ROBERT E. BAMBURG APPELLANT
v.
JOAN R. ZUMWALT AND LISA J. BAMBURG, INDIVIDUALLY AND ON BEHALF OF MINOR CHILD APPELLEES
APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60CV-11-3399] HONORABLE MARY SPENCER MCGOWAN, JUDGE
Allison R. Allred, for appellant.
Wright, Lindsey & Jennings, LLP, by: Michael A. Thompson,
Antwan D. Phillips, and Kayleigh C. Dulaney, for appellees.
MIKE
MURPHY, Judge
Appellant
Robert E. Bamburg appeals two orders of the Pulaski County
Circuit Court ordering him to pay attorney's fees to the
appellees for expenses they incurred while attempting to
recover missing trust assets. Robert's appeal is
premature, and we dismiss without prejudice.
Appellees
Joan Zumwalt and Lisa Bamburg filed the underlying action in
this case to remove Robert as trustee of two trusts, the Lisa
J. Bamburg Irrevocable Trust and the Elise D. Bamburg
Irrevocable Trust. Robert was removed pursuant to a
summary-judgment order entered by the Pulaski County Circuit
Court on August 17, 2015. Lisa is the successor trustee to
both trusts.
Following his removal, Robert did not immediately deliver the
records and assets of the two trusts to Lisa. The appellees
filed a motion to compel, and the circuit court, on December
14, 2015, ordered Robert to "produce all records or
documents in his possession or that he has access to
concerning the Bamburg Trusts" and to "pay
Plaintiffs' reasonable attorneys' fees incurred in
filing the subject motion to compel." Robert was able to
produce the requested materials for the Elise D. Bamburg
Irrevocable Trust but was unable to do so for the Lisa J.
Bamburg Irrevocable Trust. The appellees filed a second
motion on March 2, 2016, asking for an order compelling
Robert to produce the documents and property associated with
the Lisa J. Bamburg Irrevocable Trust, for attorney's
fees, and for Robert to be held in contempt of court for his
failure to comply with the December 2015 order.
On
April 4, 2016, the circuit court entered an order compelling
Robert to produce and release the missing trust documents,
awarding attorney's fees, and reserving the issue of
contempt. On November 11, 2016, the appellees filed their
formal motion for attorney's fees and included an
itemized bill. An order awarding those fees was entered on
March 3, 2017, for $2997.02. That order stated that "the
request for additional attorney's fees will be addressed
in a separate order." Robert paid the $2997.02. Then, on
December 4, 2017, the court entered another order awarding an
additional $5294.23. Robert now appeals from that order,
arguing that the award of fees in both March and December
2017 was an abuse of discretion.
We must
first address the preliminary issue of whether this appeal
involves a final, appealable order. When the order appealed
from is not final, this court will not decide the merits of
the appeal. Kines v. McBride, 2017 Ark.App. 40, at
3, 511 S.W.3d 352, 354. The finality of an order is a
jurisdictional question that we have the right and duty to
raise to avoid piecemeal litigation. Toney v. White,
31 Ark.App. 34, 787 S.W.2d 246 (1990). Rule 2(a)(1) of the
Arkansas Rules of Appellate Procedure-Civil provides that an
appeal may be taken only from a final judgment or decree
entered by a circuit court. For an order to be appealable, it
must dismiss the parties from the court, discharge them from
the action, or conclude their rights to the subject matter in
controversy. Toney, supra. Rule 2(a)(12)
also provides that an order is appealable if it is entered
pursuant to Arkansas Code Annotated section 28-1-116 (Repl.
2012), which sets forth that all orders in probate cases,
except an order removing a fiduciary for failure to give a
new bond or render an accounting required by the court or an
order appointing a special administrator, are appealable.
However,
trust matters are governed by Arkansas Code Annotated
sections 28-73-101 to -1106, and these statutes are not
designated by Rule 2 as appealable. Nor have trust matters
historically been cognizable as probate matters. See
Vaught v. Vaught, 71 Ark.App. 196, 198, 29 S.W.3d 365,
366-67 (2000) (holding that the construction, interpretation,
and operation of trusts are matters that lie within the
jurisdiction of chancery courts). It is important to note
that our supreme court has recently held in In re Matter
of Hamilton Living Trust, 2015 Ark. 367, 471 S.W.3d 203,
that a circuit court's order granting a trust
beneficiary's claim for an accounting against the
purported successor trustee was appealable as a final
judgment or decree pursuant to Rule 2(a)(1); however, in that
case, the parties were dismissed from court, the action was
discharged, and the rights to the subject matter were
concluded.
In the
present case, however, no parties have been dismissed, the
action has not been discharged, and the rights to the subject
matter have not been concluded. The appellees have
continually prayed for the return of the trust assets, yet
the orders have both dealt with delivery of records or
documents concerning only the trust, and not the assets
themselves. Additionally, the issue of contempt was
specifically reserved in the April 4, 2016 order. The purpose
of requiring a final order is to avoid piecemeal litigation,
and to allow this appeal to proceed would almost certainly
lead to just that. See Clark v. Summers, 2018
Ark.App. 225, at 3-5, 547 S.W.3d 511, 513-14.
As a
final note, the record before us indicates that there have
been two hearings on the motions to compel, yet appellant did
not provide us any transcript, abstract, or abstractor's
note regarding the hearings. The appellant's brief also
omitted a statement of the case. Counsel is encouraged to
review our rules to ensure that no additional deficiencies
exist in the event an appeal is still warranted upon the
entry of a final order.
Dismissed
without prejudice.
Gladwin and ...