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Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 1 of 10 PageID 380\n\n\n\n United States District Court\n NORTHERN DISTRICT OF TEXAS\n DALLAS DIVISION\n\n\n 82 GLENWOOD AVE LLC \u00a7\n v. : CIVIL ACTION NO, 3:23-CV-2231-S\n DAVID KANE, EVAN LIPP, and KANE :\n TITLE LLC \u00a7\n MEMORANDUM OPINION AND ORDER\n\n Before the Court are Defendants David Kane\u2019s and Kane Title LLC\u2019s Second Amended\n\nMotion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (\u201cKane Motion\u201d) [ECF\n\nNo, 62] and Defendant Evan Lipp\u2019s Third Amended Motion to Dismiss Pursuant to Federal Rule\n\nof Civil Procedure 12(b)(6) (\u201cLipp Motion\u201d) [ECF No. 63] (together, \u201cMotions\u201d), The Court has\n\nreviewed the Motions, Plaintiff's Response to the Kane Motion and the Lipp Motion (\u201cCombined\n\nResponse\u201d) [ECF No. 65], Defendant Evan Lipp\u2019s Reply to the Combined Response (\u201cLipp\n\nReply\u201d) [ECF No. 66], Defendants David Kane\u2019s and Kane Title LLC\u2019s Reply to the Combined\n\nResponse (\u201cKane Reply\u201d) [ECF No. 67], and the applicable law. For the following reasons, the\n\nCourt GRANTS the Motions.\n\n I. BACKGROUND\n\n This case arises from a real estate transaction that fell apart after one of the buyers allegedly\n\nstole the earnest money put into escrow by Plaintiff 82 Glenwood Ave LLC. Pl.\u2019s Third Am.\n\nCompl, [ECF No. 60] {] 22-23, 37. Plaintiff alleges that it agreed to work together on the deal\n\nwith former defendants! BHL Capital LLC and Nolan Schutze, owner of BHL. Jd. 96, 8, 19.\n\nPlaintiff was formed to provide funds to finalize the purchase. Id. J] 23-25. Defendant Evan Lipp,\n\nan escrow agent at Defendant Kane Title LLC, was to receive an earnest money deposit of\n\n\n Plaintiff settled its claims against BHL Capital LLC and Schutze. See ECF No. 20.\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 2 of 10 PageID 381\n\n\n$3 million. Jd. 7 20. Plaintiff alleges that, based on a series of emails, Plaintiff understood that the\n\nmoney would be returned to it after 45 days or if the deal fell through. Jd. [J 26-32. Plaintiff wired\n\nthe money to Lipp at Kane Title to be held in escrow. Id. \u00a7 34. According to Plaintiff, Schutze\n\nalmost immediately asked Lipp to release the funds to him. Jd. { 36. Defendants released the funds,\n\nless their $75,000 fee, to Schutze, who allegedly \u201cstole and converted those funds for his own\n\npersonal use.\u201d Jd. | 37. Plaintiff sued Defendants David Kane, Evan Lipp, and Kane Title LLC for\n\nbreach of contract, breach of fiduciary duty, negligence, and promissory estoppel. Jd. \u00a7] 46-89.\n\nDefendants now move to dismiss for failure to state a claim. See generally Mots.\n\n IL LEGAL STANDARD\n\n To survive a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6),\n\na plaintiff must plead \u201cenough facts to state a claim to relief that is plausible on its face.\u201d Bell Atl.\n\nCorp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this \u201cfacial plausibility\u201d standard, a plaintiff\n\nmust \u201cplead[] factual content that allows the court to draw the reasonable inference that the\n\ndefendant is liable for the misconduct alleged.\u201d Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The\n\ncourt must accept well-pleaded facts as true and view them in the light most favorable to the\n\nplaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (Sth Cir. 2007). The court does\n\nnot, however, accept as true \u201cconclusory allegations, unwarranted factual inferences, or legal\n\nconclusions.\u201d Ferrer v, Chevron Corp., 484 F.3d 776, 780 (Sth Cir, 2007). A plaintiff must provide\n\n\u201cmore than labels and conclusions, and a formulaic recitation of the elements of a cause of action\n\nwill not do.\u201d Twombly, 550 U.S. at 555. \u201cFactual allegations must be enough to raise a right to\n\nrelief above the speculative level . . . on the assumption that all the allegations in the complaint are\n\ntrue (even if doubtful in fact).\u201d /d. (citation omitted). At the motion-to-dismiss stage, the court\n\ndoes not evaluate the plaintiff\u2019s likelihood of success but determines only whether the plaintiff has\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 3 of 10 PageID 382\n\n\nstated a claim upon which relief can be granted. See Mann v. Adams Realty Co., 556 F.2d 288, 293\n\n(Sth Cir. 1977).\n\n Hl. ANALYSIS\n\n Defendants Lipp, Kane, and Kane Title argue that the claims against Lipp and Kane should\n\nbe dismissed because Plaintiff makes no specific allegations against either individual defendant\n\nand that each claim should be dismissed because there is no contract between them and Plaintiff;\n\nthey owed no fiduciary duty to Plaintiff; they owed no duty of care to Plaintiff; and they made no\n\npromises to Plaintiff. Kane Mot. 2-3; Lipp Mot. 2-3, The Court addresses the two Motions together\n\nbecause they advance similar arguments and because Plaintiff filed a single, consolidated response\n\nto the Motions.\n\n A. Individual Allegations\n\n Lipp and Kane argue that the claims against them should be dismissed because the\n\noperative complaint includes no specific allegations about the conduct of either defendant. Instead,\n\nit refers to Lipp, Kane, and Kane Title collectively as \u201cthe Kane Defendants.\u201d See Third Am.\n\nCompl. \u00a7 18.\n\n If Plaintiff had sued Lipp, Kane, and Kane Title for fraud, that so-called \u201cgroup pleading\u201d\n\nwould be fatal to its claims. See Owens v. Jastrow, 789 F.3d 529, 537 (Sth Cir, 2015). But that is\n\nbecause fraud claims are subject to the heightened pleading standard of Rule 9(b), which requires\n\na plaintiff to plead the \u201cwho, what, when, where, and how of the alleged fraud.\u201d United States of\n\nAm. ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, L.L.C., 157 F Ath 758, 762\n\n(5th Cir. 2025). Plaintiff settled its fraud claims against BHL and Schutze, see ECF No. 20, and\n\nthe operative complaint contains no fraud claims against the remaining Defendants. See Pl.\u2019s Third\n\nAm. Compl. 46-89. Plaintiff's remaining claims are governed by the more lenient Rule 8\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 4 of 10 PageID 383\n\n\npleading standard, which requires the complaint to contain \u201ca short and plain statement of the\n\nclaim showing that the pleader is entitled to relief.\u201d FED. R. Civ. P. 8(a)(2).\n\n The operative complaint names David Kane as a defendant, states that Kane Title is\n\n\u201cowned, operated, and/or managed by\u201d Kane, Pl.\u2019s Third Am. Compl. { 13, and states that Kane\n\nTitle \u201cthrough ... David Kane[] was the escrow agent for the purchase of the subject property,\u201d\n\nid, | 15. But nowhere in the complaint does Plaintiff allege that Kane did anything that would give\n\nrise to Plaintiff's claims against him. Plaintiff's Response suggests that Kane may be held\n\nvicariously liable for Lipp\u2019s conduct as Lipp\u2019s employer because \u201cit is impossible ... to know\n\nexactly where Kane Title ends and where Mr. Kane begins.\u201d* Resp. 9-10. The complaint, however,\n\nalleges no facts to suggest that Kane personally employed Lipp. Instead, Plaintiff alleges that both\n\nKane and Lipp \u201cowned, operated, and/or managed\u201d Kane Title. Pl.