Nash v. Pulaski Cty. Cir. Ct.dissent
2017 Ark. 73
| Ark. | 2017Background
- Petitioner Jim R. Nash (an attorney) sued Norma Nash, widow/executor of John R. Nash, Sr., alleging unpaid legal fees and a fraudulent transfer to the Norma Nash Living Trust, plus related contract and tort claims.
- Norma was served and discovery began; she died on February 28, 2016, before the case was resolved.
- Nash sought substitution/revivor and asked the circuit court to appoint special administrators for Norma’s estate and trust; he filed an amended complaint naming potential representatives.
- The circuit court dismissed claims against Norma in her individual capacity for failure to substitute within 90 days under Ark. Code Ann. § 28-50-102; probate had not been opened and no special administrator was appointed.
- Successor cotrustees (John R. Nash, Jr., and Pam Glover) denied a special administrator had been appointed, moved to dismiss and for summary judgment, and have little incentive to open probate; Nash argued lack of appointment prevented personal jurisdiction and effective prosecution of his fraudulent-transfer and collection claims.
- The Supreme Court majority denied mandamus as an adequate remedy at law (appeal), but Justice Hart dissented, arguing appeal was not available and the court should compel appointment of a special administrator under Ark. Code Ann. § 16-62-107 so Nash could serve a personal representative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus should compel the circuit judge to appoint a special administrator for Norma’s estate | Nash: Court must compel ministerial appointment of a special administrator so service and substitution can occur and jurisdiction obtained | Successor cotrustees/court: No appointment required; substitution rules not met and probate not opened | Dissent: Mandamus appropriate because appeal is not an adequate remedy and appointment is ministerial; majority denied writ (denial reviewed in dissent) |
| Whether an appeal is an adequate remedy at law precluding mandamus | Nash: Appeal is not available because substitution under Rule 25 is not immediately appealable and circuit court never obtained personal jurisdiction | Opponents: Appeal exists as remedy | Dissent: Appeal inadequate because lack of personal jurisdiction and substitution orders are not immediately appealable; mandamus necessary |
| Whether lack of a special administrator prevents personal jurisdiction and prosecution of claims against the estate/trust | Nash: Without personal representative/service, circuit court lacks personal jurisdiction and plaintiff cannot collect against trust/estate assets | Trustees: Dismissal and procedural rules bar claims; substitution requirements unmet | Dissent: Lack of representative defeats personal jurisdiction and effective relief; court should force appointment |
| Whether the circuit court’s dismissal of individual claims was final and barred further action | Nash: Dismissal was improperly entered without motion and was without prejudice; extinguishing individual claims frustrates plaintiff’s ability to reach trust assets | Trustees: Dismissal proper under § 28-50-102 for failure to substitute timely | Dissent: Dismissal without prejudice and substitution failure cannot substitute for proper appointment; mandamus needed to proceed |
Key Cases Cited
- State v. Vittitow, 358 Ark. 98 (2004) (describing mandamus standard: clear right and absence of adequate remedy)
- John Norrell Arms, Inc. v. Higgins, 332 Ark. 249 (1998) (addressing necessity of personal jurisdiction for appellate review)