Case: 19-11050        Document: 00515523457             Page: 1      Date Filed: 08/11/2020




             United States Court of Appeals
                  for the Fifth Circuit                                          United States Court of Appeals
                                                                                          Fifth Circuit

                                                                                        FILED
                                                                                  August 11, 2020
                                     No. 19-11050
                                                                                   Lyle W. Cayce
                                                                                        Clerk
 In the Matter of: Connect Transport, L.L.C.

                                                                                 Debtor,

 BBX Operating, L.L.C.,

                                                                              Appellant,

                                          versus

 Bank of America, N.A.,

                                                                                Appellee.



                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:17-CV-3219


 Before Smith, Graves, and Ho, Circuit Judges.
 Per Curiam:*




         *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
 not be published and is not precedent except under the limited circumstances set forth in
 5TH CIR. R. 47.5.4.
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        BBX Operating, L.L.C., appeals a bankruptcy court’s decision,
 affirmed by the district court, dismissing its claims against Bank of America,
 N.A., for failure to state a claim upon which relief can be granted. We affirm.
                                       I.
        BBX Operating, L.L.C., is a Texas limited liability company that drills
 and operates wells in East Texas. Murphy Energy Corporation was an entity
 whose business included transportation of oil condensate and natural gas
 liquids to market. In September 2008, BBX and Murphy entered into a
 contract for the sale and purchase of natural gas liquids and condensate.
        Under the contract, BBX extracted natural gas, and Murphy, after
 identifying the best market for the natural gas, transported it to third-party
 customers. These third-party customers then wired payment to a Bank of
 America bank account in Murphy’s name. Pursuant to the agreement,
 Murphy would take a flat marketing fee and a variable transportation fee from
 those funds. At the end of each month, Murphy calculated transportation
 costs and provided BBX with a statement estimating BBX’s share. After
 receiving the statement, BBX would send Murphy a payment instruction
 letter. Murphy then remitted the agreed upon funds to BBX, which then
 distributed payments to working interest owners and royalty owners
 consistent with their respective ownership interest in the wells that produced
 the natural gas.
        This arrangement operated smoothly until June 2016 when Bank of
 America allegedly swept funds from Murphy’s account. At the time, the
 account included proceeds from the natural gas produced in May 2016.
        Later that year, Murphy filed for bankruptcy. BBX appeared in the
 bankruptcy as one of Murphy’s unsecured creditors.            BBX filed this
 adversarial action against Bank of America in Murphy’s bankruptcy
 proceedings, claiming that BBX was entitled to some of the funds swept by
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                                    No. 19-11050


 Bank of America. After Bank of America filed a motion to dismiss, but prior
 to any ruling, BBX withdrew its original pleading and refiled an amended
 complaint. Bank of America again moved to dismiss this first amended
 complaint, which the bankruptcy court granted.
        Following the dismissal, BBX filed a motion asking the bankruptcy
 court to reconsider its initial ruling and sought leave to file a third iteration of
 the complaint. The bankruptcy court, after reviewing the proposed new
 pleading, concluded that “allowing the amendment would be futile” because
 “the Second Amended Complaint [did] not cure the legal defects that
 resulted in [the bankruptcy court] entering the Dismissal Order.” BBX
 appealed that decision to the district court, which in a written opinion
 affirmed the bankruptcy court’s decisions on the motion to dismiss and
 motion for reconsideration. BBX now appeals to this court.
                                         II.
        BBX’s first amended complaint raised claims for (1) conversion, (2)
 unjust enrichment, (3) money had and received, and (4) declaratory
 judgment. Both the bankruptcy court and district court found that these
 claims could not survive a motion to dismiss.
        We review de novo the grant of a motion to dismiss. Firefighters’
 Retirement Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018).
 To withstand a motion to dismiss, a complaint must contain factual
 allegations that, when taken as true, “state a claim to relief that is plausible
 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
 claim has facial plausibility when the plaintiff pleads factual content that
 allows the court to draw the reasonable inference that the defendant is liable
 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
        BBX first argues that the district court erred in affirming the
 bankruptcy court’s dismissal of BBX’s conversion claim. “Conversion




