CAUSE NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 CAUSE NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 July 10 P4:08 Lisa Matz CLERK IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS MICHAEL ARNOLD, JANET ARNOLD, STEVE SOUTH, AS TRUSTEE FOR AND ON BEHALF OF SOUTH LIVING TRUST, JOHN S. FERRIS, M.D., CHRISTINE DUNCAN AND ALL OTHERS SIMILARLY SITUATED, Appellants V. LIFE PARTNERS, INC., ABUNDANT INCOME, AND MILKIE/FERGUSON INVESTMENTS, INC., Appellees Appealed from Michael Arnold, et al. vs. Life Partners, Inc., et al Cause No. DC In the 14 th District Court of Dallas County, Texas BRIEF OF APPELLEE MILKIE/FERGUSON INVESTMENTS, INC. HENRY J. ACKELS State Bar No SAMUEL H. ACKELS State Bar No ACKELS & ACKELS, L.L.P LBJ Freeway, Suite 1550 Dallas, TX Tel: Fax: ATTORNEY FOR APPELLEE, MILKIE/FERGUSON INVESTMENTS, INC.

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS INDEX OF AUTHORITIES STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF CASE ADOPTION OF APPELLEE LIFE PARTNERS, INC.'S BRIEF iv iv iv ISSUES PRESENTED STATEMENT OF FACTS 1 SUMMARY OF ARGUMENT 3 ARGUMENT AND AUTHORITIES 4 Standard of Review 4 The Trial Court Properly Granted Summary Judgment in Dismissing Plaintiffs' Claims because the Life Settlements are not Securities under Texas Law. 4 II. III. IV. The Trial Court Properly Granted Summary Judgment on Plaintiffs' Life Settlement Purchases that were Barred by the Applicable Statutes of Limitations and Repose. 4 The Trial Court Properly Granted Summary Judgment on the Section 33A(2) Claim because the Same Conduct is not Actionable under both Sections 33(A)1 and 33A(2). 4 The Trial Court Properly Granted Summary Judgment with Respect to the Section 33A(2) Claim because Appellees lacked knowledge of the alleged Inaccuracy of the Alleged Misrepresentation. 4 V. LPI Life Settlements are not "securities" under Texas law, and this court of appeals should decline Appellants' invitation to change the law. 5 VI. Newly created law should not be applied retroactively to conduct which

3 occurred years ago. CONCLUSION AND PRAYER CERTIFICATE OF SERVICE APPENDIX (Statement)

4 INDEX OF AUTHORITIES Appellee, Milkie/Ferguson Investments, Inc. ("MFI") adopts by reference the "Index of Authorities" contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") in this case. See Rule 9.7 TRAP. MFI also makes the following additions and supplements: CASES: PAGE(S) Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 6,7 Elbaor v. Smith, 845 SW 2d 240 (1992) 7 Griffitts v. Life Partners, Inc., No CV, 2004 (Tex. App.-Waco, May 26, 2004 no pet.) 3, 5, 6 SEC v. Life Partners, Inc., 87 F.3rd 536, (D.C. circuit 1996) 5, 6

5 STATEMENT REGARDING ORAL ARGUMENT Appellee does not believe oral argument is necessary in this case. However, since Appellants have requested oral argument, Appellee requests the opportunity to argue the case before this court should the court decide to grant oral argument. STATEMENT OF CASE Simply put, the Defendants/Appellees in this matter were sued because they followed the law. This is an appeal of a putative class action suit in which Plaintiffs/Appellants are attempting to change the law in Texas, and then have the court apply that new law retroactively to the Defendants' conduct which took place years ago. Plaintiffs/Appellants assert purported class action claims under the Texas Securities Act ("TSA") for registration violations and for misrepresentations. The trial court granted motions for summary judgment for all defendants, and found Plaintiffs pleadings to be frivolous and without basis in law or fact. Appellants have now appealed the trial courts judgment to this court of appeals. ADOPTION OF APPELLEE LIFE PARTNERS, INC.'S BRIEF In the interests of time and judicial economy, and in accordance with Rule 9.7 TRAP, Appellee MFI adopts by reference those portions of Appellee LPI's brief as identified herein. The adopted portions are referenced herein at the appropriate sections of this brief. Those identified portions of LPI's brief are adopted and fully incorporated herein by reference. Most of the legal arguments presented to the court by LPI apply similarly to MFI. Appellee Milkie/Ferguson Investment, Inc.'s Brief -iv-

