ASHLEY PECK O'DELL, AS A QUALIFIED BENEFICIARY OF THE PECK FAMILY TRUST AND THE PECK MARITAL TRUST, AND IN HER INDIVIDUAL CAPACITY APPELLANT
HANNAH PECK A/K/A HANNAH FINLEY, INDIVIDUALLY AND AS TRUSTEE OF THE PECK FAMILY TRUST U/D JUNE 15, 2001, AND AS TRUSTEE OF THE PECK MARITAL TRUST APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-16-2381] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Eichenbaum Liles, P. A., by: James H. Penick III and Joshua
Allen, for appellant.
Richard F. Hatfield, P.A., by: Richard F. Hatfield, for
PHILLIP T. WHITEAKER, Judge.
Ashley Peck O'Dell sued appellee Hannah Peck Finley
seeking a declaratory judgment as to the sufficiency of
certain reports that Finley provided as trustee of the Peck
Family Trust. The Pulaski County Circuit Court dismissed
O'Dell's complaint, finding that she lacked standing.
We reverse and remand for further proceedings consistent with
current appeal is the third episode of the saga between the
daughters of the late Robert Peck and his widow, Finley, over
his estate plan. See Peck v. Peck, 2016 Ark.App.
423, 502 S.W.3d 553 (Peck II); Peterson v. Peck,
2013 Ark.App. 666, 430 S.W.3d 797
(Peterson). In our previous opinions, we set forth in
detail the facts and procedural history of the disputes and
need not repeat them here. For purposes of this opinion,
Robert Peck created a trust naming Finley, his wife, as
trustee and O'Dell, his daughter, as a beneficiary. In
April 2015, O'Dell requested through counsel that she be
provided with a trustee's report setting forth the
information required by the Arkansas Trust Code, Arkansas
Code Annotated section 28-73-813 (Repl. 2012), dealing
generally with a trustee's duties to keep beneficiaries
informed about the administration of the trust. Finley
responded with an "accounting" for the period of
May 10, 2006, through July 31, 2009, and an
"accounting" for the period of May 10, 2006,
through December 31, 2013.
April 2016, O'Dell filed a complaint for declaratory
judgment against Finley, requesting that the court enter a
declaratory judgment as to whether the "reports"
provided by Finley complied with the requirements of section
28-73-813. Finley filed a motion to dismiss O'Dell's
complaint pursuant to Arkansas Rule of Civil Procedure
12(b)(6), arguing that the complaint failed to state facts
upon which relief can be granted; that the claim was
time-barred pursuant to the savings statute, Arkansas Code
Annotated section 16-56-126; that O'Dell lacked standing
because she violated the share-cancellation provision; and
that O'Dell's complaint was barred by res judicata.
O'Dell responded and filed a brief in support, arguing
that the issues did not bar her action. Finley replied to
O'Dell's response with a supporting brief
holding a hearing on Finley's motion to dismiss, the
circuit court dismissed O'Dell's complaint with
prejudice. In its order, the court stated that O'Dell
"is no longer a qualified beneficiary under the Peck
Family Trust and has no standing to bring this action."
No explanation was given on how the court reached its
filed a timely motion for a new trial or to vacate the order
of dismissal, pointing out that Finley had raised the same
arguments in Peck II, that Peck II was on
appeal at that time and that our decision was imminent, and
that the court should wait until our opinion came down before
ruling on Finley's motion. In her response, Finley argued
that there was no basis for O'Dell's posttrial
motion. The court did not rule on O'Dell's posttrial
motion, and it was deemed denied. This appeal followed.
standard of review in this case is multi-tiered. We are
reviewing the granting of a motion to dismiss a complaint for
declaratory judgment questioning the adequacy of a
trustee's report, based on the alleged lack of standing
of one of the trust beneficiaries who requested that report.
We review a circuit court's decision to grant a motion to
dismiss for abuse of discretion. Doe v. Weiss, 2010
Ark. 150; Passmore v. Hinchey, 2010 Ark.App. 581,
379 S.W.3d 497. The question of standing, however, is a
matter of law for this court to decide, and the appellate
courts review questions of law de novo. Ark. Hotels &
Entm't, Inc. v. Martin, 2012 Ark. 335, 423 S.W.3d
49; Farm Bureau Ins. Co. of Ark. v. Running M Farms,
Inc., 366 Ark. 480, 237 S.W.3d 32 (2006). Our courts
have held that an error of law in and of itself can
constitute an abuse of discretion. Ford Motor Co. v.
Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); SMC
1054, Inc. v. Thompson, 2014 Ark.App. 524, 443 S.W.3d
begin our analysis by considering the motion to dismiss
before the circuit court. Finley's motion to dismiss
asserted affirmative defenses, such as res judicata and lack
of standing, which would require some factual proof in order
to be sustained. The preferred method to assert an
affirmative defense is in an answer pursuant to Arkansas Rule
of Civil Procedure 8(c) and not in a motion to dismiss under
Rule 12(b). Our supreme court, however, has allowed
consideration of affirmative defenses in Rule 12(b) motions.
See Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200
(1984) (res judicata). In determining whether to dismiss a
complaint under Rule 12(b), the circuit court must not look
beyond the complaint to decide the motion. Guthrie v.
Tyson Foods, Inc., 285 Ark. 95, 96, 685 S.W.2d 164, 165
(1985). Here, Finley's pleading was styled a motion to
dismiss, but she attached numerous documents for the
court's consideration in conjunction with the motion. We
are unable to ascertain to what, if any, extent the court
considered the attached documents. For this reason, we will
consider only the complaint before the circuit court under
our abuse-of-discretion standard of review.
complaint alleges that she is a qualified beneficiary under
the terms of the Peck Family Trust, and there is nothing on
the face of the complaint that suggests that she lacks
standing. Specifically, O'Dell alleges that she is a
qualified beneficiary under the two trusts created by her
father; that Finley is the successor trustee; that
O'Dell, as a qualified beneficiary, has a right under the
Arkansas Trust Code to certain information from Finley as
trustee; that Finley provided certain information to
O'Dell; and that O'Dell sought a declaratory judgment
as to the sufficiency of the information under the Arkansas
Trust Code. Because we treat the facts alleged in the
complaint as true, Fitzgiven v. Dorey, 2013 Ark.
346, 429 S.W.3d 234, these allegations are sufficient to set
forth a claim for declaratory judgment. See MacSteel Div.
of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 35, 210
S.W.3d 878, 886 (2005). Thus, it was error for the circuit
court to dismiss the complaint based on lack of
standing. We reverse the order dismissing the
complaint with prejudice and remand this matter to the
circuit court for further proceedings consistent with this
and remanded ...