Crain v. Crain

Case 2:20-cv-02038-TLB Document 203 Filed 01/18/22 Page 1 of 60 PageID #: 3770

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

LISA CRAIN; CATHEE CRAIN;

MARILLYN CRAIN BRODY; and

KRISTAN SNELL PLAINTIFFS

V. CASE NO. 2:20-CV-2038

SHIRLEY CRAIN and RAY FULMER,

as Representative of the Estate

of H.C. “Dude” Crain, Jr., Deceased DEFENDANTS

AMENDED 1 MEMORANDUM OPINION AND ORDER

0F

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................ 1

II. FACTUAL BACKGROUND ........................................................................................ 2

III. PROCEDURAL BACKGROUND ............................................................................... 5

IV. DISCUSSION............................................................................................................ 8

A. Findings of Fact ...................................................................................................... 9

1. Dude’s Separate Assets ...................................................................................... 9

2. Shirley’s Separate Assets (Purchased with Marital Funds) ............................... 15

3. Assets Dude Owned Jointly with Shirley at His Death ....................................... 16

4. 2012 Christmas Gifts ......................................................................................... 32

B. Conclusions of Law .............................................................................................. 32

1. General Principles: Imposition of a Constructive Trust ..................................... 32

2. Burdens of Proof ................................................................................................ 36

3. Arkansas Law Regarding Jointly Held Property ................................................. 37

4. Shirley’s Equitable Interest in Jointly Held Property........................................... 39

5. Equitable Treatment of Property No Longer in Shirley’s Possession ................. 44

1The Court’s Memorandum Opinion and Order (Doc. 201) directed the parties to report

any inadvertent calculation or typographical errors they identified. The parties complied

with the Court’s directive and submitted suggested changes. See Docs. 202, 202-1. This

Amended Memorandum Opinion and Order incorporates all revisions the Court deemed

appropriate.

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6. Treatment of the 2012 Christmas Gifts .............................................................. 48

C. Application of Law to Findings of Fact .................................................................. 49

V. CONCLUSION ......................................................................................................... 58

I. INTRODUCTION

Following the Court’s May 24th ruling on Summary Judgment (Doc. 147), this

matter came on for a bench trial from July 19, 2021, to July 21, 2021. The purpose of the

trial was to identify and value the assets that H.C. “Dude” Crain owned and controlled just

before his death on April 15, 2017.

Prior to trial, the parties agreed to submit opening briefs in lieu of opening

statements. Several of Plaintiffs’ witnesses also appeared on Defendants’ witness list;

so, for judicial efficiency and to avoid inconveniencing these witnesses by calling them to

the stand twice, the Court ordered that all witnesses take the stand only one time and

submit to questioning by all parties for all purposes.

Plaintiffs then presented their case-in-chief. They rested on the third day of trial,

and Defendants presented an oral motion for judgment as a matter of law under Federal

Rule of Civil Procedure 50(a), which the Court denied from the bench. At that point,

Defendants began their case-in-chief. They called only one witness, as the rest of their

witnesses had already taken the stand during Plaintiffs’ case-in-chief. After Defendants

rested, they renewed their motion for judgment as a matter of law, which was once again

denied. The parties then presented closing arguments, and afterward, the Court identified

specific legal issues that required further briefing. The parties were directed to submit

post-trial briefs on these selected topics within two weeks of the last day trial. All parties

submitted their post-trial briefs on time, and the Court reviewed those briefs, the transcript

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of the trial, and the voluminous exhibits that were introduced in evidence. Below is a brief

description of the background of the case followed by the Court’s findings of fact,

conclusions of law, and rulings.

II. FACTUAL BACKGROUND 2 1F

Dude was eighty-seven years old when he passed away in 2017, leaving behind

his second wife, separate Defendant Shirley Crain, and four adult daughters from his first

marriage, Plaintiffs Lisa Crain, Cathee Crain, Marillyn (“Mimi”) Crain Brody, and Kristan

Snell. Dude married the Plaintiffs’ mother, Marillyn, on May 1, 1954. Around 1960, Dude,

Marillyn, and Dude's parents started Crain Sales Company. Initially, Marillyn worked full

time for Crain Sales Company as the office manager. Among other things, Marillyn set up

the office, answered the phones, accepted orders, checked the freight cars, managed the

invoicing, hand crafted patterns for foam cushions, and handled accounts-payable. (Doc.

124, pp. 1–2). Around 1963, Crain Sales Company was incorporated as Crain Industries,

Inc. Crain Industries grew to be one of the largest companies in Arkansas, manufacturing

polyurethane foam and producing foam and polyester fiber products. (Doc. 165, p. 2).

Dude and Marillyn’s marriage did not last. In 1984, he began dating the woman

who would become his second wife, separate Defendant Shirley Crain. Id. He filed for

divorce from Marillyn on September 30, 1988, after thirty-four years of marriage. Id. On

June 22, 1989, the divorce was finalized, and Dude and Marillyn entered into a property

settlement agreement (“PSA”) (Doc. 38-2). According to the PSA, Marillyn did not receive

any award of stock in Crain Industries. See id. The parties to the instant case agree that

2The factual background in this Opinion is merely a summary; a more fulsome description

of undisputed facts appears in the Court’s summary judgment order (Doc. 147, pp. 1–9).

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at or around the time of Dude and Marillyn’s divorce, Crain Industries was a multi-million-

dollar company. Arkansas Business Journal reported that in 1990—the year after the

divorce—Crain Industries’s annual revenues totaled $154 million. (Doc. 124, p. 6).

The PSA specified how Dude and Marillyn’s real and personal property would be

divided upon their divorce and memorialized their agreement to engage in estate

planning. They made mutual promises to “maintain” wills that would leave at least half of

their respective estates to their daughters. PSA Paragraph 3, the will provision, states:

In further consideration of the covenants and agreements contained herein,

husband and wife agree to maintain in full force and affect [sic] a valid Last

Will and Testament whereby each will leave at least one-half of their estate

to the four daughters of this marriage, Lisa . . .; Cathee . . .; Marillyn . . .;

and Kristan . . ., per stirpes.

(Doc. 38-2, p. 6). The Chancery Court of Logan County, Arkansas, issued a written order

stating that it had “examined the Property Settlement Agreement between the parties”

and found “that said agreement is contractual and nonmodifiable.” Id. at p. 2, ¶ 5. As

soon as the PSA was finalized in June of 1989, Dude was free to marry Shirley, and he

did so in November of that same year. Dude and Shirley remained married for the next

twenty-seven years, until Dude’s death in 2017.

One of the Plaintiffs, Mimi, testified at trial that when her parents were going

through their divorce proceedings in 1988, her mother told her about the PSA. (Doc. 191,

pp. 163–64). Consequently, Mimi was aware of the contents of the PSA even before it

was formally approved by the Chancery Court in 1989. Id. at p. 179. She also testified

that Dude, unlike her mother, “never mentioned the property settlement agreement” to

her. Id. at pp. 214–15. Shirley also testified that Dude never mentioned the PSA during

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their marriage, and she claims to have had no idea that it existed until Plaintiffs filed the

instant lawsuit—almost three years after Dude’s death. (Doc. 190, pp. 191–92).

Dude did engage in estate planning, though not for several years after signing the

PSA. The first will he executed after his divorce from Marillyn was signed in 1993. That

will left nothing to his daughters and everything to Shirley. See Doc. 104-1. Nearly two

decades later, in 2012, Dude hired an attorney to draw up a new will. At the bench trial

of this matter, Shirley testified that she was present during every meeting between Dude

and the estate-planning lawyer. She claims the PSA was never mentioned during these

meetings.

According to Dude’s 2012 will (Doc. 38-3, pp. 5–28), Shirley was to serve as the

executor of his estate upon his death. She was to supervise the creation of two trusts

that would hold Dude’s separate assets: the Bypass Trust and the Marital Deduction

Trust. The Bypass Trust was to benefit Dude’s daughters and Shirley’s son, Brian Pope,

and would be funded with any assets available to pass through probate, free of estate

taxes. Id. at § 2.2.A(a). During trial, the parties agreed that when Dude died, he had

exhausted his lifetime gift and estate tax credit, so no assets existed that could have

passed into the Bypass Trust tax-free. The Marital Deduction Trust was to hold the

remainder of Dude’s assets, and Shirley was to serve as sole trustee and sole direct

beneficiary of that trust. Plaintiffs and Brian were named remainder beneficiaries of the

Marital Deduction Trust, which meant they would inherit any assets that remained in the

trust after Shirley died. See id. at §§ 2.3.B & 2.3.E. Dude’s 2012 will specified that Shirley

would have full discretion to pay herself “annually or more frequently all of the net income”

of the Marital Deduction Trust as well as “so much or all of the principal” that she desired

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during her lifetime. Id. at §§ 2.3.C. & 2.3.D. In other words, she was under no legal

obligation to leave anything in the Marital Deduction Trust for Plaintiffs to inherit upon her

death. 3

2F

In September of 2014, when Dude was eighty-four years old, he suffered a serious

fall and hit his head. Shirley testified at trial that he required constant medical care after

this accident and was largely incapacitated until his death. Shirley indisputably took a

more active role in managing the couple’s investments and businesses from the date of

Dude’s accident until his passing in April of 2017. For unknown reasons, Shirley did not

open a probate estate at that time, nor did she submit the 2012 will—or any will—to

probate; she did not direct the creation of the two trusts specified in the 2012 will; and she

did not retitle any assets in the name of either trust identified in the will. Instead, she

retitled all joint assets in her own name and took sole possession of Dude’s separate

assets.

III. PROCEDURAL BACKGROUND

On March 19, 2020, just prior to the three-year anniversary of Dude’s death,

Plaintiffs filed a petition to open a probate proceeding in the Circuit Court of Sebastian

County, Arkansas, knowing that their father had entered into a contract with their mother

promising to leave them at least one-half of his estate. The probate court appointed

Separate Defendant Ray Fulmer to serve as the Administrator of Dude’s estate. Shirley

3 On May 21, 2012, approximately a month after Dude signed the 2012 will, he

executed a codicil to that will. See Doc. 38-3, pp. 29–32. The codicil’s only function was

to further limit the Plaintiffs’ (and Brian’s) ability to inherit under the will. Before the

codicil was executed, the will had specified that the Plaintiffs and Mr. Pope would inherit

under both trusts per stirpes, but the codicil modified §§ 2.3E and 2.4 of the will to

eliminate per stirpes inheritance. See Doc. 38-3, pp. 29–30.

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initially represented to the probate court that Dude’s operative will was the one he wrote

in 1993, which left his daughters nothing. She later disclosed the 2012 will. 4 3F

On March 27, 2020, Plaintiffs filed the instant lawsuit, which asked this Court to

find that Dude breached his obligations under the PSA. The basis for federal jurisdiction

was complete diversity of citizenship: Plaintiffs hale from Texas; Defendants are citizens

of Arkansas; and the amount in controversy is well over the $75,000 jurisdictional

minimum. Shirley was named a defendant because she took possession of all of Dude’s

assets following his death in 2017, and from that point onward, she either maintained,

distributed, or sold those assets. Shirley’s son Brian was also named a defendant, as

Plaintiffs alleged that Shirley gave Brian some of the assets of Dude’s estate that were

subject to Plaintiffs’ legal claim. Shirley and Brian took the position during the lawsuit that

Dude fully satisfied his promises to Plaintiffs under the PSA through gifts made during his

lifetime and bequests he made in his 2012 will.

The parties agreed fairly early on in the litigation that this Court would decide

Plaintiffs’ breach-of-contract claim on cross-motions for summary judgment. Those

motions (Docs. 89 & 101) were submitted in February of 2021, and after extensive briefing

and an in-person hearing, the Court concluded in an Order issued on May 24, 2021, that

Dude had breached the will provision of the PSA, that the 2012 will—though legally

enforceable—did not satisfy his contractual obligations, and that specific performance

was the appropriate remedy for the breach. See Doc. 147. How to achieve specific

performance, however, was a somewhat thorny issue, given the passage of time between

4It is the Court’s understanding that the probate proceedings have since been stayed

pending entry of judgment in this case.

