DEBORAH B. BARNES, JUDGE:
¶1 Plaintiff/Appellant Phillip Estrada (Estrada) appeals the trial court's
Order granting the motion to dismiss of Defendants/Appellees Dennis Kriz, Hodges
Transport, Mid-America Pallet, LLC, et al. (collectively, Defendants).
Defendants moved for dismissal "based upon [Estrada's] failure to plead [fraud]
with particularity, the Doctrine of Laches and the Doctrine of Equitable
Estoppel." Based on our review, we conclude Estrada's veil-piercing theory is
not subject to dismissal on the basis of any failure to plead fraud with
particularity; Estrada has successfully stated a claim which would entitle him
to relief under the Uniform Fraudulent Transfer Act, 24 O.S. 2011 §§ 112-123;
and the equitable doctrines asserted in the motion to dismiss are inappropriate
bases upon which to dismiss the petition. Consequently, we reverse the trial
court's Order granting the motion to dismiss, and we remand for further
proceedings.
BACKGROUND
¶2 Estrada filed a petition in October, 2012, alleging that in April, 2009, a
judgment was entered in his favor "and against Port City Properties, d/b/a
Hodges Warehouse . . . ." Estrada alleged that the judgment was entered "in the
total amount of $127,014.17, plus statutory costs," but that in 2011, on appeal
from that judgment, the Oklahoma Supreme Court affirmed in part and reversed in
part, "leaving intact the judgment for actual damages . . . and reversing the
punitive damages award," and leaving a "total remaining judgment . . . [of]
$108,616.17," plus post-judgment interest.
¶3 Estrada asserted in his petition that, during his attempt to collect this
judgment from Port City Properties, d/b/a Hodges Warehouse,
Dennis Kriz testified at an asset hearing before this Court [in April,
2010,] that the business entity, Port City Properties, d/b/a Hodges
Warehouse, no longer had any assets, accounts or employees, and that Hodges
Warehouse was conducting business under the business entities, Hodges
Transportation, LL[C] and Mid-America Pallet, LLC.
9. Mr. Kriz also testified at the asset hearing that the business of Port
City Properties, d/b/a Hodges Warehouse, was intermingled with the business
of Hodges Transportation, LLC.
10. That the assets and former business operations of Hodges Warehouse
that were conducted under the business name of Port City Properties, d/b/a
Hodges Warehouse, have been transferred either post-petition or
post-judgment to other entities, including but not limited to Hodges
Transportation, LLC, Mid-America Pallet, LLC and/or other entities in an
effort to avoid paying [Estrada's] judgment.
¶4 Estrada requested that the court "pierce the corporate veil" of Port City
Properties, and hold Dennis Kriz personally liable for the April, 2009 judgment
"for his operating other corporate entities as the alter ego of Port City
Properties, d/b/a Hodges Warehouse, in order to avoid the judgment."
¶5 Estrada also asserted that Dennis Kriz violated "the Uniform Fraudulent
Transfer Act" by "caus[ing] the transfer of the assets of Port City Properties,
d/b/a Hodges Warehouse, to other corporate entities that he controls or owns a
majority stake in . . . with the intent and purpose to hinder, delay and/or
defraud [Estrada] as the judgment creditor . . . ."
¶6 In their answer, Defendants admitted that Kriz "provided testimony at an
asset hearing," but denied "any inference or interpretation . . . to the extent
they support [Estrada's] claims." They requested that Estrada take nothing by
way of his petition, and they set forth various affirmative defenses.
¶7 In January, 2013, Defendants filed a motion to dismiss claiming Estrada
failed to plead fraud with particularity, and also claiming his theories are
barred by the doctrines of laches and equitable estoppel. Defendants argue that
Estrada's theories of (1) "Pierc[ing] the Corporate Veil," and (2) "Violati[ng]
. . . the Fraudulent Transfer Act," are theories of fraud and, therefore,
Estrada was required to state with specificity "the time, place and contents of
the fraudulent action," together with "the identity of the party making the
fraudulent action and the consequences arising from the fraudulent conduct," in
order to satisfy the requirements of 12 O.S. Supp. 2013 § 2009(B).
¶8 Defendants also argue Estrada's action is barred by the doctrines of
laches and equitable estoppel because, "[a]t a minimum, Estrada was aware that
he intended to claim fraudulent transfer of assets as of the time of the asset
hearing on April 28, 2010," but allegedly took "no further action to enforce his
Judgment against Port City Properties or to assert claims against [Defendants]"
until the filing of the petition in this case in October, 2012.
