Tanner v. Mitchell

Case: 20-60588 Document: 00515940888 Page: 1 Date Filed: 07/16/2021

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
July 16, 2021
No. 20-60588 Lyle W. Cayce
Clerk

Great American Life Insurance Company,

Plaintiff,

versus

Ava Mitchell Tanner,

Defendant—Appellee,

versus

Alita Margaret Mitchell; Craig J. Cheatham,

Defendants—Appellants,

versus

Phyllis Mitchell Fernandez,

Intervenor—Appellee,

______________________________

Ava Mitchell Tanner; Phyllis Fernandez,

Plaintiffs—Appellees,

versus
Case: 20-60588 Document: 00515940888 Page: 2 Date Filed: 07/16/2021

No. 20-60588

Alita Cheatham Mitchell; Craig Cheatham,

Defendants—Appellants.

Appeal from the United States District Court
for the Northern District of Mississippi
USDC Nos. 3:16-CV-70 c/w 3:18-CV-23

Before Smith, Stewart, and Ho, Circuit Judges.
Carl E. Stewart, Circuit Judge:
In April 2016, Great American Life Insurance Company (“GALIC”)
filed an interpleader action seeking to determine the proper beneficiary of
two annuities belonging to decedent Don Mitchell (“Don”). The district
court granted summary judgment in favor of Don’s daughter, Ava Tanner
(“Ava”), rejecting the claims of Don’s widow and stepson, Alita Mitchell
(“Alita”) and Craig Cheatham (“Craig”). Craig and Alita appealed. This
court determined that material issues of fact existed, vacated the district
court’s summary judgment in favor of Ava, and remanded the case for trial.
See Great Am. Life Ins. Co. v. Tanner, 766 F. App’x 82, 84 (5th Cir. 2019)
(referred to herein as “Tanner I”). While those proceedings were pending,
Ava and her sister, Phyllis Fernandez, filed another suit in 2018 claiming
entitlement to other assets belonging to Don, including life insurance
proceeds, an individual retirement account (“IRA”), and mineral rights. The
two cases were consolidated for trial. After a three-day bench trial in July
2019, the district court again held in favor of Don’s children, Ava and Phyllis,
awarding them the GALIC annuities, the IRA, the life insurance proceeds,
and the mineral rights. Craig and Alita filed this appeal. For the following
reasons, we AFFIRM.

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I. Factual Background
Many of the facts giving rise to this appeal are detailed in our prior
opinion. See Tanner I, 766 F. App’x at 84–86. For purposes of clarity, we will
briefly summarize some of those facts here, along with other relevant facts
from the record and the second lawsuit that Ava and Phyllis filed in 2018.
Don married his first wife Barbara Mitchell in 1963 and the two had
three children—Ava, Phyllis, and Donice. In 1980, Donice passed away. In
1984, Don and Barbara divorced. In 1987, Don married his second wife,
Earlene Cotton White, and they lived together in Heth, Arkansas, until
Earlene’s death in 2005. In 2007, Ava moved to Heth to be near Don. Ava
has been medically disabled since 2001.
In 2011, Don began communicating with Alita Cheatham, the widow
of one of his friends. Within a few weeks, Don began visiting Alita at her
home in Horn Lake, Mississippi, and within months, the two began
discussing marriage. That year, Don’s health was declining, and Ava served
as his caregiver during this time. In early 2012, Don had surgery to remove a
cancerous spot from the side of his head. Shortly after Don’s surgery, Ava
traveled to Florida to care for her mother, who was also recovering from
surgery. When Ava returned to Arkansas in August of that year, she
discovered that Don’s health had continued to steadily decline. Then, in
November 2012, Don was diagnosed with lung cancer and began receiving
chemotherapy and radiation.
In April 2013, Don retired from his job as a boat captain on the
Mississippi River due to his poor health. He began struggling to keep up with
his bills so he added Ava to his bank accounts so she could help him keep his
financial affairs in order. When Don retired, he purchased two annuities from
GALIC, then valued at $117,333.54 and $120,153.25, and named Ava as the