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Dude’s death and the Court’s decision. Shirley and Brian filed a joint motion for

clarification, and the Court responded in an Order filed on July 8, 2021, that explained:

[S]pecific performance of the contract at issue here––where the breaching

party passed away, and the assets that were the subject matter of the

contract were devised by will to other heirs or distributed to other parties by

operation of law several years ago––requires the use of a constructive trust

to eventually reunite legal ownership with equitable and/or beneficial

ownership. As the Arkansas Supreme Court explained, “A constructive trust

is imposed where a person holding title to property is subject to an equitable

duty to convey it to another on the ground that he would be unjustly enriched

if he were permitted to retain it.” Cox v. Miller, 210 S.W.3d 842, 848 (Ark.

2005). It is not necessary to prove fraud to obtain a constructive trust. See

id. Rather, the “wrongful disposition of another’s property” will create a “duty

to convey the property” by means of constructive trust “without regard to the

intention of the person who transferred the property.” Id. at 849.

....

In the instant matter, Dude’s daughters—the Plaintiffs—were supposed to

inherit half of his estate pursuant to a contract Dude entered into before his

marriage to Shirley. Dude did not live up to his obligations under the

contract. Although Shirley is innocent in all of this––after all, no one is

alleging that she defrauded the Plaintiffs––she will nevertheless be unjustly

enriched if she is permitted to retain 100% of the assets of Dude’s estate.

A constructive trust “on half the property Dude owned and controlled up to

the moment of his death, (as well as any post-death interest, earnings, or

proceeds)” is the appropriate equitable remedy for Dude’s breach of

contract. (Doc. 147, p. 17). The identity and value of specific assets meeting

that definition are disputed and remain for trial.

(Doc. 167, pp. 4 & 6).

Before the bench trial, the parties stipulated to the identity and value of nearly all

the assets Dude owned and controlled at his death, either individually or jointly with

Shirley. See Doc. 165. They also stipulated as to which of these assets Shirley still

possessed as of the date of trial. Id. Finally, they stipulated as to whether and when

Shirley sold certain assets and the sale price of those assets. Id. After three days of

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testimony, the parties 5 were ordered to submit post-trial briefs to discuss their respective

4F

theories as to how the Court should account for the assets in Dude’s estate that Shirley

no longer possessed. See Docs. 187–189.

In the discussion below, the Court will first identify and value the assets Dude

owned separately at the time of his death. Second, the Court will identify and value the

assets Dude owned jointly with Shirley at the time of his death. In itemizing the joint

assets, the Court will also consider whether Shirley established at trial any equitable

ownership interest in any asset. Third, the Court will consider whether Dude paid Plaintiffs

any amount that could be considered an advance on their inheritance pursuant to the

PSA. Once the assets, their locations, their values, and any credits or offsets are

accounted for, the Court will detail how a constructive trust should be equitably impressed

in order to remedy Dude’s breach of the PSA.

IV. DISCUSSION

As noted at the outset of this Opinion, the trial of this matter was limited in scope.

The Court previously determined as a matter of law that Dude breached the PSA. (Doc.

147, p. 16). At trial, the parties presented evidence and argument so that the Court could

determine and effectuate the proper remedy for Dude’s breach. Impressing a

constructive trust over one half of the assets in Dude’s estate was the appropriate remedy,

but identifying and valuing those assets as of the date of Dude’s death and then tracing

their current location presented significant challenges. Below, the Court makes the

5 The only parties who participated in the trial were the four Plaintiffs, Shirley, and Ray

Fulmer, the Administrator of Dude’s estate. On the day before trial was to begin, Plaintiffs

and Brian agreed to certain stipulations of fact in exchange for his release from the

lawsuit. See Docs. 172 & 172-1. The Court granted Plaintiffs’ motion and dismissed

Brian from the case on the morning of the first day of trial. See Doc. 175.

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following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules

of Civil Procedure. 6 The Court’s ruling will then be expressed by applying the conclusions

5F

of law to the Court’s findings of fact.

A. Findings of Fact

1. Dude’s Separate Assets

1. Dude died on April 15, 2017.

2. On the date of his death, Dude owned certain separate assets. Immediately after

his death, Shirley took possession of Dude’s separate assets and either held or disposed

of them as she saw fit. Shirley’s actions were contrary to the 2012 will—of which she was

well aware.

3. Dude’s probate estate was eventually opened in the Circuit Court of Sebastian

County, Arkansas. This means that the separate assets Dude owned at the time of his

death will now pass through probate.

a. RJ Account 827

4. On the date of his death, Dude separately owned a Raymond James IRA Account

ending in 827 (“RJ Account 827”). (Doc. 165, p. 7).

5. RJ Account 827 was opened by Dude on January 13, 2005. Shirley was

named the sole direct beneficiary of the account. Id. The Plaintiffs were named as

contingent beneficiaries. (Plaintiffs’ Ex. 69.6).

6To the extent that any of the Court’s findings of fact constitute conclusions of law, or

mixed findings of fact/conclusions of law, the Court adopts those conclusions as if they

had been restated as conclusions of law. The opposite also applies.

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6. On the date of Dude’s death, the value of RJ Account 827 was $722,766.37. The

account held the following assets: (1) Raymond James Bank Deposit Program

($214,448.95); (2) Highland Floating Rate Opportunities Fund (Class A) (4,253 shares);

and (3) Oppenheimer Steelpath MLP Income Fund (Class A) (63,624 shares). (Doc. 165,

p. 7). The two mutual funds automatically reinvested dividends to acquire more shares

of the respective funds. (Doc. 192, p. 18).

7. In July 2017, Shirley transferred all of Dude’s holdings in RJ Account 827 to an

IRA account that she opened in May 2017 in her own name, which is referred to here as

Raymond James IRA Account ending in 450. (Doc. 165, p. 7). Shirley added her son

Brian as a beneficiary of this account. (Plaintiffs’ Ex. 89.1).

8. One-half the value of the Raymond James Bank Deposit Program, calculated as

of the date of Dude’s death, is $107,224.47.

9. Shirley has in her possession at least $107,224.47 from the Raymond James Bank

Deposit Program. These funds are located in her Raymond James IRA Account ending

in 450 (“RJ Account 450”). (Doc. 165, p. 7).

10. The Highland Floating Rate Opportunities Fund (HRFAX) merged in 2017 into the

Highland Income Fund (HFRO). As a result of this merger, Dude’s 4,253 shares of this

Fund were converted to 2,108 shares.

11. Shirley still holds all 2,108 of Dude’s HFRO shares in RJ Account 450. (Doc. 165,

p. 8). One-half of the total shares would be 1054 shares.

12. After Dude’s death, his original 63,624 shares of Oppenheimer Steelpath MLP

Income Fund (Class A) increased over time because of reinvested dividends. (Compare

Plaintiffs’ Exs. 61.6 with 63.5).

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13. On February 26, 2020, Shirley sold all of Dude’s original holdings in Oppenheimer

Steelpath MLP Income Fund (Class A), which had increased by that point to 88,578

shares, for $369,364.97. (Plaintiffs’ Ex. 67.7). On that same day, Shirley purchased 500

shares of Apple stock (AAPL) for $151,090.75, and the following day she purchased 100

shares of Alphabet Incorporated Class A stock (GOOGL) for $142,650.94. Id. RJ

Account 450 continues to hold these shares of AAPL and GOOGL (Doc. 165, pp. 7–8),

and thus Shirley’s sale of Dude’s Oppenheimer Steelpath MLP Income Fund (Class A)

for $369,364.97 (half of which equals $184,682.48) can be traced to these stock holdings

in RJ Account 450.

b. Dude, Inc.

14. According to Dude’s tax returns, he owned 100% of Dude, Inc., during taxable year

2016, the year before he passed away. (Plaintiffs’ Ex. 36.50).

15. Shirley testified at trial that she was “under the impression that [she and Dude]

were both 100 percent owners” of the company, but she had no proof to substantiate this

assertion. (Doc. 190, p. 23).

16. Dude’s tax return from 2017 shows that his 100% interest in the company was

divided, with him owning 28.8% and Shirley owning 71.2%, which the Court finds

represents the percentage of days of the taxable year that Dude was alive. (Plaintiffs’

Exs. 37.60 & 37.62).

17. Shirley was unable to testify as to the value of Dude, Inc., explaining that she had

not done any research and would have to “bone up on it.” (Doc. 190, p. 27).

18. Shirley testified that she believed the tax returns might have been “wrong in several

places,” (Doc. 190, p. 23); however, she agreed she had approved of all tax returns before

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they were filed, as she was “the liaison” between Dude’s companies and the tax preparer.

Id. at p. 24.

19. Based on the tax returns and the testimony of Plaintiffs’ expert witness, Ms. Cheryl

Shuffield, the Court finds that the value of Dude, Inc., as of December 31, 2020, was

$4,400,000.00. See Plaintiffs’ Exs. 36 & 37; Doc. 191, p. 19; Court’s Ex. 1, Dude, Inc.

Fair Market Value Analysis.

c. Premier Foam, Inc.

20. Shirley testified that Dude owned 90% of Premier Foam, Inc., at the time of his

death, and that she owned 10%.

21. But according to Dude’s tax returns, he owned 100% of Premier Foam, Inc., during

taxable year 2016, the year before he passed away. See Plaintiffs’ Ex. 207.028.

22. Dude’s tax return from 2017 shows that his 100% interest in the company was

divided, with him owning 28.8% and Shirley owning 71.2%, which the Court finds

represents the percentage of days of the taxable year that Dude was alive. (Plaintiffs’ Ex.

208.19).

23. Shirley testified with respect to Premier Foam’s tax returns that even though she

was the “liaison” between the business and the tax preparer, the tax returns were

inaccurate. She testified, “I made a mistake by not being more careful about the tax

returns,” and claimed that even though the tax returns showed she owned no shares of

Premier Foam, Inc., at the time of Dude’s death, she actually owned 100 shares, or 10%

of the company. (Doc. 190, p. 31).

24. Shirley produced in discovery a stock ledger for Premier Foam, Inc. See Plaintiffs’

Ex. 323.74. She testified that the stock ledger correctly listed the number of shares of

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Premier Foam, Inc., that were owned by each of the shareholders in 2007. See Doc. 190,

pp. 36–37. Shirley was not listed as a shareholder at that time, and her husband was

listed as owning 56% of shares of the company. Id.

25. Shirley produced in discovery the front (but not the back) of a stock certificate for

Premier Foam, Inc., dated February 8, 2011. See Plaintiffs’ Ex. 323.72. The stock

certificate indicates that she is the holder of 100 shares of Premier Foam, Inc. However,

the only signature on the certificate is that of the secretary of the company, whom Shirley

testified was her husband, Dude. Shirley agreed that no other documents existed to prove

her ownership of 100 shares of the company. See Doc. 190, p. 34.

26. Shirley also agreed that a man named Pratt Wallace was the president of Premier

Foam, Inc., on February 8, 2011, the date that 100 shares of stock were allegedly

transferred to her. See Doc. 190, p. 40. Mr. Wallace did not sign the stock certificate.

See Plaintiffs’ Ex. 323.72.

27. Based on Shirley’s testimony and the documentary evidence presented at trial, the

Court finds that even if Shirley had validly received 100 shares of Premier Foam, Inc.

stock on February 8, 2011, she did not own any stock in the company in 2016, the year

before Dude’s death.

28. Dude owned 100% of Premier Foam, Inc., at the time of his death.

29. Based on the tax returns and the testimony of Plaintiffs’ witness, Ms. Shuffield, the

Court finds that the value of Premier Foam, Inc., as of December 31, 2020, was

$12,040,000.00. See Plaintiffs’ Exs. 207 & 208; Doc. 191, p. 18; Court’s Ex. 1, Premier

Foam, Inc. Fair Market Value Analysis.

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30. After Dude’s death, Shirley received distributions from Premier Foam, Inc., to her

BancorpSouth checking account ending in 6671. Those distributions total $3,240,000.00.

See Plaintiffs’ Exs. 208.19, 209.25, 210.029, 211–222; Doc. 190, pp. 44–53.