¶9 Defendants did not attach any evidentiary materials to their motion to
dismiss or otherwise seek to convert it to a summary judgment motion.
Nevertheless, after Estrada filed his response and objection to the motion to
dismiss, Defendants filed a reply in which they argue that Estrada failed to
"dispute a single Statement of Fact as set forth in the Motion to Dismiss . . .
." They further state that "Estrada offers NO evidence or arguments to dispute
the facts set forth in the Motion to Dismiss . . . ."
¶10 In its Order filed in December, 2013, the trial court granted the motion
to dismiss without oral argument, and without setting forth the basis of its
decision. From the Order, Estrada appeals.
STANDARD OF REVIEW
¶11 Motions to dismiss are generally viewed with disfavor, and the burden of
demonstrating a petition's insufficiency - placed on the party moving for
dismissal - is not a light one. Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841. When reviewing a
motion to dismiss, this Court exercises de novo review. Wilson v.
State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155.1 When reviewing a motion to
dismiss, this Court examines only the controlling law, not the facts, and, thus,
this Court must take as true all of the challenged pleading's allegations
together with all reasonable inferences which may be drawn from them. Id.
"A pleading must not be dismissed for failure to state a legally cognizable
claim unless the allegations indicate beyond any doubt that the
litigant can prove no set of facts which would entitle him to relief."
Fanning, ¶ 4 (citation omitted). In addition, "interpretation of
statutory law presents a question of law and statutes are construed to determine
legislative intent in light of the general policy and purpose that underlie
them." Troxell v. Okla. Dep't of Human Servs., 2013 OK 100, ¶ 4, 318 P.3d 206 (citation
omitted).
ANALYSIS
I. The Requirement of Particularity
¶12 Title 12 O.S. 2011 §
2009(B) provides that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.
Malice, intent, knowledge, and other condition of mind of a person may be
averred generally."2 The Oklahoma Supreme Court has explained that
"allegations of fraud must be stated with sufficient particularity to enable the
opposing party to prepare his/her responsive pleadings and defenses.
Particularity does not mean the plaintiff has to plead detailed
evidentiary matters." A-Plus Janitorial & Carpet Cleaning v. Employers'
Workers' Comp. Ass'n, 1997 OK
37, ¶ 35, 936 P.2d 916
(citation omitted) (footnotes omitted). Section 2009(B) "requires specification
of the time, place and content of an alleged false representation, but
not the circumstances or evidence from which fraudulent intent could be
inferred." Gianfillippo v. Northland Cas. Co., 1993 OK 125, ¶ 11, 861 P.2d 308 (citation omitted).
¶13 "[T]he particularity requirement extends to all averments of fraud,
regardless of the theory of legal duty - statutory, tort, contract or
fiduciary." Gay v. Akin, 1988
OK 150, ¶ 8, 766 P.2d 985
(footnote omitted). For example, in Akin the plaintiff filed suit against
members of a board of directors of a financial institution. She alleged they
misrepresented the financial institution as a public banking corporation (with,
inter alia, deposit insurance) and that, through advertisements, they lured her
into depositing her savings at the bank. Plaintiff sought recovery for these
misrepresentations based on theories of common-law fraud, and also based on a
statutory provision authorizing an action for fraud and deceit upon the public.
Although one of her theories was derived from the common law, and the other from
statutory law, because both theories were based on fraud or contained fraud as a
necessary element, the requirements of § 2009(B) applied to each theory.
¶14 However, an averment of fraud does not exist merely because the modifier
"fraudulent" is used. Black's Law Dictionary (9th ed. 2009), defines fraud, in
pertinent part, as
[a] knowing misrepresentation of the truth or concealment of a material
fact to induce another to act to his or her detriment. . . . 2. A
misrepresentation made recklessly without belief in its truth to induce
another person to act. 3. A tort arising from a knowing
misrepresentation, concealment of material fact, or reckless
misrepresentation made to induce another to act to his or her
detriment.
In Oklahoma,
[t]he elements of fraud are: 1) a false material misrepresentation, 2)
made as a positive assertion which is either known to be false or is made
recklessly without knowledge of the truth, 3) with the intention that it be
acted upon, and 4) which is relied on by the other party to his or her own
detriment.
Lopez v. Rollins, 2013 OK
CIV APP 43, ¶ 12, 303 P.3d
911 (citation omitted).