\u2019s Third Am. Compl. \u00a7 13.\n\nWithout allegations of specific facts linking Kane to the claims alleged, the complaint fails to state\n\na claim against Kane,\n\n The operative complaint, however, contains numerous allegations about Lipp\u2019s conduct.\n\nThe Court therefore considers the sufficiency of those allegations to state each claim pleaded.\n\n B. Breach of Contract\n\n To state a claim for breach of contract, the plaintiff must plead \u201c(1) the existence of a valid\n\ncontract; (2) the plaintiff performed or tendered performance as the contract required; (3) the\n\ndefendant breached the contract by failing to perform or tender performance as the contract\n\nrequired; and (4) the plaintiff sustained damages as a result of the breach.\u201d USAA Tex. Lloyds Co,\n\n\n\n2 This statement suggests a veil-piercing or alter-ego theory to impose liability on Kane, but Plaintiff's\noperative complaint pleads no facts to support such a theory. See Casileberry v. Branscum, 721 S.W.2d\n270, 275 n.5 (Tex. 1986) (\u201cEach basis for disregarding the corporate fiction should be pleaded separately.\u201d);\nCapital Parks, Inc. v. Se. Advert. & Sales Sys., Inc., 30 F.3d 627, 630 (Sth Cir. 1994) (affirming dismissal\nof a veil-piercing theory on a Rule 12(b)(6) motion).\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 5 of 10 PageID 384\n\n\ny. Menchaca, 545 $.W.3d 479, 501 n.21 (Tex. 2018). To establish the existence of a valid contract,\n\nthe plaintiff must plead that \u201c(1).an offer was made; (2) the other party accepted in strict\n\ncompliance with the terms of the offer; (3) the parties had a meeting of the minds on the essential\n\nterms of the contract (mutual assent); (4) each party consented to those terms; and (5) the parties\n\nexecuted and delivered the contract with the intent that it be mutual and binding.\u201d /d. \u201cUnder Texas\n\nlaw, the elements of a contract, express or implied, are identical.\u201d Electrostim Med. Servs., Inc. v.\n\nHealth Care Serv. Corp., 614 F. App\u2019x 731, 744 (Sth Cir. 2015) (cleaned up). A meeting of the\n\nminds may be shown by the parties\u2019 \u201cconduct and course of dealing,\u201d and the \u201cessence\u201d of that\n\nelement is \u201cconsent to be bound.\u201d Oncor Elec. Delivery Co. NTU, LLC vy. Wilbarger Cnty.\n\nAppraisal Dist., 691 S.W.3d 890, 901 n.7 (Tex. 2024). A meeting of the minds requires that \u201c[a]il\n\nof the parties must assent to the same thing in the same sense at the same time, and their assent\n\nmust comprehend the proposition as a whole.\u201d Crowell vy. CIGNA Group Ins., 410 F. App\u2019x 788,\n\n792 (Sth Cir. 2011).\n\n Defendants argue that no contract exists between them and Plaintiff. Kane Mot. 8; Lipp\n\nMot. 8. Plaintiff responds that a string of emails and a signed escrow receipt establish that a binding\n\ncontract was formed, Combined Resp. 4-6. The emails reflect a conversation that included the\n\nfollowing senders and recipients: Nolan Schutze, owner of BHL Capital, see Pl.\u2019s Third Am.\n\nCompl. 4/8; Defendant Evan Lipp, owner of Kane Title, see id. | 13; Austin Deraaff and Jake\n\nDeraaff, owners of nonparty Hudson Valley Acquisitions3 LLC, see id. (12; Evan Mizrahi, an\n\nagent of Plaintiff, see id. 956; and \u201ccwaldorf@trinitygrovelaw.com,\u201d an address that Plaintiff\n\nalleges is associated with a fraudulent entity, id. (26 n.1.\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 6 of 10 PageID 385\n\n\n The emails are reproduced in the operative complaint; they are summarized as follows:\n\n Email 1: Schutze tells Lipp \u201cPer our conversation, BHL Capital LLC will be purchasing\n\nthe property\u201d and indicates that he \u201cwill be sending company documents shortly along with\n\ncontracts.\u201d Id, J 26. Schutze introduces the Deraaffs and Mizrahi as \u201cmy partners on the deal.\u201d /d.\n\n Email 2: Lipp thanks Schutze and says he is looking forward to working with him on the\n\ntransaction. Id. { 27.\n\n Email 3: Schutze asks Lipp to \u201creview this contract\u201d before he \u201csendfs]} it out for\n\nexecution.\u201d Jd. J 28. Schutze specifically asks for clarification of \u201cSection 12: Special Provisions\u201d\n\nto confirm that it means that \u201conce the feasibility period (45 days) is over that their money would\n\ngo hard and can replace our money in the front side contract.\u201d Jd. The operative complaint does\n\nnot quote from or attach the contract referred to in this email.\n\n Email 4: Lipp responds that \u201c{a]fter reviewing your attached draft contract,\u201d he would\n\ninterpret it as Schutze does. Jd. \u00a7 29.\n\n Email 5: Mizrahi asks Lipp \u201cCan you confirm that we would receive a wire of $3,000,000\n\nback on day 46 (of course assuming the buyer does not cancel)?\u201d Jd. { 30.\n\n Email 6: Lipp responds that the \u201cdraft contract [Schutze] sent was on the standard TAR \u2014\n\nCommercial Contract form.\u201d /d. 431. He explains that \u201c[t]he job or purpose of an escrow agent is\n\n... hot to interpret the contract, but rather to follow the instructions of the contract. In my opinion,\n\nI would agree with you and [Schutze] in that the $3,000,000 would be released once the feasibility\n\nperiod ends or if the contract were to cancel.\u201d Id,\n\n Plaintiff asserts that, based on that email conversation, \u201cPlaintiff, through Evan Mizrahi\n\neven confirmed that Plaintiff would be wiring funds to Defendants and that those funds were to be\n\nreturned to the plaintiff in the event the deal did not close, which Defendant Lipp confirmed.\u201d Jd.\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 7 of 10 PageID 386\n\n\n432. But that is not what the emails establish. The emails laid out in the complaint outline a\n\nconversation about how Schutze, Lipp, and Mizrahi understood a separate, written contract that\n\nwas apparently attached to one of the emails. Plaintiff does not allege any additional facts that,\n\ntogether with those emails, would establish an offer, acceptance, a meeting of the minds as to the\n\nterms of a contract, or a consent to be bound by a contract.\n\n Nothing in the emails suggests that Lipp intended to be bound to an agreement with\n\nPlaintiff. Plaintiff is nowhere mentioned in the emails, nor does Mizrahi identify himself as\n\nPlaintiff's agent. Schutze identifies Mizrahi only as a \u201cpartner[] on the deal.\u201d Id. [26. Even\n\nMizrahi\u2019s email address, evan@raven3.com, does not associate him with Plaintiff. Jd. Without any\n\nallegation that Lipp intended to agree to terms with Plaintiff, there can be no meeting of the minds.\n\nFurther, Lipp\u2019s statements in the last email show that he had no intent to bind himself or Kane\n\nTitle to any contract. See id. 31. Lipp disclaims any responsibility for interpreting the contract\n\ndiscussed in the email and then presents his opinion of its meaning. /d. That expression of opinion\n\ndoes not evince any intent to form a separate contract.\n\n Plaintiffs complaint relies on the text of the emails and includes no other allegations about\n\nLipp\u2019s conduct that would demonstrate a meeting of the minds or an intent to be bound. For that\n\nreason, Plaintiff fails to state a claim for breach of contract, and that claim must be dismissed.