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beneficiary. These two annuities were the focus of the interpleader suit that
GALIC filed in April of 2016.
In March 2015, Ava left for Florida again to care for her mother. She
took with her the information on the GALIC annuities, the receipt for Don’s
burial policy, and a checkbook. She called to check on Don regularly and
offered to return to Arkansas in the summer of 2015, but Don and Alita told
her that was not necessary. Around this time, Don and Alita’s son Craig
began discussing Don’s finances. Don did not know how to find the accounts
and investments that were in his name, nor did he know his account balances.
He was also unsure where his trust account was located. Craig and Don went
the following week to speak with an attorney in Little Rock about Don’s trust.
Don and Craig then went to Regions Bank (“Regions”) to get a copy of his
bank statements. Don told Craig that his accounts were missing tens of
thousands of dollars. Bank officials told Don that he had active checking
accounts in Alabama, Florida, and Arkansas. Don was confused by this
information and told bank personnel that he was only aware of some bank
accounts that he had in Arkansas. Don then closed all but one of his accounts.
The record reflects that Don was upset that his accounts did not show the
balances he expected, and he began to discuss with Craig the possibility that
Ava had stolen money from him.
Days later, Don and Craig went to Regions to meet with the branch
manager about Don’s investments. There, Craig learned about the GALIC
annuities. On August 14, 2015, Don signed forms revoking Ava’s power of
attorney and appointing Craig in her place. Don called his long-time attorney,
Frank Dudeck (“Dudeck”), and asked his office to prepare the necessary
forms. Craig went alone to Dudeck’s office to retrieve the forms. Craig then
faxed his newly executed power of attorney and Ava’s revocation to GALIC
and told them to freeze Don’s accounts until they received further notice
from Craig.

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On August 17, 2015, Don returned to Regions with both Alita and
Craig and made Alita the primary beneficiary of the GALIC annuities. Later
that day, Don and Alita were married in a private ceremony. Don’s children
were not invited to the wedding. Shortly thereafter, Don made Craig the
contingent beneficiary of the GALIC annuities. After Don and Alita were
married, Alita changed Don’s telephone number. Ava claims she was not
given Don’s new number and that she was prevented from contacting Don
thereafter. Alita claims that she provided Don’s new number to Ava.
According to Ava, on August 20th, Don called her on his speaker
phone with Alita and Craig present and listening and demanded that she
return approximately $200,000 that he believed was missing from his trust
account. The following day, with Craig’s assistance, Don removed Ava as
beneficiary from his Prudential Life Insurance policy, then valued at
approximately $184,000, and added Alita and Craig as beneficiaries to the
policy. A few days later, again with Craig’s assistance, Don signed a form
designating Craig and Alita as beneficiaries of his Cetera IRA account valued
at approximately $149,000. The following month, in Craig’s presence, Don
executed a new will, removed Ava as executor, and appointed Craig as the
executor. The new will left all of Don’s property to his trust account, of
which Alita was the residual beneficiary. Don then made Alita the residual
beneficiary of his mineral interests. 1 He then amended his trust to lower the
bequests to Ava and Phyllis to $500 each. On December 1, 2015, Don died at
the age of 81.
II. Procedural History
In 2016, GALIC filed an interpleader suit to determine the proper
recipient of the two annuities—Alita, Craig, Ava, or anyone else. All three

