Cite as 2026 Ark. App. 410 ARKANSAS COURT OF APPEALS DIVISION I
No. CV-25-283
JOSHUA SPOTTS, MICHELLE RAINS, Opinion Delivered: September 16, 2026
AND MERRELL CONLEE APPEAL FROM THE ST. FRANCIS APPELLANTS
COUNTY CIRCUIT COURT
[NO. 62PR-22-171]
V.
HONORABLE CHALK S. MITCHELL, CARL MERRELL, TRUSTEE OF THE JUDGE JUNE EDMONDSON MERRELL REVOCABLE TRUST REVERSED APPELLEE
STEPHANIE POTTER BARRETT, Judge Appellants Joshua Spotts, Michelle Rains, and Merrell Conlee bring this appeal from the St. Francis County Circuit Court orders granting summary judgment and dismissal in favor of Appellee Carl Merrell, trustee; enforcing the in terrorem clause of the June Edmondson Merrell Revocable Trust; and awarding attorney’s fees and costs to Appellee. On appeal, Appellants argue that (1) the circuit court incorrectly granted Appellee’s motion for summary judgment and motion to dismiss upon finding that their filings did not constitute a direct “contest” of the trust and did not trigger the in terrorem clause of the trust, (2) the circuit court erred in its determination that a claim for breach of trust automatically triggered the in terrorem clause of the trust, (3) the circuit court erred in granting Appellee’s
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motion to strike pleadings, and (4) the circuit court erred in granting Appellee’s motion for attorney’s fees and costs. We reverse.
June Edmondson Merrell died on March 16, 2018. She was survived by her three children, Carl Kemberly Merrell, Sherri Merrell, and Melinda Kathryn Merrell Spotts. The controlling trust instrument is the second amendment and restatement of the June Edmondson Merrell trust dated August 6, 2001 (“the trust”).
Section 2.05 of the trust provides for the distribution of the residue of the trust, including distributions to Carl, Sherri, and Melinda or her estate or her heirs. Appellants are Melinda’s surviving children, and upon her death, they assumed their mother’s beneficiary interest in the trust.
June served as the initial trustee until her death. After the first successor trustee was determined to be unavailable, Appellee became successor trustee on June 1, 2018, pursuant to section 5.01 of the trust, which named him as the second successor trustee.
Section 8.09 of the trust contains the following in terrorem clause:
The Grantor has purposely made no provision for any other person whether claiming to be an heir of the Grantor’s or not. If any person, whether a beneficiary under this Trust or not, will contest this Trust or any provisions, that person will receive the sum of one dollar ($1.00) and no more in lieu of the provisions which the Grantor made or might have made herein for the person contesting.
Section 6.03 of the trust requires the trustee, upon request of a beneficiary, to provide a detailed accounting within forty-five days of the request.
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On October 25, 2022, Appellants requested copies of the trust documents, an inventory of the trust, and an accounting from Appellee. After Appellee allegedly failed to provide complete trust documents, an inventory, or an accounting, Appellants filed a petition for court intervention in the administration of the June Edmondson Merrell Revocable Trust (“original petition”) pursuant to Arkansas Code Annotated sections 28-73- 201 to -203 (Repl. 2012) on December 22, 2022, requesting that the circuit court order Appellee to provide trust documents, an inventory of the trust, and an accounting of the trust.
On February 28, 2023, Appellants filed a first amended petition for court intervention (“first amended petition”) in which Appellants alleged that, apart from one distribution of $6,000 to each of them, Appellee had converted the remaining trust assets for his own benefit in breach of his duties as trustee.
On July 20, 2023, Appellee provided Appellants accounting materials concerning the trust.
On August 8, 2023, Appellants filed a petition for injunction pursuant to Arkansas Code Annotated section 28-73-1001(b)(2) (Repl. 2012) seeking to prevent Appellee from any further sale, distribution, or misappropriation of trust assets. Appellants later withdrew their petition for injunction.