\n\n C. Breach of Fiduciary Duty\n\n The elements of a claim for breach of fiduciary duty are \u201c(1) the existence of a fiduciary\n\nduty, (2) breach of the duty, (3) causation, and (4) damages.\u201d First United Pentecostal Church of\n\nBeaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). The duties owed by an escrow holder are\n\nthe duty of loyalty, the duty of full disclosure, and the duty \u201cto exercise a high degree of care to\n\nconserve the money and pay it only to those persons entitled to receive it.\u201d Boozer v. Fischer,\n\fCase 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 8 of 10 PageID 387\n\n\n674 \u00a7.W.3d 314, 327 (Tex. 2023). Those duties arise even when a title company holds funds on\n\nbehalf of a purchaser in the absence of a formal escrow agreement. City of Fort Worth y. Pippen,\n\n439 S.W.2d 660, 665 (Tex. 1969).\n\n Plaintiff alleges that Defendants breached their fiduciary duties by releasing Plaintiff's\n\n$3 million to Schutze and BHL Capital without authorization. Pl.\u2019s Third Am. Compl. {ff 37, 68.\n\nDefendants argue that they owed no fiduciary duties because there was no written escrow\n\nagreement and because Plaintiff was neither a buyer nor a seller in the underlying transaction.\n\nKane Mot. 13; Lipp Mot. 11. Defendants are correct that Plaintiff has not pleaded the existence of\n\na written escrow agreement. See supra Part B. A written agreement, however, is not necessary to\n\nimpose fiduciary duties on a title company holding a purchaser\u2019s funds. Pippen, 439 S.W.2d at\n\n665. But Plaintiff does not allege that it was a purchaser or dispute Defendants\u2019 argument that it\n\nonly provided earnest money for a transaction to which it was not a party. In the absence of a\n\nformal relationship that gives rise to fiduciary duties as a matter of law, such as an escrow\n\nagreement, the court may only impose such duties in business transactions if a \u201cspecial relationship\n\nof trust and confidence . .. exist[s] prior to, and apart from, the agreement made the basis of the\n\nsuit.\u201d Meyer v. Cathey, 167 8.W.3d 327, 331 (Tex. 2005), Plaintiff alleges no facts to suggest the\n\nexistence of a special relationship between it and Lipp or Kane Title prior to the transaction that\n\ngave rise to this suit. In fact, the first email included in the complaint suggests that Mizrahi,\n\nPlaintiffs agent, had no relationship to Lipp before Schutze introduced them by email. P1.\u2019s Third\n\nAm. Compl. 26. Without more, Plaintiff's allegations do not establish that Lipp or Kane Title\n\nowed fiduciary duties to Plaintiff, so Plaintiff's claim for breach must be dismissed.\n\f Case 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 9 of 10 PageID 388\n\n\n D. Negligence\n\n \u201cThe elements of a negligence cause of action are the existence of a legal duty, a breach of\n\nthat duty, and damages proximately caused by the breach.\u201d Tenaris Bay City Inc. v. Ellisor,\n\n718 S.W.3d 193, 197 (Tex. 2025). \u201cProximate cause has two elements: (1) cause in fact, and\n\n(2) foreseeability.\u201d Jd.\n\n Plaintiff alleges that Defendants owed a duty as escrow holders and breached that duty by\n\nreleasing Plaintiff\u2019s funds to Schutze \u201cless than an hour after receiving the funds\u201d and \u201cwithout\n\nasking Mr. Mizrahi a single question.\u201d Pl.\u2019s Third Am. Compl. 4 82. Plaintiff alleges that it\n\nsuffered damage when Schutze then \u201cstole and converted those funds for his own personal use.\u201d\n\nId. 437. Plaintiff's allegations are insufficient to show that Lipp or Kane Title owed it duties as an\n\nescrow holder. See supra Part B. But regardless of any duty Defendants may have owed Plaintiff,\n\nPlaintiff's allegations are also insufficient to establish proximate cause. Plaintiff was harmed\n\nbecause Schutze allegedly deceived Plaintiff and stole Plaintiffs $3 million. Jd. \u00a7 93. Plaintiffdoes\n\nnot plead that Lipp or Kane Title were involved in the deception. The logical conclusion is that\n\nthey, too, were deceived by Schutze\u2019s scheme. In any event, nothing in the complaint suggests\n\nthat, when Schutze emailed Lipp and requested a refund of the funds, id. \u00a7 36, Defendants could\n\nreasonably foresee that complying with Schutze\u2019s request would lead to Schutze stealing the funds\n\nfrom people he had introduced as his \u201cpartners\u201d just the day before. Jd. \u00a7 26. Plaintiff's negligence\n\nclaim must therefore be dismissed.\n\n E. Promissory Estoppel\n\n \u201cThe requisites of promissory estoppel are: (1) a promise, (2) foreseeability of reliance\n\nthereon by the promisor, and (3) substantial reliance by the promisee to his detriment.\u201d English v.\n\nFischer, 660 S.W.2d 521, 524 (Tex. 1983). To support a claim for promissory estoppel, the\n\fCase 3:23-cv-02231-S Document 75 Filed 01/22/26 Page 10 of 10 PageID 389\n\n\npromise must be \u201cdesignedly made to influence the conduct of the promisee.\u201d Wheeler v. White,\n\n398 S.W.2d 93, 96 (Tex. 1965), Promissory estoppel allows the court to impose an equitable\n\nremedy when \u201cinjustice can be avoided only by enforcement of the promise.\u201d Trammell Crow Co.\n\nNo. 60 v, Harkinson, 944 8.W.2d 631, 636 (Tex. 1997). \u201cUnder Texas law, only reliance damages\n\nare recoverable for a promissory estoppel claim.\u201d Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d\n\n847, 865 (Sth Cir. 1999),\n\n Plaintiff alleges that the Defendants \u201cmade promises and assurances that they would hold\n\nPlaintiffs\u2019 [sic] funds in escrow and eventually return the funds to Plaintiff]].\u201d Pl.\u2019s Third Am.\n\nCompl. 785. Plaintiff does not specify whether the emails from Lipp contain those alleged\n\npromises or whether there were other communications by which Defendants made the alleged\n\npromises. If the former, Plaintiff's allegations fail as a matter of law because the emails contain no\n\npromises, only Lipp\u2019s opinion about the interpretation of a separate contract not at issue in this\n\ncase. If the latter, the allegations lack sufficient facts to establish that Plaintiff's reliance on them\n\nwas foreseeable. Plaintiff's claim for promissory estoppel must therefore be dismissed.\n\n IV. CONCLUSION\n\n For the foregoing reasons, the Court GRANTS Defendants David Kane\u2019s and Kane Title\n\nLLC\u2019s Second Amended Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)\n\n[ECF No. 62] and Defendant Evan Lipp\u2019s Third Amended Motion to Dismiss Pursuant to Federal\n\nRule of Civil Procedure 12(b)(6) [ECF No. 63]. This case is DISMISSED WITH PREJUDICE.\n\n SO ORDERED.\n\n SIGNED January 22, 2026.\n\n\n\n [pli\n be \u2014\u00a7$\u00a7\n KAREN GREN SCHOLER\n UNITED STATES DISTRICT JUDGE\n\n\n 10\n\f","ocr_status":2,"date_upload":"2026-02-06T01:46:01.877729-08:00","document_number":"75","attachment_number":null,"pacer_doc_id":"177018303728","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Memorandum Opinion and Order","acms_document_guid":""}],"date_created":"2026-01-23T06:10:08.043514-08:00","date_modified":"2026-04-07T02:29:26.388370-07:00","date_filed":"2026-01-22","time_filed":"07:55:38","entry_number":75,"recap_sequence_number":"2026-01-23.001","pacer_sequence_number":194,"description":" MEMORANDUM OPINION AND ORDER: The Court GRANTS Defendants David Kanes and Kane Title LLC's Second Amended Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF No. 62 ] and Defendant Evan Lipp's Third Amended Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF No. 63]. This case is DISMISSED WITH PREJUDICE. 