Bank of the Ozarks v. Cossey
446 S.W.3d 214
Ark. Ct. App.2014Background
- Frank and Margaret Hamilton created the Hamilton Living Trust naming themselves as trustees and Bank of the Ozarks as successor trustee upon both deaths.
- Frank died in 2008; Margaret died in 2009. After Margaret’s death, the Bank timely declined to serve as successor trustee.
- Because the Bank repudiated, beneficiaries Susan Cossey and Larry Hamilton had the power to appoint a successor trustee; they did not do so.
- Despite its rejection, the Bank handled trust funds: it made distributions to Larry (funeral and bills) and liquidated securities at his request, while periodically urging him to name a trustee.
- Cossey (not copied on the Bank–Larry communications) sued in January 2013 seeking an accounting; the circuit court found the Bank acted as trustee, ordered an accounting, and later awarded Cossey attorney’s fees.
- The Bank appealed; the Court of Appeals dismissed for lack of a final, appealable order because the accounting (and further court oversight) remained to be performed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court’s declaration that the Bank was trustee and its order to provide an accounting are final, appealable orders | Cossey: the Bank acted as successor trustee since Margaret’s death and must account now; the order is reviewable | Bank: it repudiated the trusteeship and therefore had no duty to account; the order is not final and appeal should lie | The order is not final and appealable because the ordered accounting and ensuing court oversight require future action by parties and the trial court |
| Whether Ark. Code § 28‑1‑116 (probate appeals) authorizes immediate appeal of this trust dispute | Cossey: (implicit) probate appeals rule permits review | Bank: invoked § 28‑1‑116 and Ark. R. App. P. 2(a)(12) to support appealability | Court: § 28‑1‑116 applies to probate-code proceedings only; this trust dispute is governed by the Trust Code and is not within the statute’s scope, so it does not confer appealability |
| Whether appeal could proceed on collateral issue (attorney’s fees) absent final order | Cossey: fees order is appealable | Bank: appealed fees as well | Court: without a final order, appellate court lacks jurisdiction even over collateral fees issues; appeal dismissed |
| Whether Rule 54(b) certification could make the order appealable | (Not directly argued below) | Bank suggested to seek certification | Court: noted Rule 54(b) could permit immediate appeal if the trial court issues a proper certificate but no such certificate was present here |
Key Cases Cited
- Ferguson v. Ferguson, 334 S.W.3d 425 (Ark. App. 2009) (statute permitting appeals in probate matters allows immediate appeals from many probate orders)
- Schenebeck v. Schenebeck, 947 S.W.2d 367 (Ark. 1997) (trust matters historically not treated as probate proceedings)
- Thomas v. Arkansas Dep’t of Human Servs., 894 S.W.2d 584 (Ark. 1995) (trust matters are generally not cognizable as probate matters)
- In re Estate of Thompson, 434 S.W.3d 877 (Ark. 2014) (jurisdictional shift consolidated trial-court jurisdiction but did not alter statutory appealability distinctions)