Complaint,Petition: In Re: Joseph S. Scully, Deceased: Funda Talia Scully, Individ. and as Executor of the Estate, Plaintiff vs. Fidelity Brokerage Services, LLC, B. S., A Minor and B. S., A Minor

On March 06, 2020 a Complaint,Petition was filed involving a dispute between Scully, Funda Talia, and Fidelity Brokerage Services, Llc, for Ancillary - Probate Independent Administration in the District Court of Tarrant County.

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E-FILED
TARRANT COUNTY, TEXAS
3/6/2020 1:09 PM
Mary Louise Nicholson
2019-PR01975-2-A COUNTY CLERK
BY: Paula Applegate
CAUSE NO. 2019-PR01975-2

FUNDA TALIA SCULLY § IN THE PROBATE COURT
INDIVIDUALLY AND AS EXECUTOR §
OF THE ESTATE OF JOSEPH SCULLY §
§
§
vs. § TARRANT COUNTY, TEXAS
§
FIDELITY BROKERAGE SERVICES, §
LLC AND BRIAN SCULLY, MINOR, §
AND BROOKE SCULLLY, §
A MINOR § NO. TWO

PLAINTIFF’S ORIGINAL PETITION AND APPLICATION
FOR APPOINTMENT OF ATTORNEY AD LITEM

Funda Scully, individually and as Executor of the Estate of Joseph Scully (“Scully”) files

this Original Petition and Application for the Appointment of an Attorney Ad Litem against

Fidelity Brokerage Services, LLC (“Fidelity”) and Brian Scully, a minor, and Brooke Scully, a

minor, as follows:

I.
DISCOVERY LEVEL

1. This case should proceed under Discovery Level 2.

II.
PARTIES

2. Funda Scully is an individual residing in Tarrant County, Texas. The last three digits

of her driver’s license are 608 and the last three digits of her social security number are 141.

3. Fidelity Brokerage Services, LLC is a Delaware limited liability company doing

business in multiple locations in Texas (including business addresses in Fort Worth and Southlake)

with its principal office at 245 Summer Street, Boston Massachusetts 02210. It can be served with

PLAINTIFF’S ORIGINAL PETITION PAGE 1
process through its registered agent CT Corporation System, 1999 Bryan Street, Suite 900, Dallas,

Texas 75201-3136. ISSUANCE OF CITIATION IS REQUESTED AT THIS TIME.

4. Brooke Scully is Plaintiff’s daughter and as is a necessary party to this suit under TRCP

39 and CPRC §37.006. She can be served at 6119 Bellaire Drive, Benbrook, Texas 76132. Plaintiff

seeks the appointment of an attorney ad litem to represent the interests of her minor child.

ISSUANCE OF CITIATION IS REQUESTED AT THIS TIME.

5. Brian Scully is Plaintiff’s son and as is a necessary party to this suit under TRCP 39

and CPRC §37.006. He can be served at 6119 Bellaire Drive, Benbrook, Texas 76132. Plaintiff

seeks the appointment of an attorney ad litem to represent her minor child. ISSUANCE OF

CITIATION IS REQUESTED AT THIS TIME.

III.
JURISDICTION AND VENUE

6. This Court has jurisdiction over this matter because the amount in controversy is in

excess of the minimum jurisdictional limit of this Court and under Texas Estates Code

§§31.002(a)(3) and 32.005. Plaintiff seeks monetary relief over $1,000,000 and all other relief to

which she is justly entitled.

7. This Court has personal jurisdiction over FMR because is doing business in the State

of Texas, with a corporate office at 1 Destiny Way, Westlake, Texas 76262 and business branch

locations in Fort Worth, Tarrant County, Texas, and Southlake, Tarrant County, Texas.

8. Venue is proper in Tarrant County, Texas. More specifically, venue is proper against

Defendants in Tarrant County because it is the county where all or a substantial part of the events

or omissions giving rise to claim occurred. Further, it is the county of Brian Scully’s and Brooke

Scully’s residence and they are necessary parties to this matter. Additionally, this lawsuit arises

out of the performable obligations of FMR in Tarrant County pursuant to CPRC §15.035.