1
The record does not contain a clear valuation of Don’s mineral interests.

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answered GALIC’s complaint. Alita filed a crossclaim against Ava. Ava filed
a crossclaim against Craig and Alita alleging that they had exerted undue
influence over Don prior to his death to gain control of his assets and cut off
his contact with his family. Ava also filed an amended crossclaim seeking to
add the disputed Prudential Life Insurance proceeds, the Cetera IRA account
funds, and the mineral interests to her original crossclaim against Alita and
Craig. The district court, however, denied that motion and limited the 2016
suit to the GALIC annuities. For that reason, Ava and Phyllis filed a second
suit in 2018 against Alita and Craig seeking to recover the funds from those
additional assets. The district court then granted summary judgment in favor
of Ava and awarded her the value of the GALIC annuities. In its opinion, the
district court determined that the circumstances surrounding Don’s decision
to make Craig and Alita beneficiaries of the annuities gave rise to a rebuttable
presumption of undue influence because Craig and Don had a confidential
relationship and Craig was involved in the preparation of the challenged
change-of-beneficiary forms. The district court concluded that Craig and
Alita failed to provide sufficient evidence rebutting that presumption,
thereby warranting judgment in favor of Ava.
Craig and Alita appealed, and this court vacated the district court’s
summary judgment and remanded for trial after determining that material
fact issues existed as to whether Craig and Alita could rebut the presumption
of undue influence. See Tanner I, 766 F. App’x at 84. As a preliminary matter,
the Tanner I panel agreed with the district court that a presumption of undue
influence existed due to Craig and Don’s confidential relationship and
Craig’s active involvement in changing the beneficiaries of Don’s annuities.
The court paused there, however, noting that material fact issues existed as
to whether: (1) Craig acted in good faith, (2) Don acted with knowledge and
deliberation of his actions and their consequences when he removed Ava as
beneficiary of the annuities and added Alita and Craig, and (3) Don exhibited

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independent consent and action in changing the beneficiaries of the
annuities, i.e., whether Don obtained independent advice from disinterested
parties before making the beneficiary changes to the annuities.
In July 2019, less than four months after remand from this court, the
district court held a three-day bench trial on all pending issues between the
parties. The court consolidated for trial the 2016 GALIC interpleader suit
with Ava and Phyllis’s 2018 lawsuit alleging claims involving the Prudential
Life Insurance policy proceeds, the Cetera IRA funds, the disputed mineral
interests, and a claim under the Mississippi Vulnerable Persons Act
(“MVPA”). In March 2020, the district court issued an opinion and final
judgment in favor of Ava and Phyllis on all claims except their MVPA claim
which was dismissed. See Great Am. Life Ins. Co. v. Tanner, No. 3:16-CV-70,
DMB-JMV, No. 3:18-CV-23-DMB-JMV, 2020 WL 1541375 (N.D. Miss.
Mar. 31, 2020).
Ava and Phyllis filed a motion to amend requesting that the district
court incorporate the dollar amounts into the final judgment and order Craig
to convey the mineral interests back to Ava and Phyllis. The court granted in
part and denied in part the motion and issued two amended judgments
addressing the issues raised in the motion. Relevant here, the district court’s
Second Amended Final Judgment voided all changes of beneficiaries that
were the subject of the consolidated suits for undue influence. It then
awarded to Ava and Phyllis the value of the Prudential Life Insurance policy
($186,000) and the mineral interests to split equally, with the mineral
interests to be transferred to them by Craig. It awarded to Ava the value of
the Cetera IRA account ($148,504.14) and the value of both GALIC annuities
($228,486.79). The district court specified in its judgment that Craig and
Alita were jointly and severally liable for restitution of the funds from the
Prudential Life Insurance policy and the Cetera IRA account. The Clerk of
Court was directed to pay Ava the amount of the GALIC annuities on deposit

