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    IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TXAS

    DALLAS DIVISION

    ARNOLD LEON SCHROEDER, JR.

    Plaintiff,

    vs. CASE NO. 3:11-CV-00525-B

    KERN WILDENTHAL, EDWARD A. COPLEY, HARRY S. PARKER, III, GEORGE CHARLTON, IRVIN LEVY and THE DALLAS MUSEUM OF ART,

    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 1 of 29 PageID 143

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    i

    TABLE OF CONTENTS

    I. INTRODUCTION ................................................................................................... 1II. FACTS AS ALLEGED IN AMENDED COMPLAINT ......................................... 2III. ARGUMENT AND AUTHORITIES ...................................................................... 3

    A. Schroeder Has Failed to State a Claim for Fraud. ...................................... 41. Schroeder Lacks Standing to Assert Fraud. .......................................... 42. Schroeder Cannot State a Claim for Fraud Because the Amended

    Complaint Does Not Contend Causation. ............................................. 7

    3. Schroeder Fails to Plead his Fraud Claim with Particularity. ............... 74. Schroeders Claim for Fraud Is Time-Barred. ...................................... 9

    B. Schroeder Has Failed to State a Claim for Conspiracy............................. 111. Schroeder Does Not Allege Any Facts That Would Support an

    Unlawful Conspiracy. ......................................................................... 11

    2. Schroeders Claim for Conspiracy is Time-Barred. ........................... 13C. Schroeder Is Not Entitled to an Accounting or Constructive Trust. ......... 14

    D. Schroeder Has Failed to State a Claim for Tortious Interference WithInheritance................................................................................................. 15

    1. Schroeder Has Not Stated Facts That Would Support a TortiousInterference With Inheritance Claim. ................................................. 15

    2. Schroeders Claim for Tortious Interference with Inheritance RightsClaim is Time Barred. ......................................................................... 16

    E. Schroeder Has Failed to State a Claim for Conversion. ........................... 171. Schroeder Cannot Establish Standing or the Essential Elements of a

    Conversion Claim. .............................................................................. 17

    2. Schroeders Conversion Claim is Time-Barred. ................................. 18

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 2 of 29 PageID 144

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    F. Schroeder Cannot State a Claim for Misapplication ofFiduciary Property. ................................................................................... 19

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 3 of 29 PageID 145

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    iii

    TABLE OF AUTHORITIES

    CASES

    Ashcroft v. Iqbal,129 S.Ct. 1937 (2009) ..........................................................................................................4, 13

    Barcelo v. Elliot,923 S.W.2d 575 (Tex. 1996) ......................................................................................................7

    Brown v. De La Cruz,156 S.W.3d 560 (Tex. 2004) ....................................................................................................19

    Bush v. United States,823 F.2d 909 (5th Cir. 1987) ...............................................................................................9, 20

    Carroll v. Timmers Chevrolet, Inc.,592 S.W.2d 922 (Tex. 1979) ....................................................................................................12

    Cathey v. First City Bank,758 S.W.2d 818 (Tex. App.Corpus Christi 1988, writ denied) ...........................................13

    Chon Tri v. J.T.T.,162 S.W.3d 552 (Tex. 2005) ....................................................................................................11

    City of Wichita Falls v. ITT Commercial Finance Corp.,827 S.W.2d 6 (Tex. App.Fort Worth 1992), revd ..............................................................18

    Cooper v. Sony Music Entertainment, Inc.,No. 01-0941, 2002 U.S. Dist. LEXIS 3832 (S.D. Tex. Feb. 22, 2002) ...................................19

    Cotten v. Weatherford Bancshares, Inc.,187 S.W.3d 687 (Tex. App.Fort Worth 2006, pet. denied) ...................................................9

    DaimlerChrysler Corp. v. Inman,252 S.W.3d 299 (Tex. 2008) ......................................................................................................5

    Dorsey v. Portfolio Equities, Inc.,540 F.3d 333 (5th Cir. 2008) .....................................................................................................8

    Duncan v. Cessna Aircraft Co.,665 S.W.2d 414 (Tex. 1984) ......................................................................................................5

    Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co.,51 S.W. 3d 573 (Tex. 2001) .......................................................................................................6

    First Natl Bank v. Levine,721 S.W.2d 287 (Tex. 1986) ....................................................................................................16

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 4 of 29 PageID 146

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    Frith v. Guardian Life Ins. Co. of Am.,9 F. Supp. 2d 734 (S.D. Tex. 1998) .........................................................................................10

    Grant v. C.R. Eng., Inc.,No. H-10-3649, 2011 U.S. Dist. LEXIS 52 (S.D. Tex. Jan. 3, 2011) ......................................10

    Haisler v. Coburn,

    No. 10-09-00275-CV, 2010 Tex. App. LEXIS 6050 (Tex. App.Waco, July28, 2010, pet. denied) ...............................................................................................................17

    Harold H. Huggins Realty, Inc. v. FNC, Inc.,634 F.3d 787 (5th Cir. 2011) .....................................................................................................4

    Hubbard v. Shankle,138 S.W.3d 474 (Tex. App.Fort Worth 2004, pet. denied) .................................................15

    Jones v. ALCOA, Inc.,339 F.3d 359 (5th Cir. 2003) ...................................................................................................10

    Khorshid, Inc. v. Christian,257 S.W.3d 748 (Tex. App.Dallas 2008, no pet.) ................................................................18

    M.D.Anderson Cancer Center v. Novak,52 S.W.3d 704 (Tex. 2001) ........................................................................................................5

