In The Supreme
Court of
CASE NO: SC07-655
Lower Tribunal No. 1 D06-6618 (Trial
court No: 2004-CP-0770)
(Trial in Eighth Circuit court,
Dr.
225 Robinson Road
New
386 428 9609 PETITIONER
V.
Leanne Pflaum, Esq. and Thomas Pflaum, Esq. respondents and co-conspirators
17306 S. W. 10th Terrace Micanopy,
Florida 32667-9802 Tele 352 466 0252
And Richard White, a respondent and co-conspirator,
White & Crouch, P.
A. 5303 SW 91 Drive, Suite 200 Gainesville, FL 32608
Board Certified in Wills, Trusts & Estates
RESPONDENTS
Probate of MELANIE SOPHIA PFLAUM
PETITIONER’S INITIAL JURIS BRIEF
Saturday,
July 21, 2007
The Florida Supreme Court has received on 3/20/2007 a
Petition for Writ of Prohibition as an Appeal from the District Court of Appeal
1 D06-6618 (Defamation And Extortion Lower Tribunal No. CASE NO. 2005-CA-2363
DIV. K) Former CASE NO. 1DCA06-3240, 1D06-2762, and 1DCA05-5830, DCA05-5212,
2005-CA-2363
PETITION FOR EMERGENCY RELIEF: A motion to have damages
assessed by this court because the abuse of the facts and the law by the trial
court is shocking to the judicial conscience—so grossly inadequate that
it constitutes a miscarriage of justice—or when it appears that the trial
judge was influenced by prejudice, corruption, passion, or mistake.
The estate is being wasted by almost a million dollars
of legal fees and expenses brought about in the process of Thomas
Pflaum’s and his attorney’s misconduct. Thomas has filed
papers on June 22, 2007 to close the estate with a total value of $100 thereby
showing the extent of mismanagement, abuse, fraud, lunacy, displayed in his
role of personal representative in his mother’s estate of two million
dollars left in equal shares to her children.
The respondent’s claims made by Mr. White
erroneously and falsely made under oath on June 22, 2007 PETITION FOR ATTORNEY’S FEES
(Appendix two pages 32) in the face of all reality, truth, evidence and the law
Mr. White claims under oath:
“All of the services were necessary to the proper
administration of the estate.
7. Petitioner has expended professional time for the
preparation and filing of this petition and will expend further professional
time and costs in this proceeding.
8. Inasmuch as the probate assets were insufficient
to pay any legal fees, all the impact of legal fees will be borne by Thomas M.
Pflaum, who does not object to this petition. If there had been additional
probate assets, the impact of legal fees would be borne by the residuary
beneficiaries named below. Because the legal fees are being paid by Thomas M.
Pflaum, individually, if assets come into the estate in the future, the legal
fees should be appropriately borne by the residuary beneficiaries and paid from
such estate assets.
9. The only persons other than petitioner having an
interest in this proceeding and their respective addresses are:
Thomas Martin Pflaum, Personal Representative and
residuary beneficiary 17306 S. W. 10th Terrace Micanopy, FL 32667
WHEREFORE, Petitioner prays for entry of an order
awarding attorney’s fees to Petitioner for services rendered on behalf of
the estate.
Under penalties of perjury, I declare that I have read
the foregoing, and the facts alleged are true, to the best of my knowledge and
belief. Signed by Mr. White
The
plot is clear: To dissipate all the estate in legal and administration then
“DISCOVER” there is money BUT it has been used up by this corrupt
practice and there is nothing left for the other beneficiaries. The expenses were NOT legal costs
but used in the dishonest effort to take everything for the respondents and
defraud the petitioner.
Before
Referee - Circuit Court Judge Philip Bloom SUPREME COURT THE FLORIDA BAR,
Complainant, vs. DIANE S. SEGAL, Respondent
REPORT
OF THE REFEREE The Respondent was charged with Violation of Rule 4-3. 3(a)(l)
in that a lawyer shall not knowingly make a false statement of material fact to
a tribunal; and Violation of Rule 4-3. 3(d) in that in an ex parte proceeding a
lawyer shall inform the tribunal of all material facts known to the lawyer that
will enable the tribunal to make an informed decision, whether or not the facts
are adverse.
The
context of the charges is that Respondent as an attorney, thereafter ex-parte,
that an estate in which Respondents are a principal beneficiary and personal
representative.
In
conclusion, this Bar matter came about as a result of the Respondents
obsessive, personal vendetta. The Estate of Melanie Pflaum was not a difficult
Estate to administer; Mrs. Melanie Pflaum’s Last Will & Testament was
clear, simple, and straightforward. However, Mr. Thomas Pflaum, personal representative,
refused to carry out the testator’s intent and refused to comply with the
explicit provisions of a Will he himself had drafted at his law firm (Paul and
Thomson) in
Mr.
Thomas and Leanne Pflaum’s actions forced the petitioner as to seek his
removal as personal representative in 2005 inasmuch as it was apparent that he
would not receive any income or property distributions as long as Thomas was
involved. It was Mr. Thomas Pflaum who chose to turn Petitioner’s
resistance into a prolonged litigation.
Thomas
could have made distributions or he could have resigned and the matter would
have ended there, but he didn’t. Mr. Thomas Pflaum engaged Mr. White and
Mr. Hoppe and the protracted litigation and pleadings began. The only possible
explanation for Mr. and Mrs. Thomas Pflaum’s behavior is obsessive greed
on the part of the Respondents and, subsequently, their attorneys, Mr. White
and Mr. Hoppe” (at p 1)
The
conflicts of Interests led to violations by the Respondents of Rules 4-8.
4©, (conduct prejudicial to the administration of justice) and 4-8. 4(d),
(conduct involving dishonesty, fraud, deceit, and misrepresentation).