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with the court, including interest, the payment of which would apply toward
the amount of the judgment against Craig. Craig and Alita filed this appeal.
III. Standard of Review
“The standard of review for a bench trial is well established: findings
of fact are reviewed for clear error and legal issues are reviewed de novo.”
Deloach Marine Servs., L.L.C. v. Marquette Transp. Co., L.L.C., 974 F.3d 601,
606 (5th Cir. 2020) (citation omitted). Mixed questions of law and fact are
reviewed de novo. Rivera v. Kirby Offshore Marine, L.L.C., 983 F.3d 811, 816
(5th Cir. 2020) (citation omitted). “[W]e will upset the district court’s
findings of fact only if we are left with the definite and firm conviction that a
mistake has been committed.” Deloach Marine Servs., 974 F.3d at 606–07
(alteration in original) (citation omitted). We afford even greater deference
to the district court’s findings when they are based on credibility
determinations. Id. at 607. “[W]e employ a strong presumption that the
court’s findings must be sustained even though this court might have
weighed the evidence differently.” Id. (citation omitted).
IV. Discussion
Neither party disputes on appeal that Mississippi law applies in these
proceedings. Appellants Craig and Alita advance five primary arguments on
appeal: (1) the district court improperly imposed a burden of clear and
convincing evidence as to Alita; (2) the district court erred in imposing a
requirement that Appellants must prove that Don received independent
advice from a disinterested third party before making the beneficiary changes
to his policies and accounts; (3) the district court improperly based damages
on a theory of unjust enrichment which was neither pled nor proven; (4) the
district court erred in imposing joint and several liability on Appellants; and
(5) the district court improperly entered a judgment relating to the

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disposition of real property in Arkansas which is in the exclusive jurisdiction
of the Arkansas probate courts. We address each of these arguments in turn.
(1) Clear and Convincing Evidence Burden & (2) Independent Advice from Third
Parties
Appellants argue that the district court improperly imposed a burden
of clear and convincing evidence on Alita because there was no evidence that
she unduly influenced Don. They further argue that the district court erred
in requiring them to show that Don received independent advice from
disinterested third parties before making the challenged beneficiary changes.
We disagree.
Under Mississippi law, a litigant may establish a rebuttable
presumption of undue influence where: “(1) a confidential relationship exists
between the testator and a beneficiary, and (2) the beneficiary in the
confidential relationship was actively involved in some way with preparing or
executing the [testamentary instrument]” or inter vivos gift. Noblin v.
Burgess, 54 So. 3d 282, 288 (Miss. Ct. App. 2010); see also Madden v. Rhodes,
626 So. 2d 608, 618 (Miss. 1993) (extending the undue influence rule to inter
vivos gifts). “[T]here must be some showing that [the beneficiary] abused
the relationship either by asserting dominance over the testator or by
substituting [his or] her intent for that of [the testator].” In re Will of Wasson,
562 So. 2d 74, 78 (Miss. 1990). “Suspicious circumstances surrounding the
creation of the [testamentary instrument or inter vivos gift] also raise the
presumption.” In re Last Will & Testament & Estate of Smith, 722 So. 2d 606,
612 (Miss. 1998). “[O]nce the required showing is made to raise the
presumption of undue influence, the burden shifts to the proponents to rebut
the presumption by clear and convincing evidence.” Noblin, 54 So. 3d at 288.

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A. Undue Influence: Craig
In analyzing the issue of undue influence, the district court considered
testimony from several witnesses put on by both sides. Based on its
assessment of the credibility of the witnesses, the applicable law, and the
whole of the evidence, the district court determined that Craig exerted undue
influence over Don. The record clearly supports that a confidential
relationship existed between Craig and Don, Craig was undisputedly a
beneficiary of each asset except the trust, and that Craig actively participated
in each challenged change to the beneficiary designations. While the district
court did not require evidence relating to disinterested third parties, it did
require some form of clear and convincing evidence from which it could
conclude that the transfers were Don’s true, untampered, intent. With
respect to the disinterested third party evidence that was presented, the
district court observed that there was “simply no evidence that Don was
acting on the advice of a competent person disconnected from him with
respect to any of the changes at issue in these cases.” It noted that, although
the record reflected that Don had interacted with numerous individuals in
making the challenged changes, the interactions were limited to simple
confirmations from these individuals that Don wanted to make each decision.
Our review of the record supports the district court’s analysis. Four
witnesses testified via video deposition and two witnesses appeared at trial.
We briefly summarize the relevant portions of each witness’s testimony here.
(a) Dr. Rhonda Gentry (Don’s Physician)
Dr. Gentry testified via video deposition and did not appear at trial.
When asked whether she thought Don was able to act independently and
make his own decisions, Dr. Gentry replied, “[r]egarding his ability to
participate in his medical care, yes.” When asked if she “[knew] anything
beyond that” and she answered, “I don’t.” When asked whether she

