Teresa Genz, Kathern Cooksey, Cassandra Julich, Logan Genz, Taylor Genz, Jerry Genz, and Lance Cooksey v. Amy Carter Cooksey, Individually and as Trustee of the James E. Cooksey Trust U/T/D March 11, 2010

Cite as 2021 Ark. App. 175
Elizabeth Perry
I attest to the accuracy and ARKANSAS COURT OF APPEALS
integrity of this document DIVISION I
2023.06.26 15:33:26 -05'00' No. CV-18-975
2023.001.20174
TERESA GENZ, KATHERN
Opinion Delivered: April 21, 2021
COOKSEY, CASSANDRA JULICH,
LOGAN GENZ, TAYLOR GENZ,
JERRY GENZ, AND LANCE APPEAL FROM THE WASHINGTON
COOKSEY COUNTY CIRCUIT COURT
APPELLANTS [NOS. 72CV-16-1044 & 72PR-17-501]

V.
HONORABLE DOUG MARTIN,
AMY CARTER COOKSEY, JUDGE
INDIVIDUALLY AND AS TRUSTEE
OF THE JAMES E. COOKSEY TRUST
U/T/D MARCH 11, 2010
APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

This is an intrafamily dispute over the estate plan prepared by the decedent, James

Cooksey. On one side are the decedent’s daughter, Teresa Genz (Teresa), and the decedent’s

ex-wife, Kathern Cooksey (Kathern). They are the principal appellants. 1 On the other side

is appellee Amy Cooksey (Amy), the decedent’s widow and the trustee of the James E.

Cooksey Trust (the trust). Appellants sought to reform the trust and to reform a

commissioner’s deed conveying property to the decedent and Kathern. In the alternative,

appellants sought to impose a constructive trust on that property. After a bench trial, the

1
Other appellants include Jerry Genz, Teresa’s husband; the decedent’s son, Lance
Cooksey (Lance); and Teresa and Jerry’s adult children, Taylor Genz, Cassandra Julich, and
Logan Genz.
circuit court granted a motion to dismiss at the close of appellants’ case-in-chief. The court

also adopted the plan for distribution of the trust assets proposed by Amy. We affirm.

The decedent and Kathern married and had two children before divorcing in 1994.

The decedent and Amy had been in a relationship approximately eighteen years when the

decedent’s estate plan was created. The decedent and Amy would later marry in December

2015, shortly before the decedent’s death in February 2016.

The James E. Cooksey Trust was executed in March 2010. At the time of the

creation of the trust, the decedent owned several tracts of real property. As pertinent to this

appeal, the decedent owned two 40-acre tracts, referred to as the homestead property. This

property was conveyed to the trust by quitclaim deed contemporaneously with the

execution of the trust. The homestead property was located near another 121-acre tract the

decedent owned that had been in his family for many years. The 121-acre tract was also

conveyed to the trust. The decedent also executed a beneficiary deed conveying his

residence and an adjacent 40-acre tract (the residence property) to Amy upon his death.

At the time of his death, the decedent and Kathern each held an interest in the farm

where Teresa and Jerry Genz lived. That property, referred to as the Genz farm, had been

foreclosed upon and then had been purchased by the decedent and Kathern. Testimony was

presented that there was an agreement between the decedent, Kathern, Teresa, and Jerry in

which the decedent and Kathern would borrow the funds to make the purchase and Teresa

and Jerry would make the payments. According to appellants, the decedent and Kathern

were advised that the property would be conveyed to them as joint tenants with right of

survivorship and that this information was passed to the circuit court clerk for preparation

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of the commissioner’s deed. However, the commissioner’s deed ultimately conveyed the

property to the decedent and Kathern without specifying the type of tenancy conveyed.

The trust provided that upon the decedent’s death, his assets would be distributed

as follows: (1) certain personal property, including horses, tack, horse trailers, a bobcat

loader, a pickup truck, and all household goods and furnishings—with the exception of

antiques and family heirlooms—were to be distributed to Amy; (2) machinery and

equipment were to be sold and the proceeds equally divided between Amy, Teresa, and

Lance; (3) all cattle were to be distributed to Teresa and her children; (4) all family antiques

and heirlooms were to be distributed to Teresa; (5) all bank accounts, stocks, and life

insurance proceeds were to go to Amy; (6) the 121-acre parcel was to be distributed to

Teresa and her children as joint tenants with right of survivorship; (7) all the remaining trust

assets were to be divided equally between Amy and Teresa. The trust was silent as to the

decedent’s interest in the Genz farm.