    Massey v. Armco Steel Co.,652 S.W.2d 932 (Tex. 1983) ....................................................................................................12

    Mayes v. Stewart,11 S.W.3d 440 (Tex. App.Houston [14th Dist.] 2000, pet. denied) ....................................13

    Michael v. Dyke,41 S.W.3d 746 (Tex. App.Corpus Christi 2001, no pet.) ....................................................14

    Navarro v. Grant Thornton, LLP,316 S.W.3d 715 (Tex. App.Houston [14th Dist.] 2010, no pet.) .........................................13

    Nobles v. Marcus,533 S.W.2d 923 (Tex. 1976) ......................................................................................................5

    Prostok v. Browning,112 S.W.3d 876 (Tex. App.Dallas 003), revd ....................................................................13

    Southland Sec. Corp. v. INSpire Ins. Solutions Inc.,365 F.3d 353 (5th Cir. 2004) .....................................................................................................3

    Spurlock v. Johnson,94 S.W.3d 655 (Tex. App.San Antonio 2002, no pet.) ........................................................19

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 5 of 29 PageID 147

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    St. Paul Fire & Marine Ins. Co. v. Labuzan,579 F.3d 533 (5th Cir. 2009) .....................................................................................................5

    T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Assn ,79 S.W.3d 712 (Tex. App.Houston [14th Dist.] 2002, pet. denied) ....................................14

    Texas State Bank v. Amaro,

    87 S.W.3d 538 (Tex. 2002) ......................................................................................................14

    Tilton v. Marshall,925 S.W.2d 672 (Tex. 1996) ....................................................................................................12

    Triple Tee Golf, Inc. v. Nike, Inc.,618 F. Supp. 2d 586 (N.D. Tex. 2009) ....................................................................................14

    Troxel v. Bishop,201 S.W.3d 290 (Tex. App.Dallas 2006, no pet.) ................................................................15

    Urbanczyk v. Urbanczyk,No. 07-07-0077-CV, 2009 Tex. App. LEXIS 587 (Tex. App.Amarillo, Jan.29, 2009, no pet.) (mem. op.) ...................................................................................................17

    Wackman v. Rubsamen,602 F.3d 391 (5th Cir. 2010) ...................................................................................................15

    Williams v. WMX Technologies, Inc.,112 F.3d 175 (5th Cir. 1997) .....................................................................................................9

    Woods v. William M. Mercer, Inc.,769 S.W.2d 515 (Tex. 1988) ....................................................................................................11

    Wyatt v. Union Mortgage Co.,598 P.2d 45 (Cal. 1979) ...........................................................................................................13

    STATUTES

    TEX.CIV.PRAC.&REM.CODE 16.003 .................................................................................16, 20

    TEX. CIV.PRAC.&REM.CODE 16.003(a) .............................................................................18, 20

    TEX. CIV.PRAC.&REM.CODE 16.004(a)(4) ..............................................................................10

    TEX.CIV.PRAC.&REM.CODE 16.051 .......................................................................................13

    TEX.PENAL CODE 32.45 .............................................................................................................19

    OTHERAUTHORITIES

    FED.R.CIV.P. 9(b) ............................................................................................................7, 8, 9, 10

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 6 of 29 PageID 148

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    Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim

    Federal Rule of Civil Procedure 8(a)(2) ......................................................................................4, 9

    Restatement (Second) of Torts 774B (1979) ..............................................................................16

    Rules 8, 9(b), and 12(b)(6) ...............................................................................................................1

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 7 of 29 PageID 149

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 1

    Pursuant to Rules 8, 9(b), and 12(b)(6) Defendant EDWARD A. COPLEY,

    (Copley) moves to dismiss Plaintiff Arnold Leon Schroeder, Jr.s First Amended

    Complaint. Defendant Copley respectfully shows the Court the following:

    I. INTRODUCTIONAs estranged from the truth as he was from his mother for most of his life,

    Plaintiff Arnold Leon Schroeder, Jr. (Schroeder), the son of Wyn-Nelle Russell Reves

    (Reves) has filed this suit making unsubstantiated and sensational allegations against

    Revess trusted lawyer, Copley. In this suit, Schroeder seeks to capture a fortune he was

    never intended to have, at the expense of prestigious charitable organizations, civic

    leaders, and Copley, a highly regarded estate lawyer in Dallas for over 40 years. Taking

    refuge in the apparent immunity afforded pleadings in a federal lawsuit, Schroeder has

    concocted a false tale full of imagined intrigue, fraud and undue influence.

    In years past, and outside the litigation context, one could assuredly say that

    Schroeders Amended Complaint reads like a dime-store novel. Today, in this Court,

    what can be said about what is now Schroeders second complaint is far less colorfulit

    fails to state a claim upon which relief can be granted.

    At all times from their introduction in 1998 to Revess passing in 2007, Copley

    followed Revess express wishes and directions. Despite Schroeders astonishing

    allegations to the contrary, Copley and Reves exchanged correspondence over the course

    of several months and met in person multiple times prior to the November 23, 1998

    execution of her will. Moreover, every time that Reves sought to modify her will, Copley

    followed her directions, including Revess decision in 1999 to make a single, specific

    bequest to Schroeder of $500,000.00. In the years that followed Revess death,

    Schroeder has unleashed an attack of unfounded and serious allegations against Copley

    and other defendants in courts throughout the world. Schroeder now comes to this Court

    complaining of events he had full knowledge of many years, if not decades, before

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 8 of 29 PageID 150

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 2

    Revess death. Even if the outlandish allegations in the Amended Complaint are deemed

    to be trueas required at this point in the proceedingSchroeder cannot state a

    cognizable cause of action against Copley. Thus, his Amended Complaint should be

    dismissed.

