Hanna Ex Rel. Hanna v. Hanna

335 S.W.3d 438, 2009 Ark. App. 574, 2009 Ark. App. LEXIS 755
CourtCourt of Appeals of Arkansas
DecidedSeptember 9, 2009
DocketCA 08-1256
StatusPublished

This text of 335 S.W.3d 438 (Hanna Ex Rel. Hanna v. Hanna) 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
Hanna Ex Rel. Hanna v. Hanna, 335 S.W.3d 438, 2009 Ark. App. 574, 2009 Ark. App. LEXIS 755 (Ark. Ct. App. 2009).

Opinion

RITA W. GRUBER, Judge.

Appellant Donna Hanna, acting as her children’s next friend, sued the children’s father, appellee Burt Hanna, for self-dealing, breach of fiduciary duty, and mismanagement of assets in connection with the children’s trusts. The Washington County Circuit Court awarded Donna limited relief but generally upheld Burt’s actions as being in the trusts’ best interests. Donna appeals and argues that the court clearly erred in its ruling. We disagree and affirm.

Donna and Burt are now divorced, but during their marriage they founded the Hanna Candle Company, a very successful candle and scent manufacturing operation in Fayetteville. They also formed several other companies, primarily for the purpose of buying and developing real estate. One of Burt and Donna’s companies, JB Hanna, LLC (JBH), owned the manufacturing plant that housed Hanna Candle Company.

|¡Jn 1999, Burt and Donna created trusts for their two children, Brooke and Jake. The trusts designated Burt and Donna as co-trustees and were funded with a modest initial grant of $500 each. Later, Burt and Donna transferred ninety-eight percent of JBH to the trusts, retaining a two-percent interest for themselves. The rent that JBH received from Hanna Candle, variably $150,000 to $190,000 per month, became the primary source of the trusts’ income.

In 2004, Donna sued Burt for divorce. Their July 2005 property-settlement agreement gave Burt all of the stock in Hanna Candle, along with Donna’s one-percent interest in JBH and sole trusteeship of the children’s trusts. Donna’s settlement was $16 million in cash, with an immediate installment of $1 million, to be followed by the remaining $15 million over the next sixty days. Burt asked Hanna Candle’s Chief Financial Officer, John Scott, to formulate a plan to acquire the $15 million. Scott deduced that most of the property owned by Hanna Candle or by Burt’s other companies was encumbered and therefore could not be used as collateral to secure a loan. However, he' determined that the property owned by JBH was basically unencumbered. Based on Scott’s recommendation, Burt decided to obtain loans for the $15 million by pledging JBH properties as collateral. His plan involved at least two banks and several complicated transactions, including a restructuring of Burt’s personal line of credit and Hanna Candle’s existing line of credit. Ultimately, several tracts of JBH realty were collateralized to secure over $30 million. Included in that amount was a $8 million loan to three Hanna Candle officers, who paid the money to Burt in exchange for Hanna Candle stock. As a result of these financial dealings, Burt successfully obtained the $15 million and Upaid Donna within sixty days.

According to Donna, she was initially unaware that Burt had encumbered JBH assets. But, on July 25, 2006, acting as her children’s next friend, she sued Burt for an accounting, for breach of fiduciary duty, for damages, and to remove him as trustee. Her complaint and her subsequent arguments to the court cited not only the above mentioned loan transactions but alleged, inter alia, that Burt had reduced the rent on the Hanna Candle plant, which was payable to JBH, from $190,000 to $150,000 per month; that Burt owed approximately $830,000 on a personal debt to JBH; that one of Burt’s companies occupied certain JBH property rent-free; that another company had purchased JBH property at below fair-market value; and that certain JBH property was actually leased to the tenant by Hanna Candle.

During a three-day bench trial in December 2007, Donna offered testimony that the trusts’ taxable income had decreased since 2005 and that Burt could have financed the $16 million divorce settlement by means other than using the JBH assets. However, Burt testified that he had done well by his children, that he intended to grow their trusts to $100 million, and that he planned to reduce the JBH debt as quickly as possible. Burt further said that, in pledging JBH’s assets, he did not know that he was doing anything wrong and that he had the best intentions. Scott testified that JBH’s equity had increased from approximately $23 million in 2005 to approximately $29 million in 2007. Scott also noted that, since the divorce settlement, Hanna Candle had signed a ten-year lease of the property owned by JBH for $150,000 per month. CPA David Hogan stated that JBH had suffered no actual economic loss as a result of its assets being pledged. Additionally, Burt and Scott testified that the property- | ^settlement agreement — which gave Burt sole control of Hanna Candle — and the loan transactions that financed the agreement, were necessary to preserve Hanna Candle and, consequently, to preserve JBH and the trusts. Burt asserted that, if he had not retained ownership of Hanna Candle, the business would have failed and could not have paid rent to JBH. In short, Burt presented evidence that it was to JBH’s advantage that he make the divorce settlement, which he could only accomplish by pledging JBH assets. Arvest Bank officer Craig Shy likewise testified that the bank could not have funded Burt’s loan without using JBH assets as collateral.

In addition to the above evidence, Burt introduced an opinion from expert witness Jack Butt. Mr. Butt, an attorney, stated that Burt had engaged in self-dealing as a trustee but that the self-dealing was justified under the circumstances. Butt stated that Burt acted reasonably and prudently and that the preservation of Hanna Candle under “singular control” after the divorce was essential to preserving the value of JBH and likewise the trusts.

On June 11, 2008, the circuit court entered an order finding that Burt’s actions were legally justified “as a result of the exceptional circumstances that existed.”

The court ruled that Burt acted “reasonably and prudently” in the loan transactions and that “the continued success of [JBH] was tied to [Hanna Candle’s] continued ability” to occupy the building owned by JBH. The court noted that Burt’s actions actually benefited the trusts because his actions “stabilized and insured an income stream of $150,000 per month for a ten-year period to the |sTrusts....” 1 Accordingly, the court refused to remove Burt as trustee and refused to award damages to the trusts or dismantle the loan transactions. However, the court did order Burt to remove JBH assets as collater-' al for the three officers’ loans totaling $3 million. The court also appointed the Bank of Oklahoma as co-trustee for the trusts; declined to order a formal accounting but found that Donna was entitled to information from Burt on request; and ordered Burt and the Bank of Oklahoma to address Burt’s repayment of $830,000 that he owed JBH. Finally, the court found that certain other dealings between JBH and Burt’s companies did not evidence, any misconduct by Burt. Donna appeals from that order. For reversal, she contends that Burt’s actions were contrary to the terms of the trusts and Arkansas law and that the circuit court clearly erred in finding that Burt acted in the trusts’ best interests. She also, contends that the circuit court failed to offer her a “meaningful remedy” for Burt’s violations.

The construction, interpretation, and operation of trusts are matters within the traditional jurisdiction of the courts of equity. See Sutter v. Sutter, 345 Ark. 12, 43 S.W.3d 736 (2001).

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Bluebook (online)
335 S.W.3d 438, 2009 Ark. App. 574, 2009 Ark. App. LEXIS 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanna-ex-rel-hanna-v-hanna-arkctapp-2009.