The trust named the decedent as trustee during his lifetime. After his death, Amy and

Teresa were to serve jointly as cotrustees. If either Amy or Teresa was unwilling or unable

to serve, the other was to serve as sole successor trustee. The trustees were to account to the

beneficiaries at least quarterly.

The decedent executed a pourover will contemporaneously with the establishment

of the trust. All the decedent’s estate was bequeathed to the trust. Amy was appointed

executrix with Teresa named as substitute executrix.

Following the decedent’s death in February 2016, on May 20, Amy filed a petition

seeking to remove Teresa as cotrustee, alleging that Teresa refused to communicate and

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cooperate with her in the administration of the trust. Amy asserted that this was done in bad

faith to deprive her of assets she was entitled to under the trust. Teresa did not respond to

the petition, and by order entered on July 28, 2016, she was removed as cotrustee with Amy

remaining as the sole trustee.

On February 21, 2017, Amy, as trustee, executed a quitclaim deed conveying the

homestead property’s forty-acre pasture to Teresa. She also executed another quitclaim deed

conveying the actual homestead place to herself.

By agreement reached after Teresa obtained a temporary restraining order halting an

earlier sale, an auction of the decedent’s personal property was held in April 2017. Teresa

contended that some of the property to be sold was to be distributed to her under the trust.

The agreement was that Teresa could bid on any item that she claimed to be hers under the

trust and, if successful, would not be required to pay for such items on the day of the auction.

Amy later asserted that Teresa purchased items that were not antiques or family heirlooms,

while Teresa contended that she had to purchase lots in which antiques were comingled

with non-antiques. The upshot is that neither Teresa, Amy, nor Lance paid for their

purchases. The trust was owed approximately $45,000 for these purchases.

On May 16, Amy filed an affidavit for collection of small estate in the probate division

of circuit court. This companion case was later consolidated for trial with the trust case. In

her affidavit, Amy asserted that the decedent owned a one-half undivided interest in the

Genz farm property, and that under the decedent’s will, that interest would go to the trust.

On July 23, Teresa and Kathern filed a petition seeking reformation of the trust,

reformation of the commissioner’s deed, the removal of Amy as trustee, the imposition of a

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constructive trust, and damages for Amy’s breach of the trust. The petition alleged that there

had been a scrivener’s error concerning the homestead property intended for Teresa. The

petition sought reformation of the commissioner’s deed where the decedent and Kathern

purchased the Genz farm property at a foreclosure sale, asserting that the deed was intended

to convey the property as joint tenants with a right of survivorship but mistakenly named

them as tenants in common. The petition also alleged that Amy had breached her duties as

trustee in various ways and sought Amy’s removal as trustee and damages for her breach of

trust. The petition further asserted that a few days before his death, the decedent gave Teresa

his 2004 Dodge pickup truck. Jerry and the Genz children later filed separate petitions

seeking to reform the commissioner’s deed and to reform the trust and have Amy removed

as trustee.

The case proceeded to a bench trial on appellants’ petitions over several days in May

2018. Susan Fox, the attorney who prepared the trust, the will, the quitclaim deeds

conveying the real property to the trust, and other ancillary estate-planning documents,

admitted that she made a mistake concerning the homestead property in the trust. Fox

testified that the decedent wanted to keep the homestead property in his family and did not

intend for the homestead property to be distributed to Amy. Fox and other witnesses

testified that the decedent intended for Teresa to receive the property.

According to Teresa, Jerry, and Logan Genz, the decedent gave a 2004 Dodge pickup

truck to Teresa as a gift. Amy testified that the decedent had merely loaned the vehicle to

Teresa.

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There was also testimony from Kathern, Teresa, Jerry, and a bank loan officer about

the agreement concerning the purchase of the Genz farm property wherein the decedent

and Kathern would borrow the funds to purchase the property at a foreclosure sale and

Teresa and Jerry would make the payments. These witnesses testified that it was intended

that the property would be conveyed to the decedent and Kathern as joint tenants with

right of survivorship.