31. Shirley testified that Dude loaned Premier Foam, Inc. $10 million at some point

prior to his death. She maintained that at around the time of Dude’s death, this loan

amount was down to approximately $6 million. See Doc. 190, p. 52. She claimed that

the distributions she received from Premier Foam, Inc., after Dude’s death were intended

to pay the loan. The Court finds that, other than Shirley’s testimony at trial, there is no

evidence of a loan made by Dude to Premier Foam, Inc. The Court further finds that

Shirley’s testimony regarding the existence of a loan to Premier Foam, Inc., is not

credible, and that distributions she received from the company after Dude’s death were

simply cash payments.

32. Half of the distributions Shirley received from Premier Foam, Inc., after Dude’s

death total $1,620,000.00.

d. Dude’s Separate Personal Property and Household Effects

33. The parties represented to the Court that Dude owned certain personal property

and household effects at the time of his death, and that these items are currently in

Shirley’s possession. (Doc. 165, p. 9). However, the parties did not offer the Court any

details about this separate property, nor did they estimate any values. The Administrator

of Dude’s estate has the responsibility to identify and inventory the items in this category.

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2. Shirley’s Separate Assets (Purchased with Marital Funds)

34. Certain items of property were identified by the parties as having been titled in

Shirley’s separate name before Dude’s death even though they were purchased during

the marriage with marital funds.

35. Shirley gave alternate reasons during her testimony as to why these separate

properties were titled in her name. At one point, she suggested they were gifts to her

from Dude. See Doc. 190, p. 114. At another point, she stated that these properties were

titled in her name simply because doing so was “expedient.” Id. at p. 115.

36. Real property located at 509 Doubletree Trail, Flower Mount, Texas, was titled in

Shirley’s separate name during her marriage to Dude but was purchased with marital

funds. One of Shirley’s sisters lives in this property rent-free. (Doc. 190, pp. 94–95).

37. Real property located at 4806 West Trail Dust Street, Fayetteville, Arkansas, was

titled in Shirley’s separate name during her marriage to Dude but was purchased with

marital funds. Another sister of Shirley’s lives in this property rent-free. (Doc. 190, pp.

95–96).

38. Real property located at 641 64th Avenue, Marathon, Florida, was titled in Shirley’s

separate name during her marriage to Dude but was purchased with marital funds.

Shirley sold that home in 2020. (Doc. 190, p. 96).

39. A Prudential Annuity (Contract Number: E0483716) was purchased in Shirley’s

separate name using marital funds. Testimony at trial indicated that the value of this

annuity is $5,500,000.00. (Doc. 165, p. 9; Doc. 190, p. 98).

40. Assets titled in Shirley’s sole name prior to Dude’s death were likely gifts, and, in

any event, constitute assets that Dude did not own and control at the time of his death.

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Plaintiffs affirmatively disclaim any interest in the properties that are or were titled in

Shirley’s separate name or in the proceeds from the sale of these properties.

3. Assets Dude Owned Jointly with Shirley at His Death

41. On the date of his death, Dude owned certain assets jointly with Shirley, either in

tenancies by the entirety or in joint tenancies with right of survivorship.

42. Those jointly held assets passed directly to Shirley by operation of law upon

Dude’s death.

43. The purchase monies used to buy the jointly held assets originated from Dude, not

Shirley. Testimony at trial confirmed that at the time of her marriage to Dude, Shirley’s

separate property included, at most, one or two vehicles and $40,000.00 in cash, which

she had “earmarked” to pay for her son’s college. (Doc. 190, pp. 230–31). Dude started

Crain Industries, a multi-million-dollar business, decades prior to his marriage to Shirley.

She testified that during her marriage to Dude, she helped with Dude’s businesses in

various ways, and she did not earn a separate income from any job that was unrelated to

these businesses. There was some testimony at trial that Shirley engaged in professional

sports fishing during the marriage, but she stated that this was a hobby she did mostly

“for fun” and not for profit. Id. at p. 234.

44. Dude sold Crain Industries in 1995. Just before the sale, Dude owned 55.72% of

the outstanding stock, while his daughters, the Plaintiffs, owned the rest—44.28% of the

business. According to the testimony at trial, Dude had to acquire his daughters’ stock in

Crain Industries before he could sell the company. (Doc. 191, p. 164). Mimi testified that

her father approached her and her sisters in the early 1990s about buying their stock. Id.

At the time, Dude was trustee of his daughters’ shares. Id. All four daughters agreed to

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sell their interest in Crain Industries to their father, and he purchased their shares in full

before selling the company to the end purchaser. At trial, Mimi produced her written

consent to the sale of her shares; that document stated that Dude promised to pay Mimi

a total of $3,000,000.00 for her interest in Crain Industries. (Court’s Ex. 4). Mimi testified

that Dude paid her a total of $1,000,000.00 in installments, but he stopped making

payments after 1993 and still owed her $2,000,000.00, plus interest, at the time of his

death. Id. at pp. 168–69. She produced her tax returns to confirm that Dude made only

two installment payments of $500,000.00 each. See Court’s Ex. 5. Cathee testified that

Dude also promised to pay her $3,000,000.00 in installments, plus interest, for her shares

in Crain Industries, and that he made the same agreement with her other two sisters, Lisa

and Kristan. (Doc. 191, p. 216). Cathee further testified that Dude died still owing each

sister the same amount ($2,000,000.00). Id. 7 6F

45. The purchaser of Crain Industries paid $130,000,000.00 for the business.

(Shirley’s Ex. 76). Once taxes and liabilities were subtracted from the purchase price, the

net cash that was realized from the sale of Crain Industries was $83,926.986.55. Id. This

money funded most of the purchases and investments that Dude and Shirley made during

their marriage.

a. Real Property

46. On the date of Dude’s death, Dude and Shirley owned the following real property

jointly as husband and wife:

• 10101 Dallas Street, Fort Smith, Arkansas (the marital home);

7

Shirley claims that Dude repaid the Plaintiffs in full for the purchase of their stock in

Crain Industries. See Doc. 191, p. 136. The Court finds Shirley’s contention neither

credible nor accurate.

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• 3655 Beach Way, Van Buren, Arkansas (the ranch);

• 201 West Seaview Drive, Marathon, Florida (the Florida vacation home);

• 6201 State Line Road, Fort Smith, Arkansas (the warehouse);

• 4300 Phoenix Avenue, Fort Smith, Arkansas (Kitties and Kanines); and

• 14805–07 Dutchman Drive, Rogers, Arkansas (the lake house).

(Doc. 165, pp. 8–9).

47. All of these properties passed directly to Shirley by operation of law at Dude’s

death.

The Marital Home

48. The assessed value of 10101 Dallas Street is $7,070,250.00. (Doc. 165, p. 8).

49. According to Shirley’s testimony, 10101 Dallas Street was built in 2008, and she

and Dude lived there together as husband and wife until he passed away. Shirley worked

with an architect to design the house that was situated on that property. The design was

suited to Shirley’s taste, and she selected all finishes and furnishings. She also oversaw

the years-long construction of the home, and she still lives there. (Doc. 190, pp. 126–

27).

The Ranch

50. 3655 Beach Way was acquired in 1992 and was the couple’s primary home just

after they were married. (Doc. 165, p. 8). According to Shirley’s testimony, she raised

horses and cattle at 3655 Beach Way, which she referred to as a “ranch.” (Doc. 190, p.

126).

51. The appraised value of 3655 Beach Way is $2,497,590.00. (Doc. 165, p. 8).

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52. After Dude’s death, Shirley collected rent for 35 months from renters who were

living at 3655 Beach Way. The amounts of these rent payments varied, but Shirley

received these payments consistently from May 1, 2017, through April of 2020 in the total

amount of $50,872.24. See Plaintiffs’ Ex. 334. The rent payments were deposited to

Shirley’s BancorpSouth 6671 checking account. Id. Shirley still owns this property.

The Florida Vacation Home

53. 201 West Seaview Drive was acquired in 1994 as a vacation home. (Doc. 165, p.

8). Shirley testified that when the property was purchased, it was “in terrible condition,”

and she oversaw all property renovations. (Doc. 190, pp. 130–31). She also decorated

it to her taste. Id. Following one or more hurricanes, the house was renovated for a

second time, beginning in 2016. The construction work was only recently completed, and

Shirley still possesses this property. See id. at p. 131.

54. The appraised value of 201 West Seaview Drive is $4,900,000.00. (Doc. 165,

p. 9).

The Warehouse

55. 6201 State Line Road is a commercial warehouse that is still in Shirley’s

possession.

56. Licensed property appraiser Brad Tharpe testified at trial that the habitable square

footage of 6201 State Line Road was 262,028 feet. (Doc. 191, p. 71). Comparing this

property to similar properties in the geographic area, Mr. Tharpe determined that the

appropriate price per square foot was $18.00. Using this figure, Mr. Tharpe valued the

property using the market comparison approach and found that the appraised value was

$4,720,000.00. Id. at pp. 77–78. Mr. Tharpe alternatively valued the property using the

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income capitalization method, which resulted in a valuation of $4,680,000.00. Id. at p.

80. Reconciling these two figures, Mr. Tharpe arrived at a final estimate of the value of

6201 State Line Road of $4,700,000.00. Id. at p. 81.

57. Licensed appraiser Donald Burris also testified at trial. He appraised the property

at 6201 State Line Road and believed the gross rentable area was 268,068 square feet,

which is about 6,000 square feet more than Mr. Tharpe’s measurement. (Doc. 192, p.

138). Mr. Burris used both the market comparison approach and the income valuation

approach to determine the appraised value of the property. Id. at p. 101. After comparing

6201 State Line Road to similar properties in the area, Mr. Burris decided that the

appropriate price per square foot was $14.50, which resulted in a market valuation of

$3,910,000.00. Id. at p. 109. Using the income capitalization method—and assuming a

rental rate comparable with the rates of similar properties in the area—Mr. Burris

determined that the value of the property was $3,930,000.00. Id. at p. 112. Reconciling

these two figures, Mr. Burris arrived at a final estimated value for the property of

$3,925,000.00. Id.

58. A tenant has occupied 6201 State Line Road continuously since before Dude died.

(Doc. 190, p. 90). After Dude died, the tenant paid rent directly to Shirley. At the time of

trial, Shirley had collected fifty months of rent from tenant MP Warehouse, beginning in

May of 2017 and continuing through July of 2021. Each month’s rent was $38,224.00;

after fifty months, the total rent collected by Shirley for this property was $1,911,200.00.

(Doc. 190, pp. 92–93; Plaintiffs’ Exs. 334.003–334.262).

59. Mr. Burris’s valuation of 6201 State Line Road was likely too low. He testified at

trial that when he inspected the property, he observed that a tenant was occupying it.

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Even though Mr. Burris was Shirley’s retained expert, she did not inform him how much

she was charging per month in rent. When Mr. Burris performed his initial market

evaluation of the property, he assumed that $1.65 per square foot was a reasonable rent

amount; however, that amount was not calculated based on the actual rent payments

Shirley had been collecting. The Court questioned Mr. Burris during trial, and it appeared

that a more reasonable assumption for rent per-square-foot, based on the actual rent

Shirley collected, was $1.75 per square foot. Using that new figure, Mr. Burris calculated

that the value of 6201 State Line Road, using the market valuation method, was

approximately $4,200,000.00. (Doc. 192, pp. 137–38). The Court adopts that valuation

and finds that the reasonable fair market value of 6201 State Line Road is $4,200,000.00.

Kitties and Kanines

60. 4300 Phoenix Avenue in Fort Smith, Arkansas, was a large building that was

acquired on or around August 8, 2011, and was jointly owned by Dude and Shirley at the

time of Dude’s death. (Doc. 165, p. 9). However, in December of 2017, Shirley donated

the Phoenix Avenue property to a charity called Kitties and Kanines. Id. The Phoenix

Avenue property was appraised for $525,000.00. As a result, Shirley received a tax credit

of $236,250.00. Id.

61. Plaintiffs disclaim any right or interest in the Phoenix Avenue property, including

its appraised value and any tax deduction Shirley received. (Doc. 192, p. 164).

Lake House

62. 14805–07 Dutchman Drive in Rogers, Arkansas, was a property consisting of

duplexes acquired by Dude and Shirley on or around August 4, 2000. They were owned

jointly by Dude and Shirley at the time of Dude’s death. (Doc. 165, p. 9).

