Aguilar v. Thompson Coburn LLP
| Decision Date | 06 March 2018 |
| Docket Number | No. ED 105570,ED 105570 |
| Citation | 540 S.W.3d 910 |
| Parties | Richard AGUILAR, et al., Appellants, v. THOMPSON COBURN LLP, et al., Respondents. |
| Court | Missouri Court of Appeals |
Jonathan F. Andres, 1127 Hoot Owl Rd., St. Louis, MO 63005, for appellant.
Gerard T. Carmody, 120 S. Central Ave., Suite 1800, St. Louis, MO 63105, for respondent.
Plaintiffs appeal from the circuit court's judgment dismissing their petition against Thompson Coburn LLP ("Thompson Coburn"). Plaintiffs raise six points on appeal. In their first point, Plaintiffs contend that the circuit court erroneously dismissed their petition because the five-year statute of limitations contained in Section 516.1201 did not bar their claims. Finding the first point dispositive, we hold that Section 516.120 bars Plaintiffs' claims because they filed suit more than five years after their damages became capable of ascertainment. Accordingly, the circuit court did not err by dismissing Plaintiffs' petition. We affirm.
Seventy-eight individuals (collectively "Plaintiffs") were victims of a fraudulent investment scheme managed by a St. Louis attorney, Martin Sigillito ("Sigillito"). Sigillito perpetrated the investment scheme by recruiting clients to invest assets—often self-directed Individual Retirement Accounts ("IRAs")—in an overseas lending system called the British Lending Program ("BLP"). Sigillito would then order the transfer of his clients' assets from a custodian company to Scott Brown ("Brown"), a Kansas City attorney, who purportedly invested the assets with foreign borrowers.2 Allegiant Bank served as custodian of the clients' self-directed IRAs from 2000 until early 2002,3 when it transferred custody to a successor custodian.
In 2010, the BLP collapsed and Plaintiffs lost their investments. An FBI investigation revealed that Sigillito operated the BLP as a Ponzi scheme. Unsealing the indictment in May 2011, the United States charged Sigillito with money laundering, wire fraud, and mail fraud. The federal indictment asserted that, inter alia , Sigillito and Brown retained unauthorized placement fees after transferring their clients' assets. A jury found Sigillito guilty, and the federal district court sentenced him to forty years in prison. Sigillito's convictions and sentences were affirmed. United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014).
On October 31, 2016, Plaintiffs filed suit, and after amendment, alleged the following causes of action against Thompson Coburn and John and Jane Does 1-10: (1) aiding and abetting Sigillito's breach of fiduciary duty; (2) conspiring with Sigillito, Brown, and Allegiant Bank to breach Sigillito's fiduciary duty to Plaintiffs; (3) conspiring with Sigillito, Brown, and Allegiant Bank to perform and conceal unlawful acts; and (4) aiding and abetting Allegiant Bank's violations of Missouri's Uniform Fiduciaries Law.4
In their petition, Plaintiffs averred that Thompson Coburn guided its client, Allegiant Bank, in concealing the improper conduct committed as part of the BLP scheme. Specifically, Plaintiffs claimed that Thompson Coburn and Allegiant Bank discovered in late 2001 that Sigillito and Brown retained unauthorized placement fees when transferring the clients' assets to overseas borrowers and made transactions prohibited by the Internal Revenue Service. Plaintiffs contend that, instead of informing Allegiant Bank's clients of the unauthorized transactions or reporting the prohibited self-dealing to the Internal Revenue Service, Thompson Coburn aided Allegiant Bank in transferring its custody of the self-directed IRAs to a successor custodian in a manner that permitted the BLP's continuation. Plaintiffs maintain that, because of the advice and counsel given by Thompson Coburn, Allegiant Bank secured customer approval for transfer of the IRA accounts to the successor custodian without raising questions about Allegiant Bank's resignation.
Plaintiffs claim that they first discovered Thompson Coburn's purported wrongful conduct in 2015. At that time, Plaintiffs subpoenaed and obtained Thompson Coburn's billing records in connection with an unrelated lawsuit. Plaintiffs submit that these records prove Thompson Coburn provided legal services to Allegiant Bank regarding Sigillito's operation of the BLP. Plaintiffs argue that they could not identify Thompson Coburn's purported wrongful conduct prior to obtaining these records in 2015.
Thompson Coburn moved to dismiss Plaintiffs' petition pursuant to Rule 55.27,5 arguing that; (1) Plaintiffs' claims were barred by Section 516.120; (2) Thompson Coburn owed no duty to Plaintiffs; (3) Plaintiffs' claims for aiding and abetting failed as a matter of law because Missouri does not recognize aiding and abetting as a cause of action; (4) Plaintiffs' claims for conspiracy failed as a matter of law because they were proceeding against a single conspirator, the factual allegations refuted the existence of a conspiracy, and they did not allege facts supporting any underlying tort; and (5) Plaintiffs' failed to plead the circumstances of fraud with the particularity required by Rule 55.15.