    II. FACTS AS ALLEGED IN AMENDED COMPLAINT1

    As alleged in the Amended Complaint, Reves was born in Marshall, Texas and

    married Arnold Leon Schroeder, Sr. at the age of 18. Am. Compl. 13-14. They had

    one son, Schroeder, in 1935 and divorced shortly thereafter. Id. 15, 17. Decades later,

    in 1964, after a second marriage, Reves went on to marry Emery Reves, a noted author

    and art collector, and they lived together in France until Emerys death in 1981. Id..

    18, 19, 23. Beginning in the 1940s, before marrying Wendy, Emery Reves set up various

    corporate entities to hold his assets, including real estate and including several

    foundations that were intended to ensure that Emerys extensive art collection was

    housed in a museum for public display after his death. Id. 20-44. Indeed, soon after

    Emerys death in 1981, Reves worked with the Dallas Museum of Art and several of its

    members to transfer ownership of the art collection to the DMA, where it was first

    displayed in the early 1980s and continues to be housed today.Id. 49-57.

    Defendant Edward Copley had no dealings in the transfer of the art collection, and

    only first met Reves in 1998, many years after the art collection had been transferred to

    the DMA. See Am. Compl. 49-59, 63. Copley performed several legal services for

    Reves, which included drafting and revising her will. Id. 64, 66-68. In 1998, Copley

    1 As noted in the Introduction, Copley challenges the accuracy of many of the facts alleged in the

    Amended Complaint. At this early stage of the proceeding, Copley understands that the facts in the

    Complaint are presumed true. See Fed. R. Civ. P. 12(b)(6). By merely reciting the allegations in the

    Amended Complaint, Copley is in no way admitting or acknowledging the truthfulness of these

    allegations.

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 3

    first drafted a will for Reves, which she signed. Id. After Reves requested a change in

    the will to appoint a co-executor, Copley immediately complied and changed the will

    according to Revess wishes. Id. 67. In 2000, Copley also prepared a power-of-

    attorney document for Reves, which allowed him to create corporate structures to further

    the philanthropic goals that Reves and Emery had pursued throughout their livesart and

    health organizations including the DMA and Southwestern Medical Foundation. Id.

    74-77. Although Copley, at Reves direction, made several efforts to avoid the

    application of French law to Revess estate, a court in Switzerland has determined that

    French law applies to the probate proceedings. See Id. 11.

    Notably, there are no allegations in the Amended Complaint that the substance of

    Revess will was contrary to her wishes or that Reves wanted her son to inherit a larger

    portion of her estate. There are no allegations that Copley misled Reves about the

    contents of the will, the power of attorney document, or any of his legal services to her.

    There are no allegations that Copleys attempts to bring the probate proceedings under

    the laws of England were contrary to Revess wishes or were misrepresented to Reves.

    In short, there are no factual allegations to support the causes of action alleged against

    Edward Copley.

    III. ARGUMENT AND AUTHORITIES

    Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of claims for

    failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6).

    When deciding a motion to dismiss under Rule 12(b)(6), courts must accept a plaintiff's

    factual allegations as true, but will not strain to find inferences favorable to plaintiff.

    Southland Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353, 361 (5th Cir. 2004).

    Case 3:11-cv-00525-B Document 20 Filed 06/09/11 Page 10 of 29 PageID 152

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 4

    Federal Rule of Civil Procedure 8(a)(2) requires that Schroeder present sufficient

    factual matters, accepted as true, to state a claim to relief that is plausible on its face.

    Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009) (citing Bell Atlantic Corp. v. Twombly,

    550 U.S. 544, 555 (2007)). A claim has facial plausibility when the pleaded factual

    content allows the court to draw the reasonable inference that the defendant is liable for

    the misconduct, but threadbare recitals of a cause of actions elements, supported by

    mere conclusory statements will not suffice to trigger the Courts acceptance of a

    complaints allegations. Id. A court considering a motion to dismiss may begin by

    identifying allegations that, because they are mere conclusions, are not entitled to

    assumption of truth. Id.

    A. Schroeder Has Failed to State a Claim for Fraud.

    The Court should dismiss Schroeders fraud claim because: 1) Schroeder does not

    have standing to assert a claim of fraud against Copley for alleged misrepresentations

    made to Reves; 2) Schroeder has not pled any type of fraud with the requisite

    particularity needed under 9(b); 3) Schroeder has not pled any causation; and 4) any

    claims for fraud are barred by the statute of limitations.

    1. Schroeder Lacks Standing to Assert Fraud.

    As an initial matter, this Court lacks jurisdiction because Schroeder does not have

    standing to bring a fraud action for alleged misrepresentations that were not made to him

    and upon which he did not rely. Standing is a jurisdictional issue, and a court must

    dismiss a complaint if there is no standing. See Harold H. Huggins Realty, Inc. v. FNC,

    Inc., 634 F.3d 787, 795 n2 (5th Cir. 2011) (a dismissal for lack of prudential or statutory

    standing is properly granted under Rule 12(b)(6)). Questions of standing include

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 5

    whether the plaintiff is asserting his or her own legal rights and interests rather than the

    legal rights and interests of third parties. St. Paul Fire & Marine Ins. Co. v. Labuzan,

    579 F.3d 533, 539 (5th Cir. 2009) (internal quotations and citations omitted).

    Here, Schroeders allegations of fraud against Copley center solely around the

    creation of a power of attorney and allegations that the Defendants induced Reves to sign

    a will, codicils to the will and other documents. . . . Am. Compl. 89. The Amended

    Complaint contains not a single allegation that these actions were not exactly what Reves

    asked her attorney to do.