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3:23-cv-02231-S Document 52 Filed 12/20/24 Page 1 of 3 PageID 244\n\n\n\n UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF TEXAS\n DALLAS DIVISION\n\n82 GLENWOOD AVE LLC, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7\nv. \u00a7\n \u00a7 CIV. A. NO. 3:23-cv-2231-S\nNOLAN SCHUTZE, BHL CAPITAL \u00a7\nLLC, DAVID KANE, EVAN LIPP, and \u00a7\nKANE TITLE LLC, \u00a7\n \u00a7\n Defendants. \u00a7\n\n DEFENDANT EVAN LIPP\u2019S REPLY TO RESPONSE TO AMENDED MOTION TO\n DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)\n\n Defendant Evan Lipp (\u201cLipp\u201d) files this Reply to Plaintiff\u2019s Response to Amended Motion\n\nto Dismiss [Dkt. 51] and would show the Court as follows:\n\n I. REPLY\n\n The claims against Lipp should be dismissed because they fall far short of the threshold\n\npleading requirement set forth by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009).\n\nAccording to Plaintiff\u2019s own Amended Complaint, any and all actions taken by Lipp were done in\n\nhis capacity as employee or escrow officer of Kane Title, LLC (\u201cKane Title\u201d) in the course and\n\nscope of his employment. At no time did Lipp act in his individual capacity. Therefore, there is no\n\nbasis to sue Lipp individually, as Plaintiff has done.\n\n Plaintiff incorrectly states that Evan Lipp received $75,000.00 from Plaintiff for acting as\n\nan escrow agent. This is simply not true. Evan Lipp did not receive anything for acting as an escrow\n\nagent for Kane Title. However, Kane Title did receive $75,000.00 from Plaintiff. Evan Lipp did\n\nnot receive anything.\n\n In Plaintiff\u2019s Second Amended Complaint [Dkt 19, pg. 3, para 20] (\u201cComplaint\u201d), Plaintiff\n\n\nDefendant Evan Lipp\u2019s Reply to Response to Amended Motion to\nDismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 1 of 3\n\fCase 3:23-cv-02231-S Document 52 Filed 12/20/24 Page 2 of 3 PageID 245\n\n\n\npleads the following: \u201cDefendant Evan Lipp, an escrow agent at Defendant Kane Title LLC.\u201d In\n\nPlaintiff\u2019s own pleadings it states that Evan Lipp was acting as an escrow officer and employee of\n\nKane Title. Therefore, Lipp cannot and should not be sued personally in his individual capacity.\n\n Further, Defendants Schutze and BHL Capital LLC agree to a judgment [Dkt. 23] in the\n\namount of $5,000,000.00, essentially admitting to they received and were responsible for the stolen\n\nmoney, not Lipp. Lipp received nothing.\n\n All emails cited and relied on by Plaintiff in Plaintiff\u2019s Complaint are emails from Lipp\u2019s\n\nemail account with Kane Title, evan@kanetitlellc.com. Any and all actions made by Lipp were\n\nmade in his capacity as an employee and escrow officer of Kane Title.\n\n Glenwood makes multiple allegations against Nolan Schutze and his company BHL\n\nCapital LLC (\u201cBHL\u201d) centered on Schutze\u2019s alleged fraudulent and deceptive material\n\nmisrepresentations that \u201ctricked Plaintiff into wiring $3,000,000.00 to the Kane Defendants\u201d to\n\nconsummate a real estate transaction. 1\n\n The four claims against Lipp are quite different. Glenwood does not assert that Lipp was\n\ninvolved in Schutze\u2019s alleged fraud. Just the opposite\u2014Glenwood alleges that Lipp was, like\n\nGlenwood, victims of Schutze\u2019s fraud. The Amended Complaint alleges that Schutze \u201ccontacted\n\n[] the Kane Defendants to tell them that the [deal], which Schutze knew never existed, was dead\u201d\n\nand \u201ctricked the Kane Defendants into releasing Plaintiff\u2019s funds to Schutze.\u201d 2 Then Schutze and\n\nBHL agreed to a judgment in this lawsuit. Basically acknowledging that they were responsible for\n\nthe theft of Plaintiff\u2019s money.\n\n In short, Glenwood has failed to plead facts sufficient to support an inference that Lipp owed\n\nany duty to Glenwood or that Lipp was acting in his individual capacity. Accordingly, the Court\n\n\n1\n Second Amended Complaint [Dkt 19], \u00b6\u00b6 84, 89 (emphasis added).\n2\n Id., \u00b6 94(c) and (d) (emphasis added).\n\nDefendant Evan Lipp\u2019s Reply to Response to Amended Motion to\nDismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 2 of 3\n\fCase 3:23-cv-02231-S Document 52 Filed 12/20/24 Page 3 of 3 PageID 246\n\n\n\nshould dismiss Glenwood\u2019s claims against Lipp.\n\n II. CONCLUSION\n\n For at least the foregoing reasons, Evan Lipp requests that the Court dismiss Glenwood\u2019s\n\nclaims against Evan Lipp for breach of contract/implied contract, breach of fiduciary duty,\n\nnegligence, promissory estoppel and statutory fraud (Counts 1-4 and 7).\n\nDATED: December 20, 2024.\n Respectfully submitted,\n\n SHIELDS LEGAL GROUP\n A Professional Corporation\n\n By: /s/ R. Brian Shields\n R. Brian Shields\n State Bar No. 24056310\n bshields@shieldslegal.com\n\n 16400 Dallas Parkway, Suite 300\n Dallas, Texas 75248\n Tel: (972) 788-2040\n Fax: (972) 692-7638\n\n ATTORNEYS FOR DEFENDANTS\n LIPP AND KANE TITLE\n\n CERTIFICATE OF SERVICE\n\n The undersigned hereby certifies that on December 20, 2024, all counsel of record were\nserved with a copy of this document via the Court\u2019s electronic filing system.\n\n By: /s/ R. Brian Shields\n R. Brian Shields\n\n\n\n\nDefendant Evan Lipp\u2019s Reply to Response to Amended Motion to\nDismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 3 of 3\n\f","ocr_status":2,"date_upload":"2024-12-25T06:32:02.015558-08:00","document_number":"52","attachment_number":null,"pacer_doc_id":"177017348711","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.595005-08:00","date_modified":"2024-12-25T06:31:57.599112-08:00","date_filed":"2024-12-20","time_filed":null,"entry_number":52,"recap_sequence_number":"2024-12-20.001","pacer_sequence_number":137,"description":"REPLY filed by Evan Lipp re: 49 Amended MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Shields, Robert) (Entered: 12/20/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411971225/","id":411971225,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67864152/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425204207/","id":425204207,"tags":[],"absolute_url":"/docket/67864152/51/82-glenwood-avenue-llc-v-schutze/","date_created":"2024-12-25T06:31:57.573929-08:00","date_modified":"2024-12-25T06:31:57.583959-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"51","attachment_number":null,"pacer_doc_id":"177017312498","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.557615-08:00","date_modified":"2024-12-25T06:31:57.561502-08:00","date_filed":"2024-12-06","time_filed":null,"entry_number":51,"recap_sequence_number":"2024-12-06.001","pacer_sequence_number":134,"description":"RESPONSE filed by 82 Glenwood Avenue LLC re: 49 Amended MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Radner, Solomon) (Entered: 