Richard A Green v. Robert Jon Green et al

Filing 174

MEMORANDUM AND JUDGMENT ORDER GRANTING 167 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . There being no remaining issues, the Clerk is DIRECTED to CLOSE the case. Signed by District Judge Curtis L Collier on 8/7/2015. (AML, ) Copy of Memo/Judgment Order served to Richard Green via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
RICHARD A. GREEN,
Plaintiff,
v.
ROBERT JON GREEN et al.,
Defendants.

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Civil Case No.: 1:14-CV-43
Judge Collier

MEMORANDUM & JUDGMENT ORDER
Before the Court is a motion to dismiss filed by Defendant James D. Purple (“Purple”)
(Court File No. 167). Plaintiff Richard A. Green (“Plaintiff”) responded (Court File No. 173).1
The Court has already entered a memorandum and order dismissing and granting summary
judgment for the other defendants in this case (Court File Nos. 156, 157). For the following
reasons, the Court GRANTS Defendant’s motion.

I.

FACTUAL BACKGROUND2
These claims arise out of a dispute over the estate of Thelma Green, the mother of the

Plaintiff, Defendant Robert Green, and Cynthia Green Leui. From 1996 until 2001, Thelma
Green resided with Defendant Lonnie Leui and his now-deceased wife Cynthia Green-Leui.
Lonnie Green and Cynthia Green-Leui charged Thelma Green fees for room, board, and care. In
2001, Thelma Green was placed into a nursing home after Cynthia Green-Leui was diagnosed
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Plaintiff’s response was not timely filed, but even considering his arguments, the Court
would still grant Defendant’s motion to dismiss (Court File No. 173).
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The following statement of facts is taken from the Court’s recitation in its memorandum
and order ruling on the other motions in this case (Court File No. 156).

with breast cancer. Thelma Green died in September 2002. Plaintiff filed for probate of the
estate in October 2003.
For the next nine years, the parties litigated allegations by Plaintiff that Defendant Robert
Green had been mismanaging the estate and using certain trust assets for his own purposes.
Attorney Purple had assisted Defendant Robert Green with Thelma Green’s estate matters. The
Tennessee Chancery Court appointed a special master to investigate the claims. In September
2008, Plaintiff submitted a document to the special master alleging that Leui Defendants had
improperly charged Thelma Green for some of the room, board, and care expenses and that
Defendant Robert Green had engaged in tax fraud. In May 2012, the Tennessee Chancery Court
approved the Report of the Special Master finding that Robert Green had improperly incurred
some expenses and directing him to reimburse the estate.3 The Court found that the payments
made to the Leui Defendants were reasonable and properly payable (Chancery Court Order
¶ 16). The Chancery Court then ordered a distribution of the estate and certified the case as
complete (Chancery Court Order ¶ M). Plaintiff originally brought this action in California in
May 2013, but it was transferred despie his objection to the Eastern District of Tennessee on
February 6, 2014 (Court File No. 77).

II.

STANDARD OF REVIEW
A Rule 12(b)(6) motion should be granted when it appears “beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998). For purposes of this
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The Chancery Court’s Order has been submitted to the Court as an attachment to an
affidavit at Court File No. 16-5. For ease of reference, the Court will cite to the order as follows
(Chancery Court Order at ¶_).
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determination, the Court construes the complaint in the light most favorable to the plaintiff and
assumes the veracity of all well-pleaded factual allegations in the complaint. Thurman v. Pfizer,
Inc., 484 F.3d 855, 859 (6th Cir. 2007). The same deference does not extend to bare assertions
of legal conclusions, however, and the court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court next
considers whether the factual allegations, if true, would support a claim entitling the plaintiff to
relief. Thurman, 484 F.3d at 859. Although a complaint need only contain a “short and plain
statement of the claim showing that the pleader is entitled to relief,” Ashcroft v. Iqbal, 556 U.S.
662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)), this statement must nevertheless contain
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “[T]o 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.’”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility as explained
by the Court “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader
is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III.

ANALYSIS
Plaintiff alleges four claims against Purple: RICO, RICO Conspiracy, Legal Malpractice

and Fraud. In its earlier memorandum, the Court held that Plaintiff had failed to state a claim for
RICO or RICO conspiracy based on a failure to plead the requisite continuity necessary to
establish a pattern of racketeering activity—a necessary element of a RICO claim (Court File

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No. 156, pp. 4–7). For the same reasons, the Court will dismiss the RICO and RICO Conspiracy
claims against Purple as well. The Court will address the legal malpractice and fraud claims
against Purple below.
A.

Legal Malpractice

Purple argues that Plaintiff does not have standing to pursue this legal malpractice claim
and that, even if he did, the statute of limitations has run. In Tennessee, a legal malpractice
claim is subject to a one-year statute of limitations. Tenn. Code Ann. § 28-3-104.

