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IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA PROBATE DIVISIONIn 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.
Under the Wrongful Death Act, the personal representative is the party who seeks recovery of all damages caused by the injury resulting in death for the benefit of the decedent's estate and for the survivors [see 768.20, Fla. Stat.; Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3rd DCA- 1994)]. The personal representative must bring a single action to recover damages. Damages are then apportioned between the survivors and the estate according to statutory criteria [see 76821].
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 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., St. 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
__________________________
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 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.