12/06/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411971224/","id":411971224,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67864152/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425204206/","id":425204206,"tags":[],"absolute_url":"/docket/67864152/50/82-glenwood-avenue-llc-v-schutze/","date_created":"2024-12-25T06:31:57.539855-08:00","date_modified":"2024-12-25T06:31:57.547963-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"50","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.523453-08:00","date_modified":"2024-12-25T06:31:57.527499-08:00","date_filed":"2024-11-18","time_filed":null,"entry_number":50,"recap_sequence_number":"2024-11-18.001","pacer_sequence_number":null,"description":"ELECTRONIC ORDER: As a result of 49 Defendant Evan Lipp's Amended Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court TERMINATES AS MOOT 47 Defendant Evan Lipp's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). (Ordered by Judge Karen Gren Scholer on 11/18/2024) (chmb) (Entered: 11/18/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411971223/","id":411971223,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67864152/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425204205/","id":425204205,"tags":[],"absolute_url":"/docket/67864152/49/82-glenwood-avenue-llc-v-schutze/","date_created":"2024-12-25T06:31:57.504974-08:00","date_modified":"2024-12-26T02:04:39.441482-08:00","sha1":"943d4bf12ad8aebdc9b46572136da09c9335709d","page_count":12,"file_size":278018,"filepath_local":"recap/gov.uscourts.txnd.382032/gov.uscourts.txnd.382032.49.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.txnd.382032/gov.uscourts.txnd.382032.49.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 1 of 12 PageID 221\n\n\n\n UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF TEXAS\n DALLAS DIVISION\n\n82 GLENWOOD AVE LLC, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7\nv. \u00a7\n \u00a7 CIV. A. NO. 3:23-cv-2231-S\nNOLAN SCHUTZE, BHL CAPITAL \u00a7\nLLC, DAVID KANE, EVAN LIPP, and \u00a7\nKANE TITLE LLC, \u00a7\n \u00a7\n Defendants. \u00a7\n\n DEFENDANT EVAN LIPP\u2019S AMENDED MOTION TO DISMISS\n PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)\n\n Defendant Evan Lipp (\u201cLipp\u201d) moves pursuant to Rule 12(b)(6) of the Federal Rules of\n\nCivil Procedure to dismiss the claims of Plaintiff 82 Glenwood Ave LLC\u2019s (\u201cGlenwood\u201d) Second\n\nAmended Complaint (\u201cAmended Complaint\u201d) [Dkt. 19].\n\n I. INTRODUCTION\n\n The claims against Lipp should be dismissed because they fall far short of the threshold\n\npleading requirement set forth by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009).\n\nAccording to Plaintiff\u2019s own Amended Complaint, any and all actions taken by Lipp were done in\n\nhis capacity as employee or escrow officer of Kane Title, LLC (\u201cKane Title\u201d) in the course and\n\nscope of his employment. At no time did Lipp act in his individual capacity. Therefore, there is no\n\nbasis to sue Lipp individually, as Plaintiff has done.\n\n Glenwood makes multiple allegations against Nolan Schutze and his company BHL\n\nCapital LLC (\u201cBHL\u201d) centered on Schutze\u2019s alleged fraudulent and deceptive material\n\nmisrepresentations that \u201ctricked Plaintiff into wiring $3,000,000.00 to the Kane Defendants\u201d to\n\n\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 1 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 2 of 12 PageID 222\n\n\n\nconsummate a real estate transaction. 1 For these alleged acts, Glenwood has sued Schutze and\n\nBHL for breach of contract/implied contract, common law fraud, statutory fraud, and deceptive\n\ntrade practices. 2\n\n The four claims against Lipp are quite different. Glenwood does not assert that Lipp was\n\ninvolved in Schutze\u2019s alleged fraud. Just the opposite\u2014Glenwood alleges that Lipp was, like\n\nGlenwood, victims of Schutze\u2019s fraud. The Amended Complaint alleges that Schutze \u201ccontacted\n\n[] the Kane Defendants to tell them that the [deal], which Schutze knew never existed, was dead\u201d\n\nand \u201ctricked the Kane Defendants into releasing Plaintiff\u2019s funds to Schutze.\u201d 3 Nonetheless,\n\nGlenwood asserts that Lipp somehow failed to keep a promise or breached an alleged contract that\n\ndoes not exist and that is not signed, or agreed to, by Lipp, Kane and/or Kane Title, Glenwood, or\n\nSchutze, but was purportedly created via emails between Schutze and a Kane Title escrow officer\n\nnamed Evan Lipp. On that same alleged basis, Glenwood claims Lipp, Kane and Kane Title also\n\nbreached fiduciary duties owed to Glenwood, were negligent, and are also responsible for\n\nPlaintiff\u2019s damages via a claim based on promissory estoppel. 4\n\n In its failed effort to allege these four 5 claims against Lipp, Glenwood makes multiple\n\ncollective pleading references to the \u201cKane Defendants,\u201d 6 which do not satisfy the federal pleading\n\nstandard. In fact, Glenwood does not make a single factual allegation specific to Lipp, yet\n\nGlenwood included him as an individual defendant. Beyond these procedural deficiencies, all of\n\n\n\n1\n Second Amended Complaint [Dkt 19], \u00b6\u00b6 84, 89 (emphasis added).\n2\n Id., \u00b6\u00b6 79-95.\n3\n Id., \u00b6 94(c) and (d) (emphasis added).\n4\n Id., \u00b6\u00b6 45-78.\n5\n Plaintiff\u2019s Count 7 (Id., \u00b6\u00b6 87-91) \u201cStatutory Fraud\u201d states in its caption that it is alleged \u201c(Against All Defendants)\u201d\nbut makes no allegations in Count 7 or anywhere else in its Amended Complaint that Kane or Kane Title committed\nfraud against Plaintiff. Therefore, it is assumed that Count 7\u2019s caption indicating that its claim for fraud is also against\nKane and Kane Title is a typographical error.\n6\n \u201cKane Defendants\u201d include \u201cDavid Kane and Evan Lipp and Kane Title LLC.\u201d Second Amended Complaint [Dkt.\n19, \u00b6 18.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 2 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 3 of 12 PageID 223\n\n\n\nGlenwood\u2019s claims against Lipp also fail as a matter of law:\n\n \u2022 Glenwood\u2019s breach of contract claims (Count 1) fail because no contract exists.\n Glenwood has not pled that a written escrow agreement exists between Glenwood and Lipp\n or Kane or Kane Title for the simple reason that no such contract exists. And the emails\n between Schutze and Lipp that Glenwood relies on do not create a contract between Lipp,\n Kane, Kane Title, and Glenwood.\n\n \u2022 Glenwood\u2019s breach of fiduciary duties claims (Count 2) fail because there is no\n fiduciary relationship between Kane or Kane Title as a purported escrow agent to\n Glenwood. And because Glenwood does not plead facts sufficient to show that it had a\n relationship of trust and confidence with Lipp prior to the business relationship, there is also\n no informal fiduciary relationship at issue.\n\n \u2022 Glenwood\u2019s negligence claims (Count 3) fail because neither Kane nor Kane Title\n owed any duty of care to Glenwood. Lipp, individually, never owed a duty to Glenwood\n because there is no escrow agreement between them, and because Glenwood was neither the\n buyer nor the seller in the underlying real estate transaction. Instead, Glenwood provided\n earnest money to the buyer under an alleged ancillary agreement to which Lipp,\n individually, was not a party to and which does not impose any duties or obligations on\n Lipp.