Guffy v. Brown (In re Brown Medical Center, Inc.)Guffy v. Brown (In re Brown Medical Center, Inc.)
MEMORANDUM AND ORDER
Elizabeth Guffy, the Plan Agent under the confirmed Chapter 11 Plan of Liquidation in the Brown Medical Center, Inc. bankruptcy, filed this adversary proceeding seeking to avoid certain attorneys fee and other payments as fraudulent transfers. The case is now before the Court on the Motions to Dismiss filed by Defendants Robert S. Hoffman, the Law Offices of Robert S. Hoffman, P.L.L.C., Jedediah D. Moffett, and Jedediah D. Moffett, P.C. (collectively, “Hoffman/Moffett”) [Doc. # 17], Marshall Davis Brown, Jr., Pavlas, Brown & York, LLP, and Pavlas & Brown, LLP (collectively, “MDBrown”) [Doc. # 18], Claudia Canales, P.C. and Claudia Canales (collectively, “Canales”) [Doc. # 19], and Joseph Indelicate, Jr. and the Law Offices of Joseph Indelicate, Jr., P.C. (collectively, “Indelicate”) [Doc. # 20], Plaintiff filed Responses [Docs. # 21 (Hoffman/Moffett), # 24 (MDBrown), # 22 (Ca-nales), and # 23 (Indelicate) ]. Replies were filed by Hoffman/Moffett [Doc. # 27], MDBrown [Doc. # 28], Canales [Doc. # 30], and Indelicate [Doc. # 25]. Plaintiff filed a Sur-Reply [Doe. # 29] in opposition to Indelicato’s Motion to Dismiss.
The Court has reviewed the record and the applicable legal authorities. Based on this review, the Court concludes that Plaintiff has adequately alleged her constructive fraudulent transfer claims under
I. BACKGROUND
Michael Brown, the owner of 100% of the shares of Debtor Brown Medical Center, Inc. (“BMC”), and his former wife Rachel Brown, were involved in contentious divorce proceedings beginning in 2010. Rachel Brown was represented by attorneys Hoffman/Moffett and MDBrown. Canales was appointed by the state court as an Amicus Attorney to represent the interests of the Browns’ minor children. Indelicate was appointed by the state court as the Master in Chancery with authority over certain issues in the divorce proceedings, including discovery disputes and the award of attorneys’ fees.
In January 2013, Brown filed a voluntary Chapter 11 bankruptcy petition. On October 15, 2013, Brown’s Chapter 11 Trustee filed a voluntary Chapter 11 bankruptcy petition on behalf of BMC. The Bankruptcy Court appointed Plaintiff Elizabeth Guffy as the Chapter 11 Trustee for BMC. On October 1, 2014, the Bankruptcy Court confirmed a plan of liquidation in BMC’s bankruptcy case and appointed Guffy as the Plan Agent.
Plaintiff filed this Adversary Proceeding against Defendants, asserting fraudulent transfer claims under
By Memorandum and Order [Doc. # 15] entered February 3, 2016, this Court withdrew the reference of this Adversary Proceeding and retained the case on its own docket. Defendants filed their Motions to Dismiss, which have been fully briefed and are ripe for decision.
II. LEGAL STANDARD FOR MOTION TO DISMISS
A motion to dismiss under
The parties agree that the heightened pleading requirements of
III. ANALYSIS
Plaintiff in this case asserts constructive fraudulent transfer claims under
A. Constructive Fraudulent Transfer Claims
Under § 528(a)(1)(B), a bankruptcy trustee may avoid a transfer that was made within two years before the date the bankruptcy petition was filed if the debtor “received less than a reasonably equivalent value in exchange for such transfer or obligation” and either “was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; was engaged in business or a transaction, or was about to' engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured; or made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.”
In support of the
Plaintiff asserts a TUFTA claim of constructive fraudulent transfers under § 24.005(a)(2) and § 24.006(a). Under § 24.005(a)(2), a transfer made by a debtor is fraudulent if made “without receiving a reasonably equivalent value in exchange for the transfer” and the debtor “was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debt- or’s ability to pay as they became due.” Tex. Bus. & Comm. Code § 24.005(a)(2). Additionally, a transfer made by a debtor is fraudulent if made “without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debt- or was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” Tex. Bus. & Comm. Code § 24.006(a). The Plan Agent, on behalf of BMC’s creditors, is authorized to avoid transfers that are fraudulent under § 24.005 and/or 24.006. Tex. Bus. & Comm. Code § 24.008(a)(1).
