                                 Cite as 2014 Ark. App. 596

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                        CV-14-104
                                      No.


DONNA KAYE MCCALL                                Opinion Delivered October 29, 2014

GRUNWALD, INDIVIDUALLY, AND
                                                 APPEAL FROM THE CARROLL
AS TRUSTEE OF THE MCCALL
                                                 COUNTY CIRCUIT COURT
FAMILY REVOCABLE LIVING TRUST                    [NO. PR-2011-10]
U/D/T JULY 19, 1994; JACOB DANIEL
GRUNWALD; AND JOSHUA DAVID                       HONORABLE GERALD K. CROW,
GRUNWALD                                         JUDGE

                             APPELLANTS          AFFIRMED ON DIRECT APPEAL;
                                                 REVERSED AND REMANDED ON
V.                                               CROSS-APPEAL

SHERALL DEAN MCCALL; REBA
GAYLE MCCALL SISCO; RICHARD
MARVIN MCCALL; JAMES PAUL
MCCALL; JESSE LEE MCCALL; MARY
JACQULINE MCCALL WEEMS;
SARITA SUE MCCALL (COX)
MEACHAM; CLARA JEANNE
MCCALL WILLIAMS; and RANDI
COLLEEN MCCALL SCOTT
                      APPELLEES


                              RHONDA K. WOOD, Judge

       This dispute among ten siblings returns to us after we dismissed an earlier appeal for

lack of a final order. See McCall v. Grunwald, 2013 Ark. App. 232 (McCall I). The dispute

involves approximately 150 acres of real property that was conveyed to a trust established by

the parties’ parents. One sibling, appellant Donna Grunwald, is opposed by her remaining

siblings, appellees Sherall Dean McCall, Reba Gayle McCall Sisco, Richard Marvin McCall,

James Paul McCall, Jesse Lee McCall, Mary Jacquline McCall Weems, Sarita Sue McCall
                                  Cite as 2014 Ark. App. 596

(Cox) Meacham, Clara Jeanne McCall Williams, and Randi Colleen McCall Scott (“the

siblings”).1

       The siblings petitioned the court to terminate the trust, to remove Grunwald as trustee

and appoint a successor trustee, and to compel Grunwald to provide an accounting. Grunwald

petitioned the court for a declaratory judgment asserting that her mother had executed a valid

handwritten amendment to the trust. The court granted Grunwald summary judgment on the

siblings’ petition. The court directed a verdict in favor of the siblings on Grunwald’s

complaint. This appeal and cross-appeal challenge those rulings. We affirm on direct appeal

and reverse and remand on cross-appeal.

       In our first opinion, we set forth the following factual background.

            Jack Gail McCall and Vella Marie McCall established the McCall Family
       Revocable Living Trust, u/d/t July 19, 1994, as the settlors and initial trustees, with
       Grunwald named as successor Trustee.

       ....

               Jack McCall died . . . [and] Vella McCall, as surviving trustee, executed a
       quitclaim deed transferring the real property to herself and Grunwald as joint tenants
       with rights of survivorship. She also executed a document purporting to revoke the
       trust.

       ....

              On February 9, 2006, [the siblings] filed an action (. . . referred to as the deed
       litigation) against Vella McCall and Grunwald. The complaint alleged undue influence
       on the part of Grunwald and the incapacity of Mrs. McCall. In addition to requesting
       a return of the real property to the trust, [the siblings] sought the appointment of a
       successor trustee in place of Grunwald. Vella McCall died on February 26, 2006.


       1
        Grunwald’s children, Jacob Grunwald and Joshua Grunwald, were named defendants
in the siblings’ petition. However, there were no allegations involving Jacob or Joshua
Grunwald in the petition. For ease of writing we will refer to Grunwald as the sole appellant.
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              By order entered on July 9, 2010, the deed litigation was resolved. The circuit
       court found that there was no undue influence on the part of Grunwald. However, the
       court found that Vella McCall was incapacitated at the time she executed the deed and
       revocation of trust. The court declared title to the property was “vested in the Trust
       and any valid amendments.” Grunwald was not replaced as successor trustee. No
       appeal was taken from this order.

               On March 2, 2011, [the siblings] filed the present action seeking an accounting
       for the trust, the removal of Grunwald as successor trustee, the appointment of a new
       successor trustee, and the termination of the trust.

