{ "id": 226559, "name": "BOATMEN'S TRUST COMPANY of ARKANSAS n/k/a Bank of America, N.A., as Trustee of the Trust Agreements of N.B. Dalton v. Harris J. BUCHBINDER, Personal Representative of the Estate of Barbara D. Blaisdell; Lyle B. Thompson; and Barbara Laney and David Thompson", "name_abbreviation": "Boatmen's Trust Co. v. Buchbinder", "decision_date": "2000-11-30", "docket_number": "00-290", "first_page": "1", "last_page": "7", "citations": [ { "type": "official", "cite": "343 Ark. 1" }, { "type": "parallel", "cite": "32 S.W.3d 466" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "312 Ark. 363", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935141 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "368" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0363-01" ] }, { "cite": "295 Ark. 560", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893790 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0560-01" ] }, { "cite": "304 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881070 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0227-01" ] }, { "cite": "315 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910535 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "185-86" }, { "page": "379" }, { "page": "185-86" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0178-01" ] }, { "cite": "334 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655503 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "179", "parenthetical": "citing Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)" }, { "page": "781", "parenthetical": "citing Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)" } ], "opinion_index": 0, "case_paths": [ "/ark/334/0172-01" ] }, { "cite": "342 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342369 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "642" }, { "page": "713" }, { "page": "641" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0632-01" ] } ], "analysis": { "cardinality": 611, "char_count": 10896, "ocr_confidence": 0.758, "pagerank": { "raw": 1.0994889620930655e-07, "percentile": 0.5676763394313723 }, "sha256": "45403aacfb8d9f8d1ee3fbff0fac18dc63b82601d343887c4ee90dcfac816360", "simhash": "1:09a9ac75ed1d1217", "word_count": 1720 }, "last_updated": "2023-07-14T16:43:01.373813+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., dissents." ], "parties": [ "BOATMEN\u2019S TRUST COMPANY of ARKANSAS n/k/a Bank of America, N.A., as Trustee of the Trust Agreements of N.B. Dalton v. Harris J. BUCHBINDER, Personal Representative of the Estate of Barbara D. Blaisdell; Lyle B. Thompson; and Barbara Laney and David Thompson" ], "opinions": [ { "text": "WH. \u201cDub\u201d Arnold, Chief Justice.\nAs trustee of the estate of N.B. Dalton, also known as Barbara D. Blaisdell, appellant Bank of America, N.A. seeks to reverse the Pulaski County Chancery Court\u2019s order finding that its award of attorney\u2019s fees in the amount of $206,952.05 can only be recovered from appellee Lyle B. Thompson, the estate\u2019s personal representative from 1996 until his removal on August 13, 1998. Lyle Thompson is Blaisdell\u2019s son and a beneficiary of her estate. On appeal, Bank of America argues that it should be permitted to recover fees from the estate pursuant to Ark. Code Ann. sections 28-70-113 and 16-22-308 and under equitable principles. In response, appellees, Harris J. Buchbinder, who succeeded Thompson as the estate\u2019s personal representative, and Barbara Laney and David Thompson, Blaisdell\u2019s grandchildren and beneficiaries of the estate, contend that the trial court properly found that Lyle Thompson should be solely responsible for payment of the fees.\nLyle Thompson advances appellant\u2019s argument and maintains that any attorney\u2019s fee award should be borne by the estate and the beneficiaries who benefitted from any litigation. However, we do not consider the merits of Thompson\u2019s arguments on appeal in light of our decision in Buchbinder v. Bank of America, N.A., 342 Ark. 632, 30 S.W.3d 707 (2000). In Buchbinder, we acknowledged that the Court of Appeals dismissed Thompson\u2019s appeal of the trial court\u2019s order assessing attorney\u2019s fees against him because his notice of appeal was untimely. Id., 342 Ark. at 642, 30 S.W.3d at 713. After considering appellant\u2019s arguments and those of the remaining appellees, we cannot say that the trial court abused its discretion by awarding Bank of America attorney\u2019s fees recoverable only against Lyle Thompson.