Thomas and Leanne should not profit by their bad behavior and his
unethical lawyers should not be paid to pervert, corrupt, and abuse the legal
system to the harm and damage to an citizen of this state. The
respondents must be made to disgorge the profits of their malevolent
enterprise.
http://www.wiredbrain.net/fsc07-655.pdf
Jurisdiction Brief by Petitioner
http://www.floridasupremecourt.org/clerk/briefs/2007/601-800/07-655_JurisIni.pdf
http://www.wiredbrain.net/appealsfsc.xml
BRIEF IN .XML
http://www.wiredbrain.net/appealsfsc.doc
BRIEF IN WORD.DOC
http://www.floridasupremecourt.org/clerk/briefs/2007/601-800/index.shtml
http://www.wiredbrain.net/probateclose.htm
The papers to close the estate filed June 22, 2007
Bar v. Segal Case on all fours with names and
dates changed:
CRITICAL FLAWS IN THE JUDICIAL PROCESS
ISSUE ONE: HARASSMENT and ABUSE
STATEMENT OF THE CASE AND FACTS ISSUE TWO:
PETITIONER
UNREASONABLE ORDER GRANTING MOTIONS FOR
SANCTIONS.
BASIC RIGHTS: A UNJUSTIFIED DELAY
MORE DETAIL: FAULTS IN THE PROCESS:
ISSUE: CLEARLY FAILED TO PROTECT THE ESTATE
The Story BROTHER STEALS INHERITANCE THEN SUES
FOR EXTORTION:
A CONCLUSION, SETTING FORTH THE PRECISE RELIEF
SOUGHT.
CASE TWO: DEFAMATION and EXTORTION
CASE THREE: CRIMINAL FALSE REPORT TO DCF
CASE FOUR: (and five) Civil complaint of False
arrest and Negligence
CASE SIX: FIRST DISTRICT COURT OF APPEAL
CASE SEVEN: CASE NO: SC07-655 Supreme Court of
Florida
Thomas abusing the trust the family had in him,
The inventory could raise concerns of fraud,
In 1986 Thomas and Leanne formed a joint
enterprise
NOTICE OF FINAL ACCOUNTING AND PETITION FOR
DISCHARGE 6
THE LAW: Tortious Interference
PROBATE CODE: ADMINISTRATION OF ESTATES
THE LAW: Tortious Interference
FINAL ACCOUNTING OF PERSONAL REPRESENTATIVE
PETITION FOR PERSONAL REPRESENTATIVE’S FEE
NOTICE OF FINAL ACCOUNTING AND PETITION FOR
DISCHARGE
Additional Proposed $12,554. $183,140
FINAL ACCOUNTING OF PERSONAL REPRESENTATIVE
March 5, 2004 through February 27, 2007
Totals value of the estate is $100
RULE 5. 346. FIDUCIARY ACCOUNTING
RULE 5. 200. PETITION FOR ADMINISTRATION
BACKGROUND, HISTORY, AND APPEAL OF TRIAL ORDER
EXHIBITS CAUSES, MOTIONS, PETITIONS AND THE FACTS
AND THE LAW
EXHIBITS IN CHRONOLOGICAL ORDER
H Mr. Whites letter, in Oct 12, 2004
Why this case is of importance to you
What a burden on the Petitioner.
Where did Melanie Pflaum live?
Background: of contrary intent
RE: ESTATE OF LETTIE V. COMBEE,
Deceased. LINDA RAE FARMER, et al. , Petitioners, vs. IRMA A. WALKER , et al. ,
Respondents. [May 28, 1992} Page 6
Chase
Fed. In a subsequent Sav. & Loan Ass’n v. Sullivan, 127 So. 2d 112 (
Survivorship
Rights in Joint Accounts, 24 U.
Richard
e. Warner, Joint Accounts and Decedent’s Estates—An Update, Fla. B.
J. , July/Aug. 1987, at Page 5 Appendix two
5, 466
So. 2d 1055 (
Meinhard
v. Salmon, 249 N. Y. 458, 464 (1928) Page 20
Davison
v. Feurerherd, 391 So. 2d 799 ( Fla. Dist. Ct. App. 1980); Allen v. Leybourne,
190 So. 2d 825 ( Fla. Dist. Ct. App. 1966). Page 28, appendix 2, page 7,
8
Harvard v. Singletary, 733 So. 2d 1020 ( Fla. 1999) Page
vii
Forms
of Pleading. Pleadings shall be signed by the attorney of record, (OR PRO SE)
and by the pleader when required by these rules. All technical forms of
pleadings are abolished. No defect of form impairs substantial rights, and no
defect in the statement of jurisdictional facts actually existing renders any
proceeding void.
1DCA On the court’s own MOTIONS , the
complaint/petition filed June 13, 2006 is hereby treated as a petition for writ
of prohibition. See
We reasoned that establishment of the joint account
under these circumstances was an ineffectual attempt to do that which could
only be accomplished by a last will and testament. In order for the survivor to
prevail, it had to be shown that the creator intended a gift inter vivos at the
time the account was opened. (1982 or 2003)
732. 6005 Rules of construction and intention. --
(1) The intention of the testator as expressed in the will controls the legal
effect of the testator’s dispositions. The rules of construction
expressed in this part shall apply unless a contrary intention is indicated by
the will.
(2) Subject to the foregoing, a will is construed to pass all property which
the testator owns at death, including property acquired after the execution of
the will.
History. -s. 1, ch. 74-106; ss. 33, 35, ch. 75-220; s. 965, ch. 97-102; s. 49,
ch. 2001-226.