At the close of appellants’ case-in-chief, Amy moved for an involuntary dismissal.2

Amy argued that she was entitled to dismissal of the claim for reformation of the

commissioner’s deed because there was no evidence that a mistake was made in the

conveyance. On the claim for reformation of the trust, Amy further argued that there was

no evidence of a scrivener’s error or that the final draft of the trust was inconsistent with the

decedent’s intentions. Amy also commented on the credibility of Susan Fox. Amy next

argued that she was entitled to a dismissal on appellants’ claims against her as trustee because

appellants had failed to prove their damages resulting from her alleged breaches of the trust.

Appellants responded, arguing that they presented sufficient evidence to show that they

were entitled to the relief sought. They also argued that the scrivener’s error was precisely

the situation for which reformation applied. Appellants further argued that the court should

impose a constructive trust on the Genz farm property. The court granted the motion for

the reasons argued by Amy.

2
Actually, Amy moved for a “directed verdict” at the close of appellants’ case-in-
chief. The proper motion to challenge the sufficiency of an opponent’s evidence in a
nonjury case is a motion to dismiss. Phillips v. Denton, 2018 Ark. App. 90, at 5, 543 S.W.3d
508, 511.

6
Amy then proceeded to testify about her proposed distribution of the trust assets.

Amy testified that she sought reimbursement for certain expenses as trustee. Her proposed

distribution plan is summarized in an exhibit admitted into evidence. Part of the plan

involved the debt for items purchased at the April 2017 auction. Amy owed $24,975; Lance

Cooksey owed $19,559; and Teresa owed approximately $1,150. These sums, together with

a bank account having a balance of $24,964.70, represented the trust’s total liquid assets of

$70,647. Amy testified that if the sums were collected from her, Teresa, and Lance, each

beneficiary would receive approximately $23,550 before adjustments for expenses were

made. According to Amy’s exhibit, after adjustments, she would receive approximately

$5,800; Teresa would receive approximately $16,000; and Lance would receive

approximately $3,200. This approximately equaled the amount of the bank account. Amy

also sought a trustee’s fee of $21,000 and an attorney’s fee of over $40,000. As something

of a final summation, Amy’s attorney proposed as an equitable solution that Amy retain the

bank account, “call everything else even, everybody keep what they got, nobody owes

anything.” The circuit court agreed with this suggestion.

On May 29, 2018, prior to the entry of the court’s order, appellants filed their

Arkansas Rule of Civil Procedure 52(a) motion for specific findings of fact and conclusions

of law on seven questions. Amy argued in response that because the court granted a motion

for involuntary dismissal of appellants’ petitions, no findings were required.

On June 4, the circuit court entered three orders deciding the outstanding issues.

The first order memorialized the court’s ruling in the trust case dismissing appellants’

petitions. The court found that Amy’s proposed distribution was appropriate and directed

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that it be made. The court further found that Amy had discharged her duties as trustee and

was entitled to a trustee’s fee and an attorney’s fee. The court noted that Amy was seeking

a trustee’s fee of $20,000 and an attorney’s fee of $40,000. The court found that the trust’s

only liquid asset was a bank account with a balance of $24,964.70 and set this sum off to

Amy as partial compensation of the trustee’s fee, the attorney’s fee, and other sums awarded

Amy. All other trust assets were determined to be owned by the party in possession of those

assets. Neither Amy, Teresa, nor Lance was required to pay the trust for any unpaid sums

from their purchase of trust assets at the April 2017 auction.

The second order was entered in the companion probate case. There, the court found

that the decedent’s one-half undivided interest in the foreclosure property (Genz farm) was,

under the decedent’s will, vested in the trust.

Finally, the court entered its order denying appellants’ motion for findings under

Rule 52(a) “for the reasons set out in [Amy’s] response.” After the court denied appellants’

Rule 52(b) motions seeking to alter or amend the orders, this appeal followed.

As mentioned at the outset, this case was decided by the circuit court’s granting

Amy’s motion to dismiss appellants’ petitions at the close of appellants’ case-in-chief.

