good morning and may it please the court there were a face for defense law firms in this case not two and before immediately before trial all four defense firms agreed that the plaintiffs were entitled to a jury trial that there were fat questions unfortunately put me here today without a record and i respectfully submit to the court that's not fair didn't both sides ask for summary judgment yes sir but on different subjects and trust what was mother's authority to decide which of the children would would succeed to control of the corporation she had all the voting shares of the corporation but  is what was mother's authority as owner of the sole voting shares to decide which of the six children would would would s to corporate control she had authority to follow the restriction on transfer young was that created it was created in one nine hundred seventy in the seventy's ok yes or and on that subject  how how would how would that affect her ability to to to devise corporate control in her will tax transfer restrictions applied to two mothers will no your honor no but the will never was triggered by virtue of the way the facts unfolded in this case but i'm trying to get the corporate law grounded here ok all right so if mother had completely had authority to decide by will before before all of these events which which of the children by reason of inheriting the most voting stock controlling voting stock would control a corporation we're talking about control a corporation right that's why we're here the reason that the right the in part the reason that the will is is different is because the restriction on transfer did not affect to the i get to the i just want to get the grounding if you if you will concede that mother could do that by will before the creation  child control a corporation she could not under the restrictions on transfer make an interval of those transfers and that's what she did she didn't follow the rules of the restriction on transfer effect and on on that score while we're talking about restriction on transfer i want to say quickly that judge wilson said the plaintiff's interpretation of that the relevant provisions were nonsensical because it required offers to the corporation twice no defendant argued that and for good reason t offers are different well i just gave you a good reason that's that's a ridiculous application of a stock transfer restriction in my in my corporate law experience they have to have a restrain the  the restriction she created to restrict other and what's really interesting your honor is that is that the restriction on trant the bylaws were changed in many ways right at the time of the actual transfer but this restriction provision who was in chains they had the right to change it but they didn't change it but anyway the the the reason the corporation had two bites at the apple is because subway the provisions the first option went to the corporation at a price to be determined a set forth here and that was book value the second option if things progress down the stairs or the steps to the second option to the corporation was to be able to match the price of the purchaser the corporation didn't like who was buy and they could still step in and match that price and so the it made sense for the corporation have to bite on what you've just said now we're we're we're back to my pathetic there's no trust has mom has it mom a c e o c f o chairman of the board so she's in control even of the stock transfer restriction applies she's in control she just has to follow the bylaws movi each of the if if the if the transfer was was invalid then it's undone and the two shares go back into the trust resume lead to the children corporation which has the two voting shares under the terms of the both the will and the trust so each of the six children would get in it equal share of the voting stock so if jones didn't turn that over he would well i would submit to the court that the way it would work is there'd be a there be a probating of the will and the and that the way the terms of the will combined with the trust call for a transfer now would call for a transfer that's why mom always wanted it equal and ok and the defendant's control corporation no your honor be it be really free and free because ballard as the record reflects really supports the claims of the plaintiffs would be three and three the last point i'd like to make is this in the face of the alleged dealing of jones is there no remedy in a closely held foreign corporation like  involving six siblings or no remedy for us to right the wrong of the dealing we're not here to answer those kinds of questions you don't need to give us a reason to do we're talking to us and here's a respectful a submit that that that the please the court i'd like to be end by talking about the transfer and that it's valid the courts be upheld and i'd like to refer to the case of run a longer snyder a north dakota supreme court case the corporation from outside interference but it also stated that such byelaws did not prohibit a sale from one shareholder to another and did not require approval of the corporation and the other shareholders and the result corporation president filed a lawsuit against the buyer seeking a that a trust should be imposed on them for the benefit of the corporation and the court held that such stock restrictions are regarded with disfavor and are strictly construed to uphold the widest range of choices permissible to the seller under the language used in the court adopted a method of construction from oklahoma supreme court the gandy laundry case that we cited as follows it says when the restriction agreement is one subject to the construction that the stock may be so by one shareholder to another shareholder and to also subject to the construction that if if it be sold to all of their shareholders so do you think that it must be so to all shareholders in proportion to the shares they are they own the former construction is justified as it offers the wider choice to the seller in the bar in other words there is a preference in favor of approving a transfer from one shareholder to another and why is that it's because the policy of the law is that there should be free and ability of personal property to mr jones's in the same position as mr snyder the final step in the zero kissed the stock restriction is for an offer to be made to the remaining shareholders yet in this case a remaining share shareholder in the person of mr jones has already received a transfer from his shareholder mother and applying the construction just described that the transfer from one shareholder to another is preferred as it offers the wider choice of the seller and the buyer are in the case in the case of that here the transfer or and the transfer transfer now you're on or not i cannot cite anything that there was any undue influence on the mother is what you're asking correct so in fact the evidence you want to talk about evidence so  let me just say conclusion and move on that they have this is that she wanted that corporation to go forward not to be so old and their best bet on that was mr jones now there's also  the sole purpose is when the smaller purpose doesn't trump language contract language and under arkansas law are i think any state needs a