The complaint shows there is gross negligent damage to
the petitioner by THE RESPONDENTS, individually or severally, as the
enterprisers, and co-conspirators and therefore the enterprise (including
Merrill Lynch) systematically and continually over the last four years have
engaged in a fraudulent enterprise conducted for improper financial gain. They
will be liable for all the damages to the injured party, if the court finds there
were joint adventures that created several joint and collective liabilities.
The result of this enterprise was to deny the plaintiff the just results of his
inheritance from the estate of his mother, Melanie Pflaum.
ISSUE ONE: HARASSMENT and
ABUSE.. 1 Pages 3, 21
WHETHER
THE TRIAL JUDGE MADE A MISTAKE AND MADE AN ERROR IN THE JUDICIAL PROCESS ALLOWING
HARASSMENT and ABUSE OF THE PETITIONER BY THE RESPONDENT AND DENIED THE
PETITION DUE PROCESS OF LAW IN BEING GROSSLY BIAS AGAINST HIM AND PROJECTIVE OF
AND PREJUDICED FOR THE RESPONDENT ARGUMENT 1: CRITICAL FLAWS IN THE JUDICIAL
PROCESS (HARASSMENT and JUDICIAL ABUSE)
ISSUE TWO: PETITIONER DENIED DUE PROCESS OF LAW pages
5, 15, 20
WHETHER
THE TRIAL JUDGE WAS MISTAKEN AND MADE AN ERROR IN HOLDING EX PARTE CASE MANAGEMENT
HEARING, DENYING THE PETITIONER TIMELY RESPONSE TO CHARGES AND ALLOWING THE
ATTORNEYS FOR THE RESPONDENT TO WRITE COURT ORDERS INCLUDING UNJUSTIFIED SANCTIONS
AND FINDING NOT BASED ON THE FACTS AND THE LAW; SHOWING GROSS BIAS AGAINST
PETITIONER AND PROJECTIVE OF AND PREJUDICED FOR THE RESPONDENT
ISSUE
THREE: CONFLICTING AND
ADVERSE INTERESTS. AND TORTIOUS INTERFERENCE Page 7, 16, 24
WHETHER
THE COURT WAS MISTAKEN AND MADE AN ERROR IN NOT FINDING THE RESPONDENT AS PERSONAL
REPRESENTATIVE AND BENEFICIARY WAS HOLDING AND ACQUIRING CONFLICTING AND
ADVERSE INTERESTS AGAINST THE ESTATE WHICH CRITICALLY INTERFERED WITH THE ADMINISTRATION
OF THE ESTATE AS A WHOLE (733. 609) AND WAS IMPROPERLY EXERCISING POWER; AND
WAS IN BREACH OF HIS FIDUCIARY DUTIES, THEREFORE MUST HAVE BEEN REPLACED
ISSUE
FOUR: CLEARLY FAILED TO
PROTECT THE ESTATE.. Page 15, 23, 28
WHETHER
THE COURT MADE AN ERROR AND WAS MISTAKEN
WHEN IT ALLOWED A GROSS CONFLICT OF INTEREST BY THE PERSONAL REPRESENTATIVE.
(PR) WHEN HE ANNOUNCED IN WRITING HIS INTENTION TO TAKE FOR HIMSELF AND HIS
WIFE ALL THE ASSETS OF THE ESTATE AND DID SO WHICH CLEARLY FAILED TO PROTECT
THE ESTATE AND FAITHFULLY CARRY OUT THE WISHES OF THE DECEASED.
ISSUE
FIVE: #INTERFERENCE
WITH INHERITANCE; TORTIOUS_A UNJUSTIFIED DELAY Page 19, 20
WHETHER
THE TRIAL COURT WAS MISTAKEN AND IN ERROR IN NOT HEARING THE MATERIAL ISSUES OF
THIS PROBATE CASE OR MAKING A DECISION ON ITS MERITS IN A TIMELY MANNER; A
UNJUSTIFIED DELAY THAT CAUSED SERIOUS MATERIAL HARM TO THE PETITIONER.
ISSUE
SIX: INVENTORY OF $100 ON A TWO MILLION DOLLAR ESTATE USE_OF_JTWROS IN MERRILL LYNCH ACCOUNT..
Page 20, 30
WHETHER
THE LOWER COURT MADE AN ERROR WHEN
IT DID NOT COMPELLED THOMAS AND THE ATTORNEY MR. WHITE TO PRODUCE A REALISTIC
INVENTORY INCLUDING A MERRILL LYNCH ACCOUNT AND A HOME IN SPAIN AND IS IN ERROR
BY LETTING FOUR YEARS TO PASS WITH AN INVENTORY OF $100 ON A TWO MILLION DOLLAR
ESTATE.
The
name of a writ issued by a superior court, directed to the judge and parties of
a suit in an inferior court, commanding them to cease from the prosecution of
the same, upon a suggestion that the cause originally, or some collateral
matter arising therein, does not belong to that jurisdiction, but to the
cognizance of some other court.
The
writ of prohibition may also be issued when, having jurisdiction, the court has
attempted to proceed by rules differing from those which ought to be observed,
or when, by the exercise of its jurisdiction, the inferior court would defeat a
legal right.
Last
year the 1DCA 6618 (FSC05-2330) suggested to the 8th Circuit that they should
be able to settle the case - After more than a year nothing has been settled. The District Court of Appeal sent to the 8th Circuit
a mandate:
YOU
ARE HEREBY COMMANDED that further proceedings, if required, be had in
accordance with said opinion, the rules of Court, and the laws of the State of
Florida .
WITNESS the Honorable CHARLES J. KAHN, JR. , Chief Judge of the District Court
of Appeal of Florida , First District, and the Seal of said Court done at
Tallahassee , Florida , on this 12th day of May 2006.
The FSC (FSC05-2330)
said about this case last year ”The petition for writ of mandamus is
hereby transferred, pursuant to Harvard v. Singletary, 733 So. 2d 1020 (Fla.
