Rose v. Rose

427 S.W.3d 698, 2013 Ark. App. 256, 2013 WL 1682416, 2013 Ark. App. LEXIS 267
CourtCourt of Appeals of Arkansas
DecidedApril 17, 2013
DocketNo. CA 12-598
StatusPublished
Cited by36 cases

This text of 427 S.W.3d 698 (Rose v. Rose) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rose v. Rose, 427 S.W.3d 698, 2013 Ark. App. 256, 2013 WL 1682416, 2013 Ark. App. LEXIS 267 (Ark. Ct. App. 2013).

Opinions

LARRY D. VAUGHT, Judge.

h Laura Rose Shahsavari, Richard Rose, and Michael Rose bring this appeal from the order of the Pulaski County Circuit Court allowing reimbursement to their stepmother, appellee Mary Ruth Shellnut Rose, for expenses incurred in the administration of a trust jointly established by her and their father, Woody Rose. This appeal challenges that ruling, as well as the circuit court’s failure to award appellants their attorney’s fees. We affirm in part and dismiss in part.

On January 17, 1994, Woody and Ruth Rose created the Rose Family Revocable Trust. The only item placed in the trust was the residence occupied by Woody and Ruth. The trust instrument provided that the trust was modifiable at anytime while both grantors were alive; however, upon the death of either grantor, the trust was to become irrevocable. |2Upon the death of the second grantor, the residence was to be sold, with three-fifths of the net proceeds to be distributed equally between the appellants, and two-fifths to be distributed between Ruth Rose’s two children. In the alternative, if the surviving spouse no longer wanted to live in the residence, he or she could direct the trustee to sell it for fair-market value, with the proceeds being distributed one-fifth to each of the children of the deceased grantor and the remainder being distributed to the surviving grantor. The trust was silent as to the reimbursement of any expenses relating to the residence. There was also a spendthrift provision. Attorney Thomas Stone was appointed to be the trustee, with attorney Patrick Holl-ingsworth designated to serve as successor trustee.

Over the next several years, the Roses purchased several homes, each of which was subject to a mortgage. Although the homes were titled in Woody and Ruth’s names individually for the execution of any mortgage, the residences were always conveyed to the trust. Until 2003, all deeds conveying property to and from the trust identified Thomas Stone as the trustee. Beginning with a deed signed on June 1, 2005, the deeds began identifying Woody and Ruth Rose as the trustees. Stone was never informed that he was being removed as trustee, nor did he ever resign as trustee. The Roses purchased their final home together on January 13, 2005. This residence was conveyed into the trust by a deed recorded on September 7, 2006.

Woody Rose died unexpectedly on May 31, 2007. Appellee continued to reside in the home following Woody’s death. On August 30, 2010, appellee, as trustee, conveyed the residence to herself, individually. She then sold the home to an unrelated third party for | ,<¡$310,000 on September 30, 2010. Appellee deposited the proceeds of the sale in her personal checking account. She retained approximately $90,000 of the proceeds prior to depositing $135,127.17 into the registry of the court pursuant to a November 30, 2010 court order. This represented 60% of the net proceeds from the sale of the residence.

Upon learning of appellee’s sale of the home, appellants filed the present lawsuit in early November 2010. In their petition, appellants alleged that the trust was not revoked during Woody’s lifetime, and that Thomas Stone had not resigned as trustee. It was alleged that appellee failed to comply with the trust code regarding notice to them following Woody’s death. Appellants also asserted that appellee did not have authority to convey the home to herself because it was the only asset of the trust. The petition sought a declaratory judgment, a preliminary injunction, damages, and the imposition of a constructive trust for appellee’s breach of her fiduciary duties.

After first filing an answer alleging that the trust was never established, appellee amended her answer and admitted that the trust was established. However, she also asserted that the trust was amended or modified by virtue of handwritten notes, interlineations, and strikethroughs. Ap-pellee denied that Stone was the trustee and contended that she was the current trustee. Appellee sought reimbursement and compensation pursuant to Arkansas Code Annotated section 28-73-709.

The case proceeded to a bench trial held on November 8, 2011. On March 6, 2012, the circuit court entered its written order. In its order, the circuit court found that the ^attempted amendments to the trust were invalid.1 After describing the terms of the trust and events following the death of Woody Rose, the court deducted certain expenses and found that appellee had incurred reimbursable expenses on behalf of the trust in the amount of $73,860.47. The court also subtracted $1,000 for the rental value of the residence for the time appellee lived in the house after it was removed from the trust before it was sold, leaving appellee with a net reimbursement of $72,860.47. The court found that each of the appellants was entitled to $30,470.30, and appellee was entitled to $43,716.27 after credit for the amount of the reimbursement and subtraction of the amount she retained from the original proceeds.2

Appellants filed a motion for reconsideration on March 9, 2012. The circuit court took no action on the motion, and the motion was deemed denied. This timely appeal followed.

The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity, Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996), a which have inherent and exclusive jurisdiction of all kinds of trusts and trustees. Id. at 377, 934 S.W.2d at 948. Arkansas appellate courts have traditionally reviewed matters that sounded in equity de novo |son the record with respect to factual and legal questions. In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. We have stated repeatedly that we would not reverse a finding by a circuit court in an equity case unless it was clearly erroneous. Id. at 2, 418 S.W.3d at 422. We have also stated that a finding of fact by a circuit court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. at 2-3, 418 SW.3d at 422.

We begin by acknowledging that the circuit court’s order fails to make specific findings on certain key issues. It also fails to include some of the findings made from the bench. Nevertheless, we find it sufficient for appellate review.

In their first point, appellants argue that the circuit court erred in allowing appellee to be reimbursed for her expenses in maintaining the residence because she was not the trustee; the trust had not been amended prior to Woody Rose’s death; and, assuming that appellee was the trustee, she breached her fiduciary duties to the trust. We disagree.

Although the circuit court failed to make a specific finding that appellee was the trustee, such a finding is implicit in the court’s order allowing her to be reimbursed for her expenses. In awarding ap-pellee expenses, the circuit court was addressing appellee’s assertion in her answer that she was the trustee of the trust.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Masek Family Trust
977 N.W.2d 919 (Nebraska Supreme Court, 2022)
Scott v. Scott
2016 Ark. App. 390 (Court of Appeals of Arkansas, 2016)
Liberty Bank of Arkansas v. Byrd
2016 Ark. App. 86 (Court of Appeals of Arkansas, 2016)
Holliman v. Johnson
2016 Ark. App. 39 (Court of Appeals of Arkansas, 2016)
Cotton v. Robinson
2015 Ark. App. 451 (Court of Appeals of Arkansas, 2015)
Cason v. Lambert
2015 Ark. App. 41 (Court of Appeals of Arkansas, 2015)
Taylor v. City of Fort Smith
2014 Ark. App. 450 (Court of Appeals of Arkansas, 2014)
Midyett v. Midyett
2013 Ark. App. 597 (Court of Appeals of Arkansas, 2013)
Piping Indus. Co. v. Future Fuel Chem. Co.
2013 Ark. App. 549 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
427 S.W.3d 698, 2013 Ark. App. 256, 2013 WL 1682416, 2013 Ark. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-rose-arkctapp-2013.