\n\n \u2022 Glenwood\u2019s promissory estoppel claim (Count 4) fails because neither Kane nor\n Kane Title made a promise to Glenwood. Lipp never made a promise of any kind to\n Glenwood. Kane Title\u2019s escrow officer, Evan Lipp, described in emails the circumstances\n under which the buyer \u2013 BHL Capital, LLC\u2019s \u2013 escrowed funds would be released; not to\n what specific account number the money would be wired or at whose direction. Lipp never\n promised that Glenwood would not or could not be duped or tricked by Schutze.\n\n Accepted as true for the purpose of this Motion, the allegations against Lipp fail to state a\n\nclaim pursuant to Rule 12(b)(6) and thus Glenwood\u2019s Counts 1-4 against Lipp, individually, should\n\nbe dismissed.\n\n II. FACTUAL BACKGROUND\n\n According to Glenwood, BHL entered into an agreement with WC 6th & Rio Grande LP\n\nto purchase property in Austin, Texas (\u201cSubject Property\u201d). 7 Glenwood was not a party to the\n\nagreement. 8 Nor was Lipp or Kane Title. 9 Instead, Glenwood was a party to an operating\n\n\n7\n Second Amended Complaint [Dkt. 19], \u00b6\u00b6 6-8, 19.\n8\n Id. \u00b66-8, 19.\n9\n Id.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 3 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 4 of 12 PageID 224\n\n\n\nagreement for 601 Rio LLC, in partnership with BHL. 10 According to Glenwood, as part of that\n\noperating agreement with BHL, Glenwood agreed to provide $3,000,000 in earnest money to\n\nfinance the downpayment for the purchase of the Subject Property. 11 Lipp, individually, was not a\n\nparty to that agreement either. 12\n\n Nonetheless, according to the Amended Complaint, on February 13, 2023, Schutze, owner\n\nof BHL, emailed Lipp, an escrow officer at Kane Title, regarding the potential purchase of the\n\nSubject Property. 13 The next day, Schutze sent Lipp a Texas Association of Realtors form property\n\npurchase agreement for the Subject Property and asked Lipp for his opinion on a provision\n\nregarding the release of a $3,000,000 downpayment. 14 Lipp responded that he agreed with\n\nSchutze\u2019s interpretation of the provision that the downpayment \u201cwould be released once the\n\nfeasibility period ends or if the contract were to cancel.\u201d 15\n\n Glenwood asserts that it then wired $3,000,000 to Kane Title \u201cin reasonable reliance based\n\non the assurances contained in these emails.\u201d 16 But these emails contain no \u201cassurances.\u201d 17 Lipp\n\nexplained to Schutze and his partners at Glenwood, \u201cThe job or purpose of an escrow agent is to\n\nact as a neutral third party and not interpret the contract, but rather to follow the instructions of the\n\ncontract.\u201d 18 But, even according to Glenwood\u2019s allegations, neither Lipp, Kane nor Kane Title\n\nwere parties to any contract or even knew that any contract existed. 19\n\n After receiving an email from Schutze that the real estate purchase fell through, Schutze instructed\n\n\n\n\n10\n Id., \u00b6\u00b6 23-24.\n11\n Id., \u00b625.\n12\n Id.\n13\n Id., \u00b626.\n14\n Id., \u00b6\u00b6 28-29.\n15\n Id., \u00b6 31.\n16\n Id., \u00b6 33.\n17\n Id., \u00b6\u00b6 26-31.\n18\n Id., \u00b6 31.\n19\n Id., \u00b6\u00b6 26-31.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 4 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 5 of 12 PageID 225\n\n\nLipp, as an escrow agent of Kane Title, to return the funds to an account number provided by Schutze,\n\nwhich Lipp purportedly did after being instructed to by Kane Title. 20 When Glenwood later requested the\n\nfunds be returned to it, Glenwood was informed that the funds were earlier wired to its business partner\n\nBHL and its owner, Schutze. 21 Because Glenwood was unable to obtain the funds from BHL and Schutze\n\nvoluntarily, it filed a lawsuit in the U.S. District Court for the Southern District of New York. 22 According\n\nto the Amended Complaint, Glenwood purportedly \u201cresolved its claim with Schutze and BHL by way of\n\nsettlement agreement, but Schutze and BHL have since breached that agreement as well.\u201d 23 Glenwood\n\nsubsequently dismissed the New York lawsuit and filed this one.\n\n III. ARGUMENT\n\n A. Pleading Standard\n\n \u201cTo survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted\n\nas true, to state a claim to relief that is plausible on its face.\u201d Iqbal, 556 U.S. at 678. \u201cA claim has\n\nfacial plausibility when the plaintiff pleads factual content that allows the court to draw the\n\nreasonable inference that the defendant is liable for the misconduct alleged.\u201d Id. In ruling on a\n\nmotion to dismiss, the court accepts as true a complaint\u2019s factual allegations, but \u201cshould identify\n\nand disregard conclusory allegations, for they are \u2018not entitled to the assumption of truth.\u2019\u201d Sec. &\n\nExch. Comm\u2019n v. Mapp, 4:16-CV-246, 2016 WL 5870576, at *3 (E.D. Tex. Oct. 7, 2016)\n\n(quoting Iqbal, 556 U.S. at 679).\n\n A. Glenwood\u2019s Claims Against Kane Should be Dismissed Because the Amended\n Complaint Fails to Plead Any Facts Whatsoever Related to Kane.\n\n As an initial matter, Glenwood\u2019s claims against Lipp must be dismissed because Glenwood\n\ndoes not allege any facts of any kind related to Lipp acting in his individual capacity. Only as an\n\n\n\n20\n Id., \u00b6\u00b6 34-35.\n21\n Id., \u00b6 41.\n22\n Id., \u00b6 40.\n23\n Id., \u00b6\u00b6 42-44.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 5 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 6 of 12 PageID 226\n\n\n\nescrow officer of Kane Title. The Amended Complaint is completely devoid of any factual\n\nallegations or related misconduct by Lipp individually. All actions by Lipp alleged in the Amended\n\nComplaint are actions done by Lipp as an escrow officer of Kane Title. This falls far short of the\n\nrequirement that the complaint \u201cgive the defendant fair notice of what the claim is and the grounds\n\nupon which it rests.\u201d Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing FED. R. CIV. P.\n\n8(a)(2)).\n\n Further, reference by a plaintiff to defendants collectively in a complaint fails to satisfy the\n\npleading standards of Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.\n\n1999); see also Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir. 2015) (\u201cWhen the plaintiff\u2019s\n\ncomplaint uses blanket terms covering all the defendants, by lumping them together . . ., these\n\nallegations are properly disregarded[.]\u201d); Del Castillo v. PMI Holdings N. Am. Inc., No. 4:14- CV-\n\n3435, 2015 WL 3833447, at *6 (S.D. Tex. June 22, 2015) (\u201cA complaint does not satisfy the\n\nrequirements of Iqbal and Twombly by lumping together all defendants, while providing no factual\n\nbasis to distinguish their conduct.\u201d); In re Parkcentral Glob. Litig., 884 F. Supp. 2d 464, 471 (N.D.\n\nTex. 2012) (\u201cIt is impermissible to make general allegations that lump all defendants together;\n\nrather, the complaint must segregate the alleged wrongdoing of one from another.\u201d).\n\n Because the Amended Complaint fails to plead any facts or allegations related to Lipp\n\nindividually, the claims against Lipp should be dismissed. See FED. R. CIV. P. 8(a)(2); Twombly,\n\n550 U.S. at 555.\n\n B. Glenwood\u2019s Breach of Contract/Implied Contract (Count 1) and Promissory\n Estoppel (Count 4) Allegations are Legally Insufficient as a Matter of Fact and\n Law.