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In re Hamilton Living Trust Dated September 22

Court of Appeals of Arkansas, Division II

February 13, 2019

IN THE MATTER OF THE HAMILTON LIVING TRUST DATED SEPTEMBER 22, 2003
v.
BANK OF THE OZARKS APPELLEE LARRY HAMILTON APPELLANT

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTEENTH DIVISION [NO. 60PR-16-651] HONORABLE RICHARD MOORE, JUDGE.

          Larry Hamilton, pro se appellant.

          Rose Law Firm, by: Dan C. Young and Amanda K. Wofford, for appellee.

          OPINION

          RITA W. GRUBER, CHIEF JUDGE.

         Larry 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.

         We set 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.[1] 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 the property.

         On May 4, 2016, a process server served Mr. Hamilton with a copy of a summons and the complaint.[2] 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.

         The 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 proper.

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."

         On 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."

         The 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.

         In 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.

         Appellant's 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, ...


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