Rose v. Rose , 2013 Ark. App. 256 ( 2013 )

LARRY D. VAUGHT, Judge.

h Laura Rose Shahsavari, Richard Rose, and Michael Rose bring this appeal from the order of the Pulaski County Circuit Court allowing reimbursement to their stepmother, appellee Mary Ruth Shellnut Rose, for expenses incurred in the administration of a trust jointly established by her and their father, Woody Rose. This appeal challenges that ruling, as well as the circuit court’s failure to award appellants their attorney’s fees. We affirm in part and dismiss in part.

On January 17, 1994, Woody and Ruth Rose created the Rose Family Revocable Trust. The only item placed in the trust was the residence occupied by Woody and Ruth. The trust instrument provided that the trust was modifiable at anytime while both grantors were alive; however, upon the death of either grantor, the trust was to become irrevocable. |2Upon the death of the second grantor, the residence was to be sold, with three-fifths of the net proceeds to be distributed equally between the appellants, and two-fifths to be distributed between Ruth Rose’s two children. In the alternative, if the surviving spouse no longer wanted to live in the residence, he or she could direct the trustee to sell it for fair-market value, with the proceeds being distributed one-fifth to each of the children of the deceased grantor and the remainder being distributed to the surviving grantor. The trust was silent as to the reimbursement of any expenses relating to the residence. There was also a spendthrift provision. Attorney Thomas Stone was appointed to be the trustee, with attorney Patrick Holl-ingsworth designated to serve as successor trustee.

Over the next several years, the Roses purchased several homes, each of which was subject to a mortgage. Although the homes were titled in Woody and Ruth’s names individually for the execution of any mortgage, the residences were always conveyed to the trust. Until 2003, all deeds conveying property to and from the trust identified Thomas Stone as the trustee. Beginning with a deed signed on June 1, 2005, the deeds began identifying Woody and Ruth Rose as the trustees. Stone was never informed that he was being removed as trustee, nor did he ever resign as trustee. The Roses purchased their final home together on January 13, 2005. This residence was conveyed into the trust by a deed recorded on September 7, 2006.

Woody Rose died unexpectedly on May 31, 2007. Appellee continued to reside in the home following Woody’s death. On August 30, 2010, appellee, as trustee, conveyed the residence to herself, individually. She then sold the home to an unrelated third party for | ,<¡$310,000 on September 30, 2010. Appellee deposited the proceeds of the sale in her personal checking account. She retained approximately $90,000 of the proceeds prior to depositing $135,127.17 into the registry of the court pursuant to a November 30, 2010 court order. This represented 60% of the net proceeds from the sale of the residence.

Upon learning of appellee’s sale of the home, appellants filed the present lawsuit in early November 2010. In their petition, appellants alleged that the trust was not revoked during Woody’s lifetime, and that Thomas Stone had not resigned as trustee. It was alleged that appellee failed to comply with the trust code regarding notice to them following Woody’s death. Appellants also asserted that appellee did not have authority to convey the home to herself because it was the only asset of the trust. The petition sought a declaratory judgment, a preliminary injunction, damages, and the imposition of a constructive trust for appellee’s breach of her fiduciary duties.

After first filing an answer alleging that the trust was never established, appellee amended her answer and admitted that the trust was established. However, she also asserted that the trust was amended or modified by virtue of handwritten notes, interlineations, and strikethroughs. Ap-pellee denied that Stone was the trustee and contended that she was the current trustee. Appellee sought reimbursement and compensation pursuant to Arkansas Code Annotated section 28-73-709.

The case proceeded to a bench trial held on November 8, 2011. On March 6, 2012, the circuit court entered its written order. In its order, the circuit court found that the ^attempted amendments to the trust were invalid.¹ After describing the terms of the trust and events following the death of Woody Rose, the court deducted certain expenses and found that appellee had incurred reimbursable expenses on behalf of the trust in the amount of $73,860.47. The court also subtracted $1,000 for the rental value of the residence for the time appellee lived in the house after it was removed from the trust before it was sold, leaving appellee with a net reimbursement of $72,860.47. The court found that each of the appellants was entitled to $30,470.30, and appellee was entitled to $43,716.27 after credit for the amount of the reimbursement and subtraction of the amount she retained from the original proceeds.²

Appellants filed a motion for reconsideration on March 9, 2012. The circuit court took no action on the motion, and the motion was deemed denied. This timely appeal followed.

The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity, Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996), a which have inherent and exclusive jurisdiction of all kinds of trusts and trustees. Id. at 377, 934 S.W.2d at 948. Arkansas appellate courts have traditionally reviewed matters that sounded in equity de novo |son the record with respect to factual and legal questions. In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. We have stated repeatedly that we would not reverse a finding by a circuit court in an equity case unless it was clearly erroneous. Id. at 2, 418 S.W.3d at 422. We have also stated that a finding of fact by a circuit court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. at 2-3, 418 SW.3d at 422.