\n\n Glenwood\u2019s breach of contract/implied contract claims fail because there is no contractual\n\nrelationship between Glenwood and Kane, Kane Title or Lipp individually. No escrow agreement\n\never existed, and the Amended Complaint does not allege there was one (or any other form of\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 6 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 7 of 12 PageID 227\n\n\n\nwritten agreement).\n\n To avoid dismissal of its contract claims, Glenwood must plead each of the following\n\nelements: \u201c(1) the existence of a valid contract; (2) the plaintiff performed or tendered performance\n\nas the contract required; (3) the defendant breached the contract by failing to perform or tender\n\nperformance as the contract required; and (4) the plaintiff sustained damages as a result of the\n\nbreach.\u201d USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018). To prove\n\nthe first element (that a valid contract exists), Glenwood must plead facts sufficient to establish\n\nthat \u201c(1) an offer was made; (2) the other party accepted in strict compliance with the terms of the\n\noffer; (3) the parties had a meeting of the minds on the essential terms of the contract (mutual\n\nassent); (4) each party consented to those terms; and (5) the parties executed and delivered the\n\ncontract with the intent that it be mutual and binding.\u201d Id. Glenwood has not done so because it\n\ncannot do so.\n\n It is undisputed that no written escrow agreement exists between Glenwood and Kane,\n\nKane Title or Lipp individually. This alone is fatal to Glenwood\u2019s breach of contract claim.\n\nSee JTREO, Inc. v. Hightower & Associates, Inc., No. 03-19-00255-CV, 2020 WL 3468148, at *2\n\n(Tex. App.\u2014Austin June 18, 2020, pet. denied) (holding that a party was \u201cnot properly appointed\n\nescrow agent as a matter of law\u201d where \u201cthere was no written escrow agreement\u201d); see also Trahan\n\nv. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 287 (Tex. App.\u2014El Paso 2007, pet. denied)\n\n(\u201cAn escrow agent must be appointed through a specific legal document that imparts a specific\n\nlegal obligation\u201d).\n\n Because no written escrow agreement exists, Glenwood asserts that an \u201cimplied contract\u201d\n\nwas created through emails exchanged between Glenwood, Schutze, and Lipp. 24 While an implied\n\n\n\n24\n Amended Complaint [Dkt. 19], \u00b6\u00b6 45, 49-51.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 7 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 8 of 12 PageID 228\n\n\n\ncontract may arise from the acts and conduct of the parties, there still must be a meeting of the\n\nminds. JTREO, 2020 WL 3468148, at *4. Here, the Amended Complaint makes the conclusory\n\nallegation that \u201c[t]here existed a meeting of minds, proven by the herein copied emails,\n\ndocumenting under what terms the plaintiff would wire funds to the Kane defendants [sic],\u201d and\n\n\u201c[t]hat meeting of minds constituted an agreement among the parties that Plaintiff would wire the\n\nfunds to the Kane Defendants, who would hold the funds and eventually return them to Plaintiff \u2013\n\nnot to Schutze or BHL.\u201d 25 But Glenwood pleads no facts to support any alleged meeting of the\n\nminds, and the emails included in the Amended Complaint do not reference\u2014let alone cement\u2014\n\nany terms for receiving, holding, or returning any of the disputed funds. 26 And there is no\n\nallegation of any communication between Glenwood and Lipp in his individual capacity in the\n\nAmended Complaint.\n\n In sum, Glenwood has failed to plead facts sufficient to support an inference that a valid\n\ncontract exists between Glenwood, on the one hand, and Lipp, Kane and/or Kane Title, on the\n\nother hand. Glenwood has failed to do so, because it admittedly cannot do so, because no such\n\ncontract exists. Accordingly, the Court should dismiss Glenwood\u2019s claims for breach of\n\ncontract/implied contract against Lipp.\n\n Similarly, Glenwood\u2019s claim against Lipp based on promissory estoppel fail as a matter of\n\nlaw because Lipp never made any promise to Glenwood. To avoid dismissal of a claim for damages\n\nbased on promissory estoppel, a party must plead facts that if taken as true show (1) a promise, (2)\n\nforeseeability by the promisor of reliance on the promise, and (3) substantial reliance by the\n\npromisee to his detriment. Walker v. Walker, 631 S.W.3d 259, 264 (Tex. App. 2020). Again,\n\nGlenwood does not and cannot plead that Lipp, in his individual capacity, made a promise to\n\n\n25\n Amended Complaint [Dkt. 19], \u00b6\u00b6 45, 46.\n26\n See generally id., \u00b6\u00b6 26-31.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 8 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 9 of 12 PageID 229\n\n\n\nGlenwood.\n\n Nowhere in Plaintiff\u2019s allegations does Plaintiff allege facts showing that Defendant Lipp\n\nmade any promise to Plaintiff, much less that Kane or Kane Tile did so. As a result, Glenwood\u2019s\n\nclaim against Lipp for promissory estoppel must be dismissed.\n\n C. Glenwood\u2019s Breach of Fiduciary Duty (Count 2) and Negligence (Count 3)\n Allegations are Legally Insufficient as a Matter of Fact and Law.\n\n Glenwood\u2019s breach of fiduciary duty and negligence claims fail for many of the same\n\nreasons as its contract claims. No escrow agreement exists that creates or defines any purportedly\n\nowed duties; 27 nor has Glenwood adequately alleged that Lipp owed any duties as a result of a\n\nformal or informal fiduciary relationship with Glenwood. 28\n\n Under Texas law, the appointment of an escrow agent requires a written contract or, at the\n\nvery least, a clear and definite agreement defining the scope of the escrow agent\u2019s duties. See\n\nTrahan, 247 S.W.3d at 287 (\u201can escrow agent\u2019s [fiduciary] duties are strictly limited and the scope\n\nof the agent\u2019s duties are defined by the escrow agreement\u201d). Because Glenwood had no written\n\nagreement with Lipp, Kane or Kane Title, Lipp did not owe any fiduciary or other duties to\n\nGlenwood, as a matter of law. See Chapman Children\u2019s Tr. v. Porter & Hedges, L.L.P., 32 S.W.3d\n\n429, 438 (Tex. App.\u2014Houston [14th Dist.] 2000, pet. denied) (\u201cAbsent a written agreement which\n\nappointed [defendant] as an escrow agent, [defendant] had no duty to act as one.\u201d); see also JTREO,\n\n2020 WL 3468148, at *2 (\u201cBecause [defendant] was not a duly appointed escrow agent, it did not\n\nowe [plaintiff] any fiduciary duties as an escrow agent\u201d).\n\nBecause there is indisputably no formal fiduciary relationship, Glenwood asserts that an \u201cinformal\n\nfiduciary relationship\u201d was created because the \u201cKane Defendants through their emails and\n\n\n\n27\n Id., \u00b6\u00b6 31-33.\n28\n See generally Amended Complaint [Dkt. 19], \u00b6\u00b6 26-31.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 9 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 10 of 12 PageID 230\n\n\n\nassurances, acquired and subsequently abused and betrayed, the trust of Plaintiff.