Legal

malpractice claims are governed by the discovery rule and thus accrue when the plaintiff knows
or reasonably should have known that the injury has been sustained. John Kohl & Co. P.C. v.
Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998).

“In legal malpractice cases, the

discovery rule is composed of two distinct elements: (1) the plaintiff must suffer legally
cognizable damage—an actual injury—as a result of the defendant’s wrongful or negligent
conduct, and (2) the plaintiff must have known or in the exercise of reasonable diligence should
have known that this injury was caused by the defendant’s wrongful or negligent conduct.” Id.
Causing a Plaintiff to incur inconvenience or take corrective action constitutes such an “actual
injury.”

Id.

And a plaintiff may not delay filing suit until all the injurious effects and

consequences of the alleged wrong are actually known to the plaintiff. Shadrick v. Coker, 963
S.W.2d 726, 733 (Tenn. 1998).
Plaintiff argues that the action is timely filed because malpractice occurred when
Defendants filed their Supplemental Report with the Chancery Court in December of 2012.
Regardless of whether these actions constituted malpractice, Plaintiff has simply alleged no facts
connecting Purple to these events. And although pro se pleadings are liberally construed, see
Garrett v. Belmont Cnty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010), the Court

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cannot read in facts that are not alleged in the Complaint.
Plaintiff did allege facts tying Defendant Purple to alleged acts of legal malpractice, but
those took place in 2005 at the latest. The alleged actions giving rise to Plaintiff’s legal
malpractice claim against Purple are the alleged concealment and alleged subsequent forgery of
Thelma Green’s will and her Irrevocable Trust. Plaintiff states that the forgery was evident from
the face of the document due to the lack of a County Recorder’s date stamp (Compl. ¶ 97).
According to the Complaint, Plaintiff reported Purple to the Board of Professional Responsibility
in 2002 regarding Purple’s failure to respond to Plaintiff’s inquiries about his mother’s will. The
Complaint also alleges that the will was produced to Plaintiff in 2005. It is evident that Plaintiff
was aware of all the facts underlying this claim in 2005 at the latest. And he learned of all these
facts through discovery in his Chancery Court action. Such litigation undoubtedly constitutes
sufficient inconvenience to qualify as actual injury for purposes of the discovery rule. Given that
Plaintiff knew all of the facts sufficient to establish his claim in 2005 and had incurred actual
injury in the form of the Chancery Court litigation, Plaintiff’s claim accrued in 2005. Because he
did not file his complaint until 2013, this claim is time barred. The Court will GRANT Purple’s
motion to dismiss as to legal malpractice claim.
B.

Fraud

In Tennessee, the statute of limitations for common law fraud is three years,4 Tenn. Code

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Plaintiff appears to assert claims of federal tax fraud, wire fraud, and mail fraud;
however, there is no private right of action to enforce any of these federal statutes. Wisdom v.
First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408 (8th Cir. 1999) (holding that, although
mail and wire fraud can be remedied as RICO predicates, they do not create a private right of
action by themselves); 26 U.S.C. § 7401 (providing that “no civil action for the collection or
recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Secretary
authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the
action be commenced”).
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Ann. § 28-3-105, and such a cause of action accrues “when a plaintiff discovers, or in the
exercise of reasonable care and diligence, should have discovered, his injury and the cause
thereof.” City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 735 (Tenn. Ct. App.
1996). Here, Plaintiff’s claims for fraud are based on two allegations. First, Plaintiff alleges that
Purple told him that he did not have a copy of his mother’s will in 2003. In 2005, Defendant
Carriger produced such a will after obtaining it from Defendant Purple. Second, Plaintiff alleges
that Defendant Purple forged a Trust document in 2005. Plaintiff alleges that the forgery was
evident from the face of the document due to the lack of a County Recorder’s date stamp
(Compl. ¶ 97). On the face of the complaint, Plaintiff was involved in litigation and knew all the
facts giving rise to his Complaint in 2005.5 His cause of action for fraud thus accrued in 2005
and expired in 2008. Because his claim was not filed until 2013, the cause of action is time
barred and the Court will GRANT Defendant Purple’s motion to dismiss this claim.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Purple’s motion to dismiss

(Court File No. 167). There being no remaining issues, the Clerk is DIRECTED to CLOSE the
case.
SO ORDERED.
ENTER:

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For the same reasons stated above, the Court cannot accept Plaintiff’s argument that the
cause of action accrued in 2012. He has not alleged facts from which the Court could draw a
plausible inference that Purple committed fraud when Defendant Green submitted the 2012
Supplemental Report.
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/s/___________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
ENTERED AS A JUDGMENT
s/ Debra C. Poplin
CLERK OF COURT

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