The circuit court granted Thompson Coburn's motion to dismiss on the grounds stated therein and dismissed Plaintiffs' petition with prejudice. This appeal follows.6
We review de novo the circuit court's grant of a defendant's motion to dismiss. Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 915 (Mo. banc 2016). A motion to dismiss solely tests the adequacy of the plaintiff's petition and examines if the petition sets forth facts entitling him or her to relief. Id.; Edwards v. City of Ellisville, 426 S.W.3d 644, 652 (Mo. App. E.D. 2013). The reviewing court assumes that "all of the plaintiff's allegations are true and liberally grants to the plaintiff all reasonable inferences from the alleged facts." Nickell v. Shanahan, 439 S.W.3d 223, 226-27 (Mo. banc 2014).
When the circuit court does not identify a specific basis for dismissing a petition, we will affirm a judgment of dismissal if we can sustain it on any of the grounds supported by the motion to dismiss. Byrne & Jones Enters. v. Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 851 (Mo. banc 2016) ; Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016). If it clearly appears from the plaintiff's petition that a statute of limitations bars his or her cause of action, a motion to dismiss on that ground is properly sustained. Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997).
Plaintiffs' raise six points on appeal, each charging the circuit court with error for dismissing their petition on separate grounds. In Point One, Plaintiffs argue that their claims were not barred by Section 516.120 because they filed suit within five years after their damages became capable of ascertainment. In Point Two, Plaintiffs contend that, due to the nature of their claims, they were not required to plead any duty owed, Points Three and Four assert that Plaintiffs pleaded facts and circumstances delineating fraud and mistake with sufficient particularity, and that Thompson Coburn did not raise this objection in its motion to dismiss. Point Five posits that Plaintiffs' pleadings sufficiently establish claims for aiding and abetting under Missouri law. Lastly, in Point Six, Plaintiffs maintain that their petition states a claim for conspiracy because they pleaded facts sufficiently establishing the underlying tort that was the basis of the conspiracy and they were not required to join the other conspirators in this petition to proceed against Thompson Coburn.
Point One—the application of the statute of limitations—is dispositive of this appeal. Plaintiffs reason that the damages caused by Thompson Coburn's wrongful conduct first became capable of ascertainment in 2015, when they received the Thompson Coburn's billing statements regarding the legal services it provided to Allegiant Bank about the BLP. In contrast, Thompson Coburn posits that Plaintiffs' damages became capable of ascertainment no later than May 2011, after the BLP investment scheme collapsed, Plaintiffs lost their investments, and Sigillito's indictment was unsealed.
The parties agree that the five-year statute of limitations found in Section 516.120 applies to the claims raised here. Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 580 (Mo. banc 2006) ; Chouteau Auto Mart, Inc. v. First Bank of Mo., 148 S.W.3d 17, 24 (Mo. App. W.D. 2004). Accordingly, Plaintiffs claims are actionable only if they filed their lawsuit within five years from the date their causes of action accrued. Ashford Condo., Inc. v. Horner & Shifrin, Inc., 328 S.W.3d 714, 717-18 (Mo. App. E.D. 2010). The only question before us, then, is when did Plaintiffs' causes of action accrue?
Section 516.100 governs the application of Section 516.120. State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 810 (Mo. banc 2008). Section 516.100 explains:
[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment , and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.
(emphasis added). Our Supreme Court has determined that damages are capable of ascertainment—and therefore the statute of limitation begins to run—when the evidence places "a reasonably prudent person on notice of a potentially actionable injury," Powel, 197 S.W.3d at 582 (). Under the capable-of-ascertainment analysis, the determinative factor is whether "a reasonable person would have been put on notice that an injury and substantial damages may have...
To continue reading
Request your trial
-
Labarbera v. Malec
...and repaired the Property on her own initiative without Washburn's consent. As set forth above, there was an oral agreement that Washburn 540 S.W.3d 910would call if any repairs were needed and would often make the repairs himself. That Defendant purchased the smoke detectors before Washbur......
-
Sharmel Props., Inc. v. Davis
...only if they filed their lawsuit within five years from the date that their causes of action accrued. Aguilar v. Thompson Coburn LLP, 540 S.W.3d 910, 914 (Mo.App. 2018). Under Missouri law, a cause of action does not accrue "when the wrong is done or the technical breach of contract or duty......
-
Agnew v. Mo.-Am. Water Co., ED 106470
...847, 851 (Mo. banc 2016) ; Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016) ; Aguilar v. Thompson Coburn LLP, 540 S.W.3d 910, 913 (Mo. App. E.D. 2018). A motion seeking dismissal of a petition for failure to state a claim upon which relief can be granted is solely a te......
- Tillman v. BNSF Ry. Co.