On August 31, 2023, Appellants filed a second amended petition (“second amended petition”) for court intervention alleging breach of trust. Appellants alleged, among other things, that Appellee had incurred improper trust expenses, commingled trust assets with his
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own assets, and engaged in self-dealing. They alleged that the value of the trust assets had decreased by more than $600,000 and attributed portions of that decrease to reimbursements to Appellee and transactions involving entities he owns. Appellants sought remedies including Appellee’s removal as trustee, reimbursement of certain expenses, repayment of loans made to entities owned by Appellee, return of trustee compensation, damages, and attorney’s fees.
On September 21, 2023, Appellee filed a motion to strike pleadings, enforce in terrorem clause, and for summary judgment and a brief in support. Appellee argued that Appellants’ pleadings, allegations, and request for injunctive relief constituted a contest of the trust.
On July 23, 2024, Appellants filed a third amended petition for court intervention (“third amended petition”). The third amended petition omitted the second amended petition’s requests for specific remedies, including Appellee’s removal as trustee, but continued to allege that Appellee had breached his duties as trustee. Appellee moved to dismiss the third amended petition with prejudice pursuant to Arkansas Rule of Civil Procedure 12(b)(6) on August 9, 2024, requesting that the circuit court apply the trust’s in terrorem clause.
Following an October 2024 hearing, the circuit court entered an order on November 20, 2024, finding that Appellants had triggered the in terrorem clause through the filing of their original petition, first amended petition, petition for injunction, second amended petition, and third amended petition. The circuit court granted Appellee’s motion to strike
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pleadings, enforce in terrorem clause and for summary judgment as well as his motion to dismiss the third amended petition with prejudice. Although the order granted the combined motion, it did not identify any pleading or allegation to be struck.
Appellee subsequently filed a motion for attorney’s fees on December 5, 2024. On January 28, 2025, the circuit court entered an order awarding Appellee $54,015.82 in attorney’s fees and $1,050.65 in costs and expenses. Appellants timely appealed.
Summary judgment may be granted only when there are no genuine issues of material fact to be litigated. Lasiter v. Newland & Assocs., PLLC, 2025 Ark. App. 348, at 28, 718 S.W.3d 23, 41 (citing Jacks v. Brossett, 2024 Ark. App. 6, at 14, 682 S.W.3d 362, 370). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate by deciding whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. This court’s review focuses not only on the pleadings but also on the affidavits and other documents filed by the parties. Id. As to issues of law presented, our review is de novo. Jacks, 2024 Ark. App. 6, at 15, 682 S.W.3d at 370 (citing State v. Cassell, 2013 Ark. 221, 427 S.W.3d 663).
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In reviewing a Rule 12(b)(6) motion to dismiss, this court looks to the four corners of the complaint. See Peck v. Peck, 2016 Ark. App. 423, at 7–8, 502 S.W.3d 553, 557–58. When this court reviews a circuit court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Id. “In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff's favor.” Id. Our standard of review for the grant of a motion to dismiss is whether the circuit court abused its discretion. Id.
For Appellants’ first point on appeal, they argue that the circuit court incorrectly granted Appellee’s motion for summary judgment and motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6). Specifically, Appellants contend that their original petition, first amended petition, petition for injunction, second amended petition, and third amended petition did not constitute a “contest” and did not trigger the in terrorem clause of the trust.
An in terrorem clause is one that voids a gift to a devisee or legatee if the legatee or devisee disputes provisions of the will or the gift. See Hamm v. Hamm, 2013 Ark. App. 501, at 4, 429 S.W.3d 384, 387. Our supreme court has recognized the validity of these clauses. Id. Because in terrorem clauses work as a forfeiture, Arkansas courts strictly construe them. See id. at 5–6, 429 S.W.3d at 387. In terrorem clauses are likewise enforceable in trust instruments. See Lasiter, 2025 Ark. App. 348, 718 S.W.3d 23.
Not every legal action by a beneficiary triggers an in terrorem clause. See Jackson v.
Braden, 290 Ark. 117, 120, 717 S.W.2d 206, 208 (1986). However, Arkansas law does not
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provide for a good-faith exception for a litigant who files a direct contest, which would exempt the litigant from a no-contest clause. See Sharp v. Sharp, 2014 Ark. App. 645, 447 S.W.3d 622.