    In Texas, a fraud claim is personal to the defrauded party alone.

    2

    See Nobles v.

    Marcus, 533 S.W.2d 923, 927 (Tex. 1976) (It is a fundamental rule of law that only the

    person whose primary legal right has been breached may seek redress for an injury . . . A

    suit to set aside a deed obtained by fraud can only be maintained by the defrauded

    party);see alsoDaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008) (It

    was irrelevant whether [Defendants] fund-raising letter was false, or whether recipients

    might have been deceived into giving when they would not otherwise have done so. The

    point was that [Plaintiff] was not himself deceived or injured, and therefore he did not

    have standing individually to assert fraud.) (discussing M.D.Anderson Cancer Center v.

    Novak, 52 S.W.3d 704, 711 (Tex. 2001)).

    2 Texas law applies to Plaintiffs claims because as Plaintiff concedes in his Complaint, a substantial

    part of the events or omissions giving rise to the claim occurred in Texas. Am. Compl. 9. The

    Texas Supreme Court has held that the law of the state with the most significant relationship to the

    particular substantive issue will be applied to resolve that issue. Duncan v. Cessna Aircraft Co., 665

    S.W.2d 414, 421 (Tex. 1984). Texas indeed has the most significant relationship to Plaintiffs claims

    involving Texas residents alleged acts of fraud in Texas and involving art and assets that are located

    in Texas.

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 6

    Schroeder concedes that the acts and omissions of Defendants only induced

    [Reves], not Schroeder. Am. Compl. 89. Indeed, he merely alleges that Defendants

    alleged fraud on Reves was a proximate cause of damages to Shroeder. Id. No such

    action for proximate causation through another persons fraud exists in Texas. To

    maintain a cause of action for fraud, Schroeder must instead prove that: (1) Copley made

    a material misrepresentation that was false; (2) Copley knew the representation was false

    or made it recklessly as a positive assertion without any knowledge of its truth; (3)

    Copley intended to induce Schroeder to act upon the representation; and (4) Schroeder

    actually and justifiably relied upon the representation and thereby suffered injury. Ernst

    & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W. 3d 573, 577 (Tex. 2001).

    Although the misrepresentations do not have to be made directly to Schroeder, he must

    show that Defendants intended the misrepresentation to induce his action. Indeed, the

    Texas Supreme Court has held that its fraud jurisprudence has traditionally focused . . .

    on whether the misrepresentation was intended to reach a third person and induce

    reliance. Id. This theory of liability requires more than mere foreseeability or an

    obvious risk that a misrepresentation might be repeated to a third party. Id. at 57980.

    Rather, the defendant must have information that would lead a reasonable man to

    conclude that there is an especial likelihood that it will reach those persons and will

    influence their conduct. Id. at 580 (quoting Restatement 2d of Torts 531 cmt. d

    (1977)). Schroeder, now having two bites at this apple, has not pled any facts that would

    raise the suggestion that Copley or any Defendant ever intended any of their statements to

    influence the conduct of Schroeder.

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 7

    In fact, Schroeders Amended Complaint is exactly the type of action that the

    Texas Supreme Court is particularly wary ofsubject[ing] attorneys to suits by heirs

    who simply did not receive what they believed to be their due share under the will or

    trust under the guise of tort actions against the attorney. Barcelo v. Elliot, 923 S.W.2d

    575, 578 (Tex. 1996) (denying a negligence cause of action brought by beneficiaries

    against attorney who represented the decedent in estate planning process). Schroeder

    lacks standing and the fraud claim must be dismissed.

    2. Schroeder Cannot State a Claim for Fraud Because theAmended Complaint Does Not Contend Causation.

    Schroeders claim for fraud must be dismissed because on its face, the Amended

    Complaint actually disproves the element of causation.3 Although Schroeder alleges that

    Copley made several efforts to avoid the application of French law, Am. Compl. 69,

    it also notes that a Swiss court has held that French law applies to her Estate. Id. 11,

    83. In other words, even if Copley attempted to evade French law, it appears on the face

    of the Amended Complaint that his attempts have proven to be unsuccessful. The fact

    that Copleys attempts to apply English law to Revess estate were unsuccessful proves

    that there is no causation in circumventing Plaintiffs 50% forced share statutory rights

    under French law and there may be no injury if the French courts uphold these statutes

    for Revess estate.

    3. Schroeder Fails to Plead his Fraud Claim with Particularity.

    Additionally, Schroeders claim for fraud, whether styled common law or

    constructive, fails to state with particularity the circumstances constituting fraud. FED.R.

    3 To the extent that any of Plaintiffs other claims rely on allegations relating to efforts to avoid Frenchlaw, these claims too fail for lack of causation.

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 8

    CIV. P. 9(b). Schroeder never states what the misrepresentations were, who they were

    made to, when they were made, or how they were false. This lapse is inexcusable. The

    Fifth Circuit interprets Rule 9(b) strictly and requires that a plaintiff plead common law

    fraud to specify the statements contended to be fraudulent, identify the speaker, state

    when and where the statements were made, and explain why the statements were

    fraudulent. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008)

    (citations omitted). Put simply, Rule 9(b) requires the who, what, when, where, and

    how of the alleged misrepresentations. Id.

    Schroeders factual allegations against Copley include vague phrases such as the

    dual pressure of Wildenthal and Copley, but do not contain specific statements that are

    purported to be false. Am. Compl. 66. The only specific statements attributable to

    Copley include:

    Copley wrote back saying that since she lived abroad, and spent considerableamount of time in France, he would have to obtain legal advice in Switzerland

    and in France for which he billed her some $20,000.00. Am. Compl. 68.