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believed Don’s judgment was affected by his fatigue and anemia, she replied,
“not in our relationship regarding his medical care.”
Dr. Gentry did not testify as to Don’s capacity to make the specific
beneficiary changes at issue on appeal and she cabined the applicability of her
responses to his decisions affecting his medical care. Thus, her testimony did
not constitute “clear and convincing” evidence to rebut the presumption of
Craig’s undue influence over Don with respect to the challenged beneficiary
changes.
(b) Scottie Lactland (Branch Manager for Regions Bank)
Lactland also testified via video deposition and did not appear at trial.
During Lactland’s deposition, he not only had trouble remembering specific
meetings with Don, he had trouble remembering who Craig and Alita were
or when they accompanied Don to certain meetings. Lactland was able to
vaguely remember that Don mentioned that he thought his daughter was
stealing from him and that he wanted her removed from his accounts. When
asked whether he made the beneficiary changes Don requested, Lactland
replied, “[a]bsolutely, yes, I did.” But when questioned as to whether he
discussed the disputed beneficiary changes with Don, Lactland replied, “I
don’t recall if he explained it, but I know that he mentioned he wanted to
change his beneficiary.”
Lactland’s deposition testimony confirms that he made the
beneficiary changes immediately after Don requested that they be made
without advising or questioning Don or discussing any details with him.
Lactland’s testimony did not constitute “clear and convincing” evidence to
rebut the presumption of Craig’s undue influence over Don.

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(c) Phyllis Harden (Don’s Former Co-worker)
Harden testified via video deposition and did not appear at trial. When
asked whether she and Don discussed the beneficiary changes, Phyllis
responded:
He did not go into detail, but he indicated that he
had a daughter that had taken advantage of him
on some 401(k) money . . . I didn’t ask details on
that. I did not ask. I mean, that was not any of my
business . . . I didn’t really ask him questions
about why he wanted the forms . . . the rest of our
conversation was mainly about work, different
things. But no, I did not question him why he’s
doing what he’s doing or are you sure.
Harden’s deposition testimony reveals that she, like Lactland, simply
confirmed that Don wanted to make the beneficiary changes in question. She
did not advise or question Don or talk to him about his motives behind making
the changes. She did not feel that the details of the beneficiary changes were
any of her business. This is not “clear and convincing” evidence that would
rebut the presumption of Craig’s undue influence over Don.
(d) Terry Greene (Former Regions Employee)
Greene testified at trial. He recounted that, because he didn’t know
Don, he spoke to him a little longer, but he could not remember many of the
details of their conversations. He could not remember whether Craig made
the appointment or if Craig and Alita accompanied Don to the appointment.
Greene testified that he did not give Don advice about the disputed
beneficiary changes because Don had already made up his mind prior to
arriving at Greene’s office. This is not “clear and convincing” evidence to
rebut the presumption that Craig unduly influenced Don.

