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Veney v. United Bank

Superior Court of Delaware

August 31, 2017

WARREN VENEY, Plaintiff,

          Submitted: August 29, 2017


          Vivian L. Medinilla, Judge.

         AND NOW TO WIT, this 31st day of August, 2017, upon consideration of Defendants United Bank, Andrew McCulley, and Jane Sargents (collectively "Defendants")'s Motion to Dismiss, Plaintiffs response thereto, and the parties' positions at oral argument, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss is GRANTED for the following reasons:

         Factual and Procedural Background

         1. Plaintiff Warren L. Veney, Sr., is the settlor of the Warren L. Veney Trust ("the trust"), a revocable inter vivos trust.[1] The sole beneficiaries of the trust are Plaintiff and his adult son. The trust's corpus is substantially comprised of real and personal property in the Commonwealth of Virginia. The trust was established by written agreement on September 30, 1983, and has been amended on several occasions since that time. The trust agreement contains references to Delaware law in a manner consistent with a choice-of-law provision.[2]

         2. Defendant United Bank ("the Bank") administers the Trust in Virginia. The Bank is the third successor trustee of the trust.[3] Defendants McCulley and Sargents are employees of the Bank: McCulley is a Trust Officer in the Bank's Virginia branch; Sargents is a Senior Vice President and Director of Fiduciary Services for the Bank in West Virginia. The Bank, McCulley, and Sargents have no legal presence in Delaware. Further, their alleged conduct in connection with the trust occurred in Virginia.

         3. On March 17, 2017, on motion by the Bank, the Circuit Court of Fairfax County, Virginia, appointed Margaret A. O'Reilly, Esquire, as guardian ad litem to represent the interests of Plaintiff under Va. Code Ann. § 8.01-9.[4] The Virginia court found that Plaintiff is a "person under disability" as defined under Va. Code Ann. § 8.01-2(6)(e).[5] According to Virginia law, this determination means that Plaintiff is unable to defend his property or legal rights in a matter where the Bank sought leave to resign as trustee and request the appointment of a new trustee in its stead.[6]

         4. Plaintiff filed his pro se Complaint in this Court on April 28, 2017. The guardian ad litem is not listed as a representative or attorney of record. The two-page, handwritten Complaint generally alleges claims sounding in conversion, fraud, and accounting. He seeks the "restoration" of $2.6 million to the corpus of the trust. He also seeks ten times that value for "mental anguish, " "theft by deception, " "fraud, " "embezzlement, " and "conspiracy to defraud." Further, he seeks to have a Virginia property, presumably held in the trust, titled in his name and the deed physically "returned to him by parcel courier."

         5. Defendants jointly filed this Motion to Dismiss in lieu of an Answer on May 26, 2017. Defendants supplemented their filing with an opening brief on June 8, 2017. Plaintiff filed a two-page response to the Motion to Dismiss on June 23, 2017. Defendants filed their reply brief on June 29, 2017. Additionally, Defendants filed a Request for Judicial Notice on August 10, 2017. A hearing was held on August 29, 2017. This is the Court's decision on Defendants' Motion to Dismiss.

         Contentions of the Parties

         6. Defendants move to dismiss the Complaint under Rule 12(b)(1)-(7). They contend that Plaintiff is estopped from filing the present claim because he has been adjudicated a "person with disability" in Virginia as discussed above. Further, they argue that the Complaint fails to state a claim upon which relief can be granted, even affording Plaintiff deference as a pro se litigant. Moreover, they contend that: there is insufficient service of process; the Complaint fails to state claims of fraud and civil conspiracy with particularity; the Complaint fails to plead relevant times and places for the alleged torts; the Complaint seeks injunctive relief outside the subject matter jurisdiction of this Court; the Complaint is time barred; and this Court does not have personal jurisdiction over Defendants. Defendants seek the dismissal of the Complaint with prejudice.

         7. Plaintiffs two-page response to the Motion contends that dismissal is inappropriate "[g]iven the following reason[s] indicated in my complaint." He proceeds to cite extraneous information outside the allegations listed in his Complaint. Further, he maintains that he has not received any accounting of the trust corpus and the trustee has refused his requests for an accounting of the trust.[7]

         Standard of Review

         8. On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true.[8]Even vague allegations are considered well-pleaded if they give the opposing party notice of a claim.[9] The Court must draw all reasonable inferences in favor of the non-moving party;[10] however, it will not "accept conclusory allegations unsupported by specific facts, " nor will it "draw unreasonable inferences in favor of the non-moving party."[11] Dismissal of a complaint under Rule 12(b)(6) must be denied if the ...

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