PLAINTIFF’S ORIGINAL PETITION PAGE 2
IV.
FACTUAL BACKGROUND

9. On February 14, 2003, Plaintiff and her deceased husband, Joseph Scully were married.

At the time of marriage, Joseph Scully had accounts with Fidelity. During the marriage to Plaintiff

created and funded additional Fidelity accounts. These accounts appear to be retirement accounts

and a health savings account. The Fidelity retirement accounts, both created before marriage and

after, grew in value over the course of the next 16 years. The health savings account was funded

with a check written by Joseph Scully from a community property account on March 11, 2019.

Until March 5, 2019, Plaintiff was the sole beneficiary of all Fidelity accounts. On March 5, 2019,

Joseph Scully changed the beneficiary designations on seven of the Fidelity accounts. He removed

Plaintiff as the beneficiary and designated Brian Scully and Brooke Scully as beneficiaries of the

accounts, each given one-half. On March 12, 2019, a divorce petition was filed by Plaintiff, and

Decedent filed a counter-petition on March 15, 2019. On July 7, 2019, Joseph Scully died. Plaintiff

and Joseph Scully were not divorced at the time of his death.

10. Plaintiff is the Executor of the Estate of Joseph Scully, and she is the sole beneficiary

of the estate.

11. The value in the Fidelity accounts that existed before marriage increased during the

marriage of the Plaintiff and Joseph Scully. The Fidelity accounts that came into existence during

the marriage were funded entirely by the assets of the community.

12. Joseph Scully fraudulently transferred Plaintiff’s community property interests in the

Fidelity accounts to third party beneficiaries one week before he filed for divorce. Since the

beneficiary designation change from Plaintiff to third parties of the Fidelity accounts was done

fraudulently, Plaintiff’s recourse for her community property interests is against the parties to

whom the funds were conveyed.

PLAINTIFF’S ORIGINAL PETITION PAGE 3
13. Plaintiff seeks damages arising from the fraud on her community property rights, as

well as reimbursement for sums expended by the community that were deposited into accounts

created before marriage that increased in value, attorneys' fees, costs of court, plus pre-judgment

interest and post-judgment interest.

V.
CAUSE OF ACTION

COUNT I – UNIFORM DECLARATORY JUDGMENT ACT

14. By reason of the foregoing, Plaintiff has community property claims to the Fidelity

accounts created after February 14, 2003. Joseph Scully changed the designations of the

community-property-accounts beneficiary during the marriage and one week before we filed for

divorce.

15. Plaintiff requests, under CPRC §§37.003 and 37.005, that the Court declare that her

rights related to the Fidelity accounts, and as to the community property interest in the accounts

that were not affected when the beneficiary designation change was made, and that the beneficiary

change was only effective as to Joseph Scully’s community property interest. Plaintiff requests

that the Court declare the rights of Brian Scully and Brooke Scully with regard to the Fidelity

accounts and her rights to reimbursement for community property given rise to damages in an

amount in excess of the minimum jurisdictional limits of this Court, plus pre-judgment interest

and post-judgment interest allowed by law, and reasonable and necessary attorneys' fees.

COUNT II - ATTORNEYS' FEES

16. §37.009 provides for recovery of attorneys’ fees. Plaintiff seeks recovery of the

reasonable and necessary attorneys’ fees and has hired counsel to enforce her rights and the

Estate’s and to protect the legal interests and has agreed to pay for the legal services provided.

Plaintiff has incurred attorneys’ fees and will continue to incur same.

PLAINTIFF’S ORIGINAL PETITION PAGE 4
VI.
CONDITIONS PRECEDENT

17. All conditions precedent to the maintenance of this suit and Plaintiff’s recovery

thereon, including attorneys' fees, have occurred or been performed.

VII.
PRAYER

WHEREFORE, Funda Scully requests that FMR, LLC to cited to appear and answer and

after appointment of the attorney ad litem, Brian Scully and Brooke Scully, as necessary parties to

this suit, be cited to appear and answer herein and that upon final hearing or trial of this cause,

Funda Scully be granted judgment for the following:

(a) A declaration regarding the characterization of the Fidelity accounts, a declaration
of her community property interests and an award of same, and a declaration of the
interests of Brian Scully and Brooke Scully in the Fidelity accounts, as well as the
reimbursement claims of Plaintiff related to the accounts;

(b) pre-judgment interest on said amounts as allowed by law;

(d) costs of court;

(e) post-judgment interest as allowed by law; and

(f) such other and further relief to which Plaintiff may be justly entitled.