circuit well the case what you're talking about is cases from other states that have talked about the yes it is the interpretation of the stocks transfer restriction by law or an article of incorporation governed by arkansas rules of contract interpretation no but the the quote you said no though the principles of contract interpretation apply that's what the plaintiff's argument is based on your brief was silent are you do you concede that i'm saying that the court can see dead yes or no i don't i don't understand why won't i want to talk to you about construction of believe the courts have the right to set priorities there's a shortage jurisprudence of and contract interpretation in every state in the country right there aren't very many cases like this and this is not technically a contract if you look at it right it's a it's a restriction and a by law that affects contract contracts will transfers do that when we construe that do we apply principles of contract interpretation which begin of course with the plain meaning controls a court after court after court including those that we've cited here finds that these restrictions that we're talking about to prevent outsiders coming in the court i shall make findings when they construe contracts well interpretation of a contract is an issue of law i agree that all right sonar but the interpretation transfer restriction is that a question of law but i would are you saying no forget contract law just look at the grand purpose of of corporate instruments well this is not always clear what the contract manes in the end you can't impose what the parties intended for it to mean but yes that's right that's part of contract interpretation jurisprudence right but you won't answer question one is that but we're we're a legal court we don't make findings of fact we apply principles of law and you won't tell me what the principle of law is well all i can say is the courts that we cited and maybe they're wrong but they can there are plenty of them that if they can for preventing outsiders to come into the corporation now i would like to go to the sue a spot that issues there are three reasons  that citing the global pitcher marine case when a losing party presents a motion for judgment on an issue it has notice of the issue an opportunity to address it the district court is permitted to enters summary judgment sue a spot thing in favor of the nonmoving party when it denies the moving parties motion for summary judgment on that claim that's a global petro marine case from the eighth circuit in two thousand and nine and the power goes on the district court entered summary judgment as to claims that were not the subject of any motion and as judge smith has already pointed out there were some motions for summary judgment and appendix three zero four and three zero five the that they claim are apart from whether the transaction was valid and those are the issues breach of summary judgment loan damages to the corporation they don't have standing and because they don't have standing we can raise it for the first time on appeal and the court can rule as a matter of law that they did not have subject matter jurisdiction because of the lack of standing to the defendants have a position at this stage what what the remedy what would happen if the two share transfer is invalidated well remedy wise their complaint seeks to have remedy i asked if the fans have a position that the answer is not yet that's perfectly legitimate but if you argued it in the record what have you argued not time's up i'm afraid have and and we don't just if we invalidate a transfer rescission as the normal remedied defendants have a position as to what happens if the if the transfer is for any reason invalidate if it violated the yet and there may be no no in the case couldn't really matter it's absolutely correct roger and i don't really see that there's any argument it was that about mr ludwig the appellant's in this case that would overcome the time bar argument so i won't go into that much for the list  i categorize them into three different boxes for purposes of this discussion the first one is that stock transfer and that there are allegations of breach of usury due to surrounding the stock transfer and their acquiescence so that and  their facilitation of that as members of the board it is time barred however i think there's something else that needs to be discussed and that is it's because of their act was acquiesce interest in those two a shares and it's through that waiver that they feel as though they are then intitled to mock client's rights in the to a shares first much muscle think they have a right not to a shares they feel as though the so much time is up to thaw thank you that the transfer was correctly done that their brother mr jones is the rightful owner of those two a shares and therefore they can't waive something that they don't think they asked about undue influence the the record reflects that mr jones picked up the transfer paperwork from the lawyer that prepared it and then no none of the three defendants ha memory of how that transfer was signed by mom none of them jones had no memory and neither did the other two board members of the corporation i know the courts mindful of all the case law we cited it on the derivative subject i respectfully submit that in light of that case all the facts in this case are very parallel to say paul versus stalin mr jones has demonstrated repeatedly even in the scant record that we have that he's willing to move money from the corporate pocket to himself back and forth at at will and so a derivative a hechsher and isn't going to help us it's just not going to help us i respectfully submit and duty claims that we made can be poured out under the heading of our motion for summary judgment on the restrictive transfer because there's a water subsequent breach of fiduciary duty claims that we've made that post date the transfer itself and give me an example that doesn't have anything to do with the transfer ok it would be it would be dealing in the far more old two part to profit at the corporation's expanse we talked sound like derivative claims except in the context of the whole case your honor where the court says you know is the absolute control acquired in continued by in our case or in that case stall and be ignored the done whole board in its treasury cannot be separate from the will of its management the board remains insensitive to its responsibilities to all shareholders while share holder equity has increased over the course of litigation no dividends been declared and  no legitimate corporate reason for retaining profits was shown that's an example and then the court concludes that a derivative action isn't isn't necessary that we had that the plaintiffs in that case had direct action  and i suggest that the facts here parable jones repay admits repay in money at the last minute on the eve of trial that he borrowed to gamble in the stock market and lost if we followed a derivative action he was required to pull more money out of this pocket and put it back in the till that wouldn't help the plaintiffs because he's demonstrated a repeated pattern of pulling the money back out of the tail and putting it back into his own pocket all will burn his attorney fees