However, both parties argue this case on appeal as if the circuit court had decided the case

on the merits instead of on a motion to dismiss. 3 This is understandable as Amy had testified

as part of appellants’ case-in-chief, and after appellants rested their case, the court inquired

of Amy’s attorney whether he had any further questions for Amy. He did not. The record

3
In their reply brief, appellants do argue that the circuit court erred in granting a
“directed verdict.”

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contains no indication that Amy had any other witnesses to offer. Moreover, some of the

circuit court’s comments from the bench appear as if they were rulings on the merits. As

will be seen, this has consequences for our consideration of this appeal. See Rymor Builders

v. Tanglewood Plumbing Co., 100 Ark. App. 141, 265 S.W.3d 151 (2007).

The courts of equity have exclusive jurisdiction in cases involving matters of the

construction, interpretation, and operation of trusts. Fisher v. Boling, 2019 Ark. App. 225,

575 S.W.3d 592. We conduct a de novo review on the record of matters that sound in

equity and will not reverse a finding by a circuit court in an equity case unless it is clearly

erroneous. Id. A finding is clearly erroneous when, even though there is some evidence to

support it, the appellate court is left with the definite and firm conviction that a mistake has

been made. Id. Likewise, the standard of review on appeal in reformation cases is de novo.

Longing Fam. Revocable Tr. v. Snowden, 2013 Ark. App. 81, 426 S.W.3d 488.

Appellants first argue that the circuit court erred in failing to reform the trust. They

argue that they presented sufficient evidence to warrant reformation of the trust. Appellants

contend that it was the decedent’s intention that Teresa and her children receive the 200-

acre “homestead” property and that the trust mistakenly referred to the 121-acre parcel

instead.

The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is

adequate grounds for relief provided only that the writing fails to reflect the parties’ true

understanding. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). Susan Fox, the

attorney who prepared the trust and deeds conveying the real property to the trust, admitted

9
that she had made a mistake in describing certain property in the trust and deeds. Fox and

other witnesses testified that the decedent intended for Teresa to receive the property.

We cannot reverse the circuit court’s order on this issue even though the court erred

in its ruling on the motion to dismiss. In making the motion at the close of appellants’ case-

in-chief, Amy’s attorney commented on Fox’s credibility. In granting the motion, the

circuit court stated that it “hate[d] to comment on the credibility of Ms. Fox’s testimony”

concerning events that occurred nine years earlier before saying that it was impressed with

Fox’s recollection on direct testimony and less so with her testimony on cross-examination.

The credibility of the witnesses is a matter for the court acting as a finder of fact at

the close of all the evidence, not as a matter for the court in evaluating whether the

petitioner had presented a prima facie case for purposes of a motion to dismiss. See Rymor

Builders, supra (holding circuit court erred in weighing credibility of evidence on a motion

to dismiss at close of plaintiff’s case-in-chief). Here, the circuit court erred when it made a

premature credibility finding. However, appellants do not seek reversal on that basis.

Instead, they rely on Fox’s admission of a mistake to argue that a scrivener’s error is sufficient

to justify reformation. But appellants’ claim for reformation based on a scrivener’s error turns

on that very finding, albeit prematurely made, on the scrivener’s credibility. Moreover,

appellants’ argument is basically a request that this court reweigh the evidence differently

than the circuit court. Arguments asking that we reweigh the evidence are not reversible-

error arguments. Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, at 15, 554 S.W.3d

285, 294. This court cannot act as a super fact-finder or second-guess the circuit court’s

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credibility determination. Id. When there are two permissible views of the evidence, the

fact-finder’s choice between them cannot be clearly erroneous. Rymor Builders, supra.

Appellants’ second point is that the circuit court erred in failing to reform the

commissioner’s deed or impose a constructive trust on the Genz farm. The court in the trust

case denied reformation, finding that there was no evidence that a mistake was made in the

commissioner’s deed, while the probate court ruled that the decedent’s interest in the Genz

farm passed to the trust under the provisions of his will.

In 1988, Teresa and Jerry purchased the Genz farm from Jerry’s parents. In 2009,

they defaulted on their mortgage and the bank foreclosed. The decedent, Kathern, Teresa,

and Jerry came up with a plan, approved by the bank, in which the decedent and Kathern

would purchase the property at the foreclosure sale, finance it in their own names, and have

Teresa and Jerry make the payments. On July 18, 2009, the circuit clerk issued the

commissioner’s deed, naming the grantees as “James E. and Kathern Cooksey” without

further designation.