1999), to the First District Court of Appeal. The transfer of this case should
not be construed as an adjudication or comment on the merits of the petition,
nor as a determination that the transferee court has jurisdiction or that the
petition has been properly denominated as a petition for writ of mandamus. The
transferee court should not interpret the transfer of this case as an
indication that it must or should reach the merits of the petition. The
transferee court shall treat the petition as if it had been originally filed
there on the date it was filed in this Court. Any determination concerning
whether a filing fee shall be applicable to this case shall be made by the
transferee court. Any and all pending Motions in this case are hereby deferred
to the transferee court. “
It is now absurd for the respondents to charge the
petitioner with causing delay. The whole effort of the respondent has been
delay and harassment. The cases listed in the appendix one are all inactive and
demonstrate a desperate effort to find some court somewhere that will actually
hear the case on its’ merits and apply the facts and the law in a
reasonable and fair manner. There is one best way to know who is right and who
is wrong in this dispute about family money is to actually hear the case based
on the facts and the law. The trial judge has and will not, the 1DCA has not,
nor has any other court. The facts and the law cry out for justice!
the National Conference of Commissioners on Uniform
State Laws and the American Bar Association approved the Uniform Probate Code
(UPC) in 1969. This was intended to facilitate uniformity in probate codes
throughout the United States.
In the
face of widespread criticism of the present American probate institution, the
adoption of a uniform, and in most cases, less expensive system of settling a
decedent’s estate is deemed desirable. The UPC is based on the major
premise that the probate court’s appropriate role is to be available to
assist in the settlement of an estate when assistance is requested or required
rather than to impose its unsolicited supervision to enforce every detailed
formality upon completely non-contentious Probate Takes Time- It can take up to
two years. The beneficiaries generally get nothing in the intervening period
unless the judge Okays an allowance for the family.
1.
Here comes Dr. Peter E. Pflaum, the Petitioner, with a prima facie, a
legitimate complaint; evident with proof and reasoning; of what is obviously an
excruciating violation of basic human decency, the principles of civil law, and
in clear violation of common elements of proper procedures and rules. First,
Petitioner should have received his share of the inheritance from his
mother, Melanie Pflaum four years ago. Petitioner has hopes that the
judicial system of Florida will hear the case on the facts and the law. If the
case is heard on the facts and the merits there would be a remedy for the
injustice and damages to the Petitioner. The Respondents (Thomas and Leanne
Pflaum) and his attorneys, (Mr. White and Mr. Hoppe), also respondents and
co-conspirators, have taken the road of attacking the Petitioner. It’s
the old adage that in any argument if the facts are on your side you argue the
facts, if the law is on your side, you argue the law. If neither the law nor
facts are on your side, you blame the Petitioner. It’s very easy to do
and the best part is you actually get some people to believe you. It can even
hide your own crimes and incompetence.
More
ARGUMENTS, ISSUES, CAUSES, and COUNTS: in Appendix three
HARASSMENT and JUDICIAL ABUSE in the PROCESS IN THE LOWER COURTS:
2.
IN the course of the proceedings, and the disposition in the lower tribunal;
the judge in the probate case made it clear to all, since September 2005, that
the law or the facts did not apply in his court. He ordered, in the face of all
common sense, evidence, the law and reality, that Respondent Thomas Pflaum had
no conflict of interest and Melanie was domicile in Micanopy. The court has
allowed attacks
on the Petitioner include a civil suit for defamation and
extortion, and having the Petitioner arrested on felony charges resulting from
Thomas’s false sworn police statement and the result of improper
interference in the legal process by his attorneys, Mr. Hoppe and Mr.
White.
3.
WHETHER THE TRIAL JUDGE MADE AN ERROR IN THE JUDICIAL PROCESS ALLOWING
HARASSMENT and ABUSE OF THE PETITIONER BY THE RESPONDENT AND DENIED THE
PETITION DUE PROCESS OF LAW IN BEING GROSSLY BIAS AGAINST HIM AND PROJECTIVE OF
AND PREJUDICED FOR THE RESPONDENT ARGUMENT AND COUNT 1: CRITICAL FLAWS IN THE
JUDICIAL PROCESS (HARASSMENT and JUDICIAL ABUSE)
4.
The Respondents have not made a substantive respond in an adversarial
probate case:
5.
And Respondents have been unable or unwilling to make an affirmative case and
have refused for four years to give any reasons why there are any legal and
factual grounds for their stated belief that all the property belongs to them.
This belief in the ownership of the property is clear in the NOTICE OF
FINAL ACCOUNTING http://www.wiredbrain.net/probateclose.htm
the papers to close the estate filed June 22, 2007:
6.
The central issue of the dispute is the claim is that the whole of the Estate
belongs to Thomas and Leanne. Since they don’t have a legitimate case in
law and the facts are painfully simple and clearly against them, therefore, they attack the Petitioner.
Given the
circumstances, of course, the court always has the authority to appoint an
administrator ad litem to safeguard the estate if the court has reason to
believe there are important conflicts of interests and/or that the estate
assets and administration are endangered or being mismanaged. Thereafter, the
court should promptly entertain the concerns on the merits with respect for the
due process rights of all interested parties. The test is” would a
reasonable person find the case and process in the courts for the last four
years, of Pflaum v. Pflaum rational and fair? The estate is being wasted in almost a million
dollars of legal fees and expenses brought about in the process of Thomas
Pflaum’s misconduct.
7.