¶15 Accordingly, an averment of fraud only exists where there is some "false
suggestion or suppression of the truth" - some false representation - by which
one "can get advantage over another," Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 11, 308 P.3d 1041, made with the
intention that it be acted upon. More exactly, fraud is "a generic term" that
"is divided into actual fraud and constructive fraud." Patel v. OMH Med.
Ctr., Inc., 1999 OK 33, ¶ 34,
987 P.2d 1185 (footnotes
omitted). "To be actionable, both actual fraud and constructive fraud require
detrimental reliance by the person complaining," Howell v. Texaco Inc.,
2004 OK 92, ¶ 32, 112 P.3d 1154 (citation omitted),
and even constructive fraud - although it "does not necessarily involve any
moral guilt, intent to deceive, or actual dishonesty of purpose" - requires a
misrepresentation (although the misrepresentation may consist of remaining
silent when one has the duty to speak) that "gains an advantage for the actor by
misleading another to his prejudice," Patel, ¶ 34 (footnote omitted).3
A. Piercing the Corporate Veil
¶16 Estrada seeks to pierce the corporate veil based on allegations that,
inter alia, Dennis Kriz operated other corporate entities as the alter ego of
Port City Properties, d/b/a Hodges Warehouse, in order to avoid the judgment.
The particularity requirement does not apply to a theory seeking to pierce the
corporate veil unless it rests on an averment of fraud (or mistake). In
Fanning, 2004 OK 7, the
plaintiff asserted a theory seeking to pierce the corporate veil and hold the
shareholders of a corporate entity individually liable for the obligations and
conduct of that entity. The plaintiff alleged
the shareholders used the corporate entity to defeat the public policy of
protecting a resident [of a nursing home] from neglect and abuse, that they
failed to secure and maintain liability insurance, and that they allowed
[the corporate entity] to become suspended from doing business within the
state. She also argued that the public policy of protecting elderly
residents is a compelling or overriding reason to disregard the corporate
entity and pierce the corporate veil.
Id. ¶ 17.
¶17 The Fanning Court first explained as follows:
Generally, a corporation is regarded as a legal entity, separate and
distinct from the individuals comprising it. However, the notion of a
corporation's legal entity, apart from the persons composing it, is
introduced for convenience and to serve the ends of justice. Accordingly,
Oklahoma has long recognized the doctrine of disregarding the corporate
entity in certain circumstances. Courts may disregard the corporate entity
and hold stockholders personally liable for corporate obligations or
corporate conduct under the legal doctrines of fraud, alter ego and when
necessary to protect the rights of third persons and accomplish justice. . .
. Frazier v. Bryan Memorial Hosp. Authority, 1989 OK 73, ¶ 16, 775 P.2d 281, 288 (if one
corporation is simply the instrumentality of another corporation, the
separation between the two may be disregarded and treated as
one).
Id. ¶ 16 (citations omitted). The Fanning Court then stated
that, "[s]ince this case does not involve fraud or mistake, [the
plaintiff] was only required to set forth a short and plain statement of her
claims so that the defendants would have fair notice of what [the
plaintiff's] claims were and the grounds upon which they rest." Id. ¶ 21
(emphasis added).
¶18 As quoted above, the Fanning Court specifically listed "the legal
doctrines of fraud [and] alter ego" as distinct theories. As stated by a
separate division of this Court, "[a]lthough several cases have discussed fraud
as a potential basis for ignoring formal corporate identity, it is not necessary
for fraudulent intent to be present for the alter ego theory to be applied to
pierce the corporate veil." Pennmark Res. Co. v. Okla. Corp. Comm'n, 2000 OK CIV APP 63, ¶ 17, 6 P.3d 1076 (citations omitted).
¶19 A brief review of federal jurisprudence is also instructive in this
regard.4 "The
tendency under the Federal Rules is to discourage motions to compel more
definite complaints and to encourage the use of discovery procedures to apprise
the parties of the basis for the claims made in the pleadings" - the
"requirement of particularized pleading" set forth in Rule 9(b) "is reserved for
averments of fraud or mistake." In re O.P.M. Leasing Servs., Inc., 21
B.R. 986, 993 (Bankr. S.D.N.Y. 1982). In In re Suprema Specialties, Inc.
Securities Litigation, 438 F.3d 256 (3d Cir. 2006), the United States Court
of Appeals for the Third Circuit stated that, as to averments of fraud,
Rule 9(b) requires a plaintiff to plead (1) a specific false
representation of material fact; (2) knowledge by the person who made it of
its falsity; (3) ignorance of its falsity by the person to whom it was made;
(4) the intention that it should be acted upon; and (5) that the plaintiff
acted upon it to his [or her] damage.
