IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
In Re: Estate of Lisa McPherson,
_______________________________/ CASE NO. 97-0589-ES-003
RELIGIOUS TECHNOLOGY CENTER,
ADVERSARY PROCEEDING #4
DELL LIEBREICH, Individually and as
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.
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.
F. Wallace Pope, Jr.
Post Office Box 1368
Clearwater, Florida 33757
(727) 441-8617 fax
Attorneys for Petitioner/Plaintiff
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[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.