Miller Responds to Wilcoxson's Motion to Dismiss Lawsuit
Posted
Craig Brosman-
A week after Brent Wilcoxson filed his motion to have allegations dismissed against him in Kosciusko County Superior Court I, Dr. Dane Miller filed a response.
On Aug. 27, R.C. Richmond, of Taft Stettinius and Hollister, Indianapolis, filed the plaintiffs’ memorandum in opposition to defendant’s motion to dismiss. Within the filing, Richmond outlines why the allegations should not be dismissed.
At that time, Elkhart County Circuit Court Judge and special judge in this case, Terry Shewmaker, ordered a hearing on this matter and on a motion to intervene filed by Grace College. The hearing is set for Sept. 28 at 11 a.m. in Elkhart. Shewmaker also ordered mediation between the two sides, with John W. Whiteleather Jr. as the mediator.
Previously, Larry Barnard, of Carson Boxberger LLP, Fort Wayne, attorney for Wilcoxson, asked Shewmaker to dismiss counts three, four, five, eight and 10 as it pertains to the misuse of money. Additionally, Barnard asked Shewmaker to dismiss counts two, five, six and seven, because they do not meet the applicable statute of limitations. Barnard also asked for counts three, four, five, eight and 10 to be dismissed because they state no claim. Lastly, Barnard asked Shewmaker to dismiss the claim for punitive damages in connection to count one.
After stating the motion to dismiss by Wilcoxson was “without merit whatsoever and should be dismissed,” Richmond directly went into defending the legal stance on behalf of Miller.
Richmond starts off by objecting to the dismissal of counts three and four based on the fact they don’t state claims. Richmond argues that a motion for dismissal on the grounds that it states no claim tests only the legal sufficiency of the complaint, not the facts supporting it.
Later on Richmond argues, “Indiana courts disfavor motions to dismiss for failure to state a claim. These motions undermine the policy of deciding causes of action on their merits. Accordingly, dismissal is appropriate only when the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.”
Richmond also argues that counts three and four do state claims for fraud and constructive fraud. In the defendant’s motion to dismiss, Barnard argued that the claims should be dismissed because “the plaintiffs have failed to allege any misrepresentation by Wilcoxson.” Richmond points out three reasons why the statement is incorrect.
Wilcoxson took $900 and falsely represented the Winona Restoration Partners books to show that. He further states that fraud can also consist of conduct as well as words and cites the allegation that Wilcoxson changed the books in an attempt to hide the fact that he had given his son Aaron a loan from WRP that was not repaid and that he paid his son’s college tuition from WRP funds. Lastly, Richmond says that the “failure to disclose facts by one on whom the law imposes a duty to disclose constitutes actionable fraud.”
Richmond then talks about why count nine should not be dismissed. Richmond states that Miller does state a claim for the imposition of a constructive trust. Count nine isn’t an independed cause of action for a constructive trust, but incorporates previous allegations and simply requestion that an equitable remedy be imposed.
The next argument Richmond makes is that count eight does state a claim for unjust enrichment, because in Coleman v. Coleman, the case that Barnard uses in his argument against the allegation, it states “the request need not be expressed, but may be implied.”
On the matter of count seven Richmond refutes Barnard’s argument that the Indiana Crime Victim Statute does not apply to money. Richmond states that the three cases Barnard cites do not support his claim. The cases only stand for the proposition that the failure to pay a debt does not constitute criminal conversion. Miller is not claiming that Wilcoxson failed to pay a debt, rather that Wilcoxson wrongfully caused WRP to pay for Wilcoxson’s son Aaron’s college tuition and pay another $12,000 directly to him as well.
Miller also claims that Wilcoxson took $900 and that he transferred the Grace College promissory note as well as the 13 parcels of real estate, and $29,000 from the sale of Winona Mercantile.
Through these allegations Miller alleges that Wilcoxson committed criminal conversion and theft by knowingly and intentionally exerting authorized control over WRPs property with the intent to deprive WRP of the value. Further, Richmond says that Wilcoxson committed deception by misapplying entrusted property in a manner that they knew involved substantial risk of loss or detriment to the Miller.
Barnard previously argued that the statue of limitations on some of the claims was expired, but Richmond denies this. Richmond argues that Barnard ignores the fact that under Indiana Code 34-11-5-1, “if a person liable to an action conceals the fact from the knowledge of the person entitled to bring the action, the action may be brought at any time within the period of limitation after the discovery of the cause of action.”
Richmond further states that Wilcoxson “both actively concealed his wrongdoings by hiding what he had done, and passively concealed his wrongdoings by failing to disclose his actions to Miller and WRP, to whom he owed a fiduciary duty to deal openly with them.”
Lastly, Richmond argues that count one does state a claim for punitive damages. Richmond states, “The defendants only quote part of what the court said about a plaintiff’s ability to recover punitive damages in a breach of contract action.”
Richmond then states the full sentence that Barnard partially cited: “Opinions of this court have consistently stated the general rule that punitive damages are not allowed in a breach of contract action.”
Later Richmond adds to the courts finding: “We hold that in order to recover punitive damages in a lawsuit founded upon breach of contract, the plaintiff must plead and prove the existence of an independent tort of the kind for which Indiana Law recognizes that punitive damages may be rewarded.”
Richmond concludes that Indiana recognizes that punitive damages may be awarded if there was “malice, fraud, gross negligence or oppressiveness which was not a result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence or human failing.”
