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, by: Dan C. Young and Amanda K. Wofford, for
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. We hold that the circuit court did not abuse
its discretion in denying his motions, and we reject Mr.
Hamilton's interpretation of the relevant rules of civil
procedure. Accordingly, we affirm.
forth the relevant facts of this case in our opinion ordering
rebriefing-In re Matter of the Hamilton Living
Trust, 2018 Ark.App. 415 (Hamilton I)-but we
restate them for convenience here. Margaret and Frank
Hamilton created the Hamilton Living Trust, dated September
22, 2003 (the "Trust"), and Bank of the Ozarks (the
"Trustee") became the successor trustee of the
Trust after their deaths. Larry Hamilton and his sister, Susan
Cossey, are qualified beneficiaries of the Trust. The Trustee
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 Trustee's authority or consent.
Despite the Trustee's request for Mr. Hamilton to vacate
the property, he refused to leave. So on March 31, 2016, the
Trustee filed a "Complaint for Declaration of
Rights" with respect to administration of the Trust
pursuant to Ark. Code Ann. § 28-73-201(c) (Repl. 2013).
The caption on the complaint 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
Trustee attached a deed showing ownership of the Beckwood
Drive residence in the Trust and alleged that Mr. Hamilton
was living in the residence despite its oral and written
request to vacate the property. The Trustee sought a
declaratory judgment from the court that Mr. Hamilton was not
entitled to reside or otherwise occupy the property, that the
Trustee was entitled to take reasonable steps to remove him
and any other person occupying the property, and that Mr.
Hamilton vacate the property immediately. The Trustee also
alleged, upon information and belief, 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
4, 2016, a process server served Mr. Hamilton with a copy of
a summons and the complaint. Along with a timely 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 name of the party bringing the
action or list Susan Cossey 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 was defective because it failed to
name Ms. Cossey and to identify the Bank of the Ozarks, and
thus, the court did not have personal jurisdiction over him.
He requested the court to declare the process and service
invalid and void.
circuit court held a hearing on August 8, 2016, and ruled
from the bench that the summons complied with Rule 4(b) of
the Arkansas Rules of Civil Procedure and that service was
proper, reasoning as follows:
[T]he whole purpose of the summons is to let the parties be
put on notice. It is clear from the record that even on the
return by the process server and by the answer that was filed
in response to the summons and the complaint that the
complaint was served. That the complaint does name everyone
that the common sense application here is to put the party on
proper notice and that was done. On the basis of whether or
not "In the Matter of" is left off that would
render summons invalid. I think it would be an absurd result
and require some herniated stretching by the Court. . . . And
I believe when you look at the return of service by the
process server that is filed with the Court which I assume
you have reviewed. It indicates everything that was attached
and even the summons refers to the fact that the complaint,
et cetera. So, the summons contains every reference,
everything necessary, and even refers the party being served
to the additional documents that are part of that particular
service. For all those reasons I find that service was
On August 22, 2016, the court entered an order denying Mr.
Hamilton's 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
of the Ozarks, Mr. Hamilton, and Ms. Cossey. The court held a
hearing on November 28, 2016, on the Trustee's
preliminary injunction, where Mr. Hamilton also made
arguments in support of his motion to dismiss. At the
hearing, the court said that Mr. Hamilton's motion was
merely a "rehash" of his earlier motion, that he
appeared to be "barking up basically the same tree"
but referring to the caption on the complaint rather than on
the summons, and that the court had already ruled on it. 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 on the merits of the complaint in
April 2017 and entered an order on May 4, 2017. Mr. Hamilton
filed a timely appeal from that order. See Hamilton
I (denying appellee's motion to dismiss the appeal).
The issues on appeal concern only the court's orders
denying Mr. Hamilton's motions.
cases in which the appellant claims that the circuit court
erred in denying a motion to dismiss based on alleged errors
in the process of service, our standard of review is whether
the circuit court abused its discretion in denying the motion
to dismiss. Nobles v. Tumey, 2010 Ark.App. 731, at
9, 379 S.W.3d 639, 646. When there are no disputed issues of
fact and the issue presented involves only the correct
interpretation of an Arkansas court rule, the issue is a
question of law that we review de novo. Dobbs v. Discover
Bank, 2012 Ark.App. 678, at 2, 425 S.W.3d 50, 52.
first point on appeal is that the summons is defective
pursuant to Rule 4(b) of the Arkansas Rules of Civil
Procedure because the caption does not contain the
parties' names but rather states "Hamilton Living
Trust" and because the summons fails to contain the
Trustee's name, ...