Bank of the Ozarks v. Cossey , 446 S.W.3d 214 ( 2014 )

Cite as 2014 Ark. App. 581
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-1104
Opinion Delivered October 29, 2014
BANK OF THE OZARKS
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SIXTEENTH DIVISION
[NO. 60PR-13-43]
SUSAN COSSEY HONORABLE MORGAN E. WELCH,
APPELLEE JUDGE
DISMISSED WITHOUT PREJUDICE
BILL H. WALMSLEY, Judge
Appellant Bank of the Ozarks (the Bank) appeals from orders declaring it to be the
trustee of the Hamilton Living Trust, ordering it to provide an accounting to appellee Susan
Cossey, and awarding attorney’s fees to Cossey. We dismiss the appeal for lack of a final order.
The Hamilton Living Trust was created by Cossey’s parents, Frank and Margaret
Hamilton. The Hamiltons served as trustees during their lifetime, and the Bank was slated to
become successor trustee upon both of their deaths. Cossey and her brother, Larry Hamilton,
were the beneficiaries of the trust and would receive its proceeds upon their parents’ deaths.
Frank Hamilton died in November 2008, and Margaret Hamilton died in November
2009. Shortly thereafter, the Bank sent a letter to Larry Hamilton, declining to serve as
successor trustee. The Bank’s repudiation gave Larry Hamilton and Susan Cossey the power
to name a successor trustee, but they did not do so.
Cite as 2014 Ark. App. 581
After rejecting the trusteeship, the Bank began distributing money from a trust account
to Larry Hamilton, purportedly to cover his mother’s funeral expenses and certain bills
pertaining to her property. The Bank also liquidated trust-owned securities at Larry
Hamilton’s request. These activities took place over a period of years, during which the Bank
intermittently urged Larry Hamilton to select a new trustee, to no avail.
In January 2013, Cossey—who had not been copied on the communications between
the Bank and her brother—filed a petition in Pulaski County Circuit Court, demanding an
accounting from the Bank. She alleged that the Bank had served as the successor trustee of the
Hamilton Living Trust since Margaret Hamilton’s death in 2009 and had failed to provide the
quarterly accountings required by the trust. The Bank answered that it had no duty to provide
an accounting because it had rejected the trusteeship of the Hamilton Living Trust. Following
a bench trial, the circuit court declared that the Bank had acted as trustee and ordered the
Bank to perform an accounting within thirty days. In a subsequent order, the court awarded
Cossey $9,441.50 in attorney’s fees and costs. The Bank appeals from those orders.1
The question of whether an order is final and appealable is jurisdictional, and this court
is obligated to consider the issue on its own even if the parties do not raise it. King v. Jackson,
2014 Ark. App. 488. An order that contemplates further action by a party or the court is not
a final, appealable order. Oldenberg v. Ark. State Med. Bd., 2013 Ark. App. 599. Even though
the issue decided by the circuit court might be an important one, an appeal will be premature
if the court’s decision does not, from a practical standpoint, conclude the merits of the case.
1
The court stayed its orders pending appeal.
2
Cite as 2014 Ark. App. 581
Id.
In the present case, the circuit court declared the Bank to be trustee of the Hamilton
Living Trust and ordered the Bank to provide Cossey with an accounting. The accounting
has yet to be performed and will necessarily involve future actions by the Bank, as well as
future oversight and rulings by the circuit judge. The court’s order therefore contemplates
further action by a party or the court and is not final and appealable.
We are aware that the Bank’s notice of appeal cites Ark. R. App. P. 2(a)(12) (2014),
and Ark. Code Ann. § 28-1-116 (Repl. 2012), as authority for pursuing an appeal at this
juncture. Rule 2(a)(12) permits an appeal from all orders in probate cases (with certain rare
exceptions) as allowed by section 28-1-116, which provides in pertinent part:
(a) APPEAL PERMITTED. Except as provided in subsection (b) of this section, a
person aggrieved by an order of the circuit court in probate proceedings under the
provisions of the Probate Code may obtain a review of the order by the Supreme
Court or the Court of Appeals.
(b) ORDERS WHICH ARE NOT APPEALABLE. There shall be no appeal from
an order:
(1) Removing a fiduciary for failure to give a new bond or to render an account as
required by the court; or
(2) Appointing a special administrator.
We have interpreted section 28-1-116(a) to allow an immediate appeal from almost
any probate order. See Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425. However,
under the terms of the statute, the order must be from a probate proceeding under the
provisions of the Probate Code. The present appeal does not fall within that category.
The list of statutes that make up the Probate Code appears in the notes to Ark. Code
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Cite as 2014 Ark. App. 581
Ann. § 28-1-101 (Repl. 2012). The list does not include the statute at the heart of this case,
Ark. Code Ann. § 28-73-701 (Repl. 2012), which sets forth the method of accepting or
declining a trusteeship and is part of the Arkansas Trust Code. Further, Ark. Code Ann. § 28-
1-104 (Repl. 2012), contains a list of matters that are considered probate proceedings. Trust
matters do not appear on the list and historically have not been cognizable as probate matters.
See Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Thomas v. Ark. Dep’t of
Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995).2 Section 28-1-116 therefore does not
confer appealability on the court’s order declaring the Bank to be the trustee.
We understand that, as a practical matter, the Bank would prefer to settle the question
of its trusteeship on appeal before providing the accounting ordered by the court. The Bank
may wish to consider Ark. R. Civ. P. Rule 54(b) (2014), which permits a circuit court to
certify an order as appealable even where all claims in the case have not been resolved. The
certification must be contained in a Rule 54(b) certificate that appears immediately after the
court’s signature on the judgment, and the certificate must contain “an express determination,
supported by specific factual findings, that there is no just reason for delay” of an appeal. Ark.
R. Civ. P. 54(b)(1) (2014).
Without commenting on the propriety of a Rule 54(b) certificate or its future
2
The jurisdictional divide between trust and probate cases no longer exists because
amendment 80 to the Arkansas Constitution gave the circuit court jurisdiction over all
matters previously cognizable in circuit, chancery, probate, and juvenile court. In re Estate
of Thompson, 2014 Ark. 237, 434 S.W.3d 877. However, the distinction remains for the
purpose of determining whether an immediate appeal may be taken under section 28-1-116.
See, e.g., Long v. Alford, 2010 Ark. App. 233, at 2 n.1, 374 S.W.3d 219, 220 n.1.
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Cite as 2014 Ark. App. 581
contents, we simply bring this rule to the Bank’s attention. For now, in the absence of a final
order or an order containing a proper Rule 54(b) certificate, followed by a timely notice of
appeal, we lack jurisdiction to review the challenged order. We therefore dismiss the appeal
without prejudice.3
Dismissed without prejudice.
HARRISON and GRUBER, JJ., agree.
Rose Law Firm, A Professional Association, by: Amanda K. Wofford, for appellant.
Dodds, Kidd & Ryan, by: David W. Kamps, for appellee.
3
Our analysis applies equally to the Bank’s appeal from the attorney-fee order.
Without a final order, no appeal can be entertained by our court, even on a collateral issue
such as attorney’s fees. LaRue v. Ground Zero Constr. Co., 2014 Ark. App. 93.
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