Id. at 270. The Suprema Specialties Court indicated that a
determination of whether a theory is subject to the particularity requirement
necessitates an assessment of the theory to determine whether acts of fraud on
the part of the defendants form the basis for the theory against them.
Id. (The Suprema Specialties Court stated that whether the
"Securities Act claim" at issue "is subject to Rule 9(b) requires an assessment
of the particular claim to determine whether acts of fraud on the part of the
defendants form the basis for the claim against them."). That is, Rule 9(b) is
applicable only "where the gravamen of the claim is fraud," such as where the
theory is one of negligent misrepresentation, a "close cousin" of fraud.
Baltimore Cnty. v. Cigna Healthcare, 238 F. App'x 914, 925 (4th Cir.
2007) (citation omitted). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1105-06 (9th Cir. 2003) (theories that are not "grounded in fraud," or for
which fraud "is not an essential element," are not subject to the heightened
pleading requirement of Rule 9(b)).
¶20 Accordingly, the particularity requirement does not apply to alter ego
and other veil-piercing theories unless fraud (or mistake) is a necessary
element. See Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F. Supp. 117,
122 (S.D.N.Y. 1996) ("[B]ecause a veil piercing claimant can prevail without
proving fraud, plaintiff's alter ego allegations will not be held to the
particularity requirement of Fed.R.Civ.P. 9(b)."); Chicago Dist. Council of
Carpenters Pension Fund v. Ceiling Wall Sys., Inc., 915 F. Supp. 939, 942-43
(N.D. Ill. 1996) ("[B]ecause fraud is not a prerequisite to piercing the
corporate veil, Rule 9(b) does not apply to alter ego allegations.");
Laborers Combined Funds of Western Pa. v. Ruscitto, 848 F.Supp. 598,
600-01 (W.D. Pa. 1994) (Rule 8(a), which requires a short and plain statement of
the claim, applies to alter ego allegations "unless fraud is a necessary element
of the claim.") (footnote omitted) (citations omitted). Unless Estrada has made
fraud a basis or essential element of his veil-piercing theory, the
particularity requirement does not apply.
¶21 Moreover, in Fanning, the Court went on to state that even if the
allegations in the petition were not sufficient to withstand a motion to
dismiss, "the trial court still erred in dismissing the case without providing
[the plaintiff] with an opportunity to amend her complaint." 2004 OK 7, ¶ 23. The Court stated
that, pursuant to 12 O.S. 2011 §
2012(G), "a mandatory duty [is] placed on trial courts" to grant
leave to amend if the defect can be remedied. Id. (emphasis added).
In order for the courts to dismiss a claim for failure to state a cause
of action without giving the plaintiff the opportunity to amend, it must
appear that the claim does not exist rather than the claim has been
defectively stated. See Lockhart v. Loosen, 1997 OK 103, ¶ 5, 943 P.2d 1074, 1078 (which draws
a distinction between a petition that is dismissible for want of a
cognizable legal theory of liability and one that is dismissible for
insufficient facts under a recognized theory).
Fanning, ¶ 23.5
¶22 As was the case in Fanning, the Order on appeal in this case
merely provides that "Defendant's Motion [to Dismiss] should be and is hereby
GRANTED," and it does not provide Estrada with leave to amend. In this regard
the Fanning Court stated, "If the trial court was of the opinion that the
claim was defectively pled, it should have provided [the plaintiff] with an
opportunity to amend. Accordingly, the trial court erred in dismissing [the
plaintiff's] petition." Id. ¶ 24.
¶23 Even more important to this case, "[f]ailure to plead fraud with
specificity is not a ground for dismissal." Muller v. Muller, 2013 OK CIV APP 90, ¶ 10, 311 P.3d 1247 (citation omitted).
See A-Plus, 1997 OK
37, ¶ 36. In A-Plus, the Oklahoma Supreme Court stated that "[t]he
method for securing the missing information" - i.e., in circumstances in which
allegations of fraud are made but are not stated with sufficient particularity
to enable the opposing party to prepare his/her responsive pleadings and
defenses - "is not by pressing for dismissal but rather by a motion to supply
the necessary particulars that would support the allegations of fraud."
Id. ¶ 36. In A-Plus, the Court concluded that
[b]ecause the record is devoid of any denied quest for particulars, the
defendants are not entitled to have the petition tested by the Gay v.
Akin [i.e., particularity] rule. Applying the Conley v. Gibson
standards,6 we find that the petition, even if wanting in
some particularity, is not subject to dismissal. The defendants are entitled
to a post-remand opportunity to press for specific
information.