Our supreme court has defined “contest,” as it pertains to a no-contest clause, as any legal proceeding designed to result in the thwarting of the testator’s wishes as expressed in the will. Lasiter, 2025 Ark. App. 348, at 31, 718 S.W.3d at 43 (citing Seymour v. Biehslich, 371 Ark. 359, 364, 266 S.W.3d 722, 726 (2007)).
Courts therefore begin their review with the specific language of the in terrorem clause to determine what actions trigger the no-contest provision. Duvall v. Duvall, 2025 Ark. App. 606, at 8, 728 S.W.3d 761, 766. Thus, this court’s analysis begins with “the plain words” of the in terrorem, or “no contest,” clause. Hamm, 2013 Ark. App. 501, at 5, 429 S.W.3d at 387. Accordingly, the relevant question in this case is whether Appellants’ filings constituted a contest of the trust or any of its provisions.
Appellants primarily rely on Jacks, 2024 Ark. App. 6, 682 S.W.3d 362, to argue that their filings did not constitute a contest of the trust or any of its provisions. The in terrorem clause in Jacks was broader than the clause at issue here. Id. It prohibited a beneficiary from challenging any provision of the trust in any court proceeding and from becoming an adverse party in any judicial proceeding involving the trust. Id. Appellants argue that those provisions are absent here and that conduct falling within the broader language of the Jacks clause does not necessarily constitute a contest under the narrower language of this trust. Id.
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In Jacks, this court held that a beneficiary violated the in terrorem clauses of a will and trust by taking actions contrary to the terms of those documents, including seeking the trustee’s removal without complying with the trust’s removal provisions and demanding an accounting the trust did not require. Id. Those actions triggered the in terrorem clauses and resulted in the forfeiture of the beneficiary’s interest. Id. But Jacks does not establish that every trust-administration proceeding or every request to remove a trustee constitutes a contest. Id. Rather, whether particular conduct constitutes a contest depends on the language of the applicable in terrorem clause.
Here, the original petition sought court intervention requiring Appellee to provide trust documents, an inventory of the trust, and an accounting of the trust. Appellee acknowledges that the original petition itself did not rise to the level of a contest in violation of the trust’s in terrorem clause. Accordingly, the original petition did not trigger the clause.
The first amended petition again sought an inventory and accounting of the trust.
Appellee highlights that the first amended petition also alleged that the remaining trust assets had been converted by Appellee for his own benefit in breach of his duties as trustee. However, the relief sought here concerned Appellee’s compliance with his obligations as trustee rather than relief contrary to the terms of the trust. Unlike the clause in Jacks, the clause at issue here contains no prohibition against becoming an “adverse party” in litigation involving the trust. Id. Accordingly, the first amended petition did not constitute a contest of the trust or its provisions.
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The petition for injunction likewise sought to enjoin Appellee from any further sale, distribution, or misappropriation of trust assets after Appellants reviewed the accounting. Despite the withdrawal of the petition, Appellee argues that the requested injunction was an attempt to control his actions as trustee and was contrary to the trust and the settlor’s intent that he serve in that capacity. But the petition for injunction concerned Appellee’s administration of the trust assets based on allegations that he had misappropriated trust property; it did not seek relief contrary to a provision of the trust. Strictly construing the language of this in terrorem clause, the requested injunctive relief did not constitute a contest of the trust or its provisions.
In the second amended petition, Appellants alleged breach of trust and sought several statutory remedies including Appellee’s removal as trustee, reimbursement of certain expenses, repayment of loans made to entities owned by Appellee, return of trustee compensation, damages, and attorney’s fees. Appellee specifically argues that Appellants’ request for his removal directly contested section 5.01 of the trust because that provision designated him as the second successor trustee. He contends that requesting his removal was contrary to that designation and therefore triggered the in terrorem clause.
Appellee relies on this court’s decision in Lasiter, 2025 Ark. App. 348, 718 S.W.3d 23, in support of his position that Appellants’ filings interfered with Appellee’s discretion as trustee and sought his removal. In Lasiter, this court held that a beneficiary’s legal actions violated the trusts’ in terrorem clauses and resulted in forfeiture of her benefits. Id. In reaching that conclusion, this court determined that the beneficiary had sought relief contrary to the
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terms of the trust and settlor’s estate plan. Id. Lasiter, however, does not hold that a request to remove a trustee necessarily constitutes a contest of the trust or its provisions. Id.