\u201d 29 But this\n\nconclusory allegation also fails under Rule 8. See Iqbal, 556 U.S. at 678 (although Rule 8(a) does\n\nnot require detailed factual allegations, \u201cit demands more than an unadorned, the-defendant-\n\nunlawfully-harmed-me accusation\u201d). The allegation is also contrary to Glenwood\u2019s pleaded facts\n\nas the Amended Complaint fails to provide a single instance of Lipp, or anyone else providing any\n\n\u201cemails or assurances\u201d to Glenwood at any time. 30\n\n Further, Glenwood fails to plead that it had a relationship with Lipp prior to the real estate\n\ntransaction, a prerequisite to establishing an informal fiduciary duty. See Willis v. Donnelly, 199\n\nS.W.3d 262, 277 (Tex. 2006) (holding that an informal fiduciary relationship in a business\n\ntransaction requires that \u201cthe relationship must exist prior to, and apart from the agreement made\n\nthe basis of the suit\u201d) (internal quotation omitted); Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.\n\n2005) (\u201cTo impose an informal fiduciary duty in a business transaction, the special relationship of\n\ntrust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.\u201d)\n\n(quoting Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287 (Tex. 1998)).\n\n Even if Lipp owed a duty as an escrow agent (he did not), the duties would only be owed\n\nto the buyer or the seller in the underlying real estate contract, which Lipp is not a party to and\n\nwould not transfer to Lipp in his individual capacity. Glenwood was neither the buyer nor the\n\nseller in the underlying real estate transaction. Instead, Glenwood allegedly had an ancillary\n\nagreement with BHL to provide earnest money for the real estate transaction that was independent\n\nof the contract between the buyer and seller. This ancillary agreement could not and did not create\n\nany duties owed from Lipp to Glenwood. See Rove v. First Am. Title Ins. Co., No. 05-96-01783-\n\nCV, 1998 WL 696880, at *4 (Tex. App.\u2014 Dallas Oct. 8, 1998, no pet.) (finding no fiduciary duties\n\n\n29\n Amended Complaint [Dkt. 19], \u00b6 58.\n30\n See Amended Complaint [Dkt. 19], \u00b6\u00b6 26-38.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 10 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 11 of 12 PageID 231\n\n\n\nowed to an entity that was a party to an ancillary agreement with the buyer of an apartment complex\n\nto provide the earnest money); see also Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 873\n\n(Tex. App.\u2014Houston [14th Dist.] 2017, no pet.) (no duty owed to party that deposited funds in an\n\nescrow account where that party was not a party or third-party beneficiary of the escrow\n\nagreement).\n\n In short, Glenwood has failed to plead facts sufficient to support an inference that Lipp owed\n\nany duty to Glenwood. Accordingly, the Court should dismiss Glenwood\u2019s claims for breach of\n\nfiduciary duty and negligence.\n\n IV. CONCLUSION\n\n For at least the foregoing reasons, Evan Lipp requests that the Court dismiss Glenwood\u2019s\n\nclaims against Evan Lipp for breach of contract/implied contract, breach of fiduciary duty,\n\nnegligence and promissory estoppel (Counts 1-4). 31\n\nDATED: November 15, 2024. Respectfully submitted,\n\n SHIELDS LEGAL GROUP\n A Professional Corporation\n\n By: /s/ R. Brian Shields\n R. Brian Shields\n State Bar No. 24056310\n bshields@shieldslegal.com\n 16400 Dallas Parkway, Suite 300\n Dallas, Texas 75248\n Tel: (972) 788-2040\n Fax: (972) 692-7638\n\n ATTORNEYS FOR DEFENDANTS\n LIPP AND KANE TITLE\n\n31\n Glenwood\u2019s statutory fraud claims (Count 7) assert that they are \u201cAgainst All Defendants.\u201d The allegations are that\nthe \u201cSchutze Defendants tricked Plaintiff into wiring $3,000,000.00 to the Kane Defendants\u201d and that the \u201cSchutze\nDefendants made such misrepresentations with the intent that the plaintiff act on it, and the plaintiff did in fact rely\non it when wiring $3,000,000.00 to the Kane Defendants.\u201d Amended Complaint [Dkt. 19], \u00b6\u00b6 81-83. The allegations\ntrack Glenwood\u2019s other fraud claims against Schutze and BHL that are not asserted against Kane and Kane Title. To\nthe extent Glenwood asserts that Count 7 is against Kane or Kane Title, Count 7 fails to satisfy the threshold pleading\nrequirement and should be dismissed.\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 11 of 12\n\fCase 3:23-cv-02231-S Document 49 Filed 11/15/24 Page 12 of 12 PageID 232\n\n\n\n\n CERTIFICATE OF SERVICE\n\n The undersigned hereby certifies that on November 15, 2024, all counsel of record were\nserved with a copy of this document via the Court\u2019s electronic filing system.\n\n By: /s/ R. Brian Shields\n R. Brian Shields\n\n\n\n\nDefendant Evan Lipp\u2019s Amended Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Page 12 of 12\n\f","ocr_status":2,"date_upload":"2024-12-25T06:32:02.474427-08:00","document_number":"49","attachment_number":null,"pacer_doc_id":"177017271620","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.489180-08:00","date_modified":"2024-12-25T06:31:57.493084-08:00","date_filed":"2024-11-15","time_filed":null,"entry_number":49,"recap_sequence_number":"2024-11-15.001","pacer_sequence_number":129,"description":"Amended MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Evan Lipp with Brief/Memorandum in Support. Attorney Robert Brian Shields added to party Evan Lipp(pty:dft) (Shields, Robert) (Entered: 11/15/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411971222/","id":411971222,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67864152/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425204204/","id":425204204,"tags":[],"absolute_url":"/docket/67864152/48/82-glenwood-avenue-llc-v-schutze/","date_created":"2024-12-25T06:31:57.468575-08:00","date_modified":"2024-12-25T06:31:57.478412-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"48","attachment_number":null,"pacer_doc_id":"177017242700","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.452120-08:00","date_modified":"2024-12-25T06:31:57.456615-08:00","date_filed":"2024-11-04","time_filed":null,"entry_number":48,"recap_sequence_number":"2024-11-04.001","pacer_sequence_number":126,"description":"RESPONSE filed by 82 Glenwood Avenue LLC re: 47 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Radner, Solomon) (Entered: 11/04/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/411971221/","id":411971221,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67864152/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/425204203/","id":425204203,"tags":[],"absolute_url":"/docket/67864152/47/82-glenwood-avenue-llc-v-schutze/","date_created":"2024-12-25T06:31:57.433087-08:00","date_modified":"2024-12-25T06:31:57.442250-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"47","attachment_number":null,"pacer_doc_id":"177017208757","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-25T06:31:57.416478-08:00","date_modified":"2024-12-25T06:31:57.420464-08:00","date_filed":"2024-10-18","time_filed":null,"entry_number":47,"recap_sequence_number":"2024-10-18.001","pacer_sequence_number":123,"description":"MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Evan Lipp with Brief/Memorandum in Support. 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(Filer confirms contact info in ECF is current.) (Donohue, Michael) Modified event text on 10/9/2024 (kcr). 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