EDDIE S. WATKINS III v. RAYMOND ADAMS, PERSONAL REPRESENTATIVE OF THE ESTATE OF ETHEL MAE NALLS ADAMS, DECEASED
No. CV-20-427
ARKANSAS COURT OF APPEALS DIVISION II
May 26, 2021
2021 Ark. App. 261
BART F. VIRDEN, Judge
APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30PR-15-17], HONORABLE CHRIS E WILLIAMS, JUDGE, AFFIRMED
Prо se appellant Eddie S. Watkins III appeals from the Hot Spring County Circuit Court‘s order denying his motions to intervene and to set aside an order for the distribution of assets from his grandmother‘s estate.1 Eddie raises several points on appeal. He argues that he was denied due process in that he was not present at the hearing on his motions. Eddie also arguеs that the trial court erred in finding that his mother‘s “waiver of claim” was not a “disclaimer” of interest, and he asserts that the disclaimer was brought about by fraud on
I. Background
Ethel died intestate on November 15, 2013. At the time of her deаth, she had four adult children: John Adams; Christine Murdock; Raymond Adams; and Dorothy Davis, Eddie‘s mother. In January 2015, Raymond filed a petition to be appointed personal representative of his mother‘s estate in which he alleged that Ethel had no real property and that her personal-property value was undetermined because her estate intended to pursue a personal-injury and wrongful-death lawsuit against Arbor Oaks Healthcare and Rehabilitation Center. Raymond was appointed personal representative, and each of Ethel‘s children filed a waiver of notice, bond, accounting, and inventory and an entry of appearance. Specifically, the siblings waived notice of any hearings for any purpose in connection with the administration of the estate. Legal notice of the opening of the estate was published in the Arkansas Democrat-Gazette. On October 4, 2017, the trial court approved a settlement of the nursing-home litigation.
On November 2, 2017, Dorothy filed a “Waiver of Claim and Notice and Entry of Appearance” in which she “waive[d] any claim that she might have in and to any of the proceeds from the administration of the estate of Ethel Mae Nalls Adams, deceased, including any right to proceeds from the settlement of claims” from the nursing-home
Raymond petitioned for approval of a distribution pursuant to a confidential family distribution and settlement agreement entered into by Ethel‘s remaining heirs who had not waived their claims, Raymond and Christine. The petition noted that Dorothy and John had waived all claims, including the right to proceeds from the settlement of claims in the nursing-home litigation, and that they would “not be receiving any payments” under the agreement.3 The petition provided that the prоceeds would be distributed to Raymond and Christine 50/50 pursuant to the agreement. On November 3, 2017, the trial court entered an order approving a distribution pursuant to the agreement.
On February 22, 2018, Raymond signed a report of final distribution, indicating that all remaining assets of Ethel‘s estate had been delivered and distributed to the proper persons and in the correct amounts. Attached were receipts showing that Raymond and Christine had each received their distributions in three installments, the last of which occurred February 22, 2018. The report was filed May 10, 2018. Also on May 10, attorney Jonathan Huber entered his appearance and filed on Dorothy‘s behalf a demand for notice of any and all proceedings related to the estate and a notification that Dorothy was contesting the validity of previous waivers of notice. The record indicates that Dorothy died on October 10, 2018.
On October 22, 2018, Huber filed on behalf of Eddie and Darrell a motion to intervene, alleging that they had an interest in Ethel‘s estate as heirs of Dorothy. Huber also filed a motion to set aside the order for distribution аnd for repayment of proceeds to the
II. Hearing on March 6, 2020
At the hearing, Eddie and Darrell were represented by attorney Huber. Huber explained to the trial court that Eddie was not present because he was incarcerated and promptly moved on by calling Darrell “to verify biological facts.” Darrell testified that he thought he might have an interest in Ethel‘s estate when his mother began asking Raymond for money sometime after November 3, 2017, but that he had not received any notice from the estate informing him of such interest. Darrell said that he was not saying that he was entitled to a distribution, that he did not even want the money, and that he just wanted “what‘s right.” Darrell testified that Dorothy was weak and dying of cancer and that Raymond had claimed to be protecting her by having her sign the waiver. On cross-examination, Darrell admitted that he was not present when Dorothy signed the waiver.
