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Aguilar v. Thompson Coburn LLP

Court of Appeals of Missouri, Eastern District, First Division

March 6, 2018

RICHARD AGUILAR, et al, Appellants,
THOMPSON COBURN LLP, et al., Respondents.

         Appeal from the Circuit Court of St. Louis County Honorable Tommy W. DePriest, Jr.



         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 516.120[1] 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.

         Factual and Procedural History

         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]

         Standard of Review

         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 plaintiffs 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 plaintiffs allegations are true and liberally ...

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