    As [Reves] was now British (having renounced her US citizenship in 1978)Copley purported to subject her Estate to British law, which he later corrected in

    2005 to English law. Id. 71.

    Copley also instructed [Reves] to sign a power of attorney that gave Copleyauthority over her affairs and bank accounts. Am. Compl. 74.

    Copleyexecuted the Trust Agreement individually (as a Co-Trustee) and onbehalf of [Reves], as her attorney-in-fact. Id. 78.

    Copley completed an IRS form on behalf of WERCF. Id. 80-82.

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    DEFENDANT EDWARD A. COPLEYS MOTION TO DISMISS

    AND BRIEF IN SUPPORT - PAGE 9

    There are no allegations in the Amended Complaint that any of these statements were

    false. Although the Amended Complaint lays out pages and pages of trivial detail, there

    are simply no allegations that specify what material misrepresentations were made to

    Reves with knowledge of their falsity. As the Fifth Circuit has noted: [a] complaint

    can be long-winded, even prolix, without pleading with particularity. Indeed, such a

    garrulous style is not an uncommon mask for an absence of detail. Williams v. WMX

    Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997). Here, Schroeder sets out an

    expansive yet empty story that does not hold up to the heightened standards of Rule 9(b)

    and must therefore be dismissed.

    Additionally, much of Schroeders Amended Complaint for fraud amounts to

    conclusory statements and threadbare recitals of elements. When Schroeders

    Amended Complaint finally gets to fraud, it fails to even reference the elements of

    common law or constructive fraud. To the extent Schroeder alleges constructive fraud;

    he has failed to allege a single breach of any fiduciary duty Copley owed to Reves, or the

    existence of any fiduciary relationship between Copley and Schroeder. See Cotten v.

    Weatherford Bancshares, Inc., 187 S.W.3d 687, 703 (Tex. App.Fort Worth 2006, pet.

    denied). The Amended Complaint is insufficient even under the lower standards of Rule

    8(a)(2), and these legal conclusions regarding fraud are not entitled to the presumption of

    truth.

    4. Schroeders Claim for Fraud Is Time-Barred.

    Lastly, Schroeders claims for fraud are barred by the applicable statute of

    limitations. A motion to dismiss for failure to state a claim under Rule 12(b)(6) is a valid

    means to raise a statute of limitations defense. Bush v. United States, 823 F.2d 909, 910

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    (5th Cir. 1987). Thus, a court should dismiss based on the statute of limitations if that

    bar to relief appears on the face of the complaint or other appropriately considered

    materials. Grant v. C.R. Eng., Inc., No. H-10-3649, 2011 U.S. Dist. LEXIS 52, at *2*3

    (S.D. Tex. Jan. 3, 2011) (citing Garrett v. Commonwealth Mortgage Corp. of America,

    938 F.2d 591, 594 (5th Cir. 1991)).

    If the plaintiff seeks to avoid the statute of limitations based on the discovery rule

    (plaintiff did not know of defendants wrongful acts and could not have discovered them

    through reasonable diligence) or on a fraudulent concealment theory (defendants took

    further steps to conceal their wrongful behavior from plaintiff) or similar tolling

    arguments, the plaintiff must raise those arguments in the complaint. See Jones v.

    ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (A statute of limitations may support

    dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the

    action is barred and the pleadings fail to raise some basis for tolling or the like.).

    Allegations of fraudulent concealment, like any other alleged fraud, must be pleaded with

    specificity. Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 742 (S.D. Tex.

    1998);see FED.R.CIV.P. 9(b).

    On the face of Schroeders Amended Complaint, it is clear that his claims are

    barred by the statute of limitations and he has not pleaded any allegations that would

    suggest a tolling of the statute. In Texas, a plaintiff has four years to bring a claim for

    fraud. TEX. CIV.PRAC.&REM.CODE 16.004(a)(4). The Original Complaint was filed

    with this Court on March 11, 2011. Thus, Schroeder can only bring claims for fraud that

    occurred on or after March 11, 2007, which was two days before Reves died. See Am.

    Compl. 84 (noting that Reves died on March 13, 2007). The cause of action for fraud

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    accrues from the date the defendant makes the false representation. Woods v. William M.

    Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Here, any alleged misrepresentations in

    the Amended Complaint would have to have been made to Reves, who had to be alive in

    order to be defrauded. The Amended Complaints allegations involving Copley begin

    [i]n approximately 1998 and end in 2004 with the allegations concerning Copleys

    filing of an application with the IRS. All statements in connection with these events are

    outside the statute of limitation because any representations made before March 11,

    2007four years from the Original Complaintare not actionable. Schroeder makes no

    allegations that Copley made any statements to Reves in the last days of her life that were

    fraudulent. The claim of fraud must therefore be dismissed as time-barred.

    B. Schroeder Has Failed to State a Claim for Conspiracy.

    Schroeders claim for conspiracy must be dismissed because he does not plead

    sufficient facts to support a plausible inference of conspiracy and also because his claim

    is time-barred.

    1. Schroeder Does Not Allege Any Facts That Would Support anUnlawful Conspiracy.

    Schroeders claim of conspiracy does not appropriately allege any underlying

    actionable tort. To prove civil conspiracy, Schroeder must show that: (1) Defendant was

    a member of a combination of two or more persons; (2) the object of the combination was

    to accomplish an unlawful purpose or a lawful purpose by unlawful means; (3) the

    members had a meeting of the minds on the object or course of action; (4) one member

    committed an unlawful, overt act to further the object or course of action; and (5)

    Schroeder suffered injury as a proximate result of the wrongful act. See, e,g., Chon Tri v.

