Cook v. Cook

378 S.W.3d 275, 2010 Ark. App. 758, 2010 Ark. App. LEXIS 796
CourtCourt of Appeals of Arkansas
DecidedNovember 10, 2010
DocketNo. CA 09-1317
StatusPublished
Cited by3 cases

This text of 378 S.W.3d 275 (Cook v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Cook, 378 S.W.3d 275, 2010 Ark. App. 758, 2010 Ark. App. LEXIS 796 (Ark. Ct. App. 2010).

Opinion

RITA W. GRUBER, Judge.

| ] Helen Cook appeals from an order of the Ouachita County Circuit Court finding that she violated the terms of an agreement between her and her stepchildren by selling shares of stock and removing the funds from an account the stepchildren owned. The court found that the agreement granted Ms. Cook all dividends and interest generated by the account during her lifetime and required her to purchase the specific type and amount of shares that she sold. Ms. Cook also appeals from an order awarding attorney’s fees to appel-lees. We find no clear error, and we affirm the orders of the circuit court.

Helen Cook was married to Dale Cook for twenty-six years. Appellees, Lane Cook, Tanya Cook Gilbreath, and Bryan Cook, are the three adult children of Dale Cook and the stepchildren of Ms. Cook. After Mr. Cook’s death, appellees and Ms. Cook entered into a Family Settlement Agreement, dated March 24, 2008 (the “original agreement”), and a [ ¡¡.Settlement Agreement dated September 2008 concerning certain property of Mr. Cook. Pursuant to the agreements, and of relevance to this appeal, Ms. Cook was to remain as the beneficiary of an individual retirement account held at Investment Professionals, Inc., and was required to designate appel-lees as irrevocable beneficiaries of the account at her death. The original agreement provided that Ms. Cook “will have the use and benefit of any dividends and/or interest accruing on said account during her lifetime, thereby reserving the principal of the account.”

In order to resolve disputes about the original agreement, the parties entered into the second agreement in September 2008, changing ownership of a house owned by Mr. Cook. In the original agreement, Ms. Cook retained a life estate with appellees owning the remainder interest in the property. In the September agreement, the parties agreed that appellees would convey all of their interest in the property to Ms. Cook, who would own the house in fee. With regard to the IRA, the new agreement clarified that the account held with Investment Professionals, Inc., was now located at Scottrade. It also stated that the Family Settlement Agreement dated March 24, 2008, remained in full force and effect except as set forth in the new agreement.

This dispute began in February 2009, when Ms. Cook sold all of the securities in the Scottrade account and had the funds wired to her bank account at Farmers Bank in Camden. Through email notices sent to him by Scottrade on February 4, 2009, Lane Cook learned of the securities’ sales. Appellees filed a complaint on February 9, 2009, and an amended ^complaint and petition for preliminary and permanent injunction on February 17, 2009.

In their amended complaint, appellees alleged that Ms. Cook had sold all of the stock in the Scottrade account, consisting of shares of Wal-Mart stock and R.J. Reynolds stock, in violation of the agreements between the parties. Appellees requested the court to enjoin Ms. Cook from disposing of any of the proceeds from the sale of the stock and to grant judgment against Ms. Cook for the full amount of the stock sold. Appellees also requested the court to grant a temporary restraining order and permanent injunction against Farmers Bank & Trust Co. from disposing of the funds until the lawsuit was resolved. Appellees also requested attorney’s fees.

On February 26, 2009, the circuit court held a hearing on the temporary restraining order and entered an order indicating that Ms. Cook’s attorney informed the court that the funds had been placed in an account with Morgan Stanley (formerly Dean Witter); finding that the principal of the funds belonged to appellees, with Ms. Cook having the lifetime rights to the income therefrom; ordering Ms. Cook to furnish appellees with documentation as to the amount, location, and type of account established with the funds; and enjoining her from disbursing or removing any of the funds, wherever held, without prior order of the court. On February 27, 2009, Ms. Cook transferred the funds to Morgan Stanley and established an account.

The circuit court held a final hearing on April 28, 2009, and entered an order on July 9, 2009. In its order, the court found that the agreements between the parties provided that 14Ms. Cook was to have the use and benefit of any dividends and interest accruing on the Scottrade account during her lifetime and that the principal of the account was “reserved” for appellees. The court found that Ms. Cook caused all of the stocks in the account to be sold and the funds transferred to her by wire transfer, and that the removal of these funds violated the terms of the parties’ agreements. In order to put the parties back, as closely as possible, into the position that they would have been in had Ms. Cook not breached the agreements, the court ordered the funds to be left at Morgan Stanley; required the funds to be used to acquire the precise number of shares of Wal-Mart and R.J. Reynolds stock that Ms. Cook sold, 177 shares and 1,850 shares respectively; and ordered Ms. Cook to add funds of her own as required in the event the funds were insufficient to purchase these shares. The court determined that the “basic ownership” of the account was in appellees and that Ms. Cook “shall have no ownership interest therein.” The court ordered all dividends and interest from the account to be distributed to Ms. Cook for the remainder of her lifetime. On November 10, 2009, after a hearing, the court granted appellees’ request for attorney’s fees. Ms. Cook filed timely appeals from both orders.

Our standard of review on appeal from a bench trial is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Carpenter v. Layne, 2010 Ark. App. 364, 374 S.W.3d 871; Ark. R. Civ. P. 52(a). We view the evidence in a light most favorable to the appellees, resolving all inferences in favor of the appellees. McSparrin v. Direct Ins., 373 Ark. 270, 272, 283 S.W.3d 572, 574 (2008). Disputed facts and | ^determinations of the credibility of witnesses are within the province of the fact-finder. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 249, 961 S.W.2d 729, 733 (1998).

I. Contract Interpretation

Ms. Cook’s first point on appeal is that the circuit court erred in its interpretation of the original agreement and effectively rewrote it. She contends that the agreement did not require the funds to remain in a particular institution or restrict how she was to invest them in the account. Thus, she argues that she did not breach any provisions of the agreement by moving the funds or by investing the money in a form other than a specified number of R. J. Reynolds shares and a specified number of Wal-Mart shares. She contends that the court’s interpretation otherwise is clearly erroneous.

The first rule of interpretation of a contract is to give the language employed the meaning that the parties intended. First Nat’l Bank v. Griffin, 310 Ark. 164, 169, 832 S.W.2d 816, 819 (1992).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gillison v. Gillison
2011 Ark. App. 244 (Court of Appeals of Arkansas, 2011)
Machen v. Machen
380 S.W.3d 497 (Court of Appeals of Arkansas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 275, 2010 Ark. App. 758, 2010 Ark. App. LEXIS 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-cook-arkctapp-2010.