RAY H. DAWSON, JR. APPELLANT
JANELLE D. STONER-SELLERS, INDIVIDUALLY AND AS TRUSTEE OF R&LD TRUST, R&LD TRUST II, AND R&LD TRUST III; JENNIFER BOUCHILLON, INDIVIDUALLY AND AS TRUSTEE OF R&LD TRUST AND R&LD TRUST III; JENNIFER BOUCHILLON AND LUETTA DAWSON, AS CO-TRUSTEES OF JDS TRUST AND JDS TRUST II; AND LUETTA DAWSON APPELLEES
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18PR-15-77]
HONORABLE VICTOR L. HILL, JUDGE.
Brock and Rita Reed Harris; and Brett D. Watson, Attorney at
Law, PLLC, by: Brett D. Watson, for appellant.
Friday, Eldredge & Clark, LLP, by: William A. Waddell,
Jr., and Lindsey H. Emerson for appellees.
F. Wynne, Associate Justice.
Dawson Jr. appeals from an order of the Crittenden County
Circuit Court denying his second amended petition to direct
trustee to issue trusts reports and accountings and for
removal of trustees and for other relief. At issue was the
administration of several family trusts. He raises the
following points on appeal: (1) The court lacked jurisdiction
because the chief justice had no jurisdiction to assign the
special judge; (2) The court erred when it relied on
extrinsic evidence to determine the meaning of unambiguous
trust documents; (3) If extrinsic evidence were relevant, the
court erred by disregarding the R&LD settlor's
near-contemporaneous statement of intent and the intent of
the R&LD III settlor; (4) The court erred by not finding
that Janelle breached her duties as trustee and not removing
her as trustee; (5) The court erred by not requiring an
accounting; (6) The court erred by denying the request for a
jury trial; (7) The court erred by not appointing a master;
(8) The court erred by dismissing Jennifer and by denying the
motion to set aside her dismissal or, alternatively, to grant
a new trial; and (9) The court erred by not invalidating the
2014 trust amendments. We reverse the denial of a jury trial
on Ray Jr.'s legal claims and remand for further
proceedings, and we affirm in all other respects.
Luetta Dawson and her husband Ray Dawson Sr. were the initial
beneficiaries of the following irrevocable trusts:
 R&LD Trust (created in 1986): grantor/settlor Luetta;
trustee Ray Dawson Jr.; initial beneficiaries Luetta and Ray
Sr.; secondary beneficiaries children of Ray Sr. and
 R&LD Trust II (1994): grantor/settlor Janelle; trustee
Ray Jr.; initial beneficiaries Ray Sr. and Luetta; secondary
beneficiaries Janelle and Ray Jr.
 R&LD Trust III (1996): grantor/settlor Ray Jr.;
trustee Janelle; initial beneficiaries Ray Sr. and Luetta;
secondary beneficiaries Janelle and Ray Jr.
major assets of the R&LD trusts are tracts of farmland,
which generate substantial rental income. All three trust
agreements directed the trustees to pay sums "reasonably
necessary for the support, maintenance, medical care, and
education" of the initial beneficiaries during their
lives, and upon the death of an initial beneficiary, to the
surviving initial beneficiary for his or her life, and then
to the secondary beneficiaries for the same purposes until
termination of the trusts. The trustees were given broad
enumerated powers, and in addition, the trust agreements
stated: "It is the GRANTOR'S express intention to
confer upon the TRUSTEE every power of management which might
be conferred upon him." Additional trusts were created
 JDS Trust (1986): grantor/settlor Luetta; co-trustees Ray
Jr. and Luetta; initial beneficiary Janelle; secondary
beneficiaries Janelle's children.
 JDS Trust II (1994): grantor/settlor Ray Jr.; trustee
Luetta; initial beneficiaries Luetta and Janelle; secondary
beneficiaries appointed by Luetta's will or, if
appointment power not exercised, Janelle's children.
