                                Cite as 2016 Ark. App. 423


                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                     No. CV-15-588



                                                 Opinion Delivered   September 21, 2016

   ALISON ASHLEY PECK, as a                      APPEAL FROM THE PULASKI
   QUALIFIED BENEFICIARY OF THE                  COUNTY CIRCUIT COURT,
   PECK FAMILY TRUST and THE                     SIXTH DIVISION
   PECK MARITAL TRUST, AND IN                    [NO. 60CV-14-1883]
   HER INDIVIDUAL CAPACITY
                    APPELLANT

   V.

   HANNAH PECK a/k/a HANNAH                      HONORABLE TIMOTHY DAVIS
   FINLEY, INDIVIDUALLY, AND AS                  FOX, JUDGE
   TRUSTEE OF THE PECK FAMILY
   TRUST U/D JUNE 15, 2001, AND
   AS TRUSTEE OF THE PECK
   MARITAL TRUST
                    APPELLEE                     REVERSED AND REMANDED


                           PHILLIP F. WHITEAKER, Judge


        Alison Peck brings this appeal from the order of the Pulaski County Circuit Court

dismissing her first amended complaint against appellee Hannah Peck Finley where she

alleged that Finley breached her fiduciary duties to Alison under a family trust. We hold

that the circuit court did not conduct a proper analysis of the motion to dismiss; therefore,

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




                                             1
                                    Cite as 2016 Ark. App. 423

                               I.        Factual and Procedural History

       The current appeal is a part of a series of litigation over the Peck Family Trust and

the Peck Marital Trust created by Robert Peck. Robert Peck was the father of Alison and

the husband of Finley. He created the Peck Family Trust, a revocable trust, on May 8,

2001. 1 Robert created the trust for the purpose of providing for the support, education,

maintenance, and preservation of the health of Finley during her lifetime. Robert was to be

the trustee during his lifetime, with Finley named as trustee upon his death. Robert also

created trust provisions for his children. Upon the death of Finley, the trust assets were to

be divided among beneficiaries, including Alison. Robert Peck passed away in 2006 and

was survived by Finley, Alison, and his other three children. 2

       After Robert’s death, issues arose concerning the assets of the trust. In particular, the

ownership of a mobile by Alexander Calder known as “Autumn Leaves” (“the Calder”) was

questioned. The Calder was purchased by Robert’s parents in the 1950s, and Robert had

possession of the Calder after their deaths. Upon Robert’s death, Finley assumed possession

of the Calder. Finley maintained that she received the Calder under her husband’s will. 3

Finley eventually sold the Calder for $3.3 million net after commissions. Finley deposited




       1
        On June 15, 2001, Robert Peck created another Peck Family Trust that appears to
be identical to the May 8, 2001 trust.
       2
           Alison’s siblings are Capi Peck Peterson, Ashley Peck O’Dell, and Tony Peck.

       3
        In January 2005, Robert Peck amended and restated the May 2001 trust. He also
executed a will that left all artwork and most of his other personal property to Finley if she
should survive him.
                                                 2
                                  Cite as 2016 Ark. App. 423

the proceeds into her own personal account and not the account of the trust. Finley also

invested the proceeds, which resulted in some major losses.

       In May 2008, the first lawsuit in this series of litigation began. Finley filed a

declaratory-judgment action (the 2008 action) to determine ownership of the Calder. Finley

sued Alison and her three siblings, as well as her own children, as defendants. 4 Alison

defended the 2008 action, taking the position that Finley did not own the Calder but that

the Calder was instead owned by one of her siblings, Capi Peterson. Alison also filed a

counterclaim asserting that Finley had breached her fiduciary duties to her and her siblings,

that Finley was liable as trustee to them, and for an accounting. The 2008 action was

dismissed without prejudice in October 2009.

       In October 2010, the second lawsuit in this series of litigation occurred (the 2010

action). Capi Peterson filed an action against Finley, as trustee. 5 Peterson alleged that she

was the owner of the Calder as the recipient of an inter vivos gift, that Finley wrongfully

sold it to a third party, and that Finley was liable to Peterson for its value. Peterson sought

an accounting for the Peck Family Trust and damages for the sale of the Calder. Finley

answered the complaint and counterclaimed for a declaratory judgment to determine that

ownership of the Calder was in the Peck Family Trust and that Peterson had violated the

terms of a share-cancellation provision of the trust. After a bench trial, the circuit court

dismissed Peterson’s complaint, finding that the Calder was an asset of the trust, that there

was no evidence that Finley acted in bad faith or with reckless indifference with regard to


       4
           Finley’s children were also listed as beneficiaries under the Peck Family Trust.
       5
           Alison was not a party to the 2010 action.
                                                3
                                 Cite as 2016 Ark. App. 423

her trust duties, and that Peterson had forfeited her interests in the trust through the share-

cancellation provision and thus lacked standing to sue as a beneficiary of the trust.