The Petitioner claims that the behavior of the trial judge is clearly state
action. The state in the form of the trial judge has aided and abetted the
Respondents taking the Petitioner’s property. The court has grossly
failed to provide that the laws are faithfully executed. The Petitioner has a
claim against the Respondents for negligence, malfeasance, misconduct, or
wrongdoing, especially aided by a public official. He claims against the State
because he can prove his legitimating expectation that his mother’s
estate would be distributed according to law; except for the willful actions of
the Respondents in the conspiratorial abuse of the legal system, the Petitioner
was deprived of his property by a joint enterprise of the Respondents, their
lawyers and the Civil Courts of the State.
8. To quote the Last Will of MELANIE SOPHIA PFLAUM who died (Aged 94) March 5th 2004, in her
long term home in Javea Spain Article 4
I give all the
residue of my estate, real and Personal, of whatever nature and wherever
located, which I own at the time of my death, including the proceeds of
insurance on my life which may be payable to my estate and I hereby exercise
any and all powers of appointment which I have under any trust or otherwise and
direct all property subject thereto shall also be disposed, to my husband
Irving
9.
Melanie’s estate is an uncontested formal will and testament, drafted in
Miami (1978) by the firm which was at the time, the employer of the Respondent
Thomas by at the time by Jordan Burt LLP who was at Paul and Thomson in 1978,
signed and notarized at the American Council in Barcelona, Spain. The WILL
required her property to be divided in equal shares among her three sons, John,
of Milwaukee, Wisconsin, a retired PhD clinical psychologist, born in Majorca,
Spain, 1934; Petitioner Dr. Peter E. Pflaum, of New Smyrna Beach, Florida, a
retired professor of government, married to Mary Anne, born in Barcelona,
Spain, 1936; and Thomas, a lawyer in private practice in his house in Micanopy,
Alachua County, Florida, married to Leanne, Thomas was born in Evanston,
Illinois, 1950, and was appointed Personal Representative (PR).
10.
The estate came from Melanie’s parents and from her grandparents and,
if not perverted would be in the fourth and fifth generation. (see appendix
three, The history of the money) The estate paid for higher education including
the law degree Thomas has abused to violate more than a century of legal and
family tradition. After four years, the material issues of this case have never
been heard or decided ON ITS MERITS by any court at any time.
11.
The respondents have used and abused the court to dishonestly attack the
petitioner’s clear claims to his inheritance. There is much more to this
case than serious and grave faults of procedures – The Petitioner
and his family are being injured every day by the lack of a family allowance of
$2000 a month they received for decades.
12.
This joint enterprise of the respondents and co-conspirators have over the
last four years systematically refused to carry out the testator’s intent
and abused the legal system for unjustifiable and illegal financial gain. The
Estate is worth about two million dollars. The Respondent have filed on June
22, 2007, a motion to discharge with an inventory of only $100 and expenses of
$400,000, plus $200,000 more for Mr. Hoppe; And another for Thomas’s
expenses of $200,000 for a total over 2/3 of a million dollars over an estate
they claim has only $100 value.
13.
http://www.wiredbrain.net/probateclose.htm
The papers to close the estate filed June 22, 2007
14.
This makes
no sense at all, unless they plan on claiming that they have used up
all the estate’s assets in the process of stealing it. They have completely
failed in their responsibilities to the law, the Florida bar, their profession,
the administration of justice, Thomas’s mother, the deceased, and his
brothers, the other beneficiaries. The Respondents know what they should have
done but have chosen to instead to be dishonest and take all the money
that testator’s intended to equally divide amongst her children.
15.
Mr. White wrote: “Second, please be clear in understanding that I
represent the personal representative of the estate. I do not represent Tom
individually, which is a large part of the reason Tom retained Mr. Hoppe in
connection with the Florida Bar complaint you filed against him. In my capacity
as the attorney for the personal representative,
16.
(Mr. White wrote in 10/12/2004) it is my responsibility to guide the
personal representative in making sure that all of the estate’s
obligations are discharged, in particular that all estate taxes that may be due
are paid, that all estate assets are marshaled and properly accounted for, and
that proper distribution is made to the beneficiaries as required by the will
which has been admitted to probate in Florida. I intend to fulfill that
responsibility. However, I do not represent Tom, any more than I represent
either of you. ”
17.
GOD only knows that IF he had done the right thing and what is expected and
required by law, then
many years of pain, suffering, legal and financial waste; ($700,000)
would have been avoided and we all would not be where we are today. In
reality, Mr. White only represents Thomas and Leanne, the joint enterprise of
the respondents and co-conspirators in their nefarious schemes to take all the
money and attacks the other beneficiaries. They were required to represent and
protect the departed and her beneficiaries not attack them, the truth, the
legal system and common decency and common sense.
18.
Since Mr. White said he is the petitioner’s representative and attorney
there is a claim of malpractice and fraud as a respondent and co-conspirator
since Mr. White has clearly been unethical, corrupt, and dishonest in joining a
conspiracy to embezzle by fraud the beneficiary’s property.
19.
“Justice delayed is justice denied”. The Petitioner appealed
the lower courts denial of his claims as beneficiary to his mother’s
estate. The Petitioner is being denied justice by the lack of any hearing on
the merits of the case, a chance to present the facts and the law about the
dispute to an impartial court. Over the last four years, there has been a
complete lack of any meaningful judicial decisions on the critical issues. The
lower courts have made no substantial decisions. The Petitioner claims this is
equal to having his complaints dismissed without a hearing. For years the
record will show that Respondents and the trial court has refused to respond to
the Petitioner’s pleas, petitions, and Motions. The Respondents have not
presented any affirmative replies or actions to settle the dispute or move the
courts to make any findings on the issues in dispute. There is no sign that
there will ever be a final judgment in the trial court or in 1DCA. There has
been no progress in making an inventory of the estate which is still $100 over
four years. The Respondents have shown a clear intent to obtain by fraud all
the property in the estate by perverting the course of justice.
20.