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(e) Stephen Jones (Legal Assistant at Frank Dudeck’s Law Firm)
Jones did not appear at trial but testified via video deposition. Jones
testified that, from his memory, Don “was fine” when he signed the trust
and other related documents, but he could not remember why Don amended
the trust. Jones was able to remember that Craig accompanied Don to a
meeting, but he wasn’t sure exactly why Don wanted to meet. He thought it
could have been about his IRA or his 401(k). He remembered that Craig
talked as often as Don did, but he could not remember the details of what
they spoke about. Jones was asked about other meetings with Don and Craig
but could not remember the details of those meetings either except that they
requested the changes that were made. Nothing Jones testified to qualifies as
“clear and convincing” evidence to rebut the presumption that Craig unduly
influenced Don.
(f) Tarishan Winder (Notary)
Winder testified very briefly at trial. She recalled that Don, Craig, and
Alita were all present at least once when she notarized Don’s trust. When
asked if it appeared as if anyone was exerting any influence or intent over
Don, Winder responded “I didn’t perceive that.” When asked whether she
discussed the substance of any of the documents with Don before notarizing
them, Winder replied “No, I didn’t go into details. Typically, whenever
someone put[s] a document before me, I ask them to tell me what the
document is and are they sure this is something they want to sign and
notarize. So we didn’t go into details about anything.” Winder’s testimony
was unremarkable and did not amount to “clear and convincing” evidence
that would rebut the presumption of Craig’s undue influence.
We conclude that the district court’s decision to minimize the
probative weight of the testimony of these six witnesses was reasonable and
supported by the record. Each witness simply confirmed that Don wanted to

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make the beneficiary change at issue and then proceeded as directed.
Consequently, we agree with the district court that Craig failed to produce
clear and convincing evidence to rebut the presumption that he unduly
influenced Don with respect to the challenged beneficiary designations.
In In re Fankboner, another will contest suit, the Mississippi Supreme
Court held the disputed bequest to be valid. 638 So. 2d 493, 497 (Miss. 1994).
There, a father chose to leave half of his estate to his biological daughter after
declaring in a letter months earlier that he wanted her forgiveness. Id. at 494
n.1. Several witnesses testified that he privately divulged to them his reasons
for changing his will weeks prior to signing the amended instrument. Id. at
495–96. The court concluded that “clear and convincing evidence” of
Fankboner’s independent consent and action existed because “the evidence
is replete with statements that Fankboner acted independently of [his
daughter].” Id. at 496–97.
Here, there is no evidence that Don discussed his reasons for changing
beneficiaries with anyone, only that he occasionally declared that he thought
Ava might be stealing from him. Additionally, the evidence in this case is not
“replete with statements” that Don acted independently of Craig. The
record confirms that Don rarely, if ever, acted independently of Craig and
that Craig made at least half a dozen two-hour trips to accompany Don to
make financial decisions that benefited himself or his mother. Further, there
is no evidence in the record here, as there was in Fankboner, that Don was
able to have private conversations with anyone outside of Craig’s presence
or that he discussed the substance of the beneficiary changes with anyone
before making them.
The record reveals that, near the time that Craig began escorting Don
to make the beneficiary changes, Don could no longer communicate with his
own family. His cellphone number was changed and allegedly kept private.

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Additionally, the overt hostility that Craig displayed toward Ava in their
written communications was disturbing at best. None of these facts existed
in Fankboner. Further, the disputed bequest in Fankboner was reasonable—a
father chose to leave half of his estate to his biological daughter after declaring
in a letter months earlier that he wanted her forgiveness. But here, it seems
puzzling that Don would choose to leave nearly everything he owned to two
people he had only known for a few years and who became aggressively close
to him just prior to his death while he was battling cancer.
After reviewing the evidence presented at trial, the district court held
that “the transfers of the [a]ssets . . . [that] Phyllis and Ava argue were
improper must be deemed void.” As discussed above, Mississippi law
supports this conclusion. Id. at 495 (observing that if there is no “substantial
evidence, either from the circumstances, or from a totally disinterested
witness from which the court can conclude that the transfer instrument
represented the true, untampered, genuine interest of the grantor . . . . then
as a matter of law the transfer is voidable” (internal quotation marks and
citation omitted)). The district court’s finding of undue influence as to Craig
is amply supported by the record. Appellants’ claims are without merit.
B. Undue Influence: Alita
The district court then concluded that the trial record was insufficient
to raise a presumption of undue influence as to Alita so the undue influence
claims against her failed. Given this conclusion, the district court did not, as
Appellants contend, impose a burden of clear and convincing evidence on
Alita. It did, however, point to its previously entered pretrial order
identifying “as a contested issue of law whether ‘[i]f Alita Mitchell is not
found to have unduly influenced Don, can she nevertheless be liable for
damages for any undue influence asserted by her son Craig that benefited
her.’” The court noted that “[t]his unambiguous reference to seeking

