Vicki Bush v. Bush Machine and Tractor, Inc. Laurence Erwin Bush Ryan Bush And Tory Bush

Cite as 2023 Ark. App. 291ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-487
VICKI BUSH Opinion Delivered May 17, 2023
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66CV-20-359]
BUSH MACHINE AND TRACTOR,
INC.; LAURENCE ERWIN BUSH; HONORABLE DIANNA HEWITT
RYAN BUSH; AND TORY BUSH LADD, JUDGE
APPELLEES
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Vicki Bush appeals the Sebastian County Circuit Court’s grant of summary judgment
to appellees Bush Machine & Tractor, Inc. (Bush Machine); Laurence Erwin Bush (Erwin);
Ryan Bush; and Tory Bush and ordering her to restore $150,000 to Bush Machine. We
affirm.
Bush Machine filed a complaint for conversion against Vicki on April 20, 2020,
alleging that she wrongfully conveyed to herself $150,000 in funds belonging to Bush
Machine. Specifically, the complaint alleges that on November 19, 2018, one thousand
outstanding shares of Bush Machine stock, which were all held by Vicki’s husband, Erwin,
were conveyed by Erwin to his sons, Ryan and Tory, with each receiving five hundred shares
of stock; that Ryan and Tory had been the sole owners and stockholders of Bush Machine
since November 19, 2018; that before ownership was transferred to Ryan and Tory, Vicki
was on the Bush Machine account at Farmers Bank; that Vicki had not made any withdrawals
of corporate funds after November 19, 2018; that on March 24, 2020, Vicki withdrew
$150,000 from the Bush Machine account at Farmers Bank;1 that this withdrawal was
without prior notice and without authority, authorization, consent, or approval of the
corporation or any of its officers, directors, or shareholders; that Vicki took funds belonging
to Bush Machine; and that Vicki had no authority to make a withdrawal of funds belonging
exclusively to Bush Machine. Bush Machine prayed that a judgment be entered against Vicki
for $150,000 for conversion of the funds.
On October 21, Vicki filed a motion to add parties, file a third-party complaint, and
consolidate actions. She sought to file a third-party complaint against Bush Machine and
Erwin, Ryan, and Tory to set aside the transfer of the Bush Machine stock from Erwin to
Ryan and Tory as fraudulent because the shares were transferred for no consideration. She
alleged Bush Machine was founded by Erwin using marital funds in June 2017; that Erwin
was the incorporator, president, and sole shareholder of Bush Machine; that as a result of
marital funds, Bush Machine grew substantially in value over time; that in a special meeting
of the board of directors, which was Erwin, on November 19, 2018, Erwin agreed to transfer
half of the company stock to Ryan and the other half to Tory for no consideration; that the
transfer did not occur until January 1, 2019; that such a transfer was an attempt to
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Vicki filed for divorce from Erwin on March 25, 2020, the day after she withdrew
the funds from Bush Machine’s corporate account.
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circumvent Vicki’s claim of a marital interest in Bush Machine; and that such a transfer,
without consideration, was fraudulent to Vicki’s interest as an existing and future creditor.
Alternatively, Vicki sought to impose a constructive trust on the shares of stock, claiming it
was marital property subject to equitable division in her pending action for divorce. In an
order filed November 23, the circuit court granted Vicki leave to file her third-party
complaint and, for trial purposes only, consolidated the action with the pending divorce
action. Vicki filed her counterclaim and third-party complaint on November 24.
Bush Machine moved for summary judgment on June 10, 2021, alleging that the
issues in the case were who owned the Bush Machine stock at the time Vicki withdrew the
$150,000 and whether such a withdrawal was wrongful; that there were no genuine issues of
material fact because the stock was held by Ryan and Tory Bush free and clear of any claim
by Vicki; that Vicki’s withdrawal of Bush Machine funds was wrongful; and that Vicki should
be ordered to restore the funds.