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63. Shirley testified that she and Dude bought the duplexes on Dutchman Drive so

they could “fish Beaver Lake” in Northwest Arkansas. (Doc. 190, p. 132). She also

testified that she oversaw the renovation of this property at or around the time of

purchase. Id.

64. On February 21, 2018, less than a year after Dude’s death, Shirley sold 14805–07

Dutchman Drive for $350,000.00. (Doc. 190, p. 89).

65. As a result of the sale of the Dutchman Drive property, Shirley deposited

$325,195.40 in net proceeds in her BancorpSouth account ending in 6671. (Plaintiffs’ Ex.

334.213). One-half of the net proceeds is $162,597.00.

b. Cash Held in Joint Bank Accounts

66. As of the date of Dude’s death, he and Shirley possessed joint checking accounts.

These were held in the form of joint tenancies with right of survivorship. (Doc. 165, p. 8).

Account 6671

67. BancorpSouth Joint Checking Account ending in 6671 contained $149,133.94.

Upon Dude’s death, Shirley became the sole legal owner of that account. (Doc. 165, p.

8). As of the time of trial, the balance in that account was $231,369.18. (Plaintiffs’ Ex.

330.1).

Account 2206

68. BancorpSouth Joint Checking Account ending in 2206 contained $122,883.37.

Upon Dude’s death, Shirley became the sole legal owner of that account. (Doc. 165, p.

8). The account’s balance as of the time of trial was $198,676.19. (Plaintiffs’ Ex. 331.1).

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Account 1312

69. BancorpSouth Joint Checking Account ending in 1312 contained $16,162.33.

(Doc. 165, p. 8). Upon Dude’s death, Shirley became the sole legal owner of that account.

She closed this account in early 2020. Id. All funds were withdrawn in cash. (Plaintiffs’

Ex. 31). The Court traces this cash to Shirley’s primary checking account ending in 6671.

Accounts 1312 and 6671 were maintained at the same bank at the same time, and Shirley

used them in the same manner, namely, to pay bills and ordinary expenses and to deposit

rental payments. See Restatement (Third) of Restitution § 59, cmt. f (“If the claimant can

trace funds into the hands of a recipient who maintains multiple bank accounts,” the court

may, based on the facts before it, determine that “two or more accounts should be

aggregated” for purposes of tracing funds into the accounts.).

c. Regional Jet Center

70. Regional Jet Center, Inc., is a company that Dude started in 2001. (Doc. 190, p.

142). The company is physically located at the Northwest Arkansas Regional Airport near

Bentonville, Arkansas. Regional Jet Center leases the land on which it operates. Id. at

p. 54. It is a fixed-base operation that sells jet fuel to the airlines that operate out of the

airport. (Doc. 191, p. 50). It also offers aircraft maintenance and other services. Its

facilities include a fixed wing hangar, a gym, a pilot’s lounge and sleeping rooms,

conference rooms, and a reception area. It possesses the exclusive right to provide fuel

and de-icing services to all planes using the airport. (Court’s Ex. 1, Regional Jet Center,

Inc. Fair Market Value Analysis, p. 9).

71. Shirley testified that Regional Jet Center’s ground lease is set to expire in the next

six or seven years. (Doc. 190, p. 54). Plaintiffs’ expert, Ms. Shuffield, testified that she

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was provided information confirming that the lease would expire in 2031. See Doc. 191,

pp. 15–16; Court’s Ex. 1, Regional Jet Center, Inc. Fair Market Value Analysis, p. 5.

72. When Dude started Regional Jet Center, he decided that he and Shirley would

jointly own one-sixth of the stock in the company, and their shares would be the only

voting shares. The remaining five-sixths of the stock in the company were nonvoting

shares, and they were divided equally among the four Plaintiffs and Brian. (Doc. 165, p.

10).

73. Dude and Shirley’s one-sixth interest in Regional Jet Center is valued at

$1,480,000.00. (Doc. 191, p. 17; Court’s Ex. 1, Regional Jet Center, Inc. Fair Market

Value Analysis).

74. Shirley testified that she “decorated and helped to design the building” where

Regional Jet Center operates. (Doc. 190, p. 148). After Dude’s fall in 2014, she took on

an expanded role with more responsibilities. She testified that she worked with the CEO

of the company on repairing and replacing equipment, buying new equipment, and

repairing the building and the asphalt roadways. Id. at pp. 148–49. She also handled

“any kind of labor disputes” within the company. Id. at p. 149. She currently manages

(or oversees the management of) most of the operations for the business and is paid a

salary of $15,000.00 per year for her efforts, mainly so that she can “draw insurance.” Id.

at 75. Upon Dude’s death, their one-sixth interest in the company became Shirley’s by

operation of law.

76. Since Dude’s death in 2017, Shirley has received a total of $938,519.00 in stock

distributions from Regional Jet Center. (Plaintiffs’ Exs. 240.085, 241.060, 242.109).

Those distributions are traced to Shirley’s BancorpSouth checking account ending in

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2206. (Plaintiffs’ Exs. 334.264–334.285). The Plaintiffs have also received distributions

since Dude’s death (at least through 2019). (Plaintiffs’ Exs. 240–42).

d. Airport Transportation Company

77. Airport Transportation Company was started by Dude in 2002, shortly after he

started Regional Jet Center. Dude owned the company jointly with Shirley.

78. Airport Transportation Company is a licensed and bonded freight shipping and

trucking company. It owns tractor trailers and tankers that transport airline fuel in

Northwest Arkansas. It services Regional Jet Center and is responsible for delivering the

airline fuel used by Regional Jet Center for planes that fly in and out of Northwest

Arkansas Regional Airport in Bentonville, Arkansas. (Court’s Ex. 1, Airport Transportation

Company Fair Market Value Analysis).

79. Shirley testified that since Airport Transportation Company’s inception, she has

been very involved in the operations. She testified that she has always been responsible

for negotiating the contracts for purchasing fuel. She also stated, “I purchase, or make

arrangements to purchase, the trucks, the hauling, the lease from the airport, the tanks.”

(Doc. 190, p. 157). She claims she did all of these tasks on behalf of the company both

prior to Dude’s accident in 2014 and after his accident, continuing to the present day. Id.

80. Plaintiffs’ expert, Ms. Shuffield, valued Airport Transportation Company at

$1,705,000.00. (Doc. 191, p. 17; Court’s Ex. 1, Airport Transportation Company Fair

Market Value Analysis). The Court finds this valuation to be accurate.

81. Upon Dude’s death, his interest in the company became Shirley’s by operation of

law. Shirley has received distributions from Airport Transportation Company since Dude’s

death. (Doc. 190, pp. 63–64).

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82. According to the tax returns for Airport Transportation Company for 2017, 2018,

and 2019, see Plaintiffs’ Exs. 21.19, 22.16, 23.15, Shirley’s distributions after Dude’s

death totaled $1,372,000.00.

83. Plaintiffs were unable to trace exactly where all the distributions from Airport

Transportation Company were deposited, but Shirley testified that she believed the

distributions went to her BancorpSouth account ending in 6671. (Doc. 190, p. 64).

e. Loan to Brian Pope

84. Prior to Dude’s death, Shirley made certain transfers to her son Brian, his trust,

and/or companies affiliated with him, including but not limited to Cognition, Inc., a

California corporation; LIT POST, LLC, a California limited liability company; Cognition

Corporation, a California corporation; and the ARC/K Project, a California non-profit

corporation. (Doc. 172-1, p. 1).

85. These transfers totaled $9,100,000.00, and they originated from Dude and

Shirley’s joint accounts. (Doc. 172-1, p. 1).

86. These transfers were loans from Dude and Shirley to Brian. (Doc. 172-1, p. 1).

87. After Dude’s death, Shirley made other transfers to Brian, his trust, and/or his

affiliated businesses in the total amount of $6,000,000.00. At least $4,650,000.00 of

these post-death transfers originated from Shirley’s BancorpSouth account ending in

6671. Shirley does not assert that these post-death transfers were loans. (Doc. 172-1,

p. 2).

f. Joint Raymond James Investment Account Ending in 975

88. At the time of Dude’s death, he and Shirley held numerous assets in a joint

Raymond James account ending in 975 (“RJ Account 975”). This account held stocks,

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mutual funds, bonds, and cash. Dude and Shirley held the assets in this account as joint

tenants with right of survivorship. (Doc. 165, p. 3).

89. RJ Account 975 was opened on December 19, 2003. (Doc. 165, p. 3). The

manager of the account was Rob Bandy, who testified at trial.

90. Mr. Bandy testified that he was previously an account manager at a company

called Morgan Keegan & Company, Inc. (“Morgan Keegan”). (Doc. 192, pp. 45–46).

Dude and Shirley opened a joint account with Morgan Keegan—with Mr. Bandy as

account manager—in October of 2003. (Shirley’s Ex. 75).

91 Initially, Dude placed $1,000,000.00 into the Morgan Keegan account, but within a

short period of time, Dude added another $12,000,000.00 to the account. (Doc. 192, p.

48).

92. Mr. Bandy then became employed by Raymond James, and the Morgan Keegan

account in Dude and Shirley’s name containing approximately $13,000,000.00 was

transferred to Mr. Bandy’s new employer and renamed RJ Account 975. (Doc. 165, p.

3). Plaintiffs and Brian were named the sole remainder beneficiaries of that account.

(Plaintiffs’ Ex. 314).

93. When Dude and Shirley opened the Morgan Keegan account in 2003, they stated

that their approximate net worth was $50,000,000.00 and their liquid net worth was

$30,000,000.00. (Shirley’s Ex. 75).

94. At the time of Dude’s death, RJ Account 975 had grown in value from

$13,000,000.00 to $50,948,766.08. (Doc. 165, p. 3). This account became Shirley’s by

operation of law after Dude’s death.

95. At the time of Dude’s death, RJ Account 975 contained the following assets:

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• 178,796 shares of Apple stock, which due to a 4 to 1 stock split on August 31,

2020, is now represented by 715,184 shares (Doc. 165, p. 3);

• 3,008 shares of Alphabet, Inc. (Class C), id.;

• 3,000 shares of Alphabet, Inc. (Class A), id.;

• 455,806.9 shares of J.P. Morgan Municipal Money Market Fund, id.;

• 4,676 shares of ConocoPhillips stock, id.;

• 5,000 shares of Exxon Mobil Corporation stock id.;

• 12,400 shares of Intel Corporation stock, id.;

• 2,338 shares of Phillips 66 stock, id.;

• 3,120 shares of Procter and Gamble stock, id.;

• 700 shares of Tesla Incorporated stock, id.;

• 95 shares of Nortel Networks Corporation stock (Nortel Networks is now

defunct), id. at p. 4;

• 44,122 shares of Invesco Charter Fund (Class A), id.;

• 249,153 shares of Invesco High Yield Municipal Fund (Class A), id.;

• 66,090 shares of Invesco Limited Term Municipal Income Fund (Class A), id.;

• 22,865 shares of American Balanced Fund (Class A), id.;

• 21,156 shares of Artisan Mid Cap Value Fund (Investor Class), id.;

• 15,525 shares of Black Rock Global Allocation Fund (Class A), id.;

• 36,107 shares of Black Rock Multi Asset Income Portfolio Fund (Class A), id.;

• 6,440 shares of Capital World Growth & Income Fund (Class F), id.;

• 21,034 shares of Franklin High Yield Tax Free Income Fund (Class A), id.;

• 8,196 shares of Growth Fund of America (Class F1), id.;

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• 23,080 shares of Hartford Mid Cap Fund (Class A), id.;

• 67,237 shares of Highland Floating Rate Opportunities Fund (Class A), id.;

• 57,982 shares of Perkins Mid Cap Value Fund (Class A), id.;

• 37,203 shares of Lord Abbett Value Opportunities Fund (Class A), id.;

• 28,045 shares of MFS Municipal Limited Maturity Fund (Class A), id.;

• 145,234 shares of MFS Arkansas Municipal Bond Fund (Class A), id.;

• 87,715 shares of MFS Municipal High Income Fund (Class A), id. at p. 5;

• 21,244 shares of PIMCO Global Multi Asset Fund (Class A), id.;

• 81,283 shares of Pioneer Classic Balanced Fund (Class A), id.;

• 11,194 shares of T. Rowe Price Media and Telecommunications Fund, id.;

• 76,159 shares of Prudential Municipal High Income Fund (Class A), id.;

• 69,685 shares of Prudential Jennison Small Company Fund Inc. (Class A), id.;

• 67,920 shares of Wells Fargo Strategic Municipal Bond Fund (Class A), id.;

• 15,000 shares of Ishares Silver Trust, id.;

• 2,000 shares of SPDR Gold TR Gold SHS, id.; and

• $100,000.00 par value Grand River Dam Authority Oklahoma Revenue Bonds,

Series 2008 A (386442TE7), id.

g. Joint Raymond James Investment Account Ending in 124

96. At the time of Dude’s death, he and Shirley jointly owned another Raymond James

account ending in 124 (“RJ Account 124”). At all relevant times, this account held 208

shares of American Airlines Group stock. (Doc. 165, p. 5).