REQUESTS FOR PRODUCTION TO FMR, LLC

DOCUMENT REQUEST INSTRUCTIONS

1. You are requested to produce the documents responsive to this request as they are
kept in the usual course of business, or to organize and label them to correspond with the categories
specified below. The requests are made pursuant to TRCP 196. Responses and production of
documents are due per 196.2(a) in the offices of Plaintiff’s counsel.

2. All documents shall be produced that respond to any part or clause of any paragraph
of this request. If any document request cannot be produced in full, produce such document to the
extent possible and indicate specifically in your response to this request your inability to produce

PLAINTIFF’S ORIGINAL PETITION PAGE 5
the remainder and sufficient information concerning the non-produced document or portion thereof
so that the court and counsel can determine if a motion to compel is appropriate and can determine
if in camera inspection is needed to test the validity of any claim, privilege, or other reason for
non-production.

3. File folders with tabs or labels identifying documents called for shall be produced
intact with such documents.

4. Selection of documents from the files and other sources shall be performed in such
a manner as to insure that the source of each document may be determined.

5. Documents attached to each other should not be separated unless sufficient records
are kept to permit reconstruction of such grouping.

6. If any document requested in Plaintiff's First Request for Production of Documents
to you is objected to or withheld, in whole or in part, pursuant to a claim of privilege, provide the
following information with respect to each such document:

a. date;

b. author(s) and their title or position;

c. addressee(s) and their title or position;

d. person(s) receiving a copy and their title or position;

e. general description of subject matter (e.g., opinion of counsel on merits of claim);

f. the nature of the privilege (e.g., attorney/client, work product, etc.);

g. the factual and legal basis for the claim of such privilege (e.g., communication
between attorney for corporation and outside counsel relating to acquisition of legal
advice);

h. the identity of each person who was present when the document was prepared and
who has seen the document; and

i. the identity of every other document which refers to or describes the contents of
such document.

7. You are required to file a written response stating with respect to each request that
the responsive documents are provided unless the request is objected to, in which event the reason
for the objection shall be stated.

I.
DOCUMENTS TO BE PRODUCED

PLAINTIFF’S ORIGINAL PETITION PAGE 6
1. All documents for the Fidelity accounts created by or registered to Joseph Scully on any
platform operated by Fidelity including but not limited to the accounts with the last four digits of
1530, 6904, 6392, 9335, 4263, 8874, 6096, 6099, and 2066.

2. All beneficiary designation documents, including electronic form, for the Fidelity accounts
with the last four digits of 1530, 6904, 6392, 9335, 4263, 8874, 6096, 6099, and 2066.

3. All change of beneficiary designation documents including electronic form, for the Fidelity
accounts with the last four digits of 1530, 6904, 6392, 9335, 4263, 8874, 6096, 6099, and 2066.

4. All account statements from February 2003 through present for all Fidelity accounts
created by or registered to Joseph Scully on any platform operated by Fidelity including but not
limited to the accounts with the last four digits of 1530, 6904, 6392, 9335, 4263, 8874, 6096, 6099,
and 2066.

Respectfully submitted,

DECKER POOLE, PLLC

/s/ Olyn Poole
By: ____________________________________
Olyn Poole
State Bar No. 24037292
6300 Ridglea Place, Suite 101
Fort Worth, Texas 76116
Telephone: (817) 348-9060
Facsimile: (817) 348-9070
olyn@deckerpoole.com

ATTORNEYS FOR FUNDA SCULLY

PLAINTIFF’S ORIGINAL PETITION PAGE 7

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March 06, 2020

Case Filing Date

March 06, 2020

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Complaint,Petition: In Re: Joseph S. Scully, Deceased: Funda Talia Scully, Individ. and as Executor of the Estate, Plaintiff vs. Fidelity Brokerage Services, LLC, B. S., A Minor and B. S., A Minor

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