               Grunwald filed a response to the petition in which she . . . denied the material
       allegations of the petition. She also referenced the prior deed litigation and attached
       a copy of the court’s order in the deed litigation. . . .

               Grunwald filed a Complaint for Declaratory Judgment requesting that the
       circuit court declare a certain handwritten document signed by Vella McCall to be an
       amendment to the McCall Family Revocable Living Trust. The gist of this purported
       amendment was that Vella McCall wanted to place the farm in the names of Clara Jean
       McCall Williams and Grunwald as of the time of her death so they could keep the
       farm operating as a family farm. She also filed a motion to dismiss, later amended to
       include a motion for summary judgment, asserting that [the siblings’] petition was
       barred by the purported amendment to the trust instrument, as well as other provisions
       of the trust instrument. She also argued that res judicata and judicial estoppel were
       further bases for barring the petition.

             At the conclusion of a July 6, 2011 hearing on the motion for summary
       judgment, the court took the matter under advisement. The court noted that a hearing
       on Grunwald’s claim for declaratory judgment was reserved.

McCall I, 2013 Ark. App. 232, at 2–4 (footnote omitted).

       Ultimately, on October 13, 2011, the court granted Grunwald summary judgment and

the siblings appealed. We dismissed the siblings’ previous appeal for lack of a final order

because the court had yet to rule on Grunwald’s declaratory- judgment petition. The circuit

court then proceeded with the case and held a bench trial on Grunwald’s complaint for

declaratory judgment on the handwritten document as an amendment to the trust. The only

witness was Grunwald. The issue of McCall’s competency was raised and the court stated,
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“I’ve taken judicial notice of previous testimony . . . she was not competent at that time.”

       When Grunwald rested her case, the siblings’ attorney made a motion for directed

verdict primarily based on Grunwald’s failure to introduce the handwritten document into

evidence. The court granted the directed verdict: “I have nothing before me on which I

can refer to or rule on as to what would constitute an amendment and what the terms

of that amendment would be. I have nothing to look at.” Grunwald appealed and the siblings

cross-appealed.

       We address the direct appeal first. Grunwald’s arguments are (1) the court erred by

taking judicial notice of testimony that occurred in the first deed litigation case, (2) the court

erred by granting the siblings’ motion for directed verdict, and (3) upon reversal, she is

entitled to a new judge due to her allegations that the court was biased against her. We affirm

on each point.

       First, the issue of whether the court erred by taking judicial notice of an expert

witness’s prior testimony is not preserved for our review. Grunwald had filed a motion in

limine on this point, but failed to obtain a ruling. When the court declines to rule on a

motion in limine, it is necessary for counsel to make a specific objection during the trial.

Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Because she failed to object at trial,

we cannot consider her argument. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d

239.

       Second, the court correctly granted the motion for a “directed verdict” against




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Grunwald.2 When a party moves for a directed verdict or a dismissal in a bench trial, it is the

trial court’s duty to review the motion by deciding whether, if it were a jury trial, the

evidence would be sufficient to present to the jury. See Woodall v. Chuck Dory Auto Sales, Inc.,

347 Ark. 260, 61 S.W.3d 835 (2001). Here, Grunwald never introduced the handwritten

document purporting to be an amendment to the trust into evidence. Grunwald argues that

she presented sufficient evidence of Vella McCall’s intent to amend the trust and that the

handwritten document was that amendment. It is true that much of Grunwald’s testimony

focused on her mother’s intent to modify the trust. However, she failed to introduce the

document purporting to be that amendment into evidence. Because she failed to introduce

the document into evidence, we cannot consider whether the handwritten document was

effective to amend the trust. See Rodriguez v. Ark. Dep’t of Human Servs., 360 Ark. 180, 200

S.W.3d 431 (2004).

       Third, Grunwald’s recusal argument is waived because she did not raise it in a timely

manner. In Ashley v. Ashley, we held, “To preserve a claim of judicial bias for review,

appellant must have made a timely motion to the circuit court to recuse. Without such

motion, the disqualification of a judge may be waived.” 2012 Ark. App. 230, at 3–4

(citations omitted). Grunwald points to several examples of what she contends are exhibitions

of the court’s bias against her. For example, she points to a colloquy between the court and

her attorney where the court said, “I’m not trying to try your case, Ms. France.” Another

example was where the attorney for the siblings made an objection and the court, after stating


       2
          See Ark. R. Civ. P. 50(a) (stating that in nonjury cases a party should move for
dismissal instead of a directed verdict at the end of the plaintiff’s case).
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that the objection was going to be its next point, said that it was not trying to make objections

for opposing counsel. However, neither time did Grunwald object to the court’s actions.