\nI. Standard of review\nThe decision to award attorney\u2019s fees and the amount of an award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 179, 971 S.W.2d 777, 781 (1998) (citing Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Moreover, it is well settled that under Arkansas law attorney\u2019s fees are awarded only when expressly authorized by a statute or rule. Id. Given the trial court\u2019s intimate acquaintance with the record and the quality of services rendered, we generally defer to the trial court\u2019s superior perspective in awarding fees. Security Pac. Housing, 315 Ark. at 185-86, 866 S.W.2d at 379.\nII. Section 28-70-113(c)(2)\nArkansas Code Annotated section 28-70-113 (1987) enumerates the permissible charges that can be made against a trust\u2019s income and principal. In particular, subsection (c)(2) authorizes a charge against trust principal for:\nCharges not provided for in subsection (a) [charges against income], including the cost of investing and reinvesting principal, the payments on principal of an indebtedness (including a mortgage amortized by periodic payments of principal), expenses for preparation of property for rental or sale, and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust or protect it or the property or assure the title of any trust property[.]\n(Emphasis added.) Section 28-70-113(c)(2) clearly empowers the trial court to make an award against principal or, as here, to direct \u201cotherwise\u201d by requiring the expenses to be assessed against the estate\u2019s personal representative, individually.\nWe have long recognized that in determining reasonable attorney\u2019s fees, the trial court considers the character of the services, the time and trouble involved, the skill and experience required, the professional character, judgment, and responsibility of the attorneys, the results achieved, the attorneys\u2019 estimations of the value of their services, and an estimate of other attorneys familiar with the relevant facts. State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988). As a result, we grant considerable weight to the opinion of the chancellor before whom the proceedings have been conducted. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).\nIn the instant case, appellant filed a petition for attorney\u2019s fees and expenses arising from four separate lawsuits and related trust-administration issues. One suit was litigated in a Georgia United States District Court, a second in an Arkansas United States District Court, a third in the Pulaski County Chancery Court, and a fourth in the Garland County Circuit Court. The federal actions and the state circuit-court action all involved Thompson\u2019s attempts to compel Bank of America to compensate the trust for the amount of payments that he and Blaisdell received from the trustee at their own request and later claimed were disbursed in violation of the trust. On appeal in Buchbinder, we held that Thompson\u2019s knowing consent, manifested by his acquiescence and actual demand for payments he later challenged, precluded a subsequent action against the trustee to enforce the trust\u2019s terms. Buchbinder, 342 Ark. at 641, 30 S.W.3d at 712.\nHere, the chancellor sat through multiple hearings, a three-day trial, and reviewed numerous billing-statement summaries. Based on the nature of the proceedings, Thompson\u2019s role in the litigation, our decision in Buchbinder, and the authority of Ark. Code Ann. section 28-70-113(c)(2), we cannot say that appellants have demonstrated any abuse of discretion in the trial court\u2019s decision to allocate to Lyle Thompson sole responsibility for payment of the attorney\u2019s fee award.\nIII. Other issues\nThe Restatement (Second) of Trusts \u00a7 259 (1959) and Ark. Code Ann. section 16-22-308 (Repl. 1999) form the basis of appellant\u2019s remaining arguments challenging responsibility for the award\u2019s payment. First, appellant-cites \u00a7 259 of the Restatement to bolster its argument that it was entitled to a fee award payable from the trust. Section 259 permits a trustee to apply to the court for instructions as to the trust\u2019s administration when there is a reasonable doubt as to its duties or powers as trustee. Comment (a) authorizes costs incurred in such an application to be payable out of the trust estate, \u201cunless the application for instructions was plainly unwarranted so that it was improper for the trustee to incur the expense of making the application.\u201d Restatement (Second) of Trusts \u00a7 259 cmt. a (1959).\nIn response, appellees point to theRestatement (Second) of Trusts \u00a7 201 cmt. b (1959), which cautions a trustee to protect itself by obtaining instructions from the court if it is in doubt as to the instrument\u2019s interpretation. Absent a request, the trustee is not shielded from liability merely because he \u201cacts in good faith, nor is he protected merely because he relies upon the advice of counsel.