DENIED DUE PROCESS OF LAW WHETHER
THE TRIAL JUDGE MADE AN ERROR IN
HOLDING EX PARTE CASE MANAGEMENT HEARING, DENYING THE PETITIONER TIMELY
RESPONSES TO CHARGES AND ALLOWING THE ATTORNEYS FOR THE RESPONDENT TO WRITE
COURT ORDERS INCLUDING UNJUSTIFIED SANCTIONS AND FINDING NOT BASED ON THE FACTS
AND THE LAW; SHOWING GROSS BIAS AGAINST PETITIONER AND PROJECTIVE OF AND
PREJUDICED FOR THE RESPONDENT
21.
The case is not fundamentally about who did what to whom in the process of
litigation, or as the respondents claim, the faults of the
Petitioner in seeking justice, but only the failure of the personal
representative (PR), because of greed and a gross conflict
of interests, to faithfully carry out the wishes of the deceased.
who in not being represented to see the testator’s intent is honored
since the PR refuses to comply with the explicit provisions of her Will. The
central issue is a monumental act of betrayal where Thomas, acting as the PR
for his deceased mother and with responsibilities for the other beneficiaries
who are his brothers, announced in an e-mail
days after Melanie’s death, that he and his wife, Leanne,
(a Respondent) also an attorney, were taking everything in Melanie’s
estate for themselves. Thomas stated in the same e-mail that they were hiring
“really mean lawyers” to support the illegal ownership of the
entire estate and to attack his brothers. The Respondent is clearly in a really
big conflict of interest.
22.
The history of the law, civil courts and judicial administrative code
was largely based on inheritance. From ancient Babylon , through Greek and
Roman law, ecclesiastical or Church Law, and the British Common Law the legal
transfer of property after death was a major part of the legal system and a
foundation of organized society. Transfer of property took up a major part of
the pillars of American common law. This case is about the wishes of the
departed, Melanie Lowenthal Pflaum, and the ability of the judicial system in
the State
of Florida to respect the ancient tradition of passing property
from generation to generation.
23.
All the issues raised by the respondents are only blue smoke and mirrors trying
to hide the basic reality, i. e. the Respondent and his wife taking all three
shares of the estate (they value at $100 but in reality is two million) for
themselves. The Respondents have actively encouraged the trial court from
making a final judgment, which would be then be subject to appeal. The case
could have been closed in the fall of 2005 or assigned to a impartial PR. The
Petitioner, positive in the belief in his cause, the facts and the law, became
aware of this “in his face” strategy of the Respondents and his
compliant court to delay, harassment, threaten and use sanctions to advance his
intention of intimidating the petitioner and never coming to a final judgment.
The tactics of the Respondents have the clear intent of taking all the property
and using legal tricks to keep what does not belong to them. The Petitioner has
appealed for Justice PRO SE to the best of his ability. The Petitioner had no
choice to seeking appeals or cases in other jurisdictions since there is no
chance of a fair hearing in the lower court in Alachua County. The order by the Trial Court
forbids the Petitioner from exercising his civil rights to justice.
SUMMARY OF THE HISTORY ISSUE THREE:
24.
CONFLICTING AND ADVERSE INTERESTS WHETHER THE COURT MADE AN ERROR IN NOT FINDING THE RESPONDENT AS PERSONAL
REPRESENTATIVE AND BENEFICIARY WAS HOLDING AND ACQUIRING CONFLICTING AND
ADVERSE INTERESTS AGAINST THE ESTATE WHICH CRITICALLY INTERFERED WITH THE
ADMINISTRATION OF THE ESTATE AS A WHOLE (733. 609) AND WAS IMPROPERLY
EXERCISING POWER; AND WAS IN BREACH OF HIS FIDUCIARY DUTIES, THEREFORE BE
REPLACED.
25.
Melanie Pflaum left an estate of about two million dollars which was clearly
her money
on the day she died, on March 5, 2004 in her long term home in Spain;
Melanie had the absolute right to dispose of her property in a proper last will
and testament. Her home of 35 years was in Private Community, El Tosalet, Javea
, Spain - a property that Thomas the Respondent has valued at $450,000 and has
been unwilling to sell despite four viable offers. Her other property includes
her Merrill Lynch (M/L) brokerage account in Tallahassee, Florida of about 1.5
million dollars in 2003 (plus compound earning of about 30% is over two million
in 2007) and other assets of over $100,000 and listed in the IRS estate
taxes; (2005) and nothing is in the inventory of the Estate, (only $100 value
of two prints)
26.
Northern Trust Checking Account Chicago - $11,689 (part of a trust account) set
up by Melanie’s parents in 1964.
* CAM (CAJA) de Ahorros de Meditarraneo Melanie’s bank in Javea - $19,133
* Royal Bank of Scotland - Jersey GB - $30,573
* Income tax refund - $10,985
* Works of Art, page 10 - $19,230 (in Javea)
27.
Total - $91,610
* Also, Bank of America - Tampa , FL 33622 -5118- approximately $5,500 (This is
not on the tax return, but did exist). Account 00127844 4076 The Respondent
used a POA (power of attorney) to close the account, pocket the money, change
the address from Spain to Micanopy, then claim the account at his home as
evidence that his mother lived in the home of Mr. and Mrs. Thomas Pflaum, where
in fact she had no property or even a room of her own. The evidence that
Melanie Pflaum lived and was resident, domiciled in Spain not Florida, is
beyond a reasonable doubt.
28.
NOTICE OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE June 22, 2007 show
costs of over $400,000 (not including Mr. Hoppe, and a claim by Thomas the PR
for $200,000 so a grand total of $700,000) has been spent on a estate they
claim is of $100 value. DO YOU HAVE EYES, can you see, DO YOU HAVE EARS, can
you hear, DO YOU HAVE A VOICE, can you speak? The Estate is over two million
dollars and includes a substantial property in Spain. The Financial Statement was only
made June 22, 2007 and is a year late!