Here, although section 5.01 designated Appellee as the second successor trustee, Appellants did not challenge that designation or contend that Appellee was never entitled to serve as trustee. Rather, they sought his removal because of alleged breaches committed while he was serving in that position. Neither Jacks nor Lasiter establishes that seeking a trustee’s removal due to alleged misconduct in the administration of a trust necessarily constitutes a contest of the provision designating that trustee. Jacks, 2024 Ark. App. 6, 682 S.W.3d 362; Lasiter, 2025 Ark. App. 348, 718 S.W.3d 23.
That conclusion is also consistent with Jackson, 290 Ark. 117, 717 S.W.2d 206. In Jackson, our supreme court held that the beneficiaries of a will, who acknowledged the validity of the will but questioned actions of the executor for not complying with the probate code, did not violate a no-contest clause in the will. Id. Appellee distinguishes Jackson on the basis that the in terrorem clause here is broader than the clause at issue there. Id. Even so, Jackson supports a distinction between challenging an instrument and challenging a fiduciary’s duty in administering it. Id. Here, Appellants challenge Appellee’s conduct in administering the trust rather than the trust itself or his original designation as successor trustee.
Strictly construing the language of this in terrorem clause, Appellants’ request for Appellee’s removal based on his alleged conduct as trustee did not constitute a contest of section 5.01 merely because that provision designated him as successor trustee. The
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remaining relief requested in the second amended petition likewise sought remedies for Appellee’s alleged breach of trust rather than relief contrary to the terms of the trust. Thus, the second amended petition did not trigger the in terrorem clause.
Finally, the third amended petition retained the factual basis for Appellants’ breach-
of-trust claim but omitted the specific remedies and damages requested in the second amended petition, including the request for Appellee’s removal, and instead requested judicial intervention. Appellee argues that Appellants were attempting to “claw back” their earlier contest and could not “un-contest” the trust by amending their petition. However, because the earlier petitions did not constitute a contest under the language of this in terrorem clause, there was no prior contest for Appellants to “un-contest.” Therefore, for the same reasons discussed above, the third amended petition did not contest the trust or any of its provisions.
Because the filings did not constitute a contest of the trust or its provisions, Appellee was not entitled to judgment as a matter of law based on enforcement of the in terrorem clause. The circuit court improperly granted summary judgment on that basis. Likewise, because the allegations in the third amended petition did not constitute a contest of the trust or its provisions, dismissal of that petition under Rule 12(b)(6) on the same basis was improper. Accordingly, we reverse the circuit court’s grant of summary judgment in favor of Appellee and its dismissal of Appellants’ third amended petition.
For Appellants’ second point on appeal, they argue that the circuit court erred in its determination that a claim for breach of trust automatically triggered the in terrorem clause
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of the trust. Appellants specifically contend that the circuit court did not conduct the proper analysis of bad faith and reckless disregard to determine if the in terrorem clause in the trust was unenforceable and that the circuit court made no determination whether the in terrorem clause was unenforceable under Arkansas Code Annotated section 28-73-1008 (Repl. 2012).
Appellee asserts that the circuit court did not determine that the filing of the breach-
of-trust claim automatically triggered the in terrorem clause. Rather, Appellee contends that the circuit court considered Appellants’ actions and numerous claims against him in determining that their conduct constituted a contest of the trust.
As discussed above, Arkansas does not recognize a good-faith exception to an in terrorem clause. Sharp v. Sharp, 2014 Ark. App. 645, 447 S.W.3d 622. The Arkansas Trust Code, however, limits a trust provision that relieves a trustee of liability for certain breaches of trust. Arkansas Code Annotated section 28-73-1008(a)(1) provides, “A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries.”
The Arkansas Trust Code also provides remedies for a breach of trust. Under Arkansas Code Annotated section 28-73-1001, a court may remedy a breach of trust by compelling performance of the trustee’s duties, enjoining the trustee from committing a breach of trust, compelling redress of a breach, or removing the trustee.
