Cooper v. Gilder

156 So. 3d 262, 2009 WL 1058634, 2009 Miss. App. LEXIS 219
CourtCourt of Appeals of Mississippi
DecidedApril 21, 2009
DocketNo. 2007-CA-00793-COA
StatusPublished
Cited by1 cases

This text of 156 So. 3d 262 (Cooper v. Gilder) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Gilder, 156 So. 3d 262, 2009 WL 1058634, 2009 Miss. App. LEXIS 219 (Mich. Ct. App. 2009).

Opinions

ISHEE, J.,

for the Court:

¶ 1. Following a trial beginning on August 22, 2006, the Chancery Court of Washington County entered judgment in favor of Cooper Gilder, Inc. (Cooper Gilder). The chancery court found that Robert D. Cooper (Robin),1 Donald Dunaway (Don), and Connie Burford (Connie) (collectively, the Appellants) were jointly and severally liable in the amount of $1,346,748. Aggrieved by the judgment, Robin, Don, and Connie allege the following points of error:

I. Whether the two cases were erroneously consolidated.
II. Whether the chancellor applied the correct standard of proof.
III. Whether the factual findings were supported by the record.
IV. Whether the chancellor applied the correct standard, in refusing to reconsider findings on the issue of whether Robin’s acquisition of the Cooper Gilder lease prior to his termination, in light of the additional evidence submitted on that motion.
V. Whether the chancellor erred in applying constructive trust law.
[266]*266VI. Whether the award was properly-related to a correct application of the law and evidence.

¶2.-⅛ a consolidated matter, the chancery court granted a directed verdict in favor of Robin, Marilyn Dunaway (Marilyn), and Mildred Watson (Mildred), thereby dismissing with prejudice the claim of Winnie Gilder (Winnie) and Cooper Gilder. In the consolidated case, the chancery court found that all life insurance proceeds paid on the life of James Gilder were to remain the property of John Cooper’s siblings — Robin, Marilyn, and Mildred. On cross-appeal, Winnie asserts that this ruling was in error. She claims that the more than $650,000 in insurance proceeds should have been paid to her.

¶ 3. Finding no reversible error with the chancery court’s rulings, we affirm the judgment on direct and cross-appeal.

FACTS AND PROCEDURAL HISTORY

¶ 4. John Cooper (John) and James Gilder (James) were close friends. In 1974, John and James started a business that later became known as Cooper Gilder.2 Each of them owned one-half of the stock in Cooper Gilder. The company’s operation was twofold: it would clean barges, and it would then reclaim the collected waste and sell it to other companies. The business was located in Greenville, Mississippi, and some of its operations were conducted on a river front on a strip of land known as Island 84. Cooper Gilder did not own Island 84; it was owned by John and James, individually. To gain access to Island 84, the corporation negotiated with Mississippi Power & Light — later Enter-gy — to lease an easement over the strip of land leading to Island 84.

¶ 5. In December 2001, John and James renewed a buy/sell agreement (BSA), which was funded through life insurance policies from New York Life.3 The policies were for $650,000 each — $1,300,000 total— and were taken out on the lives of John and James. John owned two policies on the life of James, which totaled $650,000, and James owned two policies on the life of John, which had been reduced by loans to a total of $595,000. The purpose of the BSA was to allow the surviving stockholder to collect the insurance proceeds in the event of the other stockholder’s death and to use those proceeds to purchase the shares owned by the deceased stockholder. By this time, both parties were in poor health. James had been diagnosed with chronic obstruction pulmonary disease, which necessitated that he carry an oxygen tank with him, and John had recently been diagnosed with cancer. John was the first stockholder to die. Following his death, John’s estate included his fifty-percent share of stock in Cooper Gilder, and James, as the beneficiary on John’s life insurance received the proceeds from the policy. According to the terms of BSA, James then paid John’s estate $650,000— $595,000 from insurance and a $55,000 promissory note — to purchase John’s shares in Cooper Gilder. The transaction was memorialized in an agreement dated December 17, 2003. Following this transaction, James became Cooper Gilder’s sole shareholder.

¶ 6. Upon James’s death on February 8, 2004, John’s siblings received the proceeds from the life insurance policy on James. [267]*267Unbeknownst to James’s wife, Winnie, Robin, as executor of John’s estate, had transferred the policy from John’s estate to John’s siblings — Robin, Marilyn, and Mildred. Winnie later claimed that this was in error and that James had intended to transfer the policy from John’s estate to himself. This was the basis of the suit filed by Winnie against John’s siblings, in. which she sought reimbursement for the life insurance proceeds from the policy on James’s life.4 Winnie argued that Cooper Gilder, which was then wholly owned by James, continued to pay the policy premiums until James’s death. Furthermore, Winnie offered the testimony of Michael Garrett, of New York Life Insurance, who prepared the insurance policies for John and James. He said that the transfer of ownership of the policy to John’s siblings was done without his assistance, but it was something a client would normally consult him to carry out.

¶ 7. After hearing arguments from the parties and reviewing the BSA and the insurance policies, the chancellor found that the BSA was clear on its face and that John’s siblings were the proper recipients of the insurance proceeds. The chancellor granted a directed verdict on the issue and dismissed two of the defendants who were not necessary for the remaining proceedings — Marilyn and Mildred. Robin remained on as a defendant in the business interference claim, along with Don and Connie. The chancellor refused to grant a directed verdict on that matter, and the defense presented its evidence.

¶ 8. On July 23, 2003, prior to John’s death, he and James executed several deeds to partition the lands that they jointly owned. John received full ownership of Island 84, and James received full ownership of twelve acres of land near the Cooper Gilder office building. John then deeded Island 84 to himself and Robin, and James deeded the twelve acres to himself and Winnie.

¶ 9. Following James’s death, Winnie, as his wife, inherited his stock and was left as the sole stockholder in Cooper Gilder. Having no experience in the business, Winnie placed Connie and Robin in positions of power, and she relied entirely on them to operate Cooper Gilder. Under Winnie’s ownership of Cooper Gilder, Connie was made an officer and a director; she also kept the company’s books. Connie had been employed at Cooper Gilder full time since 1983. Robin was John’s brother and was the executor of John’s estate. He had been employed with Cooper Gilder full time since 1977 and part time prior to 1977. Robin was in charge of determining what chemicals came in and what to do with them, and he also managed the yard. Robin testified that, following Winnie’s acquisition of Cooper Gilder, “Connie formed a sort of [triumvirate] in which Don, herself, and I took over the duties and made joint decisions on anything of import.” Don was married to Marilyn, who was Robin’s sister. By 2005, Don had worked for Cooper Gilder for a period of ten years along with a prior four-year period. Following the deaths of John and James, Don and Robin were the only remaining licensed tankermen employed by Cooper Gilder.

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Cite This Page — Counsel Stack

Bluebook (online)
156 So. 3d 262, 2009 WL 1058634, 2009 Miss. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-gilder-missctapp-2009.