       Peterson appealed, and we affirmed the circuit court. Peterson v. Peck, 2013 Ark. App.

666, 430 S.W.3d 797. In that case, we held that Peterson failed to prove the elements of an

inter vivos gift. We also affirmed the court’s determination that Peterson forfeited her

interest in the trust because her amended complaint questioned Finley’s actions as trustee

without any evidence that Finley had acted in bad faith.

       In May 2014, the current lawsuit in this series of litigation began. Alison originally

sued Finley seeking a declaratory judgment of Finley’s duties as trustee and her own rights

as a beneficiary to be kept promptly informed of all material information regarding

administration of the trust. Alison also asserted that Finley was required to produce reports

beginning in 2006 but failed to do so despite repeated requests, and that Finley acted in bad

faith and with reckless disregard of Alison’s rights and otherwise failed to administer the trust

in good faith.

       Finley adamantly defended the cause of action. Finley responded initially to Alison’s

original complaint with a motion to dismiss seeking dismissal under two theories. First, she

took the position that Alison was barred from asserting her claim by the savings statute.

Essentially, she argued that Alison filed a counterclaim in the 2008 lawsuit, voluntarily

nonsuited this claim, and failed to refile it within one year. As a result, she was precluded

from doing so now by the savings statute. Second, she took the position that Alison’s

pleadings in the 2008 action asserting that Peterson owned the Calder and that Finley had

breached her fiduciary duties triggered the share-cancellation provision of the trust, thus

                                               4
                                 Cite as 2016 Ark. App. 423

forfeiting her interest as a beneficiary and depriving Alison of standing. The circuit court

denied the motion to dismiss without explanation.

       Finley next answered the complaint, denying that Alison was a qualified beneficiary

of the trust or had standing to seek a declaratory judgment because of the prior 2008 action.

She also filed a motion for summary judgment, asserting that Alison’s interest in the trust

had been forfeited because of the prior 2008 litigation. Finley later amended her motion for

summary judgment, contending that the interests of Alison and her sister, Peterson, were so

intertwined that they stood in privity with each other and therefore res judicata barred

relitigation. The circuit court denied Finley’s motion and amended motion for summary

judgment by separate orders without explanation.

       After the denial of the summary-judgment motions, Alison amended her complaint,

seeking a declaratory judgment and adding claims for conversion, breach of fiduciary duty,

deceit, and unjust enrichment or the imposition of a constructive trust. She also sought an

accounting and punitive damages. Finley responded with a motion to dismiss, arguing that

Alison Peck was a contingent, rather than a qualified beneficiary, and, as such, lacked

standing to challenge Finley’s actions as trustee.

       The circuit court granted Finley’s motion to dismiss Alison’s first amended

complaint. The circuit court found that Alison had forfeited her right as a beneficiary under

the share-cancellation clause of the trust and was deprived of standing. The share-

cancellation clause of the Peck Family Trust provides as follows:

       4.9. Share Cancellation. Should any of Grantor’s children, or their issue, institute
       any action to challenge the provisions of the trusts established by this document, or
       to attack the validity of such trusts, or to remove Hannah Kay Peck as Trustee, or
       question her actions as Trustee, then, and in that event, the share to which such child
                                               5
                                   Cite as 2016 Ark. App. 423

       (or his or her issue) would otherwise be entitled, shall be forfeited and added to the
       shares of the remaining beneficiaries.

The circuit court recognized that the share-cancellation clause was at issue in the 2010

litigation. That litigation resulted in an appellate decision. The court then relied on what it

saw as our interpretation of the share-cancellation provision in the prior Peterson appeal that

the mere filing of an action challenging Finley’s actions as trustee triggered the share-

cancellation provision. The court granted the motion to dismiss with prejudice.

       Alison filed a motion for reconsideration, reasserting her argument that the share-

cancellation provision could not be applied to her because Arkansas Code Annotated section

28-73-1008(a)(1) (Repl. 2013) made such a provision unenforceable. 6 After the motion for

reconsideration was deemed denied, this appeal followed.

