Wilcoxson Files for Dismissal of Miller's Allegations
Posted
Craig Brosman-
On Monday Brent Wilcoxson filed a motion to dismiss allegations against him in his lawsuit with Dr. Dane Miller.
Wilcoxson, the former director of the Village at Winona, had until Friday to file a motion with the Kosciusko County Superior Court I to plea or respond to the allegations Miller has made against him. None were filed prior to the Friday teleconference between the parties involved.
On Monday Larry Barnard, of Carson Boxberger LLP, Fort Wayne, an attorney for Wilcoxson, filed a motion to dismiss some of the allegations that Miller brought against Wilcoxson.
Barnard asked Elkhart County Circuit Court Judge Terry Shewmaker to dismiss counts three, four, five, eight, and 10 as it pertains to the misuse of money. Additionally Nocholson asked Shewmaker to dismiss counts two, five, six, and seven, because they do not meet the applicable statute of limitations. Lastly Barnard asked Shewmaker to dismiss the claim for punitive damages in connection to count one.
In the memorandum of law in support of the motion to dismiss, Barnard argues six points on why allegations and charges should be dismissed.
Barnard argues that the allegations of fraud and constructive fraud should be dismissed on the basis that there is no allegation of misrepresentation of a past or existing fact. Barnard further asks that the allegation of constructive trust should be dismissed as it is not an independent cause of action.
Barnard then argues that the allegation of unjust enrichment should be dismissed “because there is no allegation that defendants requested benefits from the plaintiff.”
Barnard’s fourth point of contention states that “the claim under the crime victim statute should be dismissed because claims under that statute cannot be based upon the alleged misuse of money.” Barnard then informs Shewmaker that five of the six claims of alleged misconduct in the amended complaint should be dismissed because they do not fit within the statute of limitations.
Lastly Barnard states that in a breach of contract situation the plaintiff cannot seek punitive damages, because of Miller Brewing Co. v. Best Beers Bloomington Inc., a court case in 1993.
In further detail Barnard goes on to state that the statute of limitations of breach of fiduciary duties is two years. Additionally the crime victim statute of limitations is three years for money had and received.
Within the background section of the motion to dismiss Barnard sheds light on some of the allegations that Miller has made against Wilcoxson.
“Last summer without warning, Miller fired Wilcoxson. Miller then offered to buy out Wilcoxson’s minority interest in WRP and demanded that Wilcoxson cede to miller control of defendant Winona Arts, Restoration and Preservation, Inc., a 501(c)(3) nonprofit corporation to which some of WRPs property was transferred to lower WRPs tax base and price tax deductions to WRP and its Co-owners,” Barnard wrote.
Additionally Barnard wrote, “believing that Miller’s offer substantially undervalued his minority interest and failed to account for several recent years in which Wilcoxson had not drawn a salary, Wilcoxson refused Miller’s offer. Not getting his way, Miller began a vindictive series of actions having no objective other than forcing Wilcoxson to concede to Miller’s demands.”
The lawsuit by Miller details nine different allegations against Wilcoxson and seeks restitution for actual and punitive damages. In addition, within the amended complaint Michael W. Reed, attorney for Miller, filed claims against Wilccoxson of breach of fiduciary duties, fraud, constructive fraud, conversion and unjust enrichment.
Additionally Miller has a temporary injunction against Wilcoxson. The injunction prohibits Wilcoxson from destroying, removing, or changing anything about the 13 properties that Miller contests Wilcoxson acquired from him without his permission.
It is unknown when Shewmaker will make a decision on the motion to dismiss.