We begin by acknowledging that the circuit court’s order fails to make specific findings on certain key issues. It also fails to include some of the findings made from the bench. Nevertheless, we find it sufficient for appellate review.

In their first point, appellants argue that the circuit court erred in allowing appellee to be reimbursed for her expenses in maintaining the residence because she was not the trustee; the trust had not been amended prior to Woody Rose’s death; and, assuming that appellee was the trustee, she breached her fiduciary duties to the trust. We disagree.

Although the circuit court failed to make a specific finding that appellee was the trustee, such a finding is implicit in the court’s order allowing her to be reimbursed for her expenses. In awarding ap-pellee expenses, the circuit court was addressing appellee’s assertion in her answer that she was the trustee of the trust. This is evidenced by the circuit court’s observation from the bench that the settlors (the Roses) reserved to themselves the right to alter or amend the trust while both were alive, and that they acted as trustees for several years prior to Woody Rose’s death by buying and selling homes for the trust and having the deeds | (¡refer to themselves as the trustees. The court also noted that appellants were aware of the Roses’ actions and did not object. It is also undisputed that Thomas Stone knew that he was not the trustee and failed to act as such for several years.

This evidence shows that the Roses were de facto trustees by the time Woody Rose died. A person is a de facto trustee where the person (1) assumed the office of trustee under a color of right or title and (2) exercised the duties of the office. In re Bankers Trust, 403 F.2d 16, 20 (7th Cir.1968). A person assumes the position of trustee under color of right or title where the person asserts an authority that was derived from an election or appointment, no ■ matter how irregular the election or appointment might be. Bankers Trust, 403 F.2d at 20.³ Arkansas statutory law allows a settlor to amend a revocable trust by any method manifesting clear and convincing evidence of the set-tlor’s intent. Ark. Code Ann. § 28-73-602(c)(2)(B). As noted above, the Roses bought and sold property from the trust and the deeds listed them as trustees of the trust. Appellee testified that she and her husband decided that they would act as trustees and that was why the deeds listed them as such. Because the evidence demonstrated that the Roses were de facto trustees, we hold that the circuit court’s award of trustee expenses to appellee is not clearly erroneous.

Appellants argue that the circuit court’s finding that the trust had not been amended precludes the conclusion that appellee was the trustee. However, the circuit court’s |7finding — that the trust had not been amended — was a finding made on the issue of whether appellee and Woody Rose effectively amended the trust to permit the surviving spouse to downsize into a smaller home. The circuit court’s award of trustee expenses was a separate issue that was resolved by the court in favor of appellee.

Appellee, as trustee, undisputedly had the power to incur these expenses in order to maintain the various residences. The trust instrument gave the trustee all the powers specified in Act 153 of 1961, codified at Arkansas Code Annotated sections 28-69-301 through 28-69-304 (Repl.2012). Section 28-69-304 allows a trustee to, among other things, pay real-estate taxes and other assessments on the property, to repair and maintain the real property, and to insure the property. Ark. Code Ann. § 28-69-304(14), (15), (24); see also First Nat’l Bank v. Hawley, 207 Ark. 587, 182 S.W.2d 194 (1944) (stating the general rule that a trustee has the implied power to maintain trust property to prevent it from going to waste).

This brings us to the question of whether reimbursement of these expenses was proper.⁴ Appellants contend that no reimbursement was possible because the trust instrument was silent on the issue. However, a trustee is generally entitled to reimbursement for expenses incurred reasonably and properly in the course of administering a trust. Restatement (Third) of Trusts, § 38(2) (2003). This is true even in the absence of an express provision for | ^reimbursement in the trust instrument. Stewart v. Harrison, 210 Miss. 750, 50 So.2d 624 (.1951); Johnston v. Rothwell, 54 Wyo. 99, 87 P.2d 13 (1939). Arkansas statutory law provides explicitly for this right, mandating that “a trustee is entitled to be reimbursed out of the trust properly ... for reasonable expenses that were properly incurred in the administration of the trust[.]” Ark. Code Ann. § 28-73-709(a)(l). Based on the evidence and our de novo review, we hold that the circuit court was not clearly erroneous in awarding appellee these expenses.

Appellants also argue that appellee was not entitled to any reimbursement because she breached her fiduciary duties by, among other things, commingling the proceeds from the sale of the residence with her personal funds and failing to comply with statutory requirements regarding notice. We note that the court’s written order does not contain a specific ruling on whether appellee breached her fiduciary duties to the trust. However, even if the circuit court had found that appellee had breached her fiduciary duties, the court would nevertheless have the discretion to allow reimbursement to appellee. See Ark.Code Ann. § 28-73-709(a)(2).⁵ Based on the evidence in this case, we hold that the circuit court did not abuse its discretion.