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                                     No. 19-11050


 occurs when, wrongfully and without authorization, one assumes and
 exercises control and dominion over the personal property of another, either
 inconsistently with or to the exclusion of the owner’s rights.” United States
 v. Boardwalk Motor Sports, Ltd., 692 F.3d 378, 381 (5th Cir. 2012). To state a
 claim for conversion under Texas law, a plaintiff must plead four elements:
 (1) the plaintiff owned, possessed, or had the right to immediately possess
 the property; (2) the defendant unlawfully and without authorization
 assumed and exercised control over the property to the exclusion of, or
 inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff
 demanded the return of the property; and (4) the defendant refused to return
 the property. Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699,
 705 (5th Cir. 2009). 1
        As both the bankruptcy and district courts found, BBX failed to plead
 the first element of its conversion claim—“ownership, possession, or the
 right of immediate possession” of the allegedly converted money. Boardwalk
 Motor Sports, 692 F.3d at 381. The amended complaint did not allege that
 BBX possessed or had the immediate right to possess the funds at the time of
 the alleged conversion. Instead, BBX attempted to satisfy the first element
 of its conversion claim by alleging that it owned the funds. And to be sure,
 the amended complaint contained statements to that effect, including
 statements that the funds “properly . . . belong[ed] to BBX” and that “the
 equitable owner of the funds was BBX.”
        But “simply pleading the legal status” of ownership “does not alone
 suffice.” See Smit v. SXSW Holdings, Inc., 903 F.3d 522, 528 (5th Cir. 2018).


        1
         Conversion claims for money require a plaintiff to plead additional elements.
 In re TXNB Internal Case, 483 F.3d 292, 308 (5th Cir. 2007). We need not address
 whether BBX appropriately pleaded these money-specific elements because the
 amended complaint failed to plead the conversion elements outlined here.




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                                   No. 19-11050


 The complaint must put forward “more than labels and conclusions” to
 survive a motion to dismiss. Twombly, 550 U.S. at 555; see generally 2 James
 W. Moore et al., Moore’s Federal Practice § 8.04[1][f] (3d
 ed. 2019). It must contain “well-pleaded facts” that make the allegation of
 ownership plausible. Iqbal, 556 U.S. at 679. And those statements regarding
 ownership do not do that. They are conclusory allegations, which merely
 “parrot the words needed to create a claim” without providing any factual
 basis for how BBX maintained an ownership interest in the funds. Gulf Coast
 Hotel-Motel Ass’n. v. Miss. Gulf Coast Golf Course Ass’n., 658 F.3d 500, 506
 (5th Cir. 2011).
        Perhaps recognizing this deficiency, the amended complaint
 characterized the funds at issue as “trust funds,” and claimed that Murphy
 “held the funds . . . in trust for BBX”—the rightful owner. Yet that label is
 again unsupported by any factual allegations. The complaint said nothing of
 when or how this alleged trust was formed. And there are no allegations that
 Murphy entered into an agreement to create a trust. On appeal, BBX
 attempts to resolve this issue by claiming the existence of a constructive trust,
 giving BBX an ownership stake in the funds at the time of their alleged
 conversion. But this contention misconstrues the nature of constructive
 trusts in Texas.     Under Texas law, a constructive trust is “not an
 arrangement created by parties to a transaction to establish the rights and
 duties between them and which can be enforced by a trial court.” York v.
 Boatman, 487 S.W.3d 635, 646 (Tex. App.—Texarkana 2016, no pet.).
 Instead, it is a remedy created by the courts to prevent unjust enrichment.
 Id. Thus, under Texas law, “[n]o constructive trust exists unless and until a
 court imposes it as a remedy.” Id. at 647. Here, no court has ordered a
 constructive trust to be imposed, so BBX could not have an ownership
 interest in the funds at the time of their conversion based on a constructive
 trust theory.




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                                     No. 19-11050


        In short, after stripping the amended complaint of its legal
 conclusions, BBX has not provided any factual allegations leading to the
 plausible inference that it owned, possessed, or had the right to immediate
 possession of the funds at the time of their alleged conversion. See Boardwalk
 Motor Sports, 692 F.3d at 381. The bankruptcy court did not err in dismissing
 BBX’s conversion claim.
        Next, BBX argues that the district court erred in affirming the
 bankruptcy court’s dismissal of BBX’s unjust enrichment claim. For the
 purposes of this appeal, we assume that unjust enrichment is an independent
 cause of action under Texas law. 2 To survive a motion to dismiss on an unjust
 enrichment claim, a plaintiff must plead facts sufficient to lead to the
 plausible inference that the defendant “obtained a benefit from [the plaintiff]
 by fraud, duress, or the taking of an undue advantage.” Sullivan v. Leor
 Energy, L.L.C., 600 F.3d 542, 550 (5th Cir. 2010) (quoting Heldenfels Bros. v.
 City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)).
        Here, as both the bankruptcy and district courts found, BBX has not
 alleged such facts. The complaint contains no allegations that when Bank of
 America swept Murphy’s account it violated the terms of its account or loan
 agreements with Murphy. And nothing in BBX’s allegations, when taken as
 true, would establish that Bank of America, through fraud, duress, or the
 taking of undue advantage, acquired and retained property belonging to BBX.
 Therefore, the district court did not err in affirming the district court’s
 dismissal of BBX’s unjust enrichment claim.