97. Dude and Shirley opened RJ Account 124 on March 6, 2014. (Doc. 165, p. 5).

98. At the time of Dude’s death, this account became Shirley’s by operation of law.

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h. Dude’s Joint RJ Accounts 975 and 124 Traced to Shirley’s RJ Account 061

99. In May of 2017, the month after Dude passed away, Shirley requested that RJ

Accounts 975 and 124 be journaled to a new Raymond James account in her separate

name. (Doc. 165, p. 5).

100. Shirley’s separate Raymond James account ends in 061 (“RJ Account 061”). She

reduced Plaintiffs’ remainder interest in the new account to 40%. See Doc. 104-14, p. 2.

And after that, she eliminated their interest entirely. See id. at p. 3.

101. As of July 31, 2017, Shirley’s RJ Account 061 had a total value of $52,728,621.21.

(Doc. 165, p. 5).

102. As of December 2020, Shirley’s RJ Account 061 had a total value of

$95,080,993.53. (Doc. 165, p. 5).

103. As of May 28, 2021, Shirley’s RJ Account 061 held the following assets:

• Client Interest Program (Cash Equivalent) in the amount of $4,223,260.44, (Doc.

165, p. 5);

• Raymond James Bank Deposit Program (Cash Equivalent) in the amount of

$2,455,156.09, id. at p. 6;

• 501,864 shares of Apple stock, id.;

• 2,228 shares of Alphabet, Inc. (Class C), id.;

• 2,450 shares of Alphabet, Inc. (Class A), id.;

• 208 shares of American Airlines Group stock, id.;

• 750 shares of Coinbase Global, Inc. stock, id.;

• 4,676 shares of ConocoPhillips stock, id.;

• 5,000 shares of Exxon Mobil Corporation stock, id.;

• 1,840 shares of Home Depot, Inc. stock, id.;

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• 2,338 shares of Phillips 66 stock, id.;

• 650 shares of Roper Technologies stock, id.;

• 5,800 shares of Verizon Communications stock, id.;

• 132,563 shares of Invesco High Yield Municipal Fund (Class A), id.;

• 11,468 shares of Invesco Limited Term Municipal Fund (Class Y), id. at p. 7;

• 16,477 shares Black Rock Multi Asset Income Portfolio Fund (Class N/L), id.;

• 12,443 shares Franklin High Yield Tax Free Income Fund Advisor (Class N/L), id.

• 114,191 shares MFS Arkansas Municipal Bond Fund (Class I), id.;

• 30,553 shares of MFS Municipal Limited Maturity Fund (Class I), id.;

• 102,416 shares MFS Municipal High Income Fund, id.;

• 9,697 shares T. Rowe Price Communications and Tech Fund (Investor Class), id.;

• 37,573 shares PGIM Municipal High-Income Fund (Class Z), id.;

• 38,093 shares Wells Fargo Strategic Municipal Bond Fund (Class I), id.; and

• 2,000 shares SPD Gold Shares, id.

104. The assets in RJ Account 975 that are no longer in Shirley’s RJ Account 061 were

sold by Shirley. The liquidated proceeds passed through RJ Account 061 and were then

used by Shirley for her own purposes. See Plaintiffs’ Exs. 257–305 & 332; Doc. 188-3.

105. In the years following Dude’s death, the publicly traded stock that Dude had

previously held in RJ Account 975 earned cash dividends. Those cash dividends were

not automatically reinvested but were instead deposited into Shirley’s RJ Account 061.

The total amount of cash dividends paid since Dude’s death is $1,197,081.13. (Doc. 188-

2, listing exhibit numbers).

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4. 2012 Christmas Gifts

106. Each of the four Plaintiffs and Brian received a cash Christmas gift from Dude and

Shirley in December of 2012.

107. Each recipient received the same amount: $1,648,000.00. (Doc. 165, p. 2).

108. Just before these gifts were given, Dude executed his 2012 will, (Doc. 38-3, pp. 5–

28), which created a trust called the Bypass Trust for the benefit of the four Plaintiffs and

Brian. The Bypass Trust was to be funded with any asset of Dude’s estate that was

available to pass through probate free of taxes. Id. at § 2.2.A(a).

109. When Dude and Shirley gave Plaintiffs these gifts, they told them that the gifts

exhausted Dude’s remaining lifetime gift and estate tax credit. (Doc. 165, p. 2). Mimi

confirmed this fact in her testimony. (Doc. 191, p. 184). Separate Plaintiff Cathee Crain

testified that Dude deposited the 2012 Christmas gifts into the Plaintiffs’ individual trust

accounts. Id. at pp. 223–24.

110. The individual lifetime gift exclusion amount in 2012 was $5,120,000.00. In 2017,

the individual lifetime gift exclusion amount was $5,490,000.00. (Doc. 191, pp. 139–40).

111. There is no evidence that Dude intended the 2012 Christmas gifts to satisfy, in

whole or in part, his contractual obligations to Plaintiffs under the PSA.

112. Shirley did not prove that any other gift Dude gave to Plaintiffs during his lifetime

was given in satisfaction of his contractual obligations under the PSA.

B. Conclusions of Law

1. General Principles: Imposition of a Constructive Trust

As previously explained in the Court’s Memorandum Opinion and Order on

summary judgment (Doc. 147), Dude breached the PSA when he failed to leave at least

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one-half of his estate to Plaintiffs. His 2012 will was insufficient. The remedy for breach

of contract is specific performance; however, because Dude passed away and Shirley did

not open a probate estate at the time of his death, his separate assets remained in her

possession, and she either retained them or sold them as she saw fit. Other assets Dude

and Shirley owned jointly at the time of his death passed to Shirley by operation of law,

and once again, she either kept those assets or sold them.

After considering Shirley’s testimony at trial, the Court will accept at face value that

she was unaware of Dude’s contractual obligations under the PSA until Plaintiffs filed this

lawsuit against her and Dude’s estate on March 27, 2020. By contrast, one of the

Plaintiffs, Mimi, testified that she was aware of her father’s PSA obligations as early as

1988, even before her parents were divorced. At trial, the other three Plaintiffs, Cathee,

Lisa, and Kristan, stipulated that they were also aware of the PSA’s requirements at least

at the time of their parents’ divorce in 1989. (Doc. 192, p. 140). This means all four

Plaintiffs knew that Dude was contractually obligated to leave them one-half of his estate

throughout the twenty-seven years Dude and Shirley were married.

As to why Plaintiffs waited almost three years after Dude’s death to file suit, the

Court surmises that the decision must have depended on Shirley’s actions around that

time. As already noted, most of Dude’s personal wealth was held in his and Shirley’s joint

RJ Account 975. Plaintiffs were the sole remainder beneficiaries of that account, along

with Shirley’s son Brian, as of the date Dude passed away. If their beneficial interest had

remained unchanged, Plaintiffs would have been poised to collectively inherit 80% of the

assets in that joint account once Shirley died. However, within a month of Dude’s death,

Shirley reduced Plaintiffs’ remainder interest in the account to 40%. And then she

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eliminated their interest altogether—something she was capable of doing as sole owner

of the account, but perhaps should not have done. Though Plaintiffs’ decision to file suit

several years after Dude’s death greatly complicated the task of tracing and valuing

assets, it is also true that Shirley’s decision to remove Plaintiffs as remainder beneficiaries

more than a year after his death must have influenced the timing of this lawsuit.

Therefore, to the extent the Court refers to Shirley in the discussion below as an

“innocent” recipient of Dude’s estate, that term is qualified by the Court’s observations

above. 8

7F

The Court looks to Arkansas law when determining Plaintiffs’ remedy for breach of

contract. According to state law, “A constructive trust is imposed where a person holding

title to property is subject to an equitable duty to convey it to another on the ground that

he would be unjustly enriched if he were permitted to retain it.” Cox v. Miller, 210 S.W.3d

842, 848 (Ark. 2005). Here, Shirley—though she may not have known it at the time—

was under a legal duty to maintain Dude’s assets after his death so half of it could be

conveyed to Plaintiffs. The “wrongful disposition of another’s property” will create a “duty

to convey the property” by means of a constructive trust “without regard to the intention

of the person who transferred the property.” Id. at 849. In other words, even though

Shirley believed she was entitled to inherit all of Dude’s property, both separate and joint,

8To be sure, the Court finds troubling several of Shirley’s actions after Dude died. For

example, Shirley had to have known about Dude’s 2012 will because she was present

with Dude and the lawyer who prepared it. Yet, Shirley did not seek to probate Dude’s

separate assets in the manner dictated by the will. And when the Plaintiffs petitioned to

open a probate estate, Shirley initially filed the 1993 will that left Plaintiffs nothing. When

questioned at trial about these decisions, she testified, “I forgot all about that [2012] will

because . . . I had been through several chemo, radiation, comas, a lot of things.” (Doc.

190, p. 214). The Court finds her explanation to be not credible.

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the property was, in a sense, encumbered by a prior legal obligation. Dude signed the

PSA prior to his marriage to Shirley, so this obligation took precedence over Shirley’s

ordinary inheritance rights as a widow pursuant to Arkansas law. See Gregory v. Estate

of Gregory, 866 S.W.2d 379, 383 (Ark. 1993) (finding that “the superior contractual rights”

of the deceased’s children, who were beneficiaries of their father’s contract to make a

will, superseded the widow’s dower and homestead rights). 9 8F

The Arkansas Supreme Court has recognized the “two competing public policies”

at issue here: “the right of a couple to contract to make mutual wills that are irrevocable

and that dispose of both estates to third-party beneficiaries, and the right of a surviving

spouse to take an elective share.” Gregory, 866 S.W.2d at 382. Under Arkansas law, the

PSA’s contractual provisions are “applicable to property held by the spouses in an estate

by the entirety, even though it would not pass under the will of either spouse but would

devolve on the surviving spouse by operation of law.” Janes v. Rogers, 271 S.W.2d 930,

933 (Ark. 1954). This case presents complicated facts not often encountered by federal

courts, but at bottom, this is a breach-of-contract dispute. The Court, sitting in diversity,

must remedy the breach using its legal and equitable powers.

9 During trial, Shirley testified many times that she was told by her husband throughout

their marriage, “What’s mine is yours, and what’s yours is mine.” (Doc. 190, pp. 125, 133,

136). If Dude’s representations were accurate, then it might be understandable why

Shirley would have believed that all of Dude’s assets—both in life and in death—were

also hers. It would also explain why Shirley views the act of carving up these assets and

distributing them to the Plaintiffs to be unjust. The problem, of course, is that Shirley was

not told the truth about these assets during her marriage: All that was Dude’s was not

hers. He owed a preexisting obligation to his daughters. In all practical effect, half of

Dude’s assets were at all times encumbered by the PSA. Possibly he tried to address

that obligation by creating his 2012 will and by naming his daughters as beneficiaries of

the joint RJ Account 975; but as we know now, the 2012 will was not enough to satisfy

his obligations under the PSA, and Shirley removed Plaintiffs as remainder beneficiaries

of the joint account after Dude’s death.

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For the assets that were owned individually by Dude and are subject to probate

court jurisdiction, this Court is nevertheless empowered to adjudicate the parties’ rights

in such property and enter an order declaring such rights. See Marshall v. Marshall, 547

U.S. 293, 310 (2006) (establishing that federal courts have “jurisdiction to adjudicate

rights in property” that is within the custody of the probate court). For the assets that were

jointly held and therefore will not pass through probate, this Court has the authority, under

Federal Rule of Civil Procedure 70, to divest Shirley of title and vest it directly in Plaintiffs.