Together with the fact that she did not seek recusal until after the court had granted the

directed verdict results in the waiver of the issue. Ashley, supra; see also Powhatan Cemetery,

Inc. v. Colbert, 104 Ark. App. 290, 292 S.W.3d 302 (2009) (holding that trial court did not

abuse its discretion in refusing to recuse where recusal is not sought until after an adverse

decision was rendered). For the above reasons, we affirm on Grunwald’s direct appeal.

       Turning to the cross-appeal, we reverse the circuit court’s decision granting Grunwald

summary judgment on the siblings’ claims. It is difficult for us to glean the precise reason for

the court’s decision on summary judgment. The court took the matter under advisement

following the hearing and then issued an order that simply states:

              The court is very familiar with the facts of the case and notes that many of the
              issues raised by the parties were closely related to the issues tried in case number
              Carroll County CV 2006-14 WD.
              Upon review of all the arguments, pleadings and statements of counsel
               the court finds that [Grunwald’s] motion for summary judgment is granted.

The siblings filed a motion asking the court to make findings of fact and conclusions of law

regarding the specific basis for the court’s ruling. The court failed to rule on the motion, and

it was deemed denied. Thus, on appeal, the siblings list multiple points for reversal on their

cross-appeal, in essence arguing that there was no conceivable persuasive reason for the court

to grant summary judgment.

       A motion for summary judgment should be granted if there are no material facts in

dispute and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P.

56(c)(2). On review, we view the evidence in the light most favorable to the party against
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whom the motion was granted and we resolve all doubts in favor of that party. Hobbs v. Jones,

2012 Ark. 293, 412 S.W.3d 844. However, as to issues of law, we conduct a de novo review.

Id.

       Given that the court’s order specifically referenced the prior-deed litigation case, we

focus on arguments surrounding that case’s effect on the current litigation. Grunwald

contended that the siblings’ action was barred by res judicata and/or collateral estoppel. Before

we can determine if res judicata applies to the present case, we must determine the specific

claims that were presented in the earlier deed litigation. Carmical v. City of Beebe, 316 Ark.

208, 871 S.W.2d 386 (1994). After comparing the claims made and ruled upon in the deed

litigation and the claims presented by the siblings in the present case, we cannot say that the

present case is barred by the order deciding the earlier case.

       The deed litigation concerned claims that Vella McCall did not have the capacity to

transfer assets from the trust to herself and Grunwald. It was alleged that McCall was subject

to Grunwald’s undue influence, which resulted in the purported transfers of all assets from the

trust, as well as McCall’s revocation of the trust. Further allegations were that McCall, as

trustee, had not provided an accounting to the beneficiaries of the trust. The relief sought was

the setting aside of the transfer of the property and revocation of the trust, requiring the

trustee to provide an accounting, and the naming of a successor trustee.

       In contrast, the present case seeks to replace Grunwald as successor trustee because of

her self-dealing with the trust property and her failure to provide an accounting. These events

could not have occurred until she became the successor trustee after her mother’s death. The

present litigation also seeks the termination of the trust and the distribution of the assets of the
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trust according to the terms of the trust instrument.

       Although res judicata can bar issues which may have been raised in the earlier

litigation, Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29, we cannot say

that the issues sought to be raised by the siblings in this litigation are barred by res judicata.

       In addition, the siblings were not estopped from pursuing the current litigation. The

doctrine of judicial estoppel prevents a party from availing himself of inconsistent positions

in litigation concerning the same subject matter. Breckenridge v. Breckenridge, 2010 Ark. App.

277, at 8, 375 S.W.3d 651, 657. The siblings’ position concerning the trust has not changed.

In the prior deed litigation, the siblings contended that the farm land remained in the trust and

that their mother had not amended the trust. This position remains consistent in the current

litigation. We therefore hold that the siblings are not judicially estopped in this matter.

       Accordingly, we reverse and remand the summary judgment for further proceedings

on the siblings’ petition.

       Affirmed on direct appeal; reversed and remanded on cross-appeal.

       GLOVER and VAUGHT, JJ., agree.

       Connie S. France, for appellants.

       Kelley Law Firm, a professional limited liability company, by: Glenn E. Kelley, for appellees.




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