A-Plus, ¶ 36 (emphasis omitted).
¶24 Estrada's veil-piercing theory is not subject to dismissal on the basis
of failure to plead fraud with specificity, and the trial court erred in
dismissing this theory.
B. Fraudulent Transfer
¶25 Estrada has asserted a theory under the Uniform Fraudulent Transfer Act
(UFTA), 24 O.S. 2011 §§ 112-123, based on allegations that Estrada obtained a
judgment against an entity whose assets were transferred by Dennis Kriz to avoid
payment. "The purpose of the [UFTA] is to allow a creditor the opportunity to
invalidate the transfer of assets made by a debtor if the transfer has the
effect of placing assets out of reach of present and future creditors."
Burrows v. Burrows, 1994 OK
129, ¶ 9, 886 P.2d 984
(footnote omitted). Estrada states in his petition that Dennis Kriz violated
"the [UFTA]" by "caus[ing] the transfer of the assets of Port City Properties,
d/b/a Hodges Warehouse, to other corporate entities that he controls or owns a
majority stake in . . . with the intent and purpose to hinder, delay and/or
defraud [Estrada] as the judgment creditor . . . ." This allegation is
practically in the language of the UFTA. See 24 O.S. 2011 § 116. See also
Combs v. Chambers, 283 F. Supp. 295, 296 (N.D. Okla. 1968) ("The [complaint]
states that the properties . . . were conveyed by the Defendant . . . with
intent to hinder, delay, and defraud the Plaintiff as one of his creditors. This
allegation is practically in the language of Oklahoma's Uniform Fraudulent
Conveyance Act. . . . The [c]omplaint states a claim for relief, and that claim
as stated is recognized by Oklahoma law.") (citation omitted) (footnote
omitted). We conclude Estrada has successfully stated a claim which would
entitle him to relief under the UFTA, and the trial court erred in dismissing
this theory.
II. Equitable Defenses of Laches and Equitable
Estoppel
¶26 As stated above, Defendants argue Estrada's action is barred by the
doctrines of laches and equitable estoppel. "Estoppel and the equitable defense
of laches each share the elements of delay [in bringing a lawsuit] and resulting
prejudice to the other party. Equitable estoppel as well as laches must be
determined by the circumstances in each case and according to right and
justice." Sullivan v. Buckhorn Ranch P'ship, 2005 OK 41, ¶ 33, 119 P.3d 192 (footnotes omitted).
At this stage of the proceedings, both doctrines are inappropriate grounds for
the dismissal of Estrada's petition. Just as was the trial court below, in our
review of this appeal we are charged with reviewing the petition, and with
taking as true all of its allegations, together with all reasonable inferences
which may be drawn from them. We are not charged with reviewing the unsupported
factual allegations contained in Defendants' motion to dismiss. Estrada asserts
in the petition that it obtained a judgment against Port City Properties, d/b/a
Hodges Warehouse, in 2009; that it held an asset hearing in 2010; and that the
Supreme Court affirmed in part and reversed in part the judgment in 2011. In
2012, Estrada brought this action against Defendants based, in part, on the
allegation that Port City "no longer ha[s] any assets, accounts or employees . .
. ." We conclude no reasonable inference can be drawn at this time, and from the
content of the petition alone, that an inexcusable delay has occurred resulting
in prejudice to Defendants such that right and justice require the dismissal of
the petition based on the equitable doctrines forwarded by Defendants.
CONCLUSION
¶27 Defendants filed a motion to dismiss "based upon [Estrada's] failure to
plead [fraud] with particularity, the Doctrine of Laches and the Doctrine of
Equitable Estoppel." Estrada's veil-piercing theory is not subject to dismissal
on the basis of any failure to plead fraud with particularity. As to Estrada's
theory asserted under the UFTA, based on allegations that Estrada obtained a
judgment against an entity whose assets were transferred to avoid payment, this
allegation is practically in the language of the UFTA and we conclude Estrada
has successfully stated a claim which would entitle him to relief under the
UFTA. Finally, the equitable doctrines asserted in the motion to dismiss are
inappropriate bases upon which to dismiss the petition because no reasonable
inference can be drawn at this time, and from the content of the petition alone,
that an inexcusable delay has occurred resulting in prejudice to Defendants such
that right and justice require dismissal. Consequently, we reverse the trial
court's Order granting the motion to dismiss, and we remand for further
proceedings.
¶28 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
RAPP, P.J., and THORNBRUGH, J., concur.