Under Arkansas law, a deed to two or more persons presumptively creates a tenancy

in common unless the deed expressly creates a joint tenancy. Ark. Code Ann. § 18-12-603

(Repl. 2015). 4 Section 18-12-603 provides a rule of construction that presumptively

construes an instrument to create a tenancy in common rather than a joint tenancy. Tripp v.

Miller, 82 Ark. App. 236, 244, 105 S.W.3d 804, 810 (2003). In judicial sales, such as

foreclosure sales, the court itself is the vendor. Midfirst Bank v. Sumpter, 2016 Ark. App. 552,

4
That section reads as follows: “Every interest in real estate granted or devised to two
(2) or more persons, other than executors and trustees as such, shall be in tenancy in
common unless expressly declared in the grant or devise to be a joint tenancy.”

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508 S.W.3d 69. The question of whether a survivorship interest was intended should be

determined from the four corners of the deed. Brissett v. Sykes, 313 Ark. 515, 518, 855

S.W.2d 330, 332 (1993). Here, nothing appears from the four corners of the commissioner’s

deed in this case showing that the foreclosure court intended to convey a survivorship

interest to the decedent and Kathern. Even if there were such evidence of the foreclosure

court’s intention, it cannot prevail over the statute. To allow that would be to render section

18-12-603 meaningless. James v. Taylor, 62 Ark. App. 130, 969 S.W.2d 672 (1998).

Because the commissioner’s deed is silent and does not specify the tenancy conveyed

to the decedent and Kathern, section 18-12-603 applies, and the result is that the decedent

and Kathern took the property as tenants in common, not as joint tenants with right of

survivorship. Upon the decedent’s death, his undivided one-half interest in the property

passed to the trust under the provisions of his will. Therefore, the circuit court reached the

correct result in denying reformation.

We cannot consider appellants’ alternative argument under this point—that the

circuit court erred in failing to impose a constructive trust in their favor—because the court

never specifically addressed appellants’ request. In the order entered in the trust case, the

court stated that the issue of the reformation of the commissioner’s deed was decided in the

companion probate case. The order in the probate case merely stated that the real property

described in the order was vested in the trust pursuant to the will.

This argument is not preserved for our review because the circuit court never made

a clear, specific ruling on the imposition of a constructive trust. It is an appellant’s

responsibility to obtain a ruling to preserve an issue for appeal, and appellants’ failure to

12
obtain a ruling precludes our review on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark.

202, at 9, 427 S.W.3d 651, 657.

Appellants next argue that Teresa proved by clear and convincing evidence that the

decedent made a gift of the 2004 pickup truck to her. This argument is likewise not

preserved for our review because the circuit court never made a specific ruling on whether

there was a gift of the truck to Teresa. Id.

For their fourth point, appellants argue that the circuit court erred in denying their

posttrial motion for findings of fact and conclusions of law under Ark. R. Civ. P. 52(a).

They argue that the rule is mandatory if the motion requesting the findings is filed prior to

entry of judgment. We find no error on this point.

Rule 52 provides in pertinent part as follows:

(a)(1) Effect. If requested by a party at any time prior to entry of judgment, in
all contested actions tried upon the facts without a jury, the court shall find the facts
specially and state separately its conclusions of law thereon and judgment shall be
entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions,
the court shall similarly set forth the findings of fact and conclusions of law which
constitute the grounds of its action. . . . Findings of fact and conclusions of law are
unnecessary on decisions of motions under these rules.

Ark. R. Civ. P. 52(a)(1) (emphasis added).

Other than a reference to Rule 52, appellants cite no authority in support of their

argument. We have held that we will not consider a point raised on appeal where the

appellant fails to cite authority or make any convincing argument to support the point. Se.

Ark. Landfill, Inc. v. State, 313 Ark. 669, 676, 858 S.W.2d 665, 669 (1993). Moreover,

appellants’ argument ignores the rule’s emphasized language above that the circuit court is

not required to make findings when ruling on motions. Instead, their entire argument rests

13
on the presence of the word “shall,” requiring the circuit court to make findings if they are

timely requested. This results in appellants’ failure to address the circuit court’s basis for the

denial of their motion—that findings are not required when the court is ruling on a motion.

In their fifth point, appellants assert that the circuit court erred in failing to hold Amy

accountable as trustee because she violated her duties as trustee by self-dealing and acting in

her own personal interest. We disagree.