29.
Here comes the PETITIONER, Dr. Peter E. Pflaum PhD (PRO SE) at the age of
70 years, a retired professor of Public Administration and government. The
Petitioner has never before been involved in litigation and has been PRO SE
from necessity only. Melanie Pflaum, her son Petitioner and his wife Mary
Anne trusted Thomas, as a son, a brother, and as an attorney to do the right
thing as administrator of the estate. He was completely trusted by his mother
to carry out her wishes when she died. It came as a great shock, after months
of taking care of his 94 year old dying mother, Petitioner returned from
Spain in March of 2004 (Melanie) to be informed (March 27, 2004) by his brother
(Thomas) and his sister-in-law, Leanne (both attorneys) that the Respondents
were going to take for themselves, everything in the estate.
30.
They said in e-mails in the record that they would “play for the whole
deck” and hire at great expense “really mean lawyers” to
attack Petitioner’s rights to an equal share of the property their
mother left to her three sons in her will. This is exactly what has happened,
Thomas and Leanne have kept two million in assets, and four years later there
is no progress
made in the probate of the estate.
31.
The attacks on the petitioner include a civil
suit for defamation and extortion, and having the Petitioner
arrested on felony
charges resulting from Thomas’s false sworn police statement.
32.
The Petitioner has moved for the removal of the PR for cause over several
years. An alternative has been a petition to the trial court
since 2004 to consider MOTIONS for removal of the PR for cause as he no longer
qualified because of overwhelming
conflict of interests, and gross neglect of legal responsibilities under
law. The Codicil of Melanie’s appointed the Lewis State Bank in the case
Thomas and Leanne are not able to serve. The Lewis state bank was bought by the
Nation’s Bank which was bought by Bank America which accepts its duties
as successor institution and would do a professional job.
33.
The court has refused to act on this and all other of the Petitioners Motions
and petitions. The
court has been begged to act because of the extensive evidence of misconduct
that cries out for the court to appoint a curator with or without notice and
hearing to take hold of the property in contest and report to the court on how
to quickly and with due diligence and proper process; the new PR could close
the estate and distribute the results to the beneficiaries.
34.
Thomas and Leanne owe Petitioner extensive damages to remedy the harm
they has caused. This is a claim against Thomas as PR and as a lawyer and as a
person. •
Specifics- The respondent has done (and not done and left undone) the facts and
the law.
35.
In the Probate case the judge has ruled that ”All claims, Motions, and
other pleadings or papers filed herein by said
4. Except appropriate appellate filings pertaining to this order, no further
pleadings, Motions or papers may be filed herein by said
36.
In the civil case (by the same judge) without a hearing ordered “As to
Defendants
37.
The respondents have not replied to several years of interrogatives, discovery,
petitions to coerce answers or petitions and motions to have the PR removed for
cause, (gross conflict of interest) and the respondent has:
733.
609 Improper exercise of power; breach of fiduciary duty.
–
38.
Motions were denied for the Judge to recuse himself, based on gross prejudice
for the Respondents and bias against the Petitioner, The
case presented by the plaintiff is sufficient evidence to show that two or more
people are involved in a joint enterprise.
39.
WHETHER THE TRIAL COURT MADE AN ERROR IN NOT HEARING THE MATERIAL ISSUES OF
THIS PROBATE CASE OR MAKING A DECISION ON ITS MERITS IN A TIMELY MANNER; THAT
CAUSED SERIOUS MATERIAL HARM TO THE PETITIONER.
40.
“Justice delayed is justice denied”. The Petitioner appealed
the lower courts denial of his claims as beneficiary to his mother’s
estate. The Petitioner is being denied justice by the lack of any hearing on
the merits of the case, a chance to present the facts and the law about the
dispute. Over the last four years, there has been a complete lack of any
meaningful judicial decisions on the critical issues. The lower courts have
made no substantial decisions. The way to discover who is right and who is
wrong is to hear the facts and review the law.
41.
The Petitioner claims this is equal to having his complaints dismissed without
a hearing. The case for
jurisdiction is about protecting the integrity of the Judicial System in the
State of Florida. The issue of public policy is the ability of the
courts to fairly adjudicate probate in accordance with the law and the rules.
The Petitioner has been denied his inheritance for over four years. The review
of the record will show a pattern of abuse and harassment. The system of
justice must do better in providing a fair and timely resolution of what
is in this case, not a complex problem. The trial court has
ignored statuary time limits, rules, and laws requiring an inventory and has
filed completely incomplete progress reports, and has refused to provide
required statements of assets.
43.
The public policy issue is that the baby boomers’ parents are dying and
leaving estates This case is an example of how the system does not properly
work. The rights of beneficiaries are not protected and estates are exploited
by unscrupulous agents, lawyers, relatives, financial advisors without proper
regulation or supervision. This probate crisis undermines the public trust in
the whole judicial system and the rule of law, as more people discover how
complex, absurd and unfair
the process can become. One in five boomers has horror stories about
inheritances. Having experienced the stress of taking care of elderly parents,
then the painful death of their parents and sometimes faults of the medical
system, they now often face years of litigation at great expense as the estate
is exploited by the legal and financial services systems.
44.
ALLOWING HARASSMENT and ABUSE WHETHER THE TRIAL JUDGE MADE AN ERROR IN THE JUDICIAL PROCESS ALLOWING
HARASSMENT and ABUSE OF THE PETITIONER BY THE RESPONDENT AND DENIED THE
PETITION DUE PROCESS OF LAW IN BEING GROSSLY BIAS AGAINST HIM AND PROJECTIVE OF
AND PREJUDICED FOR THE RESPONDENT.
45.
