Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Honorable Tommy W.
S. ODENWALD, JUDGE.
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 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.
and Procedural History
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. Allegiant Bank
served as custodian of the clients' self-directed IRAs
from 2000 until early 2002,  when it transferred custody to a
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).
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
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
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.
Coburn moved to dismiss Plaintiffs' petition pursuant to
Rule 55.27,  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
circuit court granted Thompson Coburn's motion to dismiss
on the grounds stated therein and dismissed Plaintiffs'
petition with prejudice. This appeal follows.
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 ...