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Bank of Ozarks v. Cossey

Court of Appeals of Arkansas, Division II

October 29, 2014

Bank of the Ozarks
v.
Cossey

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION. NO. 60PR-13-43. HONORABLE MORGAN E. WELCH, JUDGE.

Rose Law Firm, A Professional Association, by: Amanda K. Wofford, for appellant.

Dodds, Kidd & Ryan, by: David W. Kamps, for appellee.

BILL H. WALMSLEY, Judge. HARRISON and GRUBER, JJ., agree.

OPINION

Page 215

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.

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

Page 216

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 ...


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