In Peck, this court considered section 28-73-1008 in connection with a trust provision that canceled a beneficiary’s shares if she questioned certain actions of the trustee. 2016 Ark.
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App. 423, 502 S.W.3d 553. The circuit court dismissed the beneficiary’s complaint after concluding that the provision barred her claims. See id. at 7–8, 502 S.W.3d at 558. This court held that dismissal was improper because the circuit court had not considered the factual allegations in the amended complaint or the beneficiary’s argument that the share- cancellation provision was unenforceable under section 28-73-1008. Id. at 8–9, 502 S.W.3d at 558.
Here, Appellants alleged that Appellee acted in bad faith and with reckless indifference and argued that the in terrorem clause was unenforceable under section 28-73- 1008 as applied to their breach-of-trust claim. Appellee contends that section 28-73-1008 does not apply because the in terrorem clause does not relieve him of liability for a breach of trust. Rather, it provides for forfeiture when a beneficiary contests the trust. Although the in terrorem clause does not expressly relieve Appellee of liability, Appellants contend that enforcing it against the breach-of-trust claim would have that effect. Because we reverse the circuit court’s enforcement of the in terrorem clause under Appellants’ first point on appeal, we need not address whether section 28-73-1008 provides an additional basis for concluding that the clause was unenforceable as applied to Appellants’ breach-of-trust claim.
For Appellants’ third point on appeal, they argue that the circuit court erred in granting Appellee’s motion to strike pleadings. Appellee asserts that the circuit court did not rule that Appellants’ pleadings were struck but disposed of their claims by granting summary judgment.
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Arkansas Rule of Civil Procedure 12(f) provides that a circuit court may order struck from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. A circuit court’s decision under Rule 12(f) is reviewed for abuse of discretion. See, e.g., J&C Motors of Morrilton, LLC v. Clagett, 2024 Ark. App. 622, at 6, 703 S.W.3d 551, 555.
Although the final order grants Appellee’s combined motion to strike pleadings, enforce in terrorem clause, and for summary judgment, the order does not separately identify any pleading or allegation to be struck under Rule 12(f) or otherwise separately rule that Appellants’ pleadings were struck. To the extent the order granted Appellee’s request to strike Appellants’ pleadings, that relief was based on the circuit court’s determination that Appellants had triggered the in terrorem clause. Because we reverse that determination, we likewise reverse on this point.
Finally, Appellants argue that the circuit court’s award of attorney’s fees and costs resulted from its grant of summary judgment and dismissal. They contend that if this court reverses any of the underlying rulings, the award of attorney’s fees and costs should be reversed as well. Appellee contends that the circuit court did not abuse its discretion in awarding attorney’s fees and costs under Arkansas Code Annotated section 28-73-1004 (Repl. 2012).
The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the circuit court abused its discretion. Carter v. Cline, 2013 Ark. 398, at 5, 430 S.W.3d 22, 26. While
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the decision to award attorney’s fees and the amount awarded are reviewed under an abuse- of-discretion standard, we review factual findings by a circuit court under a clearly erroneous standard. Id. (citing Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321).
The circuit court awarded attorney’s fees pursuant to Arkansas Code Annotated section 28-73-1004, which provides: “In a judicial proceeding involving the administration of a trust, a court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”
Here, the circuit court found that Appellants were directly responsible for the trust’s incurring attorney’s fees, costs, and other expenses associated with their repeated effort to seek removal of the trustee. The circuit court awarded Appellee attorney’s fees in the amount of $54,015.82 and costs and expenses in the amount of $1,050.65.
Appellants do not challenge the amount of the award or the circuit court’s determination that the requested fees and costs were reasonable. Rather, their challenge to the award depends on the reversal of the underlying rulings. Because the determination that Appellants triggered the in terrorem clause is reversed, the resulting award of attorney’s fees and costs is also reversed.
Reversed.
HARRISON and BROWN, JJ., agree.
Landon M. Reeves, for appellants.
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James, House, Swann & Downing, P.A., by: Matthew R. House; and Beavers & Cline, by:
Brad J. Beavers, for appellee.