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recovery even in the absence of undue influence was sufficient to place Alita
on notice that Phyllis and Ava intended to seek recovery from Alita of the
assets subject to Craig’s undue influence.” The district court continued that,
under Mississippi law, “a recipient of money paid by mistake must make
restitution to the owner of the money unless the recipient [detrimentally
relied] on receipt of the funds.” See U.S.F. & G. Co. v. Newell, 505 So. 2d
284, 287 (Miss. 1987). It concluded that, because it had definitively found
undue influence on the part of Craig and the necessary voiding of transfers,
it could not be disputed that Alita had received the Prudential Life Insurance
policy proceeds and the Cetera IRA funds by mistake. Further, because there
was no evidence that Alita detrimentally relied on the receipt of these funds,
she was obligated to make restitution to Phyllis and Ava for their value.
Mississippi law again supports the district court’s analysis. See Newell, 505
So. 2d at 287 (“The insurer is entitled to a directed verdict for restitution of
money the insurer paid by mistake unless the insured can show that he
significantly changed his position relying on the overpayment making it
inequitable to require him to return the money.”). Appellants’ arguments to
the contrary are meritless.
(3) Damages
Next, Appellants argue that the district court erred in awarding
damages against Craig based on a theory of unjust enrichment because he
does not have possession of the assets at issue. We disagree. The record
reflects that the damages assessed against Craig by the district court were
actually based on its conclusion that Craig exerted undue influence over Don
prior to his death, not based on a theory of unjust enrichment. The district
court’s July 2020 order on Ava and Phyllis’s motion to amend the final
judgment states “unlike the concept of restitution, damages for undue
influence, which ‘comprehends fraud,’ necessarily depend on the value of
the property lost, not the enrichment of the defendant.” It continued, “Craig

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is liable for the value of the funds lost as a result of his undue influence[.]”
The district court’s Second Amended Final Judgment directed the Clerk of
Court to pay Ava the amount of the annuities on deposit with the court, and
provided that such payment “shall apply towards the amount of the
judgment against Craig Cheatham as to the value of the annuities awarded.”
The record is clear that the district court did not award damages based
on a theory of unjust enrichment. It awarded damages based on a finding of
undue influence on Craig’s part. Additionally, the damages assessed against
Craig with respect to the GALIC annuities were satisfied by the district
court’s direction to the Clerk of Court to pay Ava the amount of the annuities
on deposit with the court. Appellants’ arguments on these issues are wholly
meritless and unsupported by the record.
(4) Joint and Several Liability
Appellants next argue that the district court erred in holding them
jointly and severally liable for the GALIC annuities, the Prudential Life
Insurance policy, and the Cetera IRA account. We are unpersuaded.
As a preliminary matter, the district court’s Second Amended Final
Judgment and its July 2020 order on Ava and Phyllis’s motion to amend the
final judgment provide that Craig and Alita are jointly and severally liable for
only the Cetera IRA account and the Prudential Life Insurance policy
funds—not the GALIC annuities. Citing the Restatement of Restitution, the
district court determined that, because the claims against Craig and Alita
were founded on a single deprivation, the loss of the transferred assets, joint
and several liability is appropriate. We agree. As the district court observed,
the Restatement of Restitution provides:
Where a claim against two persons is founded
upon a single deprivation as it is where a tort
resulting in a single harm has been committed by

