{ "id": 1158925, "name": "Loretta JUDKINS and Marilyn J. Levinson v. Heather Judkins HOOVER", "name_abbreviation": "Judkins v. Hoover", "decision_date": "2003-01-23", "docket_number": "02-68", "first_page": "552", "last_page": "557", "citations": [ { "type": "official", "cite": "351 Ark. 552" }, { "type": "parallel", "cite": "95 S.W.3d 768" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 28-1-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "48 Ark. App. 54", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137085 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ark-app/48/0054-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-40-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-40-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 28-1-115", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "340 Ark. 593", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365281 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0593-01" ] }, { "cite": "343 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226520 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0452-01" ] }, { "cite": "345 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939032 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0514-01" ] }, { "cite": "347 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683262 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0235-01" ] }, { "cite": "348 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74158 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0632-01" ] } ], "analysis": { "cardinality": 442, "char_count": 8391, "ocr_confidence": 0.748, "pagerank": { "raw": 1.881631681054905e-07, "percentile": 0.7277625066171811 }, "sha256": "cf38c357ae984182ec1e87732223af20ba45f44db4b4e3ce61c9ffe1f3be4759", "simhash": "1:e26a6ecbe5a2f007", "word_count": 1386 }, "last_updated": "2023-07-14T20:20:47.503009+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Loretta JUDKINS and Marilyn J. Levinson v. Heather Judkins HOOVER" ], "opinions": [ { "text": "Jim Hannah, Justice.\nAppellants Loretta Judkins and Marilyn Levinson appeal the order of the Pulaski County Circuit Court, Seventeenth Division, which found that Richard Alan Judkins died intestate because his purported will had not been properly executed or witnessed. During a hearing on December 20, 2000, the appellee withdrew her objections to the purported will, and the circuit court orally admitted the will to probate. No written order was ever signed or entered. On August 21, 2001, the circuit court heard additional evidence and held that the decedent died intestate because his will had not been properly executed or witnessed. The appellants claim that the circuit court was without subject-matter jurisdiction to hear the will contest and to determine that the decedent died intestate. We hold that the circuit court had subject-matter jurisdiction of this matter and, accordingly, we affirm. This appeal was certified to this court by the court of appeals, pursuant to Ark. Sup. Ct. R. 1-2(b)(4), (6), and (d)(2) (2002).\nFacts\nRichard Alan Judkins died on February 27, 2000. Appellant Loretta Judkins is the mother of the decedent, and appellant Marilyn Levinson is the sister of the decedent. Appellee Heather Judkins Hoover is the only child of the decedent. On March 15, 2000, \u201cNotice of Hearing/& Petition for Appointment of Personal Representative with Will Annexed\u201d was served on Hoover. Attached to the notice was a copy of a will dated December 15, 1989 (\u201c1989 Will\u201d). On March 27, 2000, Hoover filed a motion questioning the validity of the will and its operative effect upon her. Hoover withdrew her challenge to the validity of the will at a hearing on December 20, 2000, after which the circuit court orally admitted the will to probate from the bench. No written order admitting the will to probate was ever signed or entered.\nOn January 16, 2001, Hoover filed a \u201creport of possible irregularities of will admitted to probate,\u201d in which she stated that approximately two weeks after the December 20 hearing, she was approached by Heidi Levinson, the estranged daughter-in-law of Marilyn Levinson. In a conversation with Hoover, as weE as in a letter to the circuit court, Heidi aEeged that the 1989 WiE admitted to probate was actuaEy only an unwitnessed draft found by the proponents of the wiE after the decedent\u2019s death and that the proponents had thereafter secured witness signatures to the 1989 WiE.\nAt a hearing on August 21, 2001, the circuit court heard testimony from Heidi; MarEyn; Daniel George, MarEyn\u2019s boyfriend; MEes Levinson, MarEyn\u2019s son; Bobby Jenkins, the former court-appointed special administrator of the estate; and WEliam Hunt and Agnus Hunt, who signed as witnesses to the 1989 WiE. On September 14, 2001, the circuit court found that the 1989 WiE was not properly executed or witnessed. Further, the circuit court found that unless another wiE were brought forward, the decedent would be considered to have died intestate.