    J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Civil conspiracy, unlike criminal conspiracy, is

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    not an independent basis for liability. Rather, it is simply a means of sharing liability for

    the underlying substantive torts among multiple defendants. Carroll v. Timmers

    Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979). It has thus been called a derivative

    tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996).

    As stated in more detail in the respective sections of this brief, Schroeder has not

    stated a claim for any underlying tort under any of his claims for relief. His conspiracy

    action is therefore moot. Additionally, Schroeders allegations within the conspiracy

    section of his Amended Complaint do not amount to any actionable claims. The

    Amended Complaint alleges that Defendants are liable for conspiracy to defraud the

    Estate and Schroeder of his heirship by attempting to avoid the 50% forced heirship of

    French law. Am. Compl. 89. This allegation does not amount to a tort. First,

    attempting to avoid the laws of France may or may not run counter to the tax laws of the

    respective region, but does not in and of itself constitute a civil tort. See Massey v.

    Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983) (holding that an agreement to resist a

    workers compensation claim was not an actionable civil conspiracy). Second,

    conspiracy to deprive Plaintiff of any of Revess property is similarly not a tort. Copley

    was merely effectuating the desires of his client through the estate-planning process.

    Unless there is some unlawful, overt act apart from the estate-planning that furthered

    the conspiracy, there can be no liability for conspiracy. See id. The Amended

    Complaints only alleged overt act is that Defendants induced Reves to sign a will,

    codicils to the will, and other documents that were authored by Copley, whom she had

    allegedly never met before she was asked to execute the will. Am. Compl. 66, 89.

    Signing a will that was drafted by someone unknown to you is not unlawful. Pressuring

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    someone to sign a will is also not unlawful. Without more, Schroeders claim for

    conspiracy does not rise above the level of speculation, and does not provide plausible

    grounds to infer an unlawful agreement to commit a tort. See Iqbal, 129 S.Ct. at 1965.

    2. Schroeders Claim for Conspiracy is Time-Barred.

    Another independent ground for dismissing Schroeders conspiracy claim is

    because it is barred by the statute of limitations. In Texas, the statute of limitations for

    conspiracy is measured separately for each specific wrongful act that is part of the

    conspiracy, treating each act as a distinct cause of action. Mayes v. Stewart, 11 S.W.3d

    440, 453 (Tex. App.Houston [14th Dist.] 2000, pet. denied).4 Thus, overt acts within

    the statute of limitations do not create liability for earlier conspiratorial conduct that took

    place beyond the limitations period. Even if Schroeder can establish a conspiracy,

    Copley can only be held liable for specific wrongful acts he or other defendants

    committed within the statute of limitations.

    Although there is some uncertainty about the limitations period for civil

    conspiracy in Texas, Schroeders allegations are not sufficient under any current

    interpretation. Several Texas courts have applied a two-year period. See, e.g., Navarro

    v. Grant Thornton, LLP, 316 S.W.3d 715, 719 (Tex. App.Houston [14th Dist.] 2010,

    no pet.); Prostok v. Browning, 112 S.W.3d 876, 899 (Tex. App.Dallas 003), revd in

    part on other grounds, 165 S.W.3d 336 (Tex. 2005); Cathey v. First City Bank, 758

    S.W.2d 818, 822 (Tex. App.Corpus Christi 1988, writ denied). If the matter is in

    doubt, the fall-back statute in Texas is the four-year residual statute of limitations for

    civil claims. See TEX.CIV.PRAC.&REM.CODE 16.051.

    4 This differs from the rule in some other jurisdictions, where the statute of limitations runs from the last

    overt act. See, e.g., Wyatt v. Union Mortgage Co., 598 P.2d 45, 53 (Cal. 1979).

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    Even assuming the most generous time period of four years, Schroeder has not

    alleged any overt acts that Copley or any defendant has committed in the last four years

    to further any alleged conspiracy and thus his claim for conspiracy must be dismissed.

    C. Schroeder Is Not Entitled to an Accounting or Constructive Trust.

    Schroeders claims for an accounting and constructive trust are equitable

    remedies, not causes of action and should therefore be dismissed. These remedies are

    dependent on Schroeder prevailing on one of his other claims. See Triple Tee Golf, Inc.

    v. Nike, Inc., 618 F. Supp. 2d 586, 599 n.15 (N.D. Tex. 2009) (dismissing an accounting

    claim because it has no status independent of plaintiffs other claims). Indeed, both

    remedies require Schroeder to establish that Defendants owe him some sort of fiduciary

    duty, or establish standing to enforce such duties on behalf of Revess estate.

    To be entitled to an accounting, Schroeder must establish that he has a fiduciary

    relationship with Defendants. See T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners

    Assn, 79 S.W.3d 712, 717 (Tex. App.Houston [14th Dist.] 2002, pet. denied). An

    action for accounting may be a suit in equity, or it may be a particular remedy sought in

    conjunction with another cause of action. Michael v. Dyke, 41 S.W.3d 746, 754 (Tex.

    App.Corpus Christi 2001, no pet.). An equitable accounting is proper when the facts

    and accounts presented are so complex adequate relief may not be obtained at law.

    T.F.W. Mgmt., 79 S.W.3d at 717. But if the plaintiff can obtain the necessary

    information through standard civil discovery procedures, then the court may decline to

    order an accounting. See id. at 71718. The purpose of the action is to determine the

    balance due, not to adjudicate tort liability. See Texas State Bank v. Amaro, 87 S.W.3d

    538, 543 (Tex. 2002).