6 ISSUES PRESENTED Appellee, MFI, adopts by reference the "Issues Presented for Review" contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") in this case. See Rule 9.7 TRAP. Appellee also presents the following additional and supplemental issues: 1. Whether this court should change current law to declare Life Settlements to be "securities" notwithstanding the fact that the Texas Legislature has declined to make such a change in law. 2. Whether such changed law or newly created law can be applied retroactively to Appellees conduct which took place years ago. 3. Whether Appellee was entitled to rely on established law at the time of the transactions in question. 4. Whether the statutes of limitations or repose preclude Appellants' cause of action under the Texas Securities Act. Appellee Milkie/Ferguson Investment, Inc.'s Brief -V-

7 STATEMENT OF FACTS Appellee, Milkie/Ferguson Investments, Inc. ("MFI"), adopts by reference the "Statement of Facts" contained in the "Appellees' Brief' filed by Life Partners, Inc. ("LPI") in this appeal, including the objection to Appellants' statement of facts contained therein. See Rule 9.7 Texas Rules of Appellate Procedure ("TRAP"). Furthermore, Appellee MFI supplements the Statement of Facts with the following additional facts: Milkie/Ferguson Investments, Inc. ("MFI") was a licensee of LPI, along with hundreds of other licensees, who referred customers to LPI for purchase of the life settlement product offered by LPI. MFI's customer referrals were only a small fraction of the thousands of customers of LPI. The record is silent as to why Appellant sued MFI, and no other licensee, in this purported class action case. In this case, Appellants have sued because Appellees followed the law. Appellants acknowledge that at the relevant times in question, life settlements (also known as viatical settlements) were not considered "securities" under Texas law. However, Appellants argue for a change in the law and cite recent authority from Texas State Securities Board agency actions in 2010 and 2011 (years after the subject transactions in this case) to support Appellants' position that this court of appeals should change the law and/or make new law. Thus Appellants allege that Appellees sold unregistered securities in prior years and the Appellees made material misrepresentations when Appellees did not reveal to customers that they were selling unregistered securities. LPI and Abundant Income filed motions for partial summary judgment which were granted by the trial court. After the trial court granted LPI's motion for partial summary Appellee Milkie/Ferguson Investment, Inc.'s Brief -1-

8 judgment, MFI filed a Motion for Summary Judgment regarding the claims against MFI. Included within MFI's Motion was an adoption of the motions for partial summary judgement previously filed by the other parties in the case. MFI adopted by reference "all allegations, statements, summary judgment evidence, exhibits, grounds for summary judgment or partial summary judgment, and argument and authority contained in" the other motions filed with the trial court. The trial court granted MFI's Motion for Summary Judgment. Appellee Milkie/Ferguson Investment, Inc.'s Brief -2-

9 SUMMARY OF ARGUMENT Appellee, MFI adopts by reference the "Summary of Argument" contained in the "Appellee's Brief" filed by Life Partners, Inc. ("LPI") in this appeal. See Rule 9.7 TRAP. Furthermore, Appellee MFI supplements the Summary of Argument as follows: Simply put, Appellees were sued because they followed the law. None of the allegations or arguments made by Appellants are based on Texas law. Rather, Appellants refer to courts of other jurisdictions, legislation of other states, and court cases related to life settlement companies which are different from LPI in order to support their position in this case. However, MFI acted in accordance with the law in the state of Texas at the time of its actions. Appellants are asking this court to create new law in contravention of the wishes of the state legislature. The Texas legislature has met four (4) times since the Griffins case held that the LPI life settlements were not securities, and each time has chosen not to disturb the court ruling, and not to change the law in Texas. This court should also decline the invitation to change the law in Texas. If new law is created, that new law should not apply retroactively to MFI. Appellants' request for an ex post facto application of newly changed law should be denied. Appellee Milkie/Ferguson Investment, Inc.'s Brief -3-

