[Copyrighted Material Omitted]
FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-14-179],
HONORABLE CHALK MITCHELL, JUDGE
Thompson, Warmath & Dale, P.A., by: Robert F. Thompson,
Paragould, for appellant.
Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by:
M. Samuel Jones III and Brian A. Pipkin, for appellee.
J. HARRISON, Judge
appeal concerns the transfer of more than $ 1.2 million in
stock and the securities law of Arkansas. The main procedural
issue is whether the circuit court correctly granted summary
judgment in favor of First National Bank of Eastern Arkansas
on a complaint that William Ash filed against the bank. The
complaint raised breach-of-fiduciary-duty, conversion, and
replevin claims against First National Bank. Ash challenges
the circuit courts decision that he had legally transferred
his shares of stock in Bancshares of Eastern Arkansas, Inc.
to First National Bank of Eastern Arkansas, as the trustee
for the irrevocable testamentary trust Ashs mother had
created. Ash says he intended to put the stock into a
separate and new revocable trust that he thought he had
created with an attorneys help. Ash also contends that, even
if there was a transfer of stock to the irrevocable
testamentary trust, then the transfer still represents an
overreach by the bank and opens it up to some potential
liability such that summary judgment was improper. We agree
with Ash in part, and disagree in part.
The Previous Appeal (Ash I)
neither the parties nor this courts first rodeo. In 2017,
we vacated the St. Francis County Circuit Courts order
granting summary judgment to First National Bank and held
that the "court erred as a matter of law when it
determined that the stock power, standing alone, effectively
transferred the stock and foreclosed all of Ashs claims
under Arkansas law." Ash v. First Natl Bank of E.
Ark., 2017 Ark.App. 57, at 4, 513 S.W.3d 268, 271
(Ash I ). We stated that the "better
course" was for the parties to argue, and the circuit
court to decide, how a security is effectively transferred
under Arkansas law and
whether an adverse claim is foreclosed under this states
securities law. Id. ; see also Ark. Code
Ann. § § 4-8-101 to -603 (Repl. 2001 & Supp. 2017) (adopting
Uniform Commercial Code).
First National Banks unsuccessful attempt to seek review of
our first opinion in the Arkansas Supreme Court, the mandate
issued and the summary-judgment order was officially voided.
See Johnson v. Windstream Commcns, Inc.,
2014 Ark.App. 99, 2014 WL 580151. On remand in November 2017,
the circuit court set the case for a bench trial in 2018. In
December 2017, the bank filed a "post-appeal motion for
summary judgment" that also incorporated its previous
summary-judgment motion. Ash responded. But on the second
go-around Ash did not also ask the court for summary
judgment; he only asked the court to deny the banks motion
and to award all the relief requested in the complaint. Ash
attached seven exhibits to his response:
1. Stock certificate (included in the first appeal record)
2. Corporations shareholder agreement
3. Banks supplemental objections and responses to Ashs
third set of interrogatories and requests for production of
4. Deposition of William Campbell Ash dated 18 May 2015
(included in the first appeal record)
5. Deposition of William Campbell Ash dated 15 September 2015
(included in the ...