See Fed. R. Civ. P. 70(b); Howard W. Brill, Equity and the Restitutionary Remedies:

Constructive Trust, Equitable Lien, and Subrogation, 1992 ARK. L. NOTES 1, 5 (1992)

(“[I]f the property is within the jurisdiction of the court, the court may divest the defendant

of title and directly vest it in the plaintiff.”).

2. Burdens of Proof

“A constructive trust is simply an equitable remedy.” Cole v. Rivers, 861 S.W.2d

551, 553 (Ark. Ct. App. 1993). The party seeking the imposition of a constructive trust

must persuade the court, sitting in equity, through clear and convincing evidence. Nichols

v. Wray, 925 S.W.2d 785, 789 (Ark. 1996).

Clear and convincing evidence is evidence by a credible witness whose

memory of the facts about which he testifies is distinct, whose narration of

the details is exact and in due order, and whose testimony is so direct,

weighty, and convincing as to enable the factfinder to come to a clear

conviction, without hesitance, of the truth of the facts related. It is simply

that degree of proof that will produce in the trier of fact a firm conviction of

the allegations sought to be established.

First Nat’l Bank of Roland v. Rush, 785 S.W.2d 474, 479 (Ark. Ct. App. 1990).

In the case at bar, Plaintiffs agree that they bore the burden of identifying at trial

which property Dude owned and controlled just prior to his death and any growth or

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increase in that property since his death, while Shirley agrees that she bore the burden

of proving any entitlement to a setoff or credit. (Doc. 165, p. 1). The parties introduced

thousands of pages of evidence at trial, including the testimony of the parties and several

experts, as well as reams of documents that included business records, financial reports,

and tax returns. Appellate courts in Arkansas ordinarily “defer to the superior position” of

the trial court “to evaluate the evidence” and will not reverse a finding “that the disputed

fact was proved by clear and convincing evidence” unless that finding was “clearly

erroneous.” Nichols, 925 S.W.2d at 789. “A finding is clearly erroneous when, although

there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Id.

3. Arkansas Law Regarding Jointly Held Property

The most disputed properties are those that were held jointly by Dude and Shirley

as husband and wife, either in tenancies by the entirety or joint tenancies with right of

survivorship. These jointly held properties passed by operation of law to Shirley after

Dude died. According to the Arkansas Supreme Court, a “[t]enancy by the entirety is a

joint tenancy modified by the common law doctrine that husband and wife are one person

in law, and cannot take by moieties.” Parrish v. Parrish, 235 S.W. 792, 794 (Ark. 1921).

“Thus neither spouse owns an undivided one-half interest in any entirety property—the

entire entirety estate is vested and held in each spouse.” Wood v. Wright, 386 S.W.2d

248, 251 (1965). This means that when Dude was alive, he and Shirley each owned

100% of the funds in their joint banking and investment accounts. Dude could have legally

withdrawn 100% of such funds without Shirley’s permission—and vice versa—since they

each legally owned an undivided interest in the joint accounts.

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Though the facts at trial proved that Dude contributed 100%--or very close to that—

of the consideration used to fund his and Shirley’s joint accounts and joint real property,

when one spouse furnishes all the consideration to buy joint marital property, Arkansas

law dictates that “there is a presumption of a gift to the other [spouse] from the one

furnishing the consideration.” Jones v. Wright, 323 S.W.2d 932, 933 (Ark. 1959) (citation

and quotation marks omitted). That gift represents “half the value of the use [of the

property] during their joint lives and of the right of survivorship” after death. Id. (citation

and quotation marks omitted). “This presumption, although a strong one, may be

overcome by clear and convincing proof that no such gift was intended.” Bank of Roland,

785 S.W.2d at 478.

The Court interprets the holding in Jones to mean that even though Dude provided

the consideration used to purchase all marital assets, he minimally gifted “half the value

of the use” of such property to Shirley to use and enjoy during their marriage and he

attempted to gift the whole of such property outright to her at death—which follows the

legal definition of “right of survivorship.” Gifting “the use” of jointly held property is not the

same as making a completed gift of ownership.

It is clear that Dude made four completed gifts to Shirley of property purchased

with marital funds: (1) 509 Doubletree Trail, Flower Mount, Texas; (2) 4806 West Trail

Dust Street, Fayetteville, Arkansas; (3) 641 64th Avenue, Marathon, Florida; and (4)

Prudential Annuity Contract Number E0483716. All four of the above assets were

specifically titled in Shirley’s name. The Court is well persuaded that Dude and Shirley

understood the distinction between properties Shirley legally owned separately—as a

result of completed gifting—and property she owned jointly with Dude. If Dude had

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wanted to gift Shirley with title to more separate property than the four assets itemized

above, he knew how to do so. Moreover, the presumption of a gift becoming complete

upon the fruition of survivorship rights is trumped by Plaintiffs’ superior contractual rights

under the PSA. The same is true of Shirley’s dower and curtesy rights. See supra, pp.

35–36.

4. Shirley’s Equitable Interest in Jointly Held Property

Since the Court’s task is to impress a constructive trust on the assets Dude owned

shortly before his death, the next question is whether Shirley acquired an equitable

interest in any of the couple’s joint assets during Dude’s lifetime. Equitable ownership is

different from the right to use and enjoy property. Certainly, Shirley had the right to use

and enjoy all jointly held marital property while Dude was alive; however, the Court must

discern, by clear and convincing evidence, whether she established equitable ownership

of any jointly held property during Dude’s lifetime, by virtue of her contributions in

maintaining, developing, or increasing the value of any jointly held property. Cf. Nelson

v. Nelson, 590 S.W.2d 293, 296 (Ark. 1979) (finding that evidence of a spouse’s joint

work, labor, management, and acquisition of property entitled her to “equitable ownership

of one-half interest in [the] property”).

The most convincing evidence Shirley presents of her equitable interest in joint

property is the fact that Dude was mentally and physically incapacitated during the last

three years of his life and required around-the-clock care. Plaintiffs did not dispute this.

They also did not dispute that during these years, Shirley singlehandedly ran (or at least

had the responsibility to oversee) all the joint businesses, maintained all joint property,

and handled all joint investment decisions. Before trial, Plaintiffs threatened to put on

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proof that Shirley had “little to no involvement in Dude’s companies” and instead

employed business tactics that were “distracting.” See Plaintiffs’ Amended Pretrial Brief,

Doc. 173-1, p. 17. However, they never presented such proof.

For her part, Shirley testified that she was involved in all aspects of the businesses

from the beginning of the marriage. For example, she testified that she maintained an

office at Dude, Inc. (Doc. 190, p. 137). She said that when Dude “would anticipate doing

a deal for a job,” he would ask her “to find out as much about the background of say

another company that [they] were anticipating looking at, or if [they] were going to hire

somebody, or just the detail end of it.” Id. And then she and Dude would get together

and talk about what she had discovered, and “a lot of times, he did things on his own and

then would bring them back to [Shirley] to look at.” Id. She also personally met with

customers and traveled with Dude to the foam production plants. Id. When her counsel

asked whether she was involved in “reviewing the financials of customers,” Shirley

responded, “Not to some great degree,” as “numbers don’t sit in [her] head very long,” but

that she could be counted on to tell “if something is a good or a bad deal based upon the

bottom line.” Id. at p. 138. In other words, the Court concludes that Dude consulted with

Shirley, relied on her instincts, and made her aware of certain aspects of the businesses

over time. And by the time Dude was incapacitated in 2014, Shirley knew enough about

the businesses and investments to run them herself.

Still, while attempting to carrying her burden here, Shirley offered no theories or

guiding principles as to how the Court should quantify her contributions to the various

businesses prior to 2014. Further, although she identified herself as “the liaison” between

the various companies and the accountant who prepared all business tax returns during

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the marriage, id at p. 24, she constantly disputed the accuracy of those tax returns during

the trial, particularly when she understood that the returns had failed to substantiate her

position regarding her legal ownership of Dude’s separate property. See, e.g., id. at p.

31. She also admitted she was not “vigilant” in focusing on the details of the tax returns

and only tended to worry about the bottom-line amount that she and Dude owed in taxes.

Id. at p. 103. Finally, with respect to Shirley’s investment decisions, Rob Bandy, the

manager of the Crain family’s Raymond James investment accounts, testified that Shirley

was instrumental in growing those accounts since 2014, see Doc. 192, p. 62; however,

there was little evidence offered about her role in investment decisions, and how to value

that work, prior to 2014.

Shirley’s credibility also suffered some damage during the trial. She blamed recent

lapses in memory—particularly her decision to submit Dude’s outdated will from 1993 to

the probate court—to the effects of chemotherapy and radiation treatment she underwent

several years ago. See, e.g., Doc. 190, p. 214. She also claimed that until the instant

litigation began, she did not quite remember—due to her “spotty memory” from the effects

of chemotherapy—who owned shares in Regional Jet Center. Id. at p. 216. She even

testified—incredibly—that she “really didn’t remember that even [her] son had 1/6th” of

the shares in this family business “until [she] started looking for the papers that [she] was

asked to look for” in this lawsuit. Id.

The Court therefore concludes that Shirley’s equitable contribution to the joint

businesses and joint investment and bank accounts from 1989 to 2014 was more than

negligible, but impossible to quantify under a clear-and-convincing evidence standard.

What she did prove was that she solely managed the joint businesses and accounts

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during the last three years of her marriage, while Dude was incapacitated. By

comparison, Dude had zero involvement in the managing of the joint businesses and

accounts in those years. Since Dude and Shirley were married for a bit less than thirty

years, three years of that time is roughly equal to 10% of the length of the marriage. The

Court therefore finds that Shirley established an equitable right to ownership of 10% of

the couple’s jointly-held businesses, joint investment accounts, and joint bank accounts,

which is equal to approximately the percentage of time in the marriage that these joint

assets were under her sole control. Pursuant to this finding, and for the purpose of

impressing a constructive trust, only 90% of these joint assets will be considered for

inclusion in Dude’s “estate” at the time of his death, while 100% of Dude’s separate assets

passing through probate will be subject to Plaintiffs’ legal claim.

Regional Jet Center

One important exception to the Court’s decision above concerns Dude and

Shirley’s joint interest in Regional Jet Center. This business asset is different from the

rest because when Dude first formed the company, he decided to share ownership

equally with the four Plaintiffs and Brian. Dude and Shirley owned one-sixth of the

business, Brian owned one-sixth, and the Plaintiffs collectively owned four-sixths. It

follows that since the Plaintiffs have always owned more than half of Regional Jet Center,

Dude fulfilled his PSA obligations with respect to this particular asset. Moreover, the Court

is persuaded that Shirley has been personally involved in the day-to-day management of

this business over the years, and her individual contributions are substantial enough to

make her the sole equitable owner of the shares she once jointly owned with Dude.

Accordingly, Shirley will maintain sole ownership of her Class A voting stock in Regional

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Jet Center, as well as any cash distributions she received from Regional Jet Center after

Dude’s death.

Jointly Held Real Property

Another exception applies with respect to certain jointly held real property. The

Court finds that Shirley proved her equitable ownership to more than a 10% interest in

three homes that she shared with Dude prior to his death. First, she established that she

equitably owned half of the couple’s marital home located at 10101 Dallas Street, Fort

Smith, Arkansas. She testified credibly that she fully designed the home, coordinated

with the architect and the contractors in selecting all building materials and making sure

all construction work was completed, and selected all furnishings and artwork. (Doc. 190,

pp. 126–27). Though Dude provided the monetary consideration for the home, Shirley

contributed “sweat equity” in the form of significant creative and managerial decision-

making and time-related investments beginning in 2003, when the land was first

purchased, and continuing to the date of Dude’s death in 2017.

Second, Shirley established equitable ownership of half of the ranch at 3655 Beach

Way, in Van Buren, Arkansas. Dude paid the monetary consideration for this home in

1992, shortly after he and Shirley were married, but she credibly testified that she was

responsible for overseeing the tear down of an existing home on the land and for building

the current structure. (Doc. 190, p. 128). She took care of several horses on the land

and materially contributed to decisions about how the land and fixtures that ran with the

land would be maintained.

