Lawrence v. McDonald , 2016 Ark. App. 269 ( 2016 )

Cite as 2016 Ark. App. 269
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-5
Opinion Delivered May 18, 2016
ANDRELEA LAWRENCE APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. PR-2015-71-4]
V.
HONORABLE JOHN R. SCOTT,
SHARON MCDONALD JUDGE
APPELLEE
APPEAL DISMISSED
BRANDON J. HARRISON, Judge
The Benton County Circuit Court dismissed Andrelea Lawrence’s petition for
guardianship of her grandmother. Lawrence now appeals, arguing that the circuit court
erred in awarding attorney’s fees to the prevailing party. Because Lawrence has failed to
appeal from the order awarding attorney’s fees, we must dismiss this appeal for lack of
jurisdiction.
On 30 January 2015, Lawrence filed a petition for the appointment of a temporary
and a permanent guardian of the person and estate of her grandmother, Cecilia Jennings.
Lawrence alleged that Jennings was “impaired by reason of mental disability or illness” and
“in imminent danger.” Lawrence also noted that Jennings’s care was being administered
through a trust and that James Cooper, the trustee of the trust, and Sharon McDonald,
Jennings’s sister, were attorneys-in-fact for Jennings. Lawrence asserted that a
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guardianship “is the least restrictive alternative for ensuring [Jennings’s] medical and safety
needs are being met, as well as ensuring proper management of her estate.” That same
day, the circuit court entered an order of temporary guardianship, appointed Lawrence as
temporary guardian, and set a hearing on the temporary guardianship for February 3.
McDonald filed a response to the petition for guardianship and denied that there
was any need for a guardian. After a hearing, the circuit court found that there was no
proof of Jennings’s incapacity or imminent harm and dismissed the temporary
guardianship. A hearing on the request for permanent guardianship was set for 16 June
2015.
On March 31, Lawrence filed a motion for the appointment of a guardian ad litem
to represent Jennings’s interests and a supporting brief that expressed concern about the
administration of several elements of Jennings’s estate plan, including a revocable trust (the
Jennings Revocable Trust), a charitable foundation, a durable financial power of attorney
held by Cooper, and a durable medical power of attorney held by McDonald. Lawrence
sought the appointment of a guardian ad litem so someone could “peak [sic] behind the
veil created by Cooper for the limited purpose of ensuring that Jennings [sic] assets are
being properly managed, the estate sufficiently preserved in accord with Jennings’ [sic]
wishes, and her care is being administered in the best possible fashion.”
On April 17, McDonald moved to dismiss Lawrence’s request for a permanent
guardianship. McDonald acknowledged that Jennings had been deemed incompetent by
reason of dementia but argued that the trust, the health-care directive, and the durable
power of attorney, which were executed by Jennings prior to her incompetency, are the
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“least restrictive alternatives to the guardianship proceeding and are feasible and adequate
to meet the needs of Ms. Jennings.”
The circuit court held a hearing on both motions on May 6. At the
commencement of the hearing, the court noted the appearance of Andrew Curry, who
had reviewed the case file at the request of the court in case an ad litem was deemed
necessary. After hearing arguments from counsel, the court found that a guardianship was
unnecessary and granted McDonald’s motion to dismiss. The court instructed
McDonald’s counsel and Curry to file petitions for attorney’s fees.
On June 1, the circuit court entered a written order dismissing Lawrence’s petition
with prejudice. The order found that Lawrence had failed to adequately allege facts
establishing that a guardianship is necessary, that the existing health-care directive
adequately protected Jennings’s well-being, that the revocable trust adequately protected
her assets, and that “Ms. Jennings has put in place the appropriate documents to promote
and protect her person and her estate and that state her intent so as to avoid this type of
guardianship action.” The order also stated,
16. The Respondent [McDonald] is awarded her costs and attorney’s fees
incurred in the defense of this matter in an amount yet to be determined by
this Court. The Respondent shall submit a petition for attorney’s fees and
costs for the Court’s consideration.
17. Andrew Curry is awarded his costs and attorney’s fees incurred in this
matter in an amount yet to be determined by this Court. Mr. Curry shall
submit a petition for his attorney’s fees and costs for the Court’s
consideration.
Also on June 1, the circuit court entered a separate written order entitled “Order
Awarding Attorney’s Fees,” granting $17,100.25 in attorney’s fees to McDonald and $805
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in attorney’s fees to Curry. On June 30, Lawrence filed a notice of appeal stating that
“she appeals to the Arkansas Court of Appeals the Order of Dismissal entered in this case
on June 1, 2015.”
On appeal, Lawrence focuses her argument solely on the award of attorney’s fees,
asserting that there is no legal authority for the awards and that the amount awarded to
McDonald is unreasonable. But we have no jurisdiction to address Lawrence’s arguments
because she has not properly appealed from the order awarding attorney’s fees.
The issue of attorney’s fees is a collateral matter, meaning the challenging party
must file a notice of appeal from the fee order. See Mason v. Jackson, 323 Ark. 252, 914
S.W.2d 728 (1996). Without one, this court will not address any argument on the fee
issue. See id. Moreover, a notice of appeal shall designate the judgment, decree, order, or
part thereof from which the case is appealed. Ark. R. App. P.–Civ. 3(e)(ii) (2015).
Orders not mentioned in a notice of appeal are not properly before the appellate court.
Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1.
Here, the order of dismissal and the award of attorney’s fees were entered using
separate written orders. In her one notice of appeal, Lawrence stated that she was
appealing from the “Order of Dismissal entered in this case on June 1, 2015.” There is no
reference to the separate attorney’s fee award. Because Lawrence failed to appeal from the
order granting attorney’s fees either by a separate notice of appeal or by designating it in
the notice of appeal that she filed, we must dismiss this appeal, which addresses only the
attorney’s fee award.
Appeal dismissed.
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WHITEAKER and BROWN, JJ., agree.
Reece Moore Pendergraft LLP, by: Larry McCredy, for appellant.
Kendall Law Firm, PLLC, by: Donald B. Kendall and Susan Keller Kendall
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