Plaintiff seeks to avoid transfers made to Defendants by BMC within four years before the bankruptcy petition was filed on October 15, 2013. Plaintiff alleges that BMC transferred property to Defendants within four years before the petition was filed and, indeed, specifically identifies certain transfers during the four-year period. See First Amended Complaint, ¶ 30-32. Plaintiff alleges that BMC received less than reasonably equivalent value in exchange for the transfer because the transfers were made at the direction of and apparently for the benefit of Brown personally with no benefit to BMC. See id., ¶¶45, 46. Plaintiff alleges that, when the transfers were made, BMC either was engaged in business for which its remaining assets were unreasonably small in relation to that business, or reasonably should have known that it was incurring debts beyond its ability to pay as they became due. See id., ¶46. Plaintiff alleges also that, when the transfers were made, BMC was either insolvent or became insolvent as a result of the transfers. See id., ¶¶ 28-29, 45. Plaintiff alleges that a creditor exists for whom the Plan Agent can act, see id., ¶¶45, 46, and she identifies the United States as such a creditor, see id., ¶26. The allegations in Plaintiffs First Amended Complaint adequately state a constructive fraudulent transfer claim under TUFTA § 24.005(a)(2) and § 24.006(a). The Motions to Dismiss the claims under
B. Actual Fraudulent Transfer Claims
Plaintiff seeks, pursuant to
(1) the lack or inadequacy of consideration;
(2) the family, friendship or close associate relationship between the parties;
(3) the retention of possession, benefit or use of the property in question;
(4) the financial condition of the party sought to be charged both before and after the transaction in question;
(5) the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and
(6) the general chronology of events and transactions under inquiry.
Id. at 18-19 (citing In re Soza,
In this case, there is no allegation that there was a family, friendship or close associate relationship between BMC and Defendants, or that BMC retained possession, benefit or use of the funds transferred to Defendants. Plaintiff alleges that BMC was insolvent when it made the transfers. See First Amended Complaint, ¶¶ 28-29, 40. Plaintiff argues that there are allegations of factor (5) — “the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors” — and factor (6) — a “general chronology of events and transactions under inquiry.” See Response [Doc. # 21], p. 8; Response [Doc. #24], p. 8. Plaintiff, however, supports the existence of factors (5) and (6) only by citing to the allegations that BMC was insolvent when it made the transfers at issue. See id. These allegations fail to satisfy the
Much like
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor’s assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration' received by the debtor was reasonably equivalent to the value of. the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
TUFTA § 24.005(b).
There are no allegations in the First Amended Complaint that the Defendants who received the transfers were BMC insiders, that BMC retained possession or control of the funds after they were transferred, that the transfers were concealed, that BMC had been sued or threatened with suit related to the divorce proceedings in which the transfers were made, that the transfers involved substantially all of BMC’s assets, that BMC absconded, that BMC removed or concealed assets, that the transfers occurred shortly before or shortly after a substantial debt was incurred, or that BMC transferred the essential assets of its business to a lienor who transferred the assets to a BMC insider. Plaintiff does allege that the value of the consideration BMC received was not reasonably equivalent to the value of the funds transferred and that BMC was insolvent or became insolvent shortly after the transfers were made. See First Amended Complaint, ¶ 45. These are the factors that indicate constructive fraudulent transfers under TUFTA § 24.005(a)(2) and § 24.006(a). Plaintiff has failed to allege with particularity facts indicating actual fraudulent intent rather than constructive fraud. As a result, Plaintiff has failed to state with particularity a claim under TUFTA § 24.005(a)(1), and that claim is dismissed as to all Defendants.