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    Likewise, a constructive trust is remedial in character, and has the broad function

    of redressing wrong or unjust enrichment in keeping with basic principles of equity and

    justice. See Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex. App.Fort Worth 2004,

    pet. denied). To obtain a constructive trust, the proponent must prove: (1) the breach of a

    special trust, fiduciary relationship, or actual fraud; (2) the unjust enrichment of the

    wrongdoer; and (3) the wrongful gain is traceable to an identifiable piece of the

    wrongdoers property. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.Dallas 2006,

    no pet.);Hubbard, 138 S.W.3d at 485. Whether a constructive trust should be imposed at

    all is within the discretion of the trial court. Troxel, 201 S.W.3d at 297; Hubbard, 138

    S.W.3d at 485.

    Schroeder has not pleaded any allegations that he has a fiduciary relationship with

    Copley. Neither has he pleaded any viable causes of action that would allow these

    remedial measures. These remedies should therefore be dismissed.

    D. Schroeder Has Failed to State a Claim for Tortious Interference WithInheritance.

    1. Schroeder Has Not Stated Facts That Would Support aTortious Interference With Inheritance Claim.

    Even if a claim for tortious interference with inheritance exists under Texas law,5

    Schroeder has failed to state any facts that would support the elements of such a claim.

    To state a claim for tortious interference with inheritance rights, a plaintiff must establish

    the following elements: (1) there is a reasonable probability decedent would have devised

    a gift or inheritance to the plaintiff; (2) the defendant intentionally interfered with the

    5 There is no statutory basis for this cause of action, and the Texas Supreme Court has never recognizedit. See Wackman v. Rubsamen, 602 F.3d 391, 41011 (5th Cir. 2010) (avoiding the question of

    whether the claim exists in Texas because no party challenged its existence under Texas law).

    However, some Texas appellate courts have recognized it. Id.

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    plaintiffs expected gift or inheritance; (3) the defendants interference was independently

    tortious or unlawful; (4) defendants interference caused damage to Schroeder; and (5)

    defendant had neither just cause nor legal excuse for the interference. Restatement

    (Second) of Torts 774B (1979).

    Here, Schroeder must prove that Reves would probably have left him a greater

    inheritance but for the defendants interference. There is not a single allegation in the

    Amended Complaint that Reves intended to devise anything to Schroeder other than what

    was actually left to him. Moreover, there is no allegation that Copley misrepresented to

    Reves what the effect of the will would be. Furthermore, the Amended Complaint

    establishes that property at issue here, the art collection, was transferred to the DMA in

    the 1980s, long before any alleged acts attributed to Copley occurred. Am. Compl. 49-

    59, 63 (Copley introduced to Reves in 1998). The Amended Complaint fails to allege a

    single, independently tortious or unlawful act on the part of Copley. Accordingly, the

    claim must be dismissed.

    2. Schroeders Claim for Tortious Interference with InheritanceRights Claim is Time Barred.

    Separate and apart from Schroeders inability to state a claim of tortious

    interference with inheritance rights in his Amended Complaint, the Amended Complaint

    establishes on its face that such claim is time-barred. Although no Texas court has

    specifically laid out the statute of limitation for a tortious interference with inheritance

    rights claim, it appears such a claim must be brought within two years of the transfer

    giving rise to the claim. See First Natl Bank v. Levine, 721 S.W.2d 287, 289 (Tex. 1986)

    (tortious interference with business relations is a trespass for injury done to the estate or

    the property of another and therefore subject to two-year limitations period under

    predecessor to TEX. CIV. PRAC. & REM. CODE 16.003, providing two-year limitation

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    period to similar claims); Haisler v. Coburn, No. 10-09-00275-CV, 2010 Tex. App.

    LEXIS 6050, at *8*11 (Tex. App.Waco, July 28, 2010, pet. denied) (holding

    discovery rule does not apply to tortious interference with inheritance rights claim). The

    limitations period runs from the wrongful act of interference, not from the testators

    death. See Haisler v. Coburn, 2010 Tex. App. LEXIS 6050, at *8*11); Urbanczyk v.

    Urbanczyk, No. 07-07-0077-CV, 2009 Tex. App. LEXIS 587, at *6*7 (Tex. App.

    Amarillo, Jan. 29, 2009, no pet.) (mem. op.) (Statute of limitations for tortious

    interference claim ran from alleged unauthorized transfer of assets from joint brokerage

    account before testators death; discovery rule did not toll limitations because transfer

    was not inherently undiscoverable).

    The Amended Complaints most recent specific allegation against Copley

    occurred in 2004, seven years prior to the filing of the Original Complaint.

    Accordingly, Schroeder failed to assert his claim within the two-year statute of limitation

    and the claim should be dismissed.

    E. Schroeder Has Failed to State a Claim for Conversion.

    Similar to his other claims, Schroeders conversion claim fails because he lacks

    standing to bring the claim, has failed to establish the essential elements of a claim as to

    Copley, and he failed to bring the claim in a timely manner. Accordingly this claim too

    should be dismissed.

    1. Schroeder Cannot Establish Standing or the EssentialElements of a Conversion Claim.

    The elements of conversion under Texas law are: (1) plaintiff owned, possessed,

    or had the right to immediate possession of personal property; (2) defendant wrongfully

    exercised dominion or control over the property, by either (a) wrongfully taking it from

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    plaintiff, or (b) using property that was acquired lawfully in a manner inconsistent with

    the conditions under which it was received; and (3) plaintiff suffered injury as a result.

