Nash v. Pulaski Cty. Cir. Ct.dissent

2017 Ark. 73

• Court: Supreme Court of Arkansas
• Decided: March 2, 2017
• Docket: CV-17-54
• Status: Published

Opinion

Cite as 2017 Ark. 73

SUPREME COURT OF ARKANSAS No. CV-17-54

JIM R. NASH Opinion Delivered March 2, 2017

APPELLANT V.

PULASKI COUNTY CIRCUIT COURT DISSENTING OPINION ON DENIAL OF WRIT OF MANDAMUS. APPELLEE

JOSEPHINE LINKER HART, Justice

The majority believes that Mr. Nash has an adequate remedy at law, i.e., an appeal.

After dissecting the complex procedural history of this case, it appears that an appeal would

not be available. Thus, I dissent from the denial of petitioner Jim R. Nash’s petition for a writ

of mandamus to compel Pulaski County Circuit Judge Chris Piazza to appoint a special

administrator and allow petitioner time, by staying the circuit court proceedings, to serve this

person.

Although he is proceeding pro se, petitioner is a licensed attorney who performed legal

services for his brother John R. Nash, Sr.. When John R. Nash, Sr., died, petitioner filed a

claim against his estate for unpaid legal work. John R. Nash, Sr.’s widow, Norma Nash, was

appointed executor of her late husband’s estate. Petitioner subsequently sued Norma, alleging

in his complaint that her transfer of almost all of her assets to the Norma Nash Living Trust

was a fraudulent transfer. The complaint also asserted claims for breach of contract, specific

performance, and tortious interference with a business expectancy. Petitioner obtained good Cite as 2017 Ark. 73

service on Norma and began discovery. A discovery dispute arose, and petitioner filed a

motion to compel and a request for sanctions. However, Norma died on February 28, 2016,

before petitioner could fully prosecute his claims.

A notice of suggestion of death was filed on March 22, 2016. Petitioner filed a motion

styled, “MOTION FOR REVIVOR OF ACTION AND SUBSTITUTION OF

PARTIES.” In his motion, petitioner asked the circuit court to appoint John R. Nash, Jr.,

and Pam Glover as special administrators to represent Norma’s estate and her trust. On May

18, 2016, the circuit court filed an order holding petitioner’s motions to compel and for

sanctions in abeyance and directing petitioner to file a substituted complaint naming the

substituted defendants.

Petition complied with the order and filed an amended complaint on May 27, 2016.

The complaint named John R. Nash, Jr., and Pam Glover individually and as cotrustees of

the Norma Nash Living Trust and as coadministrators of Norma’s estate. On June 24, 2016,

John R. Nash, Jr., and Pam Glover answered the amended complaint. They denied that

personal representatives or special administrators had been appointed. On July 26, 2016, the

circuit court signed an order prepared by the attorney for John R. Nash, Jr., and Pam Glover

dismissing petitioner’s claims against Norma in her individual capacity because no substitution

has been entered within ninety days of the suggestion of death, as required by Arkansas Code

Annotated section 28-50-102.

On August 2, 2016, petitioner filed a motion to vacate the dismissal order. It alleged

that the dismissal was made without a dismissal motion having been filed. It also recited that

no probate proceedings had been initiated for Norma’s estate. John R. Nash, Jr., and Pam Cite as 2017 Ark. 73

Glover subsequently filed a motion for summary judgment on behalf of Norma’s trust. The

summary judgment motion asserted that, because the individual claims against Norma had

been dismissed, the suit against the trust could not be maintained because there was no privity

of contract between petitioner and the trust.

Petitioner filed an amended and supplemental complaint on September 9, 2016. On

September 22, 2016, the circuit court granted petitioner’s motion to extend time for

obtaining service for the amended complaint that was filed on May 27, 2016. Nonetheless,

the May 27, 2016 complaint was served on the attorney who had been acting on behalf of the

trust defendants. John R. Nash, Jr., and Pam Glover answered individually and as cotrustees

of Norma’s trust. However, they specifically denied that a special administrator had been

appointed for Norma’s estate. On November 11, 2016, John R. Nash, Jr., and Pam Glover

filed a motion to dismiss, arguing that Norma and they were not proper parties. Petitioner

timely answered, but this motion was not yet ruled on by the circuit court.

Petitioner finds himself in a highly unusual position. His cause of action for breach of

contract would have been easily pursued against a living defendant. John R. Nash, Sr.’s death

required him to sue the administrator of his estate. However, with his demise, the fact that

much of his wealth was in real estate, held by tenancy of the entirety, and that Norma had

transferred her property to a living trust introduced a question of how he might collect his

judgment. Thus, he invoked the Arkansas Fraudulent Transfer statute. Norma’s death further

complicated the lawsuit. With little of John R. Nash, Sr.’s property left in his estate, and

most of Norma’s property in trust, without the claim against Norma individually, i.e., the

fraudulent-transfer suit, petitioner was faced with being unable to collect if he won a Cite as 2017 Ark. 73

judgment.

However, the circuit court refused to appoint a special administrator for Norma’s

estate. At the behest of John R. Nash, Jr., and Pam Glover, the successor cotrustees of

Norma’s trust, which would potentially stand to lose assets if petitioner’s fraudulent-transfer

suit were to go forward, have no incentive to open probate. Without service of process on

a personal representative of Norma’s estate, the circuit court acquires no personal jurisdiction.

Assuming that petitioner was able to get past the fact that the circuit court’s dismissal order

was without prejudice, and thus not a final order, this court could still not entertain an appeal

because of the circuit court’s refusal to require the appointment of a special administrator for

the purpose of substitution. While it is true that probate orders are immediately appealable,

an order of substitution is governed by Rule 25 of the Arkansas Rules of Civil Procedure, and

is thus not immediately appealable. Finally, and most important, our jurisdiction to entertain

an appeal is derivative of the circuit court having obtained jurisdiction. If the circuit court

does not obtain personal jurisdiction by valid service of process, then this court does not

obtains jurisdiction. See John Norrell Arms, Inc. v. Higgins, 332 Ark. 249, 62 S.W.2d 801

(1998). Short of determining that the circuit court did not, in fact, obtain personal

jurisdiction, this court could act no further. Id.

I am aware that the limited purpose of a writ of mandamus is to enforce an established

right or to compel the performance of a duty. State v. Vittitow, 358 Ark. 98, 186 S.W.3d 237

(2004). The writ is issued by this court only to compel an official or a judge to take some

action. Id. When requesting a writ of mandamus, a petitioner must show a clear and certain

right to the relief sought and the absence of any other adequate remedy. Id. In the case Cite as 2017 Ark. 73

before us, petitioner’s only way to get all the necessary parties in court is for this court to

compel the circuit judge to perform the ministerial duty of appointing a special administrator

as provided for by Arkansas Code Annotated section 16-62-107. I therefore respectfully

dissent.