Carlton v. Rice

Cite as 2016 Ark. App. 48

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-516
Opinion Delivered January 27, 2016

MARION CARLTON AS TRUSTEE APPEAL FROM THE LONOKE
OF THE RICE INTER VIVOS REAL COUNTY CIRCUIT COURT
ESTATE TRUST, AS TRUSTEE OF [NOS. PR-04-309 AND PR-09-334]
EUGENE RICE FAMILY TRUST,
AND AS TRUSTEE OF THE BERTHA HONORABLE WILL FELAND, JUDGE
RICE FAMILY TRUST
REVERSED AND REMANDED
APPELLANT

V.

GRACE ELLEN RICE
APPELLEE

DAVID M. GLOVER, Judge
Marion Carlton appeals from the trial court’s December 30, 2014 order removing

her as trustee of three trusts (the Rice Inter Vivos Real Estate Trust, the Eugene Rice Family

Trust, and the Bertha Rice Family Trust) and directing that a third-party administrator and

trustee be appointed by agreement of the parties. Marion raises three points: 1) the trial

court erred by denying her due-process rights; 2) if the order is deemed to have constituted

a denial of her motion to dismiss, the trial court erred by not granting appellant her right to

file a responsive pleading in opposition to the petition for removal; and 3) the trial court

erred by not specifying which of the four bases for removal pursuant to Arkansas Code

Annotated section 28-73-706(b) were relied upon. We reverse and remand.
Cite as 2016 Ark. App. 48

Bertha and Eugene Rice (both of whom are deceased) had three children: Jerry

Rice, appellant Marion, and appellee Grace Ellen Rice. Bertha and Eugene created the

three trusts involved in this appeal, and they named Marion as the trustee for each of the

trusts.

On May 30, 2014, Grace Ellen filed a petition for the removal of Marion as trustee

and for the appointment of a third-party administrator and trustee. She alleged eight counts

as the bases for removal. On June 13, 2014, Marion filed a motion to dismiss Grace Ellen’s

petition for removal, arguing that all eight counts of the petition should be dismissed based

on the doctrine of res judicata and/or Rule 12(b)(6) of the Arkansas Rules of Civil

Procedure. Grace Ellen responded to the motion to dismiss, arguing that res judicata did

not apply and that she had alleged sufficient facts to survive Marion’s Rule 12(b)(6)

challenge.

A joint hearing on the motion to dismiss and a subsequently filed motion to compel

discovery was originally scheduled for October 9, 2014, but the hearing never took place

because Marion’s counsel was involved in an automobile accident. Thereafter, it was agreed

that the trial court would rule on both motions without further briefs and without a hearing.

However, without first specifically ruling on either motion, the trial court entered the

December 30, 2014 order that removed Marion as trustee for the trusts. Marion

immediately filed a motion to set aside the order. The gist of her motion to set aside

contended that, while the parties had agreed for the trial court to rule on the motion to

dismiss and the motion to compel without further hearing, she had never waived a hearing

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Cite as 2016 Ark. App. 48

on the petition for removal itself. The trial court did not actually rule on Marion’s motion

to set aside, making it deemed denied thirty days thereafter, and this appeal followed.

Although Marion raises three points of appeal, we have concluded it is her second

point that is dispositive of this case and requires us to reverse and remand for further

proceedings consistent with this opinion. In her second point, she contends the trial court

erred in not allowing her to file a responsive pleading to the petition seeking her removal

as trustee. We agree.

Marion relies upon Rule 12(a)(2)(A) of the Arkansas Rules of Civil Procedure, which

provides as follows:

(2) The filing of a motion permitted under this rule alters these periods of
time as follows, unless a different time is fixed by order of the court: (A) if the court
denies the motion or postpones its disposition until the trial on the merits, the
responsive pleading shall be filed within 10 days after notice of the court’s action[.]

Here, whether the December 30 order is regarded as encompassing a denial of Marion’s

motion to dismiss or ignoring it, the end result is the same. The petition for removal was

granted and Marion was removed as trustee of each of the trusts without ever having the

opportunity to file a responsive pleading to the petition seeking her removal. Subsection

(a)(2)(A) of Arkansas Rule of Civil Procedure 12 is both clear and plain. In granting the

petition for removal in this fashion, the trial court short-circuited our procedural rules.

Therefore, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.
HARRISON and HIXSON, JJ., agree.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD., by: Traci LaCerra, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Christopher A. McNulty, for
appellee.

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