        2
          As we have previously noted, Texas appellate courts “appear split on whether
 unjust enrichment is an independent cause of action.” Elias v. Pilo, 781 F. App’x 336,
 338 n.3 (5th Cir. 2019). We need not resolve this issue today.




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                                  No. 19-11050


        Third, BBX challenges the bankruptcy court’s dismissal of its money
 had and received claim. Money had and received is an equitable doctrine
 designed to prevent unjust enrichment. London v. London, 192 S.W.3d 6, 13
 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). The cause of action
 arises when one “obtains money which in equity and good conscience
 belongs to another.” H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 507 (Tex.
 App.—Fort Worth 2012, no pet.). A money had and received claim is “not
 based on wrongdoing.” Id. Instead, it asks whether the defendant received
 money belonging to the plaintiff. See Staats v. Miller, 243 S.W.2d 686, 687–
 88 (Tex. 1951).
        BBX has not alleged facts demonstrating that the funds Bank of
 America swept from Murphy’s account belong to BBX. Nothing in the sales
 contract or any other agreement between BBX and Murphy demonstrates
 that funds Murphy collected and placed in a Bank of America account in
 Murphy’s name belong to BBX. Furthermore, BBX is no more the owner of
 those funds than the working interest owners and royalty owners that were
 supposed to receive payment after Murphy remitted a portion of the funds to
 BBX. At most, the amended complaint demonstrates that BBX has an
 unsecured breach of contract claim against Murphy for failing to satisfy
 whatever amounts Murphy owed BBX under the sales contract that governed
 their relationship. It does not demonstrate that these particular funds belong
 to BBX. Thus, the district court properly dismissed BBX’s money had and
 received claim.
        Finally, BBX’s first amended complaint also sought a declaratory
 judgment holding that the funds Bank of America swept are not part of
 Murphy’s bankruptcy estate. When considering a declaratory judgment
 action, we first consider “whether an actual controversy exists between the
 parties to the action.” Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th
 Cir. 2000) (internal quotations and citation omitted). An actual controversy



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                                   No. 19-11050


 “must be such that it can presently be litigated and decided and not
 hypothetical, conjectural, conditional or based upon the possibility of a
 factual situation that may never develop.” Rowan Cos. v. Griffin, 876 F.2d
 26, 28 (5th Cir. 1989) (quoting Brown & Root, Inc. v. Big Rock Corp., 383 F.2d
 662, 665 (5th Cir. 1967)).
        Both the bankruptcy court and the district court correctly found that
 no actual controversy existed between the parties. That is because no party
 claimed that the funds were part of the Murphy’s estate. BBX claims that it
 owns, and always has owned, the funds at issue. And, Bank of America’s
 position is that Bank of America currently owns the funds at issue and that it
 took possession of the funds prior to the formation of the bankruptcy estate.
 No party, not even the Murphy estate, has argued that the estate has any
 interest in the funds. Thus, no actual controversy exists between the parties,
 and the district court did not err in affirming the bankruptcy court’s dismissal
 of BBX’s declaratory judgment claim.
                                       III.
        Finally, BBX argues that the district court erred in affirming the
 bankruptcy court’s denial of BBX’s motion to amend the complaint as futile.
 It is within the bankruptcy court’s discretion to deny a motion to amend that
 is futile. See Stripling v. Jordan Prod. Co., 234 F.3d 863, 872–73 (5th Cir.
 2000). To determine whether a motion is futile, we apply the same standard
 as applied under Rule 12(b)(6). Id. So we ask whether the proposed
 complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a
 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
 Twombly, 550 U.S. at 570).
        Here, the second amended complaint proffered by BBX failed put
 forth such “sufficient factual matter.” Iqbal, 556 U.S. at 678. A review of
 the second amended complaint reveals that BBX added allegations regarding




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                                   No. 19-11050


 the content of the sales contract between Murphy and BBX and allegations
 about Bank of America’s payments to a non-party. Those allegations, though
 new, do nothing to cure the deficiencies of the first amended complaint. The
 new complaint, like the old, fails to state a claim. Thus, the second amended
 complaint is futile, and the district court did not err in affirming the
 bankruptcy court’s denial of BBX’s motion to amend.
                               *        *         *
        For the reasons discussed above, we affirm.




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