Third, Shirley established a one-half equitable ownership interest in the couple’s

vacation home located at 201 West Seaview Drive in Marathon, Florida. Shirley credibly

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testified that Dude provided the consideration to purchase the home in 1994, but it “was

in terrible condition,” so Shirley directed the renovation of the property and the decoration.

(Doc. 190, p. 130). She and Dude spent “quite a bit of time there.” Id. In addition, Shirley

testified that a least three hurricanes did damage to the home, and the last hurricane that

struck just prior to Dude’s death “pretty much demolished the understructure,” such that

she and Dude decided to “start over” and build the home from scratch. Id. at p. 131.

Construction began in 2016, while Dude was fully incapacitated, and Shirley oversaw and

directed the work. Id.

However, other than the three properties specifically noted above, Shirley did not

meet her burden to prove any equitable ownership interest in jointly held real property.

5. Equitable Treatment of Property No Longer in Shirley’s Possession

Several assets that were owned jointly by Dude and Shirley at the time of Dude’s

death are no longer in Shirley’s possession. Plaintiffs are the rightful owners of some of

this property, pursuant to the PSA. Under English common law, the rightful owner of

property subject to a constructive trust may follow and retake her property from the trustee

only if it “[can] be ascertained to be the same property, or the product or proceeds

thereof”; however, the “right cease[s] when the means of ascertainment fail[s], as when

the subject of the trust was money, or had been converted into money, and then mixed

and confounded in a general mass of money of the same description, so as to be no

longer divisible or distinguishable.” Nonotuck Silk Co. v. Flanders, 58 N.W. 383, 384

(Wis. 1894) (citing cases).

The Restatement (Third) of Restitution § 59 provides:

(1) If property of the claimant is deposited in a common account or

otherwise commingled with other property so that it is no longer separately

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identifiable, the traceable product of the claimant's property may be

identified in (a) the balance of the commingled fund or a portion thereof, or

(b) property acquired with withdrawals from the commingled fund, or a

portion thereof, or (c) a combination of the foregoing, in accordance with the

rules stated in this Section.

Id. at § 59(1).

Subsections (2) and (3) set forth the rules for determining a claimant’s right to

assets in a commingled fund. Subsection (2) states:

(2) If property of the claimant has been commingled by a recipient who is

either a wrongdoer (§ 51) or responsible for unjust enrichment (§ 52), the

following rules apply: (a) Withdrawals that yield a traceable product and

withdrawals that are dissipated are marshaled so far as possible in favor of

the claimant. (b) Subsequent contributions by the recipient do not restore

property previously misappropriated from the claimant, unless the recipient

affirmatively intends such application. (c) After one or more withdrawals

from a commingled fund, the portion of the remainder that may be identified

as the traceable product of the claimant's property may not exceed the

fund's lowest intermediate balance.

Id. at § 59(2).

Subsection (3) explains what happens to commingled property when the recipient

is “innocent” and did not obtain the property through fraudulent or deceptive means:

(3) If property of the claimant has been commingled with property of an

innocent recipient (§ 50), the claimant may trace the property into the

remaining balance of the fund and any traceable product of the fund in the

manner permitted by § 59(2); but restitution from the property so identified

may not exceed the amount for which the recipient is liable . . . .

Id. at § 59(3) (emphasis added). In other words, even with an innocent recipient, the

general “marshaling rule” explained in § 59(2) applies.

The composite elements of this “marshaling” are, of course, (1) the

presumption that the holder of the commingled fund dissipates [her] own

money first (so long as the balance permits), and (2) the contrary

presumption that the holder is withdrawing the claimant’s money (again so

long as the balance permits), if the claimant seeks to identify an asset

acquired by withdrawal as the traceable product of the claimant’s funds.

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Id. at § 59, cmt. d (emphasis added).

Here, the Court finds that Shirley was an innocent recipient of Dude’s assets held

in their joint accounts. Plaintiffs are the “claimants”—using the Restatement’s

terminology—who maintain that pursuant to the PSA, only half the assets Shirley received

legally belonged to her, while the other half belonged to Plaintiffs. We know that after

Dude’s death Shirley retitled the RJ accounts in her sole name and that she retained most

of those exact same stocks in her new account. And the proceeds of the stocks that she

did sell are easily traceable. So, a remaining question is: When Shirley sold some of

Dude’s assets, should the Court assume that the assets sold were from Shirley’s half and

not Plaintiffs’? Based on the Court’s reading of the Restatement, it appears the answer

to that question is “yes.” Plaintiffs explain that if the Court adopts this methodology when

placing assets into a constructive trust,

Plaintiffs may end up with more than one-half of the assets Shirley currently

controls, [but] Shirley will not be left in a “worse off” position: She has

withdrawn and spent (not reinvested) over 30 million from the Raymond

James investment account since Dude’s death in 2017, and Plaintiffs are

not seeking any of those funds. (See Pls.’ Exs. 264, 276, 288, 300, and

332, showing the total annual withdrawals from the Raymond James

investment account from 2017 to present).

(Doc. 188, p. 8).

Plaintiffs argue that “[t]o prevent unjust enrichment of the $30 million Shirley has

withdrawn and sold,” her withdrawals from the joint accounts must be subtracted from her

half, and not from Plaintiffs’ half. Id. The Court agrees. So, if 100 shares of company

XYZ were Dude’s when he died, and Shirley sold 50 shares sometime after his death,

Plaintiffs would be entitled to the 50 shares remaining in the account, as under Plaintiffs’

theory it would be assumed Shirley sold her own shares first. Importantly, Plaintiffs claim

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no entitlement to the assets Shirley acquired with sale proceeds from her portion of the

jointly held shares. 10

9F

According to the Raymond James account statements, Account 061 nearly

doubled in value from July 2017 to December 2020. See supra, ¶¶ 101–02. This was

likely due to the incredible rise in the stock market during those years. The Plaintiffs and

Shirley will equally benefit from the gains the stock market produced—just as they would

have equally suffered losses had the market taken a downward turn. The Restatement

provides that “[a]n innocent recipient” like Shirley “may be liable in an appropriate case

for use value or proceeds [of an asset], but not for consequential gains.” Restatement

(Third) Restitution § 50(5). This Court finds that Shirley is liable to the Plaintiffs for the

“use value” and “proceeds” of the stocks that remained in this account after Dude’s death

and increased in value. 1110F

To the extent there is insufficient cash to cover Plaintiffs’ share of jointly held

assets, a constructive trust may be imposed on an asset that is “an effective substitute

10For example, Shirley liquidated shares of Apple stock after Dude’s death and used the

proceeds to buy a jet. Since it is presumed in the law that Shirley sold her own Apple

shares first, and not the Plaintiffs’, the jet belongs to Shirley, and Plaintiffs cannot claim

an ownership interest in the jet.

11 “Proceeds” are defined in the Restatement as “the direct product of an asset,” and they

include “ordinary income or accretion in respect of the original asset.” Restatement

(Third) Restitution § 53(2). By contrast, a “consequential gain” results from an innocent

recipient’s “subsequent dealings with such an asset,” which requires affirmative

“intervention” on the recipient’s part to affect the value of the asset. Restatement (Third)

Restitution § 53(3) & reporter’s note c. Here, the accretion in value of the stock owned

by Dude at the time of his death is the result of Shirley’s passive holding of stock in a bull

market. There is no credible evidence that Shirley actively intervened to cause the value

of RJ Account 061 to double, so she is not entitled to keep all of that value as a

consequential gain.

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for another, even if the substitute would not meet [the] normal definition of ‘traceable

product,’” if “there is an unmistakable relationship between the claimant’s loss of one . . .

asset and the recipient’s gain of another,” and the “circumstances of the transaction

reveal unjust enrichment of the recipient at the expense of the claimant.” Restatement

(Third) Restitution § 58, cmt. f. Therefore, to the extent Plaintiffs’ assets are traced to an

account that does not contain sufficient funds, other assets within that same account—or

assets purchased from commingled funds that were previously held in that account—may

be substituted and liquidated to pay Plaintiffs.

6. Treatment of the 2012 Christmas Gifts

For a gift to be applied towards satisfaction of Dude’s obligation under the PSA, a

reference to such obligation must be tied to the transaction; otherwise, it is merely a gift

that does not reduce the balance of the obligation. See 95 C.J.S. Wills § 137. Shirley

failed to prove by clear and convincing evidence that Dude intended the 2012 Christmas

gifts to partly satisfy his contractual obligation to Plaintiffs under the PSA. Though

Plaintiffs understood these gifts were advances on their inheritance, such advances were

not necessarily made in satisfaction of the PSA. Dude could have left Plaintiffs more than

one-half of his estate; no clear and convincing evidence exists to persuade the Court that

the 2012 gifts were made in partial satisfaction of the PSA, as opposed to in addition to

the PSA. Therefore, these gifts will not be credited back to the estate or serve as an

offset to the amounts owed by the estate to Plaintiffs.

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C. Application of Law to Findings of Fact

Based on the Court’s findings of fact and conclusions of law as set forth above, the

following assets (or interests therein) are impressed with a constructive trust for Plaintiffs’

benefit.

1. Assets Dude Owned Individually 12 11F

Asset Portion Impressed Explanation and Tracing

with Constructive

Trust for Plaintiffs’

Benefit

a. RJ Account 827

• Deposit Program $107,224.47, cash This cash amount equals 50% of

the Raymond James Bank

Deposit Program holdings on the

date of Dude’s death. These funds

are traced to Shirley’s Bank

Deposit holdings in RJ Account

450

• Highland Income 1,054 shares This amount of shares equals 50%

Fund (HFRO) of the shares Dude held in this

account at the time of his death.

These shares are traced to RJ

Account 450.

• Oppenheimer $184,682.48, cash This cash amount equals 50% of

Steelpath MLP the proceeds Shirley received

Income Fund from the sale of 88,578.159

Class A shares on or about February 26,

2020. These proceeds are traced

to RJ Account 450.

b. Dude, Inc. 50% of all outstanding

shares

12This table reflects the Court’s adjudication of Plaintiffs’ rights in Dude’s separate assets

at the time of his death––even though his separate property must pass through probate.

Marshall, 547 U.S. at 310. Thus, the assets itemized here are impressed by the

constructive trust but the actual transfer will be administered by the Sebastian County

Probate Court. In this regard, it should be made known that Plaintiffs stipulated in open

court on the last day of trial, July 21, 2021, that they will only claim through the probate

process those assets (itemized here) that are impressed by the constructive trust for their

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c. Premier Foam, Inc.

• Shares 50% of all outstanding

shares

• Distributions $1,620,000.00, cash This cash amount represents 50%

of the cash distributions Shirley

received from Premier Foam, Inc.,

after Dude’s death. These

proceeds are traced to Shirley’s

BancorpSouth checking account

ending in 6671. 13

12F

d. Dude’s Separate 50% of the separate The entirety of such items will be

Personal Property personal property and inventoried by the Administrator in

and Household household effects Dude the normal course of the probate

Effects owned at the time of his proceedings, and as ultimately

death determined by the probate court.

benefit. See Doc. 192, p. 260 (“The plaintiffs anticipate and will make no claim for any

assets out of that probate estate, other than the assets that may be under a constructive

trust issued by this Court.”).

13 If the cash in this account is insufficient to fund the constructive trust for Plaintiffs

benefit, then––by agreement of the parties––Shirley will substitute equivalent assets from

her RJ Account 061. More specifically, the parties stipulated that after Dude’s death,

Shirley gave a gift of $6,000,000.00 to Mr. Pope, at least $4,650,000.00 of which came

from her BancorpSouth checking account ending in 6671. (Doc. 172-1, p. 2). They further

agreed that if the BancorpSouth 6671 account balance is insufficient to pay Plaintiffs for

any assets that the Court traces to the account, then Shirley will substitute equivalent

assets for her RJ Account 061. Id. at pp. 2–3.