At the close of appellants’ case-in-chief, Amy moved for dismissal on the basis that

appellants had failed to prove they were damaged by her alleged breaches of both the trust

and her duties under the trust. In granting the motion on this point, the circuit court stated

that “not only do I agree with the damages argument that [Amy’s attorney] made but I also

think that bad faith has not been shown.” However, appellants’ entire argument on this

point is a discussion of the evidence that they contend shows that Amy breached her duties

as trustee and acted in bad faith. Examples include failing to provide accountings to the

beneficiaries and commingling her individual assets with trust assets. The only evidence they

cite pertaining to damages was a loss of hay sales in the gross amount of $21,000 because

Amy allegedly locked a gate blocking access to the fields.

By failing to discuss the evidence that they claim supports an award of damages for

Amy’s alleged breach of the trust, appellants have failed to make a convincing argument for

reversal on this point. See Wilson v. Wilson, 2016 Ark. App. 191, at 10, 487 S.W.3d 420,

426–27. It is well settled that we will not consider assignments of error that are unsupported

by convincing argument or sufficient legal authority. Pilcher v. Suttle Equip. Co., 365 Ark.

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1, 6, 223 S.W.3d 789, 793 (2006). We will not do appellants’ research for them. Id.

Therefore, we do not address the merits of this argument. Id.

Finally, in their sixth point, appellants assert that the circuit court’s final distribution

of the trust assets and the award of trustee’s fees and attorney’s fees to Amy are clearly

erroneous. They argue that Amy, Teresa, and Lance should have been required to pay the

trust for the items they purchased at the auction and that some of the attorney’s fees Amy

sought were for her personal interests. Appellants contend that if the trust were repaid, there

would be funds to distribute to the beneficiaries. They further argue that this would be true

even if Amy were awarded all the claimed trustee’s fees and attorney’s fees.

While we conduct a de novo review on the record of matters that sound in equity,

we will not reverse a finding by a circuit court in an equity case unless it is clearly erroneous.

Fisher, supra. A finding is clearly erroneous when, even though there is some evidence to

support it, the appellate court is left with the definite and firm conviction that a mistake has

been made. Id. At trial, Amy testified that she owed $24,975 for items purchased at the April

2017 auction; Lance owed $19,559; and Teresa owed approximately $1,150. These sums,

together with a bank account having a balance of $24,964.70, represented the trust’s total

liquid assets of $70,647. Amy testified that if the sums were collected from herself, Teresa,

and Lance, each beneficiary would receive approximately $23,550 before adjustments for

expenses were made. According to Amy and her exhibit, after adjustments, she would

receive approximately $5,800; Teresa would receive approximately $16,000; and Lance

would receive approximately $3,200. By focusing only on the debts owed to the trust and

the bank account, appellants ignore a key fact—that under the trust, Amy was to receive all

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bank accounts. We are not left with a definite and firm conviction that a mistake has been

made here.

Moreover, there was also testimony that other personal property had been delivered

to Teresa and the other beneficiaries. Teresa disputed that all such property had been

delivered to her. There were no values placed on these other items. The circuit court

considered the equities of the situation, such as the expense of further litigation, and

concluded that it would be more equitable to all parties to end the litigation by allowing

each party to keep the property in his or her possession free from any debt that may be

owed to the trust. We cannot say that the circuit court clearly erred in its conclusion that

this was an equitable resolution of the trust.

As for the attorney’s fees, we review the circuit court’s decision to award attorney’s

fees for an abuse of discretion. In re Hamilton Living Tr., 2015 Ark. 367, at 8, 471 S.W.3d

203, 209. A circuit court hearing a trust case can award attorney’s fees simply on the equities

of the case. Ark. Code Ann. § 28-73-1004 (Repl. 2012). There is nothing to indicate that

the court failed to consider that some of the fees were incurred for Amy’s personal interest

or that it made the award without due consideration. Thus, the court’s fee award was not

an abuse of its discretion. Hamilton Living Tr., supra.

Affirmed.

BARRETT and VAUGHT, JJ., agree.

Tamra Cochran, P.A., by: Tamra Cochran, for appellants.

Smith, Cohen & Horan, PLC, by; Matthew T. Horan; and Everett Law Firm, by: John

C. Everett, for appellee.

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