Appellants further argue under this point that the circuit court erred by allowing reimbursement for expenses that were incurred prior to the death of Woody Rose. However, this argument is not preserved for our review. After both parties rested, the court and counsel engaged in a colloquy as to what the appropriate relief would be. Appellants’ attorney noted that appellee’s Exhibit 8 contained expenses incurred prior to the death of Woody Rose. The jflCourt was thus aware of appellants’ claim that there were expenses incurred prior to Woody Rose’s death when it used Exhibit 8 to determine the amount for which she would be reimbursed. Appellants did not object. A contemporaneous objection is necessary in order to preserve an issue for appellate review. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997). It was not until appellants filed their posttrial motion for reconsideration that they specifically raised the issue. It is well settled that our appellate courts will not consider an argument made for the first time in a posttrial motion. See Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).

Next, appellants argue that the circuit court erred in failing to award their attorney’s fees. However, this argument is not preserved for review because appellants did not file an effective notice of appeal from the order denying fees. Whether an appellant has filed an effective notice of appeal is always an issue before the appellate court, and absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. See Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1.

At the conclusion of the trial, the circuit court took the fee issue under advisement and gave each party fourteen days to file their petition and supporting documents. On December 6, 2011, the court entered an order denying attorney’s fees to either party. After entry of the court’s final order and the deemed denial of their motion for reconsideration, appellants filed a notice of appeal on April 24, 2012. The notice stated that appellants were appealing from the final order and the deemed denial of their motion for reconsideration, as | hi well as from all rulings that shaped the final order. Appellants did not, however, mention the order denying their motion for attorney’s fees in their notice of appeal.

Rule 3(e) of the Rules of Appellate Procedure-Civil provides that a notice of appeal shall, among other things, “designate the judgment, decree, order, or part thereof appealed from.” Ark. R.App. P.-Civ. 3(e). A notice of appeal must therefore designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court. See Lindsey, 2010 Ark. 118, at 13, 369 S.W.3d at 8; Wright v. State, 359 Ark. 418, 198 S.W.3d 537 (2004).

Appellants invoked Rule 2(b) of the Rules of Appellate Procedure-Civil, which provides that an appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment, by stating in their notice of appeal that they were also appealing from all of the circuit court’s rulings that shaped the judgment. We find the rule inapplicable in this case, however, because while the order on attorney’s fees is intermediate in the sense that it was entered before the final decision on the merits of the case, the fee issue is not the object of the underlying suit. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003); In re Estate of Reimer, 2010 Ark. App. 41, 2010 WL 132348. Our supreme court has consistently held that the award of attorney’s fees is a collateral matter. As a result, the order denying the motion for fees is not an intermediate order that would be brought up under the provisions of Rule 2(b). Accordingly, appellants’ attorney’s-fees issue is not preserved for our review.

Affirmed in part; dismissed in part.

lnFITTMAN, GRUBER, WHITEAKER, and WOOD, JJ., agree. HARRISON, J„ dissents.

1 . The purported amendments concerned who the beneficiaries were and the amounts to be distributed in the event that the surviving settlor decided to sell the trust property.

2 . At the conclusion of the trial, the court allowed the parties fourteen days to submit motions for attorney's fees with supporting documentation. Appellants requested approximately $33,000 in fees, while appellee sought $27,225. By order entered on December 6, 2011, the circuit court denied both fee requests.

3 . Other jurisdictions have also used the de facto trustee concept. See, e.g., Creel v. Martin, 454 So.2d 1350 (Ala.1984); In re Dakin's Will, 58 Misc.2d 736, 296 N.Y.S.2d 742 (1968); In re Trust of Daniel, 466 P.2d 647 (Okla.1970); Allen Trust Co. v. Cowlitz Bank, 210 Or.App. 648, 152 P.3d 974, clarified by 212 Or.App. 572, 159 P.3d 319 (2007); In re Irrevocable Trust of McKean, 144 Wash.App. 333, 183 P.3d 317 (2008).

4 . Appellee's Exhibit 8 shows the expenses for which reimbursement was claimed. They included mortgage payments, property owners' association assessments, homeowner’s insurance, and property taxes totaling $47,928.89. There were also charges included for an alarm system, a home warranty, a pest-control service, and various repairs that included electrical and plumbing charges. Appellants do not challenge the amount of expenses incurred, only whether there was authority for reimbursement of those expenses.

5 . Section 28-73-709(a)(2) provides that a trustee is entitled to reimbursement for expenses that were not properly incurred in the administration of the trust to the extent necessary to prevent unjust enrichment of the trust.