\u201d Id. The extent of the trustee\u2019s powers is established by the trust instrument and not by the trustee\u2019s own interpretation or belief as to the applicable rules of law. Id. Here, appellees observe that the trustee failed to seek and obtain any court approval prior to making distributions prohibited by the trust agreement. Consequently, appellees insist that the trial court did not abuse its discretion by refusing to allow the trustee to recover attorney\u2019s fees from the trust.\nSecond, appellant suggests that Ark. Code Ann. section 16-22-308 allows an award of attorney\u2019s fees to be paid from the trust and appellees Barbara Laney and David Thompson because the trustee was the prevailing party in a case involving alleged breaches of the terms of the trust agreement, a contract. Section 16-22-308 provides for attorney\u2019s fees in certain civil actions, including:\nany civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract. . . .\n(Emphasis added.) In any of the enumerated actions, the court may award a reasonable attorney\u2019s fee to the prevailing party, unless otherwise provided by law or the contract which is the subject matter of the action. Ark. Code Ann. \u00a7 16-22-308.\nThe total fee award of $206,952.05 included fees for actions filed in (1) Georgia federal court, (2) Arkansas circuit court, (3) Arkansas federal court, and (4) Arkansas chancery court. Significantly, the three actions filed prior to the chancery action were dismissed or nonsuited, and there was no prevailing party. As a result, section 16-22-308 does not authorize an assessment against the trust, Barbara Laney, or David Thompson for fees arising from those actions.\nHowever, the trustee claims that it prevailed in the chancery court action, while the trust, Barbara Laney, David Thompson, and Lyle Thompson were all unsuccessful litigants in that proceeding. Specifically, the trustee asserts that the chancery court\u2019s favorable treatment of the other appellees, by failing to assess fees against them, constituted an abuse of discretion. We disagree. Given the chancellor\u2019s intimate acquaintance with the litigation and the considerable weight afforded his opinion on whether to assess fees against a party, we cannot say that he abused his discretion in denying an award pursuant to section 16-22-308 or \u00a7 259 of the Restatement. See Security Pac. Housing, 315 Ark. at 185-86, 866 S.W.2d at 379; see also Crockett & Brown, P.A., 312 Ark. at 368, 849 S.W.2d at 941. In conclusion, we find no merit in appellant\u2019s arguments, and we affirm the trial court\u2019s award of attorney\u2019s fees to be payable solely by Lyle B. Thompson.\nAffirmed.\nGlaze, J., dissents.\nNotably, the Revised Uniform Principal and Income Act, including Ark. Code Ann. sections 28-70-101 to -119 (1987 & Supp. 1999), was repealed effective January 1, 2000. The new act, codified at Ark. Code Ann. sections 28-70-101 to 28-70-605 (Supp. 1999), became effective on January 1, 2000.", "type": "majority", "author": "WH. \u201cDub\u201d Arnold, Chief Justice." } ], "attorneys": [ "Wright, Lindsey & Jennings LLP, by: David M. Powell, Charles L. Schlumberger, Judy Simmons Henry, and Stephen R. Lancaster, for appellant.", "Shults Law Firm, LLP, by: Steve Shults and Reed R. Edwards, for appellee Harris J. Buchbinder, Personal Representative of the Estate of Barbara D. Blaisdell.", "Charles J. Lincoln, P.A., for appellee Lyle B. Thompson.", "Williams & Anderson LLP, by: Peter G. Kumpe and Stephen B. Niswanger, for appellees Barbara Laney and David Thompson." ], "corrections": "", "head_matter": "BOATMEN\u2019S TRUST COMPANY of ARKANSAS n/k/a Bank of America, N.A., as Trustee of the Trust Agreements of N.B. Dalton v. Harris J. BUCHBINDER, Personal Representative of the Estate of Barbara D. Blaisdell; Lyle B. Thompson; and Barbara Laney and David Thompson\n00-290\n32 S.W.3d 466\nSupreme Court of Arkansas\nOpinion delivered November 30, 2000\nWright, Lindsey & Jennings LLP, by: David M. Powell, Charles L. Schlumberger, Judy Simmons Henry, and Stephen R. Lancaster, for appellant.\nShults Law Firm, LLP, by: Steve Shults and Reed R. Edwards, for appellee Harris J. Buchbinder, Personal Representative of the Estate of Barbara D. Blaisdell.\nCharles J. Lincoln, P.A., for appellee Lyle B. Thompson.\nWilliams & Anderson LLP, by: Peter G. Kumpe and Stephen B. Niswanger, for appellees Barbara Laney and David Thompson." }, "file_name": "0001-01", "first_page_order": 27, "last_page_order": 33 }