                                            II.       Analysis

       On appeal, Alison contends that the circuit court erred in dismissing her first

amended complaint based on the share-cancellation provision. She also argues, as she did

below, that the share-cancellation provision could not be applied to her because of Arkansas

Code Annotated section 28-73-1008(a)(1). She further argues that her amended complaint

stated sufficient facts to show that Finley acted in bad faith or with reckless indifference to

come within the ambit of section 28-73-1008. Finley responds by arguing that the circuit

court’s decision is supported both by the savings statute and by res judicata.




       6
          Section 28-73-1008(a)(1) provides that “[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[.]”
                                                  6
                                 Cite as 2016 Ark. App. 423

       We cannot consider the savings-statute and res-judicata issues raised by Finley.

Although Finley made these arguments to the circuit court below, she did so in her motion

to dismiss Alison’s original complaint and in her motions for summary judgment also

directed to the original complaint. The circuit court denied the motion to dismiss the

original complaint and the motions for summary judgment as to the original complaint. By

doing so, the circuit court denied the savings-statute and res-judicata arguments presented

by Finley.

       Alison subsequently filed an amended complaint; however, an amended complaint,

unless it adopts and incorporates the original complaint, supersedes the original complaint.

McMullen v. McHughes Law Firm, 2015 Ark. 15, at 11, 454 S.W.3d 200, 207; Farmers Union

Mut. Ins. Co. v. Robertson, 2010 Ark. 241, at 5, 370 S.W.3d 179, 183. Here, Alison’s

amended complaint contained no language incorporating the original complaint. Moreover,

Finley’s motion to dismiss the amended complaint was based solely on the assertion that

Alison lacked standing under the share-cancellation provision to bring the action because

the amended complaint challenged Finley’s actions as trustee. She failed to raise her savings-

statute and res-judicata arguments again in opposition to Alison’s amended complaint. Thus,

we do not address the issues because they are not properly before us. See Biedenharn v.

Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005).

       The amended complaint was dismissed pursuant to a Rule 12(b)(6) motion. Ark. R.

Civ. P. 12(b)(6). Our standard of review regarding Rule 12(b)(6) motions requires that we

look to the four corners of the complaint. See Biedenharn, supra. When we review a circuit

court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as true

                                              7
                                 Cite as 2016 Ark. App. 423

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. at 441, 206 S.W.3d at 840 (internal citations omitted). Our standard of review

for the granting of a motion to dismiss is whether the circuit court abused its discretion.

Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139; Doe v. Weiss, 2010 Ark. 150.

       We find that the circuit court abused its discretion when it granted the motion to

dismiss. We conclude from the circuit court’s comments from the bench that it did not look

at the factual allegations contained in Alison’s amended complaint or consider Alison’s

arguments concerning whether the share-cancellation provision was unenforceable under

section 28-73-1008. Instead, the court took the view that Peterson held that the mere filing

of a lawsuit challenging the trustee’s actions triggered the share-cancellation provision

without regard to whether the trustee was acting in bad faith or with reckless indifference.

       Our decision in Peterson is not dispositive of this case because Peterson was concerned

with ownership of the Calder artwork. This is distinguishable from the present case, which

is concerned with whether Finley breached her fiduciary duties to Alison as a beneficiary.

Also, there were no allegations in Peterson that the share-cancellation provision was

unenforceable under section 28-73-1008. Moreover, Peterson was decided after a full trial

on the merits, whereas the present case was dismissed pursuant to Arkansas Rule of Civil

Procedure 12(b)(6).

       Therefore, based upon the foregoing conclusions, as well as our standard of review

regarding Rule 12(b)(6) motions, we hold that the circuit court erred in granting Finley’s

motion to dismiss. Accordingly, we reverse and remand for the circuit court to determine

                                               8
                                 Cite as 2016 Ark. App. 423

whether Alison’s amended complaint states sufficient facts showing that Finley acted in bad

faith or with reckless disregard of the trust’s purposes or of Alison’s interests as a contingent

beneficiary.

       Reversed and remanded.

       KINARD and HIXSON, JJ., agree.

       Eichenbaum Liles, P.A., by: James H. Penick III, for appellant.

       Richard F. Hatfield, P.A., by: Richard F. Hatfield, for appellee.




                                               9