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2. Real Estate Dude Owned Jointly with Shirley 14 13F

Asset Portion Impressed Explanation and Tracing

with Constructive

Trust for Plaintiffs’

Benefit

a. 1010 Dallas Street, 25% ownership interest Shirley may elect whether to

Fort Smith, in this property execute a deed transferring 6.25%

Arkansas ownership interest to each of the

four Plaintiffs or to pay the

$7,070,250.00 Plaintiffs collectively the cash

assessed value equivalent of 25% ownership

interest in this property, which the

Court finds is equal to

$1,767,562.50.

b. 3655 Beach Way,

Van Buren,

Arkansas

• Property 25% ownership interest Shirley may elect whether to

in this property execute a deed transferring 6.25%

ownership interest to each of the

four Plaintiffs or to pay the

$2,497,590.00 Plaintiffs collectively the cash

assessed value equivalent of 25% ownership

interest in this property, which the

Court finds is equal to

$624,397.50.

• Rental Income $12,718.06, cash This cash amount equals 25% of

the rent payments Shirley

collected on this property since

Dude’s death. These proceeds are

traced to Shirley’s BancorpSouth

checking account ending in 6671.

c. 201 West Seaview 25% ownership interest Shirley may elect whether to

Drive, Marathon, in this property execute a deed transferring 6.25%

Florida ownership interest to each of the

four Plaintiffs or to pay the

14 The Real Property described in this table was jointly held by Dude and Shirley. Upon

Dude’s death the entirety of his interest passed to Shirley by operation of law. It is

therefore not anticipated that these properties will pass through the probate estate. The

properties are nevertheless impressed by the constructive trust and Shirley is responsible

for conveying directly to (or buying out) Plaintiffs’ ownership interests as described in this

table.

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$4,900,000.00 Plaintiffs collectively the cash

assessed value equivalent of 25% ownership

interest in this property, which the

Court finds is equal to

$1,225,000.00.

d. 6201 State Line

Road, Fort Smith,

Arkansas

• Property 50% ownership interest Shirley may elect whether to

in this property execute a deed transferring 12.5%

ownership interest to each of the

four Plaintiffs or to pay the

$4,200,000.00 total Plaintiffs collectively the cash

property value as equivalent of 50% ownership

determined by the Court interest in this property, which the

Court finds is equal to

$2,100,000.00.

• Rental Income $955,600.00, cash This cash amount equals 50% of

the rent payments Shirley

collected on this property since

Dude’s death. These proceeds are

traced to Shirley’s BancorpSouth

checking account ending in 6671.

e. 14805–07 $162,597.70, cash This cash amount equals 50% of

Dutchman Drive, the net proceeds ($325,195.40)

Rogers, Arkansas Shirley received for the sale of this

property. These proceeds are

traced to Shirley’s BancorpSouth

checking account ending in 6671.

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3. Bank Accounts Dude Owned Jointly with Shirley

Account Portion Impressed Explanation and Tracing

with Constructive

Trust for Plaintiffs’

Benefit

a. BancorpSouth $67,110.27, cash This cash amount equals 45% of

Joint Checking the cash contained in the account

Account ending in at the time of Dude’s death

6671 ($149,133.94). These funds are

traced to Shirley’s BancorpSouth

Checking Account ending in 6671.

b. BancorpSouth $55,297.52, cash This cash amount equals 45% of

Joint Checking the cash contained in the account

Account ending in at the time of Dude’s death

2206 ($122,883.37). These funds are

traced to Shirley’s BancorpSouth

Checking Account ending in

2206. 15

14F

c. BancorpSouth $7,273.05, cash This cash amount equals 45% of

Joint Checking the cash contained in the account

Account ending in at the time of Dude’s death

1312 ($16,162.33). This account was

closed on March 2, 2020, and

Shirley withdrew all remaining

funds in cash. These funds are

therefore traced to Shirley’s

primary checking account, which

is the BancorpSouth Checking

Account ending in 6671.

15 If the cash in this account is insufficient to pay Plaintiffs, Shirley testified that she

purchased a number of assets after Dude passed away using funds from this account.

See Doc. 190, pp. 60–63. Accordingly, the evidence at trial clearly and convincingly

shows that the following assets are traced to this account, and if necessary, can be sold

to pay any amount that is owed to Plaintiffs from this account: antique paintings from

Sotheby’s in the amount of $631,062.50 (Plaintiffs’ Ex. 334.418); furnishings from Ida

Manheim Antiques in the amount of $119,800 (Plaintiffs’ Ex. 334.401); a Sea-Doo from

Bradford Marine in the amount of $38,127.68 (Plaintiffs’ Ex. 334.383); purchases from

Neiman Marcus in the amount of $183,593.00 (Plaintiffs’ Ex. 334.328); and a Mercedes

Benz vehicle in the amount of $100,000.00 (Plaintiffs’ Ex. 334.317).

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4. Other Assets Dude Owned Jointly with Shirley

Asset Portion Impressed Explanation and Tracing

with Constructive

Trust for Plaintiffs’

Benefit

a. Cash Dividends $1,077,373.02, cash 45% of all dividends paid on RJ

Shirley Received Account 061 holdings

Since Dude’s ($2,394,162.26). Traced to RJ

Death Account 061. (Doc. 188-2).

b. Loan to Brian $4,095,000.00, cash This cash amount equals 45% of

Pope the total amount transferred from

Dude and Shirley’s joint accounts

to Mr. Pope and his businesses,

as a loan, prior to Dude’s death.

Shirley previously agreed that this

amount shall be paid from cash or

liquidated assets in Shirley’s RJ

account 061. See Doc. 172-1, p.

2.

c. Airport

Transportation

Company

• Shares 45% of all outstanding

shares

• Distributions $617,400.00, cash This cash amount equals 45% of

the distributions ($1,372,000.00)

paid to Shirley since Dude’s death.

This cash is traced to Shirley’s

BancorpSouth account ending in

6671.

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5. Stocks Dude Owned Jointly with Shirley

No. of Shares Constructive

Held in RJ Constructive

Trust

Accts. 975 and Trust

Stock Name Ticker (45% of Shares

124 on the Date (45% of Stock

of Dude's Held at Dude's

Sale Proceeds) 18

Death 16 Death) 17

17F

16F

15F

Apple AAPL 715,184 321,832.8

Alphabet, Inc.,

GOOG 3,008 1,353.6

Class C

Alphabet, Inc.,

GOOGL 3,000 1350

Class A

ConocoPhillips COP 4,676 2,104.2

Exxon Mobil

XOM 5,000 2250

Corporation

American Airlines

AAL 208 93.6

Group

Phillips 66 stock PSX 2,338 1,052.1

Invesco High Yield ACTHX

Municipal Fund, (now 248,655 111,894.75

Class A ACTDX)

16 The number of shares held in Accts. 975 and 124 on the date of Dude’s death reflects

converted shares. In some instances, the shares that Shirley retained were converted

from one class to another at some point following Dude’s death. Because the present-

day holdings reflect that new class, the number of shares held at Dude’s death—45% of

which will be impressed with constructive trust for Plaintiffs’ benefit—were adjusted to

reflect the stock’s value at that point in time in converted shares.

17Among those shares held in Accts. 975 and 124 at the time of Dude’s death that Shirley

retained possession of, Acct. 061 holds sufficient shares—with one exception—to

accommodate the portion of stock impressed with constructive trust for Plaintiffs’ benefit.

18Doc. 188-3 provides the total sale proceeds resulting from each stock held in Accts.

975 and 124 at the time of Dude’s death that was subsequently sold.

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5. Stocks Dude Owned Jointly with Shirley

No. of Shares Constructive

Held in RJ Constructive

Trust

Accts. 975 and Trust

Stock Name Ticker (45% of Shares

124 on the Date (45% of Stock

of Dude's Held at Dude's

Sale Proceeds) 18

Death 16 Death) 17

17F

16F

15F

Invesco Limited

ATFAX

Term Municipal

(now 66,149 11,468 19

Income Fund, Class

18F

ATFYX)

A

Black Rock Multi

BAICX

Asset Income

(now 36,073 16,232.85

Portfolio Fund,

BIICX)

Class A

Franklin High Yield FRHIX

Tax Free Income (now 20,928 9,417.6

Fund, Class A FHYVX)

MFS Municipal

Limited Maturity MTLFX 28,080 12,636

Fund, Class A

MFS Arkansas MFARX

Municipal Bond (now 146,293 65,831.85

Fund, Class A MARLX)

MFS Municipal High MMHYX

Income Fund, Class (now 87,823 39,520.35

I MMIIX)

T. Rowe Price

Media and

PRMTX 11,194 5037.3

Telecommunication

s Fund

Prudential Municipal PRHAX

High Income Fund, (now 76,309 34,339.05

Class A PHIZX)

19 Shirley retained 11,468 shares of Invesco Limited Term Municipal Income Fund. This

is insufficient to accommodate the number of shares to be distributed to Plaintiffs

(29,767.05 shares). The 11,468 should be conveyed to Plaintiffs, and Shirley must

substitute an asset held in RJ Account 061 that is equal in value to account for the

18,299.05 shares that would otherwise be transferred to Plaintiffs.

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5. Stocks Dude Owned Jointly with Shirley

No. of Shares Constructive

Held in RJ Constructive

Trust

Accts. 975 and Trust

Stock Name Ticker (45% of Shares

124 on the Date (45% of Stock

of Dude's Held at Dude's

Sale Proceeds) 18

Death 16 Death) 17

17F

16F

15F

Wells Fargo VMPAX

Strategic Municipal (now 67,920 30,564

Bond Fund, Class A STRIX)

SPDR Gold TR SHS GLD 2,000 900

Intel Corporation INTC 12,400 $ 239,658.25

Procter and Gamble PG 3,120 $ 121,416.11

Tesla Incorporated TSLA 700 $ 95,193.98

J.P. Morgan

Municipal Money JMAXX 455,806.9 $ 200,035.71

Market Fund

Invesco Charter

CHTRX 43,952 $ 373,011.21

Fund, Class A

American Balanced

ABALX 22,874 $ 280,587.73

Fund, Class A

Artisan Mid Cap

Value Fund, ARTQX 21,193 $ 237,886.14

Investor Class

Black Rock Global

Allocation Fund, MDLOX 15,423 $ 142,740.04

Class A

Growth Fund of

GFAFX 8,154 $ 185,248.08

America, Class F1

Capital World CWGFX

Growth & Income (now 6,431 $ 146,144.06

Fund WGIFX)

Hartford Mid Cap

HFMCX 22,453 $ 340,206.15

Fund, Class A

Highland Floating

Rate Opportunities HFRAX 33,328 $ 164,074.37

Fund, Class A

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5. Stocks Dude Owned Jointly with Shirley

No. of Shares Constructive

Held in RJ Constructive

Trust

Accts. 975 and Trust

Stock Name Ticker (45% of Shares

124 on the Date (45% of Stock

of Dude's Held at Dude's

Sale Proceeds) 18

Death 16 Death) 17

17F

16F

15F

Perkins Mid Cap

JDPAX 58,817 $ 477,451.51

Value Fund, Class A

Lord Abbett Value

Opportunities Fund, LVOAX 36,470 $ 352,949.25

Class A

PIMCO Global Multi

PGMAX 21,093 $ 126,370.83

Asset Fund, Class A

Pioneer Classic

Balanced Fund, AOBLX 80,771 $ 364,958.90

Class A

Prudential Jennison

Small Company PGOAX 64,697 $ 880,316.38

Fund Inc., Class A

Ishares Silver Trust SLV 15,000 $ 103,971.27

Grand River Dam

Authority Oklahoma

Revenue Bonds,

Series 2008 A $ 45,000.00

(386442TE7)

($100,000 par

value)

V. CONCLUSION

For the reasons explained above, the assets Dude owned individually, as set forth

in Table 1, are subject to the Court’s constructive trust for the Plaintiffs’ benefit; however,

since those assets are to pass through probate, Shirley is ordered to deliver them to the

Administrator of Dude’s estate for further disposition and transfer in the Circuit Court of

Sebastian County, Arkansas. She must do so within 30 days.

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The jointly held assets listed in Tables 2–5 are also subject to the constructive

trust, but they will not pass through probate; accordingly, Shirley is ordered to convey and

deliver Plaintiffs’ share of those assets to Plaintiffs. She must do so within 30 days.

IT IS SO ORDERED on this 18th day of January, 2022.

________________________________

TIMOTHY L. BROOKS

UNITED STATES DISTRICT JUDGE

59