The trial court denied Eddie‘s motion to intervene but then addressed the motion to set aside. The trial court noted that Dorothy was alive at the time of Ethel‘s death; Dorothy was alive at the time of the settlement оf the litigation; and Dorothy was alive at the time of the final distribution of the estate. The trial court concluded that Eddie and Darrell had no interest in Ethel‘s estate and lacked standing to challenge the distribution. The trial court further found that there was no evidence that the waiver signed by Dorothy was intended to be a statutory disclaimer under
A. Due Process
Eddie argues that he was denied due process in that he wanted to be present and to testify at the hearing. He points out that the trial court would not sign his prison-transport order. Eddie argues that he could have assisted counsel and that he would have presented other credible witnesses, such as Dorothy‘s doctors, who would have testified about the strong cancer medications she was taking and her mental state. Eddie also claims that he could have testified to every conversation his mother had concerning the waiver because he was present and could have proved that Dorothy was a victim of fraud perpetrated by Raymond.
Eddie‘s due-process argument is not preserved. First, Eddie filed a “motion to order inmate‘s presence at a scheduled hearing/trial” after the hearing had concluded, and the trial court declared the motion moot. Further, his counsel, who represented him at the hearing, did not object to proceeding with the hearing in Eddie‘s absence, did not move for a continuance until Eddie could be present, and mаde no mention of Eddie‘s due-process rights being violated. It is well established that failure to raise an issue before the trial court is fatal to an appellate court‘s consideration on appeal. Doran v. Ark. Dep‘t of Human Servs., 2014 Ark. App. 505, 442 S.W.3d 868. It is axiomatic that we will not consider arguments raised for the first time on appeal. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).
B. Motion to Intervene
Eddie filed a motion for permissive intervention. Arkansas Rule of Civil Procedure 24(b) provides that, upon timely application, anyone may be permitted to intervene in an
Eddie‘s only stated reason why he should be permitted to intervene was his assertion that he and Darrell had an interest in Ethel‘s estate because they are Dorothy‘s sons/heirs. Eddie and Darrell, however, did not have an interest in Ethel‘s estate because they were not Ethel‘s statutory heirs, given that Dorothy was still alive at the time of Ethel‘s death. They were not wrongful-death beneficiaries, either, because
C. Motion to Set Aside the Distribution
We review probate matters de novo but will not reverse the probate court‘s findings of fact unless they are clearly erroneous. Spurling v. Estate of Reed, 2018 Ark. App. 185, 544 S.W.3d 119. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id.
Eddie seems to be arguing that he had standing to challenge the distribution because he essentially “stood in his mother‘s shoes” when she disclaimed her interest. According to Eddie, a “waiver of claim” is synonymous with a “disclaimer of interest,” and he cites Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983), involving disclaimed interests.
The trial court, however, found that there was no evidence that Dorothy intended to disclaim her interest; rather, the evidence showed that she executed a waiver in favor of her siblings, Raymond and Christine.4 Family settlement agreements are favored and should
Despite finding that Eddie had no standing, the trial court went on to say that Eddie was estopped to challenge the distribution. For goоd cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing,
Eddie argues that his motion to set aside was timely. We agree, and it does not appear as though the trial court found otherwise. Nevertheless, as noted above, estoppel may prevent a distribution from being set aside even when the motion is timely filed according to section 28-53-110(a). The doctrine of estoppel is raised to prevent an injustice to one who has in good faith relied upon the actions, representations, or conduct of another to his detriment. First State Bank of Crossett v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984). Laches, or estoppel, does not arise merely by delay, but by delay that works a disadvantage to another. Jaramillo v. Adams, 100 Ark. App. 335, 286 S.W.3d 351 (2007). Where one, knowing his rights, takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state if the right be enforced, delay becomes inequitable and operates to estop the asserted right. Id. Estoppel is a question of fact. Phillips, supra.
D. Other Matters
The rest of Eddie‘s argument pertains to matters that were either not presented to the trial court or were specifically disregarded by the trial court. Eddie especially wants this court to consider his allegations of fraud perpetrated by Raymond against Dorothy. An appellate court, however, does not consider matters outside the record. Muntaqim v. Lay, 2016 Ark. 206 (per curiam). Most notably, the trial court struck and refused to consider Eddie‘s affidavit filed оne day before the hearing, yet he presents it to this court in his addendum and refers to its contents in his argument. Eddie, however, did not object to the striking of his affidavit. In fact, his attorney agreed with opposing counsel that it should be struck. Furthermore, Eddie did not proffer the document for the record and makes no argument on appeal that the trial court erred in striking his аffidavit. Doran, supra. We, therefore, do not consider Eddie‘s allegations of fraud contained in his affidavit.
Affirmed.
HARRISON, C.J., and KLAPPENBACH, J., agree.
Eddie S. Watkins III, pro se appellant.
Appellate Solutions, PLLC, by: Deborah Truby Riordan, for appellee.