In its brief in support of its motion for summary judgment, Bush Machine attached
the following exhibits: the sworn testimony from the hearing on Bush Machine’s January 14,
2021 motion for interpleader or, alternatively, for preliminary injunction; Bush Machine’s
2019 corporate income-tax return showing Ryan Bush’s signature as president on the return;
stock certificates showing the transfer on January 1, 2019, from Erwin of the one thousand
shares of Bush Machine stock to Ryan (five hundred shares) and Tory (five hundred shares);
the November 19, 2018 notice of special meeting of the board of directors of Bush Machine,
indicating one of the objects of the meeting was to gift five hundred shares of stock each to
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Ryan and Tory from Erwin’s one thousand shares; Erwin’s 2019 gift-tax return for the gifts
of stock to Ryan and Tory; the counter check Vicki used to withdraw $150,000 from the
Bush Machine account; and a transcript of Tory’s June 19, 2020 deposition.
The testimony from the hearing on the motion for interpleader revealed that around
Thanksgiving 2018, Vicki and Erwin had a discussion with Bush Machine CPA Mary Jones,
who is also Erwin’s sister, in which Jones testified that Erwin told her in front of Vicki that
he wanted Ryan and Tory to have Bush Machine and that Vicki stated that she thought the
boys deserved it. Erwin testified that Vicki did not seem resistant to the boys being given
the business during that discussion. The notice of special meeting of the board of directors
of Bush Machine was drawn up and signed, reflecting that the special meeting was held on
November 19, 2018, and noting that the stock was going to be transferred to Ryan and Tory
Bush in equal shares. Copies of the new stock certificates dated January 1, 2019, as well as
a 2019 gift-tax return and a 2019 corporate income-tax return indicated that Ryan and Tory
each owned five hundred shares of Bush Machine stock. Bush Machine asserted that Vicki
removed the funds from its account without prior notice and without prior authorization,
consent, or approval of the corporation or any of its officers, directors, or shareholders, and
she had wrongfully converted, transferred, and conveyed to herself $150,000 from the Bush
Machine account.
In response, Vicki asserted that Erwin fraudulently transferred the stock to Ryan and
Tory in an effort to circumvent her marital interest in Bush Machine, and she claimed a
marital interest in the $150,000 she removed from the Bush Machine account. Vicki argued
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summary judgment was improper because genuine issues of material fact existed that had to
be determined by the trier of fact. She claimed she withdrew the funds only to preserve her
marital interest in Bush Machine given that the stock had been fraudulently transferred from
Erwin to Ryan and Tory. She contended she could not have converted Bush Machine’s
funds because she had a marital interest in those funds, and she claimed Erwin’s transfer of
the Bush Machine stock for no consideration was an effort to deprive her of that marital
interest in violation of Arkansas Code Annotated section 4-59-204 (Supp. 2021), asserting
that she was Erwin’s creditor by virtue of her claims to an equitable division of marital
property.
In support of her claim that summary judgment was improper, Vicki attached her
affidavit denying that she discussed transferring the business to Ryan and Tory before the
action was taken, stating that she did not consent to the purported transfer, she did not
receive any consideration for the transfer, and she was only made aware of the purported
transfer at the time litigation began.
The circuit court entered an order granting Bush Machine’s motion for summary
judgment on April 15, 2022, finding Vicki had failed to meet proof with proof and could
not show that a genuine issue remained for the fact-finder. Vicki was ordered to restore the
$150,000 she had taken from the Bush Machine account.
It is well settled that summary judgment should be granted only when it is clear there
are no issues of material fact to be litigated, and the party is entitled to judgment as a matter
of law. Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Hopkins, 2018 Ark. App. 174, 545 S.W.3d
5257. The burden of sustaining a motion for summary judgment is always the responsibility
of the moving party. Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). All
proof submitted must be viewed in the light most favorable to the party against whom the
motion was filed, and any doubts and inferences must be resolved against the moving party.
Hurd v. Hunt, 2017 Ark. App. 228, 519 S.W.3d 710. Once the moving party has established
a prima facie case showing entitlement to summary judgment, the opposing party must meet
proof with proof and demonstrate the existence of a material issue of fact. Scott v. Nichol,
2022 Ark. App. 255, 645 S.W.3d 369. The nonmoving party may not rest on the mere
allegations in its pleadings but instead must produce affidavits or other evidence as provided
by Ark. R. Civ. P. 56 to show specifically there is a genuinely disputed issue of material facts.
Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997).
Conversion is a common-law tort action for the wrongful possession or disposition
of another’s property. KBX, Inc. v. Zero Grade Farms, 2022 Ark. 42, 639 S.W.3d 352. To
establish liability for the tort of conversion, a plaintiff must prove the defendant wrongfully
committed a distinct act of dominion over the property of another, which is a denial of, or
is inconsistent with, the owner’s rights. Id. If the defendant exercises control over the goods
in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s
own use or another’s use. Id.It is uncontroverted that Vicki took the $150,000 from the Bush Machine account.
Vicki claims that her withdrawal of the funds was not wrongful because she has a marital
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interest in Bush Machine. Erwin fraudulently transferred his shares of Bush Machine stock
to Ryan and Tory, and she took the money to protect her marital interest.
Vicki argues that she opened the Bush Machine account and was an authorized
signatory; therefore, her withdrawal could not be wrongful. In support of this argument, she
cites 31 C.F.R. § 1020.220(a)(2)(ii)(C) (2021), titled “Customer identification program
requirements for banks,” which states:
Additional verification for certain customers. The CIP must address
situations where, based on the bank’s risk assessment of a new account opened by a
customer that is not an individual, the bank will obtain information about individuals
with authority or control over such account, including signatories, in order to verify
the customer’s identity. This verification method applies only when the bank cannot
verify the customer's true identity using the verification methods described in
paragraphs (a)(2)(ii)(A) and (B) of this section.
She also cites 12 C.F.R. 330.6(a) (2022), titled “Single ownership accounts,” which provides:
Individual accounts. Funds owned by a natural person and deposited in one
or more deposit accounts in his or her own name shall be added together and insured
up to the SMDIA in the aggregate. Exception: Despite the general requirement in this
paragraph (a), if more than one natural person has the right to withdraw funds from
an individual account (excluding persons who have the right to withdraw by virtue of
a Power of Attorney), the account shall be treated as a joint ownership account
(although not necessarily a qualifying joint account) and shall be insured in
accordance with the provisions of § 330.9, unless the deposit account records clearly
indicate, to the satisfaction of the FDIC, that the funds are owned by one individual
and that other signatories on the account are merely authorized to withdraw funds
on behalf of the owner.
Neither of these regulations is applicable in this matter. Even if Vicki’s name was on
the Bush Machine account as a signatory, that did not give her the authority to remove funds
for her own personal use. And 12 C.F.R. 330.6(a) applies to individual accounts, not
corporate accounts.
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Vicki also argues that Bush Machine was a marital asset, and Erwin could not divest
her of her marital interest, which was what the $150,000 withdrawal signified. Alternatively,
Vicki argues that Erwin fraudulently transferred the Bush Machine stock to Ryan and Tory
to divest her of her interest in Bush Machine.
The evidence provided to the circuit court showed that Bush Machine’s corporate
minutes reflected a November 19, 2018, special meeting of the Bush Machine board of
directors, stating that Erwin’s outstanding one thousand shares of stock were going to be
transferred to Ryan and Tory in equal shares. New stock certificates, with five hundred
shares in Ryan’s name and five hundred shares in Tory’s name, were issued on January 1,
2019. A 2019 gift-tax return reflecting Erwin’s gifts to his sons was filed with the IRS, and
a 2019 corporate income-tax return listed Ryan and Tory as owners of the Bush Machine
stock. When a summary-judgment motion is put forth with affidavits attached, the motion’s
opponent cannot rely on a bare denial or contrary allegation but must meet proof with proof.
Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). Vicki failed to meet proof
with proof to show that any of these actions were fraudulent or intended to divest her of any
interest she might have in Bush Machine. We affirm the circuit court’s grant of summary
judgment to Bush Machine ordering Vicki to repay the $150,000 she converted from the
Bush Machine account.
Affirmed.
THYER and WOOD, JJ., agree.
Taylor Law Partners, LLP, by: Andrew Myers, for appellant.
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Gean, Gean & Gean, by: Roy Gean III, for appellees.
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