\nSubject-Matter Jurisdiction\nAppeEants\u2019 sole argument on appeal is that the circuit court lacked subject-matter jurisdiction to hear appeEee\u2019s wiE contest and to determine that .the decedent died intestate. AppeEee argues that the appeal must be dismissed because it is based upon an argument raised for the first time on appeal. AppeEants acknowledge that \u201cthis aspect of jurisdiction was not raised or addressed\u201d below; however, appeEants argue that their appeal is proper because subject-matter jurisdiction may be questioned for the first time on appeal.\nIt is weE-settled that this court wiE not hear arguments raised for the first time on appeal. See, e.g,, Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). However, we have made it clear that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001); Hamaker v. Strickland, 340 Ark. 593, 12 S.W.3d 210 (2000). Therefore, we will address the appellants\u2019 argument and determine whether the circuit court was without subject-matter jurisdiction.\nArkansas Code Annotated \u00a7 28-1-104 (1987) provides, in part:\n(a) The probate court shall have jurisdiction over:\n(1) The administration, setdement, and distribution of estates of decedents;\n(2) The probate of wills ....\nClearly, the circuit court had jurisdiction to hear matters concerning the probate of the 1989 Will. However, appellants contend that, pursuant to Ark. Code Ann. \u00a7\u00a7 28-1-115(a) (1987), and 28-40-113(b) (1987), the circuit court was without any authority to consider appellee\u2019s challenge to the 1989 Will subsequent to the December 20, 2000, hearing at which the circuit court orally admitted the 1989 Will to probate.\nArkansas Code Annotated \u00a7 28-l-115(a) provides, in part, that the circuit court shall have \u201cno such power ... to set aside the probate of a will after the time allowed for contest thereof.\u201d Ark. Code Ann. \u00a7 28-40-113(b) provides, in pertinent part, that if a will contest is on any ground other than that another will has been discovered, and if the will contestant has been given proper notice, the contestant\u2019s grounds for objection must be filed at or prior to the time of the hearing on the petition for probate.\nLack of Effective Order\nThe appellee argues that Ark. Code Ann. \u00a7\u00a7 28-1-115(a) and 28-40-113(b) are inapplicable because the order admitting the 1989 Will to probate was never entered. We agree. Administrative Order 2(b)(2) provides that an \u201corder is entered when so stamped or marked by the clerk . . . . \u201c In addition, a will must be declared to be valid by an order of probate by the circuit court to be effective to prove the transfer of any property or to nominate an executor. See Ark. Code Ann. \u00a7 28-40-104(b) (1987). Clearly, pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.\nWhen faced with a situation similar to the present case, the court of appeals held that a probate judge was free to alter a ruling from the bench which was not reduced to writing and filed of record. See Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994). In that case, the appellant petitioned the probate court for the appointment of a guardian of her mother\u2019s person and estate. Morrell, supra. However, a few months after the trial, after considering the facts and circumstances surrounding the case, the probate court decided not to appoint a guardian. Id. The court of appeals stated:\nSince the probate judge\u2019s ruling from the bench was not reduced to writing and filed of record, it would appear that he was free to alter his decision upon further consideration of the matter. Appellant has cited no authority to indicate otherwise, and we know of none.\nMorrell, 48 Ark. App. at 57.\nThe same reasoning applies to the present case. The oral ruling admitting the 1989 Will to probate was not reduced to writing and filed of record. Therefore, Ark. Code Ann. \u00a7 28-40-113(b) is not applicable because the circuit court never lost subject-matter jurisdiction and was free to hear additional evidence and to alter its decision upon further consideration of the facts and circumstances surrounding the 1989 Will. Also, Ark. Code Ann. \u00a7 28-l-115(a) is not applicable because no written order was entered after the December 20, 2000, hearing and, thus, there was no order admitting a will to probate to set aside.\nWe note that the appellee filed a motion to strike the appellants\u2019 reply brief. Because the appellants\u2019 reply brief did not prejudice the appellee or affect the outcome of the case, the appellee\u2019s motion to strike the reply brief is moot.\nAffirmed.\nPursuant to Amendment 80 of the Arkansas Constitution, which became effective subsequent to the adoption of Ark. Code Ann. \u00a7 28-1-104 (1987), we no longer have separate \u201cprobate courts\u201d and \u201ccircuit courts.\u201d These courts have merged and now carry the designation of \u201ccircuit courts.\u201d", "type": "majority", "author": "Jim Hannah, Justice." } ], "attorneys": [ "Doyle L. Webb, for appellants.", "Hopkins & Allison, by: Gregory M. Hopkins and Jeffrey C. Humiston, for appellee." ], "corrections": "", "head_matter": "Loretta JUDKINS and Marilyn J. Levinson v. Heather Judkins HOOVER\n02-68\n95 S.W.3d 768\nSupreme Court of Arkansas\nOpinion delivered January 23, 2003\nDoyle L. Webb, for appellants.\nHopkins & Allison, by: Gregory M. Hopkins and Jeffrey C. Humiston, for appellee." }, "file_name": "0552-01", "first_page_order": 580, "last_page_order": 585 }