C. Canales’s Immunity Defense
The state court in the Brown divorce proceeding appointed Canales under Chapter 107 of the Texas Family Code as Amicus Attorney to assist that court in protecting the interests of the Browns’ minor children. See Order Appointing Ami-cus Attorney, Exh. A to Canales Motion to Dismiss. Under Texas law, an Amicus Attorney appointed under Chapter 107 “is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given” in the Amicus Attorney capacity.
The immunity afforded to the Amicus Attorney under
Based on the foregoing, the record on Canales’s Motion to Dismiss establishes that she is entitled to immunity under
D. Indelicato’s Immunity Defense
The state court appointed Indelicate as Master in Chancery in the Brown divorce proceeding. See Order Appointing Master in Chancery, Exh. 1 to Indelicate Motion. As Master in Chancery, Indelicate had authority “to convene evidentiary hearings and to rule on all discovery matters submitted to him pursuant to order.” See id. Indelicate had authority to subpoena witnesses, to order production of documents, to administer oaths, and to award attorneys’ fees. See id. The Master in Chancery, pursuant to the state court’s order, had authority “to find any party in contempt for failure to comply with any decision and to issue sanctions regarding any finding of contempt.” Id. at 2. Additionally, the state court ordered that Indelicate, as Master in Chancery, was specifically authorized to charge for his services. See id.; Supplemental Order Appointing Master in Chancery, Exh. 2 to Indelicate Motion. “When judges delegate their authority or appoint others to perform services for the court, the judge’s absolute judicial immunity may extend to his or her delegate or appointee.” McPeters v. Lexis-Nexis,
Plaintiff alleges in the First Amended Complaint that Indelicate approved the attorneys fee invoices submitted by Rachel Brown’s attorneys without adequately reviewing them. See First Amended Complaint, ¶23, n.l. Indelicate, as court-appointed Master in Chancery, was granted authority to award attorneys’ fees. See Order Appointing Master in Chancery; Supplemental Order Appointing Master in Chancery. “Once an individual is cloaked with derived judicial immunity because of a particular function being performed for a court, every action taken with regard to that function — whether good or bad, honest or dishonest, well-intentioned or not — is immune from suit. Once applied to the function, the cloak of immunity covers all acts, both good and bad.” Davis v. West,
Plaintiff alleges in the First Amended Complaint that BMC made transfers to Indelicate. See First Amended Complaint*, ¶31. The state court specifically ordered BMC, as a third-party respondent in the Brown divorce proceeding, to pay Indelica-to’s fees and costs “directly to Joseph Indelicate, Jr.” See, e.g., Order for Costs, Exh. 3 to Indelicate Motion; Order for Costs, Exh. 4 to Indelicate Motion; Order for Costs, Exh. 5 to Indelicate Motion; Order for Costs, Exh. 6 to Indelicate Motion. These state court orders imposed ah obligation on BMC to make transfers to Indelicate, and BMC did so in compliance with the court orders.
Absent allegations that overcome Indeli-cato’s derived judicial immunity for the performance of the tasks the state court ordered him to undertake, and in light of the court orders directing BMC to make transfers directly to Indelicate, the Court grants Indelicato’s Motion to Dismiss.
IV. CONCLUSION AND ORDER
Plaintiff has adequately alleged her constructive fraudulent transfer claims under
Canales is entitled to immunity pursuant to
ORDERED that the Hoffman/Moffett and MDBrown Motions to Dismiss [Docs. # 17 and # 18] are DENIED as to the constructive fraudulent transfer claims under
ORDERED that the Canales and Indelicate Motions to Dismiss [Does. # 19 and # 20] are GRANTED.
Notes
. Although not specifically alleged in the First Amended Complaint, it appears that the state court in the divorce proceeding ordered Brown to pay Rachel Brown’s legal fees.
. Plaintiff requests leave to file a Second Amended Complaint should any claims be dismissed, See, e.g., Response [Doc. #21], p. 9. At the initial conference on March 8, 2016, the Court will discuss with Plaintiff’s counsel the factual basis for any proposed amendment regarding the dismissed actual fraudulent transfer claims.
, BMC was a party to the Brown divorce proceedings, having been joined as a Third-Party Respondent. See, e.g., Order on Petitioner's Motion to Deposit Additional Funds into Registry of the Court, Exh. 8 to Indelieato Motion.