1998, Ray Jr. resigned as trustee of the R&LD Trust and
the R&LD Trust II, and Janelle became successor trustee.
In June 2014, Ray Jr. sent Janelle, as trustee of the three
R&LD trusts, a formal request for a report and accounting
regarding the property of the trusts. In September 2014,
Janelle executed amendments to the R&LD Trust and the
R&LD Trust III naming her daughter Jennifer Bouchillon,
who is a certified public accountant, as co-trustee and
limiting the duty of a trustee to provide an accounting.
Luetta likewise executed an amendment to the JDS Trust II to
add Jennifer as co-trustee.
filed suit in April 2015, seeking trust reports and
accountings and also the removal of Janelle and Jennifer as
the trustees of the three R&LD Trusts. Luetta was
permitted to intervene in the action as an interested party.
In February 2016, the court granted partial summary judgment
to Ray Jr. and ordered Janelle and Jennifer to provide Ray
Jr. with trust accounting information that he had requested.
In April 2017, Ray Jr. filed the operative pleading in this
matter-the second amended petition to direct trustee to issue
trusts reports and accountings and for removal of trustees
and for other relief. In the second amended petition, Ray Jr.
alleged the following: failure to provide an accounting
(Count I); breach of fiduciary duty (Count II); conversion
(Count III); removal of trustees (Count IV); injunctive
relief (Count V); fraud and concealment (Count VI); and
conspiracy (Count VII). The gist of his complaint was that
Janelle had used the R&LD trusts to benefit herself, and
that she and Jennifer had breached their duties as trustees.
Janelle and Jennifer answered and asserted the following
affirmative defenses: failure to state facts upon which
relief can be granted under Ark. R. Civ. P. 12(b)(6);
dismissal pursuant to Ark. Code Ann. § 28-73-1006 (Repl.
2012); unclean hands; and estoppel and waiver. Luetta filed
an answer that included the same affirmative defenses. In
addition, Janelle and Jennifer, in their capacities as
trustees, filed a counterclaim and an amended counterclaim
against Ray Jr. In the amended counterclaim, they alleged
that Ray Jr. had approached Luetta in January 2014 when she
was ill and about to have brain surgery. At that time, he
obtained lease extensions with the trusts for cash rent that
was below market value. The trustees alleged undue influence,
self-dealing, unjust enrichment, and breach of his duties to
his co-beneficiaries; they demanded a trial by jury.
circuit court held a bench trial on October 10-13 and
December 19-21, 2017. The parties presented extensive
testimony and documentary evidence during the trial. At the
conclusion of Ray Jr.'s case in chief, the court
dismissed the fraud and conspiracy causes of action and
dismissed the petition in its entirety as to
Jennifer. The parties filed post-trial briefs, and
on April 9, 2018, the court denied Ray Jr.'s petition and
dismissed the action with prejudice. The court also denied
and dismissed the counterclaim and denied all outstanding
motions, including Ray Jr.'s motion for new trial or to
set aside order on motion for judgment as a matter of law.
Ray Jr. appealed.
of the Chief Justice to Appoint a Special Judge
argues that the chief justice lacked jurisdiction to assign
the special judge in this case, Victor Hill, who thus also
lacked jurisdiction. He contends that the chief justice
lacked jurisdiction because not all judges in the circuit had
recused. Jurisdiction is the power of the court to hear and
determine the subject matter in controversy between the
v. Circuit Court of Polk Cty., 366 Ark. 212, 215, 234
S.W.3d 290, 293 (2006).
special judge was requested because the newly elected circuit
judge would not have a "civil term" in Crittenden
County in 2018. With the agreement of the assigned circuit
judge, the administrative judge of the Second Judicial
District wrote a letter to Chief Justice Kemp requesting
appointment of recently retired Judge Victor Hill "for
the sake of judicial economy"; Judge Hill had presided
over the case before his retirement. On July 25, 2017, Chief
Justice Kemp entered an order assigning the Hon. Victor Hill,
retired circuit judge, to hear this case.