10 ARGUMENT AND AUTHORITY STANDARD OF REVIEW Appellee, MFI, adopts by reference the "Standard of Review" contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") in this appeal. See Rule 9.7 TRAP. The Trial Court Properly Granted Summary Judgment in Dismissing Plaintiffs' Claims because the Life Settlements are not Securities under Texas Law. Appellee, MFI, adopts by reference the Argument and Authority related to this issue contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") at pages 8 through 22 of LPI's brief. See Rule 9.7 TRAP. II. The Trial Court Properly Granted Summary Judgment on Plaintiffs' Life Settlement Purchases that were Barred by the Applicable Statutes of Limitations and Repose. Appellee, MFI, adopts by reference the Argument and Authority related to this issue contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") at pages 22 through 28 of LPI's brief. See Rule 9.7 TRAP. III. The Trial Court Properly Granted Summary Judgment on the Section 33A(2) Claim because the Same Conduct is not Actionable under both Sections 33(A)1 and 33A(2). Appellee, MFI, adopts by reference the Argument and Authority related to this issue contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") at pages 28 through 31 of LPI's brief. See Rule 9.7 TRAP. IV. The Trial Court Properly Granted Summary Judgment with Respect to the Section 33A(2) Claim because Appellees lacked knowledge of the alleged Inaccuracy of the Alleged Misrepresentation. Appellee, MFI, adopts by reference the Argument and Authority related to this issue Appellee Milkie/Fer guson investment, Inc.'s Brief -4-

11 contained in the "Appellee's Brief' filed by Life Partners, Inc. ("LPI") at pages 31 through 32 of LPI's brief. See Rule 9.7 TRAP. V. LPI Life Settlements are not "securities" under Texas law, and this court of appeals should decline Appellants' invitation to change the law. Plaintiffs' claims for violation of the securities laws fail because Life Settlements are not securities as a matter of law. See Griffins v. Life Partners, Inc., No. I CV, 2004 (Tex. App.-Waco, May 26, 2004 no pet.); and SEC v. Life Partners, Inc., 87 F.3rd 536, (D.C. circuit 1996). Additionally, Appellants' assertion that the Texas State Securities Board ("TSSB") has determined that Life Settlements are securities is not persuasive because the TSSB agency orders cited by Appellants are distinguishable from this case, and the rulings and decisions of courts of law in Texas are controlling over such agency orders (see detailed argument in the adopted portions of LPI' s brief). Furthermore, the two TSSB orders cited by Appellants were made in 2010 and 2011, years after the transactions which are the subject of this case. Appellants are arguing for a change in law. Appellants are asking this court to create new law in Texas, contrary to the Griffins case, and to hold that Life Settlements are securities as a matter of law. However, such new law (if any) should come from the legislature and not this appellate court. Furthermore, the Texas legislature has met four (4) times since the Griffins case was decided in 2004; and has met eight (8) times since the SEC v. Life Partners case was decided in Each time the legislature has declined to change the law in Texas. Thus, for the past 15 years (since 1996), the legislature has declined to establish new law which would designate Life Settlements to be securities. The arguments put forward by Appellants are not based upon Texas law. Rather, Appellee Milkie/Ferguson Investment, Inc.'s Brief -5-

