IN THE MATTER OF THE HAMILTON LIVING TRUST DATED SEPTEMBER 22, 2003
BANK OF THE OZARKS APPELLEE LARRY HAMILTON APPELLANT
FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTEENTH DIVISION
[NO. 60PR-16-651] HONORABLE RICHARD MOORE, JUDGE.
Hamilton, pro se appellant.
Law Firm, a Professional Association, by: Dan C. Young and
Amanda K. Wofford, for appellee.
W. GRUBER, CHIEF JUDGE.
Hamilton appeals from the Pulaski County Circuit Court's
denial of his challenges to the summons and complaint in this
trust lawsuit. Because of deficiencies in Mr. Hamilton's
abstract, we order rebriefing.
and Frank Hamilton created the Hamilton Living Trust, dated
September 22, 2003 (the "Trust"), and Bank of the
Ozarks (the "Bank") became the successor trustee of
the Trust after their death. Larry Hamilton and his sister,
Susan Cossey, are qualified beneficiaries of the Trust. The
Bank initiated this lawsuit because Mr. Hamilton had been
living in a home owned by the Trust located at 207 Beckwood
Drive in Little Rock without the authority or consent of the
Bank. Despite the Bank's request that Mr. Hamilton vacate
the property, he refused to leave. So on March 31, 2016, the
Bank filed a complaint for declaration of rights with respect
to administration of the Trust pursuant to Ark. Code Ann.
§ 28-73-201(c). The complaint's caption is In
the Matter of the Hamilton Living Trust Dated September 22,
2003. Mr. Hamilton and Ms. Cossey were named in the
complaint as qualified beneficiaries of the Trust. The Bank
attached a deed showing ownership of the Beckwood Drive
residence in the Trust and alleged that Mr. Hamilton was
living in the residence despite the Bank's oral and
written requests that he vacate the property. The Bank sought
a declaratory judgment from the court that Mr. Hamilton was
not entitled to reside or otherwise occupy the property, that
the Bank was entitled to take reasonable steps to remove him
and any other person occupying the property, and that Mr.
Hamilton was to vacate the property immediately. The Bank
also alleged that Mr. Hamilton intended to sell the
Trust's personal property located at the Beckwood Drive
residence and asked the court for a temporary restraining
order or a preliminary injunction to prevent Mr. Hamilton
from residing in or otherwise occupying the property.
4, 2016, a process server served Mr. Hamilton with a copy of
the summons and complaint. Along with an answer, Mr. Hamilton
filed a "Motion for Declaration of Insufficiency of
Process and Insufficiency of Service of Process,"
asserting that the summons was defective because it did not
contain the parties' names as required by Rule 4(b) of
the Arkansas Rules of Civil Procedure. Although Mr. Hamilton
did not dispute that he was correctly identified on the
summons, he argued that his summons failed to name Ms. Cossey
and that it improperly identified the Trust rather than the
Bank. The circuit court held a hearing on August 8, 2016, and
stated from the bench that the summons complied with Rule
4(b) of the Arkansas Rules of Civil Procedure and that
service was proper, explaining its findings in detail. On
August 22, 2016, the court entered an order denying the
motion "[f]or the reasons set forth by the Court on the
record at the hearing."
September 21, 2016, Mr. Hamilton filed a motion to dismiss,
arguing that the complaint failed to comply with Rule 10(a)
of the Arkansas Rules of Civil Procedure because the caption
does not contain the names of the parties-that is, the Bank,
Mr. Hamilton, and Ms. Cossey. The court held a hearing on
November 28, 2016, on the Bank's preliminary injunction,
in which Mr. Hamilton also made arguments in support of his
motion to dismiss. In an order entered on December 9, 2016,
the court denied the motion "for the reasons set forth
by the Court on the record at the hearing."
court held a final hearing in the matter in April 2017 and
entered an order on May 4, 2017. Mr. Hamilton filed a notice
of appeal on June 5, 2017, followed by three amended notices
of appeal, specifically appealing from the court's orders
of August 22 and December 9 denying his motions. The Bank has
filed a motion to dismiss the appeal, arguing that neither of
the orders being appealed is a final order and that Mr.
Hamilton failed to designate in his notices of appeal that he
was appealing from the final order entered on May 4, 2017,
and thus the intermediate orders have not been timely
Motion to Dismiss Appeal
first to the Bank's motion to dismiss. It is important to
note that Mr. Hamilton's challenges on appeal concern the
court's denial of his motions and not the court's
final order. His notice of appeal clearly designates these
two intermediate orders- that is, the orders dated August 22
and December 9, 2016. Although the notice of appeal is timely
from the circuit court's final order entered on May 4,
2017, it does not specifically state that the appeal is from
3(e) of the Arkansas Rules of Appellate Procedure-Civil
provides that the notice of appeal shall "designate the
judgment, decree, order or part thereof appealed from."
Ark. R. App. P.-Civ. 3(e)(ii) (2017). Our supreme court has
made it clear, however, that while filing a notice of appeal
is jurisdictional, only substantial compliance with the
procedural steps set forth in Rule 3(e) is required. Emis
v. Emis, 2017 Ark. 52, at 3, 508 S.W.3d 886, 887.
Quoting its opinion in Mann v. Pierce, 2016 Ark.
418, at 4, 505 S.W.3d 150, 153, the court recognized in
Emis that a notice of appeal that failed to
designate the final order nonetheless substantially complied
with Rule 3(e):
Here, the notice of appeal is technically deficient because
it does not designate the final judgment that awarded
monetary damages to appellees, which is the only final,
appealable order in the record, as the order appealed from.
Although the notice of appeal states that Mann is appealing
from the order granting partial summary judgment, which was
entered over a year before the notice of appeal was filed,
and does not reference the final judgment, the
summary-judgment order was not a final, appealable order, and
no appeal could be taken from that order until the final
judgment was entered by the circuit court. The notice of
appeal was filed within thirty days of entry of the final
judgment. We hold that the notice of appeal substantially
complies with Rule 3(e), as appellant appealed from the
summary judgment order at the first available opportunity,
filed a notice that was timely as to the final judgment, and
there was no prejudice to appellees due to the failure of the
notice to reference the final judgment.
Emis, 2017 Ark. 52, at 3-4, 508 S.W.3d at 888
(quoting Mann, 2016 Ark. 418, at 4, 505 S.W.3d at
153). Further, in determining whether there has been
substantial compliance, our supreme court also considers the
lack of prejudice to the appellee when the notice of appeal
fails to reference the final judgment. Id. Because
the notice of appeal in this case was timely filed and there
was no prejudice to the Bank from the notice of ...