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No. 20-60588

two persons concurrently or acting in co-
operation, the injured person, while having a
cause of action against each of the parties for the
entire amount of injury, is entitled only to one
satisfaction. If he obtains judgment against one
and it is satisfied, he thereby loses his claim
against the other.
Restatement (First) of Restitution § 147 cmt. d (1937). The district court
correctly reasoned that this part of the Restatement “effectively imposes
joint and several liability on a restitution defendant when the action is
founded ‘upon a single deprivation.’” See also City of Jackson v. Estate of
Stewart ex rel. Womack, 908 So.2d 703, 711 (Miss. 2005) (“This Court
recently held ‘that “[t]here can be but one satisfaction of the amount due the
plaintiff for his damages”. . . Thus, double recovery for the same harm is not
permissible.’” (quoting Medlin v. Hazlehurst Emergency Physicians, 889 So.2d
496, 500–01 (Miss. 2004))). Further, the district court correctly declined to
hold that Appellants were liable in tort, under Mississippi statutory law, or
under the indivisible injury doctrine. 2
The district court’s analysis on this issue makes clear that its
imposition of joint and several liability on Craig and Alita with respect to the
Prudential Life Insurance policy proceeds and the Cetera IRA account funds
was, at least in part, to prevent Appellees from obtaining a double recovery.
This is a purpose intended to benefit Appellants, not cause their detriment
as they contend. Moreover, Appellants’ argument that joint and several
liability should not apply because “the [c]ourt stated that the Appellees had

2
See D & W Jones, Inc. v. Collier, 372 So. 2d 288, 294 (Miss. 1979) (discussing the
indivisible injury doctrine, the court held “that the separate, concurrent and successive
negligent acts of the appellees which combined to proximately produce the single,
indivisible injury to appellant’s property . . . rendered appellees jointly and severally
liable”).

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No. 20-60588

not proven an act of undue influence on Craig Cheatham’s part and that his
actions might have been justified” is utterly false and completely
contradicted by the record.
The district court did not err in imposing joint and several liability on
Craig and Alita with respect to the Prudential Life Insurance policy and the
Cetera IRA account.
(5) Disposition of Real Property in Arkansas
Finally, Appellants argue that the district court erred in entering a
judgment related to the disposition of real property in Arkansas, i.e., the
disputed mineral interests, because doing so was within the exclusive
jurisdiction of the Arkansas probate courts. We disagree.
This court has acknowledged the Supreme Court’s doctrine set forth
in Fall v. Eastin “that a court has no jurisdiction over realty located in another
state and that any decree purporting to have an in rem effect on such foreign
realty is void, thus relieving the situs state of any obligation to recognize that
judgment under principles of Full Faith and Credit.” Allis v. Allis, 378 F.2d
721, 723–24 (5th Cir. 1967) (citing Fall v. Eastin, 215 U.S. 1, 6–8 (1909)). The
court, however, stated that:
[An] exception to this doctrine is that a court
having in personam jurisdiction over a litigant
may indirectly act upon realty situated in another
jurisdiction by means of an equitable decree
directing that party to convey title to the foreign
realty to another. If the court, having properly
acquired such personal jurisdiction over the
party before it, enforces its decree by compelling
a conveyance . . . such conveyance is entitled to
Full Faith and Credit in the situs state.

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No. 20-60588

Allis, 378 F.2d at 724 (footnote omitted) (citing Fall, 215 U.S. at 8). The court
may not, however, “transfer title in the other state.” Adar v. Smith, 639 F.3d
146, 159 (5th Cir. 2011).
Here, because the district court had personal jurisdiction over Craig,
it had authority to declare the transfer of the mineral interests void for undue
influence. We further agree with the district court that “irrespective of the
location of the mineral interests,” it had “authority to declare the transfer of
the mineral interests void for undue influence and the authority to direct
Craig to convey the interests [back] to Phyllis and Ava.” See In re Fankboner,
638 So. 2d at 495. Moreover, the district court modified its order and
judgment to make clear that it was limited to an equitable decree ordering
Craig to convey the mineral interests back to Ava and Phyllis and not
transferring title to the mineral interests. See Adar, 639 F.3d at 159.
The district court did not err in ordering Craig to convey the
improperly obtained mineral interests back to Ava and Phyllis.
V. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.

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