12 Appellants cite the laws of several other states and cases from other federal jurisdictions to support their theory of this case. However, this is precisely why Appellants arguments are off base. Some states have defined "securities" to include Life Settlements, either by legislative action or by a ruling from the highest court in the state (See references to other states in Appellants' Brief). Clearly that is not the case in Texas. Other federal cases have addressed Life Settlements, however, they are distinguishable because those cases do not involve the LPI Life Settlement product. Both SEC v. Life Partners and Griffitts expressly addressed the LPI Life Settlement product, and held that it was not a "security." Thus, it was not required to be registered as a security under Texas law. Notwithstanding the examples from other jurisdictions, the Texas legislature has steadfastly refused to make Life Settlements a "security" under Texas law. In light of this precedent, the LPI Life Settlement product is not now, and has never been, a security under Texas law. VI. Newly created law should not be applied retroactively to conduct which occurred years ago. Not only are Appellants arguing for a change in law, but they are also asking this court to apply the newly created law to Appellees conduct which occurred several years ago. This attempted ex post facto application of a new and changed law should be rejected. Appellants have offered no legal authority to support their position, and their brief is void of any cited cases or statutes to justify such a position. Appellees actions must be judged based upon the law at the time of the transactions in question, and not on the futuristic arguments for a change in the law. As argued in the adopted portions of LPI's brief, under both the U.S. Supreme Court analysis in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), and the Texas Supreme Court Appellee Milkie/Ferguson Investment, Inc.'s Brief -6-

13 analysis in Elbaor v. Smith, 845 SW 2d 240 (1992), such a change in law should only be applied prospectively. The same factors found in Elbaor also apply in this case. The court must engage in a broad balancing of the factors enunciated in Elbaor to "determine the ultimate considerations of fairness and policy." Elbaor, supra. at 251. Appellees have a right to rely on the state of the law at the time of the transactions in question. Appellees followed the law. In fact, to have represented to customers that the LPI Life Settlement product was a security at the time of the transactions in question, would have, itself, been a misrepresentation, based upon Texas law. For this court to subsequently change the law, and then grant an ex post facto application of the newly created law against Appellees, would violate due process rights under the United States Constitution and the Texas Constitution. See Chevron, supra and Elbaor, supra. Appellants have offered no authority for this court to take such action. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellee respectfully prays that this court affirm the summary judgment of the trial court. The summary judgment must be affi _led if there is any reason in the record for doing so. Therefore, Appellee requests this court to affirm the trial court judgment and to award Appellee its costs associated with this appeal, and Appellee prays for such other and further relief to which it may be entitled, at law or in equity, special or general. Appellee Milkie/Ferguson Investment, Inc.'s Brief -7-

14 Respectfully submitted, HENRY J. ACKELS State Bar No SAMUEL H. ACKELS State Bar No ACKELS & ACKELS, L.L.P LBJ Freeway, Suite 1550 Dallas, TX Tel: Fax: Attorney for Appellee, Milkie/Ferguson Investments, Inc. Appellee Milkie/Ferguson Investment, Inc.'s Brief -8-

15 CERTIFICATE OF SERVICE The undersigned attorney certifies that he has or will have served a copy of the foregoing instrument upon attorneys of record for all other parties in this action by U.S. Mail, postage paid, and accordance with the Rules of this Court, this / 0 day of, 2012, serving the following: Scott Skelton Robert Cain Zeleskey Law Firm, PLLC P.O. Drawer 1728 Lufkin, TX Lead attorney for Michael Arnold, Janet Arnold, et all, Appellants Elizabeth Yingling Laura O'Rourke Will R. Daugherty Baker & McKenzie 2300 Trammell Crow Center 2001 Ross Ave. Dallas, TX Lead attorney for Life Partners, Inc., Appellee HENRY J. ACKELS Appellee Milkie/Ferguson Investment, Inc.'s Brief -9-

16 APPENDIX (Statement) There are no additional documents to be added in an Appendix, other than those attached as an Appendix to the briefs of the other parties in this appeal. Appellee Milkie/Ferguson Investment, lnc.'s Brief -10-