    See, e.g.,Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.Dallas 2008, no

    pet.).

    First and foremost, Schroeder did not have any right to immediate possession

    while Reves was still alive and has no standing to bring the conversion claim for acts that

    occurred in the 1980s, long before Revess passing in 2007. A plaintiff who has only an

    alleged future interest in the property cannot sue for conversion. City of Wichita Falls v.

    ITT Commercial Finance Corp., 827 S.W.2d 6, 910 (Tex. App.Fort Worth 1992),

    revd in part on other grounds, 835 S.W.2d 65 (Tex. 1992).

    Next, Schroeder has not alleged that Copley took the property at issue, the art

    collection, or otherwise wrongfully exercised dominion or control over it. There is no

    allegation whatsoever in the Amended Complaint that Copley was involved in the

    transfer of the art collection to the DMA. See Am. Compl. 49-59. Moreover, there is

    no allegation in the Amended Complaint that Copley exercises any dominion or control

    over the collection. Id. (collection resides at the DMA, and there are no allegations that

    Copley is affiliated with the DMA in the Amended Complaint). Because the Amended

    Complaint alleges no facts that could support a conversion claim, the claim should be

    dismissed.

    2. Schroeders Conversion Claim is Time-Barred.

    Conversion claims are subject to a two-year limitation period. TEX. CIV.PRAC.&

    REM. CODE 16.003(a). The cause of action accrues from the date of the unlawful

    taking; or (if possession was originally lawful) from the date that the Plaintiff demanded

    the propertys return and the Defendant refused, or the Defendant unequivocally

    exercised acts of dominion inconsistent with Plaintiffs rights.

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    F. Schroeder Cannot State a Claim for Misapplication of FiduciaryProperty.

    Schroeder cannot state a claim for misapplication of fiduciary property because

    no such civil claim exists under Texas law. Misapplication of fiduciary property is a

    criminal offense, not a civil tort. TEX. PENAL CODE 32.45. By itself, this provision

    does not create a civil cause of action. SeeBrown v. De La Cruz, 156 S.W.3d 560, 567

    (Tex. 2004) (Penal Code does not create private cause of action); Spurlock v. Johnson, 94

    S.W.3d 655, 658 (Tex. App.San Antonio 2002, no pet.) (same). Because the mere

    existence of a penal code provision cannot support a civil cause of action on its own, this

    claim is properly dismissed on a Rule 12(b)(6) motion. Cooper v. Sony Music

    Entertainment, Inc., No. 01-0941, 2002 U.S. Dist. LEXIS 3832, at *16 (S.D. Tex. Feb.

    22, 2002). Accordingly, Schroeders misapplication of fiduciary duty claim should be

    dismissed.

    Even if this claim were recognized, the Amended Complaint establishes that

    Schroeder does not have standing to bring the claim. A person commits the crime of

    misapplication of fiduciary property if he intentionally, knowingly or recklessly

    misapplies property he holds as a fiduciary or property of a financial institution in a

    manner that involves substantial risk of loss to the owner of the property or to a person

    for whose benefit the property is held. TEX.PENAL CODE 32.45. Here, no fiduciary

    relationship existed between Copley and Schroeder. In fact, in his allegations relating to

    this claim, Schroeder states that Defendants intentionally misapplied Wendy [Revess]

    assets, monies and other items that rightfully belonged to the Estate. Comp. 97. There

    are no allegations that a fiduciary relationship existed between Schroeder and Copley or

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    that the property at issue was Schroeders property or that Copley held the property for

    Schroeders benefit. Accordingly, this claim should also be dismissed.6

    IV. PRAYER

    For the reasons discussed herein, Copley respectfully requests that the Court

    dismiss all allegations against him in the Amended Complaint, with prejudice, and award

    Copley any such further relief to which he is entitled.

    6 Even if the claim existed and Schroeder could establish all the elements of the claim, he failed to bring

    the claim in a timely manner. Limitations may be raised in a motion to dismiss if the defense clearlyappears on the face of the complaint. Bush, 823 F.2d at 910. If this claim existed, the limitations

    period would most certainly be the two-year limitations period provided in Texas Civil Practices and

    Remedies Code 16.003(a). See Tex. Civ. Prac. & Rem. Code 16.003 (a person must bring suit

    forconversion of personal property, taking or detaining the personal property of another not later

    than two years after the day the cause of action accrues.). The only property identified, the art

    collection, was transferred to the DMA in the early 1980s. Am. Compl. at 49. Accordingly,

    Schroeder has failed to bring a claim within the required two-year limitations period, and this claim

    should be dismissed.

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    DATED: June 9, 2011 Respectfully submitted,

    FISH & RICHARDSON P.C.

    By: /s/ Scott C. ThomasThomas M. MelsheimerState Bar No. 13922550Scott Cashion ThomasState Bar No. 24046964Martha D. JonesState Bar No. 240615951717 Main Street, Suite 5000Dallas, Texas 75201Telephone: 214-747-5070

    Facsimile: 214-747-2091

    ATTORNEYS FOR DEFENDANT

    EDWARD A. COPLEY

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    CERTIFICATE OF SERVICE

    I hereby certify that a true and exact copy of the foregoing Answer has been filedelectronically. Notice of this filing will be sent by operation of the Courts electronicfiling system to all parties indicated on the electronic filing receipt. All other parties will

    be served by regular U.S. mail. Parties may access this filing through the Courtselectronic filing system.

    /s/ Scott C. ThomasScott C. Thomas

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