|
IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
PROBATE DIVISION
In Re: Estate of Lisa McPherson,
Deceased.
_______________________________/ CASE NO. 97-0589-ES-003
RELIGIOUS TECHNOLOGY CENTER,
ADVERSARY PROCEEDING #4
Petitioner/Plaintiff,
vs.
DELL LIEBREICH, Individually and as
Personal Representative,
Respondents/Defendants.
______________________________________________________
SUPPLEMENTAL MEMORANDUM OF RELIGIOUS TECHNOLOGY CENTER
REGARDING ORAL ARGUMENT OF DECEMBER 2, 2002
Religious Technology Center (“RTC”) submits this supplemental
memorandum
to clarify some limited issues that arose during the course of
oral
argument in this action.
First. Contrary to Liebreich’s unsupported allegation that RTC‘s
judgments
won against the estate in the Texas federal court are Class 8
priorities,
RTC’s judgments are Class 1 priorities. That is the holding of
Teague
v. Estate of Hoskins, 709 So.2d 1373, 1374 (Fla. 1998), in which
the Florida
Supreme Court made it clear that legal liabilities of an estate
incurred
by the affirmative acts of the personal representative create
Class 1,
rather than Class 8, priorities, because they constitute an
expense of
administering the estate. As such, RTC is at the top of the list
of creditors
of the estate, along with the personal representative’s
compensation and
attorneys’ fees, and ahead of the beneficiaries of the estate.
Section
733.707(a); league v. Estate of Hoskins, at 1374.
Second. Levying on the wrongful death chose of action does not
impair
any right of the estate of Fannie McPherson, the sole
beneficiary of this
estate, because.of the nature of this particular wrongful death
claim.
|
|
In this instance, wrongful death damages come under section
768.21, and
are, per order of the wrongful death court [Ex. A, order denying
motion
to strike claim for net accumulations, entered August 5, 2002 at
pp. 3-10],
limited exclusively to loss of prospective net accumulations of
the estate, which the personal representative — the only
plaintiff with
standing to do so — seeks to collect only for the benefit of the
estate,
not the survivors. Section 768.21(6)(a)(2). The death of Fannie
McPherson
prior to judgment (and, indeed, even before suit was brought)
cut off any compensable damages Fannie might have otherwise
claimed personally
as Lisa’s survivor. Section 768.24. Thus, the estate of Fannie
McPherson
has no interest in the wrongful death case other than as the
sole beneficiary
of the estate to which any wrongful death
damages will be paid, and as
__________________________
1 The judgments identified as Class 8 priorities in section
733.707(h)
are those “rendered against the decedent during his lifetime.”
The causes
of action upon which RTC judgments are based did not arise until
nearly
four years after Lisa McPherson’s death, and then because of the
acts
of the personal representative.
2
such, stands in line behind RTC’s Class 1 priority judgments,
which must
be satisfied from estate assets before any distribution to the
beneficiary.2
Third. If RTC levies upon the wrongful death cause of action, it
does
not take control of the cause. It merely causes the chose in
action to
be auctioned to the highest bidder, with those proceeds then
going to
the estate to satisfy claims, including RTC’s. The levy process
does not
displace a cause of action, it merely accelerates the receipt of
funds
by the estate with which to meet its obligations.
I HEREBY CERTIFY that a true copy hereof has been furnished by
hand delivery
to Kennan G. Dandar, Esq., Dandar & Dandar, P.A., 1715 N.
Westshore
Blvd.,. Suite 750, Tampa, FL 33607 and Anthony Battaglia, Esq.,
Battaglia,
Ross, et al., 980 Tyrone Blvd., t. Petersburg, FL 33743; and by
regular
U.S. mail to William Rambaum, Esq., 28960 U.S. Hwy. 19 North,
Suite 100,
Clearwater, FL 33761-2403, this ___ day of December, 2002.
JOHNSON, BLAKELY, POPE, BOKOR,
RUPPEL & BURNS, P.A.
By:
F. Wallace Pope, Jr.
Post Office Box 1368
Clearwater, Florida 33757
(727)A6 1-1818
(727) 441-8617 fax
Attorneys for Petitioner/Plaintiff
SPN #00002797
281106
2 Had there been survivors’ damages available under §7682 1, any
proceeds
from the wrongful death claim owed to the survivors would be the
property
of the survivors, separate from the decedent’s loss, and such
proceeds
would not be subject to estate claims.
3 T. THOMAS & D. SMITH, FLORIDA ESTATES PRACTICE GUIDE,
§43.05[2][c],
at p. 43-17. However, as the proceeds of net accumulations
damages are
the property of the estate, they are subject to estate claims,
such as
RTC’s Class 1 priority judgments against the Estate.
|