80 provides as follows regarding the assignment of special
judges in circuit court:
(C) If a Circuit or District Judge is disqualified or
temporarily unable to serve, or if the Chief Justice shall
determine there is other need for a Special Judge to be
temporarily appointed, a Special Judge may be assigned by the
Chief Justice or elected by the bar of that Court, under
rules prescribed by the Supreme Court, to serve during the
period of temporary disqualification, absence or need.
Ark. Const. amend. 80, § 13. Administrative Order No. 16
provides the procedures for the assignment of special judges
by the chief justice. Admin. Order No. 16 authorizes the
chief justice to assign (A) sitting circuit court judges, (B)
retired circuit, chancery, circuit/chancery, and appellate
court judges and justices, and (C) sitting state district
court judges, with their consent, to serve temporarily in
circuit court. Admin. Order No. 16(I). The bases for
assignment are disqualification pursuant to the Arkansas Code
of Judicial Conduct, temporary inability to serve, or
other need as determined by the chief justice.
Id. § (II) (emphasis added). Section (III) of
Admin. Order No. 16, which governs the process for requesting
assignment of a special judge, provides that "[a]ll
judges in the circuit must disqualify before an assignment
will be made." The letter of request to the chief
justice must include a statement that all the judges in the
circuit have recused. Id., § (III)(A).
relies on section (III) of Administrative Order No. 16, along
with Smith v. Wright, 2015 Ark. 189, at 20 n.14, 461
S.W.3d 687, 699 n.14 (explaining the necessity of overruling
Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995)
because the elected circuit judge was not disqualified and
this court lacked jurisdiction or authority to appoint a
special judge under the circumstances of that case), for his
argument that the chief justice lacks jurisdiction to appoint
a special judge unless all judges in the judicial circuit
have recused. However, Ray Jr. ignores the broad language of
amendment 80 and section (II) of Admin. Order No. 16, which
provide the chief justice with the authority to assign a
special judge if the chief justice determines there is
"other need" for a special judge. Here, the chief
justice apparently determined there was a need for a special
judge for the sake of judicial economy due to the assigned
circuit judge's docket. No one objected to the
assignment. These circumstances are clearly distinguishable
from a disagreement between a duly elected judge or justice
and an appointed judge or justice as to who should hear a
case. See Smith, supra; Neal,
affirm on this point because the chief justice did not lack
jurisdiction to appoint a special judge under the
circumstances presented here.
address Ray Jr.'s sixth point on appeal next. Ray Jr.
argues that the circuit court erred by denying the
parties' requests for a jury trial. The applicable
standard of review is that any claim to a jury trial is
reviewed de novo on appeal. Stokes v. Stokes, 2016
Ark. 182, at 4, 491 S.W.3d 113, 117 (citing First
Nat'l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203
S.W.3d 88 (2005)). A jury trial is a fundamental
constitutional right that is protected by article 2, section
7 of the Constitution of Arkansas. See Walker v. First
Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316
(1994). The right to a jury trial extends only to those cases
that were subject to trial by jury at the common law.
Stokes, supra. In Arkansas, this court
looks to the historical nature of the claim to determine
whether a trial by jury is warranted.Id.
second amended petition, Ray Jr. demanded a jury trial
"in connection with this cause of action." Janelle
and Jennifer's answer included a demand for a trial by
jury "as to all issues and claims alleged" in the
second amended petition. The case was initially set for a
four-day jury trial. After reviewing the proposed jury
instructions, however, the court determined that the case was
not appropriate to submit to a jury and wrote a letter to
counsel so advising them. Janelle and Jennifer submitted a
response to the court's letter and argued in favor of a
jury trial, writing: "Trustees respectfully submit that
it would . . . be error to deny a jury trial where the
petition, affirmative defenses, and counterclaim all alleged
legal causes of action and the parties have demanded a trial
by jury." The circuit court entered an order denying the
requests for a jury ...