United States District Court, N.D. Texas, Dallas Division
TIMOTHY L. BILIOURIS, et al ., Plaintiffs,
DAVID CAINE PATMAN, DAVID “PAT” PATMAN, AND BEVERLY ANN PATMAN, Defendants.
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE
the Court is Defendants' Motion to Dismiss for Failure to
State a Claim (ECF No. 4). For the reasons stated below, the
Motion is GRANTED IN PART and DENIED IN PART.
31, 2016, Plaintiffs filed their Complaint alleging that
Defendants violated the Texas Uniform Fraudulent Transfer Act
(“TUFTA”), to avoid paying a judgment against
them arising from a suit by these Plaintiffs for breach of
contract, fraud, negligent misrepresentation, unjust
enrichment, civil conspiracy, aiding and abetting, and a
violation of the Texas Securities Act (“the underlying
case”). On August 11, 2010, following a jury
trial, another judge on this Court entered an Amended Final
Judgment in favor of the Plaintiffs against
Defendant David Pat Patman (“Pat”), for in excess
of $8, 000, 000.
claim that in 2008, Pat and Beverly Ann Patman,
(“Beverly”) gave a gift of a real estate parcel,
valued at $400, 000, to their son David Caine Patman
(“David”), but that Plaintiffs did not know about
the transfer until they learned of it in Beverly's
post-judgment deposition on August 26, 2015. Plaintiffs
further claim that Pat made a gift of a 1956 Chevrolet to
David, in March 2009, two months before the jury trial began
in the underlying case. Plaintiffs contend they did not know
about this gift until May 30, 2015. Plaintiffs also claim
that in Beverly's post-judgment deposition, they
discovered that in 2010, after the judgment in the underlying
case was entered, Pat and Beverly made additional gifts to
David, including paying for a portion of his wedding expenses
and honeymoon trip.
allege TUFTA §§ 24.005(a)(1), 24.005(a)(2)(B), and
24.006(a) were violated when Pat and Beverly made the three
transfers to David between 2008 and 2010. Section
24.005(a)(1) provides that a debtor's transfer is
“fraudulent as to the creditor, ” if the debtor
made the transfer “with an actual intent to hinder,
delay, or defraud any creditor of the
debtor.”Section 24.005(a)(2)(B) provides that a
transfer is fraudulent if the debtor did not receive a
“reasonably equivalent value in exchange for the
transfer, and the debtor…intended to incur, or
believed or reasonably should have believed that the debtor
would incur debts beyond the debtor's ability to pay as
they became due.” Section 24.006(a) provides that a
transfer by a debtor is “fraudulent as to the creditor
whose claim arose before the transfer was made” if the
debtor made the transfer “without receiving equivalent
value in exchange for the transfer…and the debtor was
insolvent at that time or the debtor became insolvent as a
result of the transfer.”
have moved to dismiss under Rule 12(b)(6), asserting that
Plaintiffs' claims have been extinguished under
TUFTA's statute of repose, codified at § 24.010.
survive a Rule 12(b)(6) motion to dismiss, a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The pleading standard in Rule 8 does
not require “detailed factual allegations, ” but
it does demand more than an unadorned accusation devoid of
factual support. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.
Twombly, 550 U.S. at 570. A claim may also be
dismissed if a successful affirmative defense appears clearly
on the face of the pleadings. Clark v. Amoco Prod.
Co., 794 F.2d 967, 970 (5th Cir. 1986).
Transfers Under TUFTA § 24.005(a)(1)
assert that the statute of repose bars Plaintiffs' claims
as a matter of law. The statute of repose extinguishes §
24.005(a)(1) claims unless they were brought within four
years of the date when the transfer was made or, if later,
within one year after the transfer was or could reasonably
have been discovered by the Plaintiffs.
real estate transfer of which the Plaintiffs complain
occurred in 2008, but Plaintiffs filed this suit in 2016.
Plaintiffs claim they first learned on August 26, 2015, that
Pat and Beverly made the transfer. The only way the statute
of repose does not bar Plaintiffs' claim that the real
estate was fraudulently transferred is the discovery rule,
but that rule “does not apply to claims that could have
been discovered through the exercise of reasonable
diligence.” Kerlin v. Sauceda, 263 S.W.3d 920,
925 (Tex. 2008). The Court takes judicial notice of the
filing on January 25, 2008, of the Warranty Deed from Pat and
Beverly to David in the real estate records maintained by the
Johnson County Clerk. The deed was recorded on April 3, 2008.
A certified copy is attached to Defendants' Motion to
Dismiss. Under Texas law, “[a]n instrument
that is properly recorded in the proper county is 1) notice
to all persons of the existence of the instrument; and 2)
subject to inspection by the public.” Further, the
“filing of an instrument is notice to all
persons.” Alkas v. United Sav. Ass'n of Tex.
Inc., 672 S.W.2d 852, 856 (Tex. App.- Corpus Christi
1984, writ ref'd n.r.e.). Real ...