim statute.
If the General Assembly of the State of Arkansas had intended to make usury
cases an exception to the statute of non claim this Court feels that this could
have been done. It has not been done.
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This Court finds that the Arkansas statute of non claim has long barred claims
filed against the estate that are not timely filed. In this case, the claims of the
claimants, Garcia and Durham, were not timely filed and the Court finds their
claims are barred and dismissed in that they were not filed within the
appropriate 3 month period. . . .
The circuit court subsequently entered an order memorializing its letter opinion and stated,
in pertinent part:
Based upon the facts as found by this Court, the Court concludes that:
(1)
The non claim period applicable to the Claimants and their
respective claims ended three months following the first
publication of the notice to creditors. Since the first publication
of the notice to creditors was April 19, 2006, the non claim
period for filing or otherwise asserting a claim against the Estate
expired July 19, 2006;
(2)
Claimants’ claim was not filed until August 27, 2007, over a year
after the close of the non claim period;
(3)
Pursuant to the terms of the statute of non claim, the Claimants’
claims and the civil action upon which they are based are
“forever barred as against the estate, the personal representative,
or the heirs and devisees of the decedent.”
The circuit court then denied and dismissed with prejudice the claims filed by Appellants
against the Estate. This appeal followed.
As their sole point on appeal, Appellants argue that it was error for the circuit court
to deny and dismiss their claims where they were reasonably ascertainable creditors, were
given no notice of the probate proceedings, and filed their claims within two years of the date
of the first publication of notice. Appellee counters that the circuit court correctly determined
that Appellants’ claims were barred by section 28-50-101(a), the statute of nonclaim. Because
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Appellants failed to obtain a ruling on this argument, we are precluded from addressing it on
appeal.
Appellants raised their “reasonably ascertainable creditor” argument before the circuit
court in their pretrial brief; however, the main focus of that brief was an argument that when
dealing with a usury claim, the statute of limitations starts over each time a party makes a new
payment on a usurious note. In its letter order, the trial court stated that Appellants failed to
cite to any authority supporting their argument about the statute of limitations for a usury
claim. In its subsequent written order, the trial court found that the statute of nonclaim
applied and barred Appellants’ claims. The trial court made no finding as to whether
Appellants were reasonably ascertainable creditors and thus fell within the two-year limitation
set forth in section 28-50-101(h).
In sum, Appellants abandoned their original argument regarding the applicable statute
of limitations, and because they failed to obtain a ruling on their alternative argument that
they were reasonably ascertainable creditors, we will not address their argument on appeal.
See, e.g., Parker v. BancorpSouth Bank, 369 Ark. 300, 253 S.W.3d 918 (2007) (holding that
failure to obtain a ruling on an issue from the circuit court precludes review on appeal).
Accordingly, we affirm.
Affirmed.
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08-845
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