The Trial Court has allowed the Respondents to freely operate a campaign of
harassment to force the plaintiff to surrender his claims. This campaign
included a civil suit for defamation and extortion, a case basically dismissed
by a civil jury and no judgment has been entered as of Saturday, July 21, 2007.
AND for four years the Respondents have attacked the Petitioner with
complaints as to an imagined false report to the Department of Family and
Children Services (DCF), claims of invasion of privacy, monetary sanctions,
forced mediation, fines, and a long record of judicial abuse.
46.
A criminal case was filed and the petitioner was arrested based on a false
affidavit by Thomas and Leanne at the sheriffs office and theState Attorney
Office in Alachua County. May 2005 case was dismissed in August but Mr. Hoppe
continued to use it as evidence in November, December and January 2006. There
is no such offence in civil or criminal law. That the report made
May 16th of 2005 by Teresa Oldenburg (DFCS) Gainesville of was not a False
Report of Child abuse using FS 39. 205 (which does not apply) or a felony was
in error. The sworn complaint of the victims was false and without evidence.
47.
The offer by the state of PTI, (pre trial intervention or diversion) or
pretrial settlement in the criminal case was not made in writing but
was reported to Petitioner and Mary Anne by the public defender as
including conditions set by the alleged “victims. ” Thomas and
Leanne Pflaum. It included an admission of guilt by Petitioner . The offer
included a condition of a default in a probate case. The offer included the
condition that Petitioner drops all claims for his right to his
inheritance and that Petitioner drops all other civil claims against
Thomas and Leanne Pflaum regarding their taking the estate for themselves. It
is highly improper for the state to take sides in a civil case and become a
tool of blackmail of one of the parties. It is clear this criminal case is
being used to further the economic interests of Thomas and Leanne. This offer
was then denied by a false statement by the state attorney in open court.
48.
The petitioner, Dr. Peter E. Pflaum was offered a material incentive and
threatened with material harm by the plaintiff’s lawyers and the State
Attorney; State of Florida, by way of State Attorney, Mr. Colaw appeared to
have conspired with Thomas Pflaum, his attorney Mr. Hoppe in an improper and
illegal collusion to blackmail the Petitioner.
49.
The effort of the criminal prosecutor to interfere with the civil case is
serious and makes a fair trial impossible. Mr. Hoppe, working for the
plaintiffs, has used the criminal system to blackmail Dr. Pflaum by conspiring
with Mr. Colaw to have Dr. Pflaum arrested, held on $50,000 bail, and threatened
with 20 years in jail. Mr. Hoppe created trumped up charges as a part of his
campaign of harassment conducted by the Respondents. These actions are evidence
of a tight relationship between the state and the respondents (Thomas and
Leanne) and his lawyers. This unholy alliance makes it impossible for
Petitioner to have a fair trial. The civil case is part and parcel of
this plot by the plaintiffs to steal Dr. Pflaum’s share of his
mother’s estate. The real meaning of the criminal case became clear when
they offered to exchange an offer to drop the criminal case in exchange for Dr.
Pflaum’s surrender of his civil and material rights.
50.
Mr. Hoppe has raised a false forgery charge and other issues from the probate case.
This complaint is based on a pattern of legal and judicial abuse which
has denied the Petitioner his basic civil rights. In the furtherance of the
tortious interference with the Petitioner inheritance of his one third share of
(Melanie Pflaum) his mother’s estate of two million dollars, the
Respondents committed a series of action to deny the Petitioner his civil
rights, due process, and equal protection of the laws.
51.
ISSUE FOUR: CLEARLY FAILED TO PROTECT THE ESTATE WHETHER THE COURT MADE AN ERROR WHEN IT ALLOWED A GROSS CONFLICT OF
INTEREST BY THE PERSONAL REPRESENTATIVE. (PR) WHEN HE ANNOUNCED IN WRITING HIS
INTENTION TO TAKE FOR HIMSELF AND HIS WIFE ALL THE ASSETS OF THE ESTATE AND DID
SO WHICH CLEARLY FAILED TO PROTECT THE ESTATE AND FAITHFULLY CARRY OUT THE
WISHES OF THE DECEASED.
52.
When Thomas acknowledged that he has no case - that the law and the facts
require a just distribution of his mother’s estate - he adopted a policy
conducted by Mr. Hoppe to attack the petitioner. The Judge was in error in
allowing this policy full space to operate. It must have worked before for
these lawyers to file false cases, without merit, cause or jurisdiction (poorly
reasoned: frivolous, flimsy, foolish: shallow, superficial) but then use the
cases to make a series of demands, motions, petitions, sanctions and general
harassment with interrogatives, discovery, as threats and battement of the
opposition. The court was in clear error to allow this constant irritation or
allow one party to torment persistently the otherside. The Judge was in error
in allow Mr. Hoppe to wear out; exhaust, to impede and exhaust (an enemy) by
repeated attacks to go forward over four years.
53.
The Judge allowed the misuse of Case Management meeting where the
Respondents lawyers discussed a wide range of non germane issues without the
inconvenience of opposition and signed orders not related to the subjects
heard.
54.
The Judge should have compelled Thomas and Mr. White a respondent and
co-conspirator to produce a real inventory and is in error by letting four
years to pass with an outrageously false inventory of $100. The Judge was in error and
prejudiced in allowing Thomas Pflaum to act as Personal Representative when he
is disqualified
by law because of his claim to the whole estate.
55.
The Judge was in error and prejudiced in accepting a false affidavit that
Melanie Pflaum lived in Micanopy. The affidavit contained perjured (The Bank of
America Statement) and tampered documents (The M/L forms) and IRS estate tax
forms, (where the Respondent claimed Melanie lived in Micanopy since 1987) the
evidence to the contrary was beyond a reasonable doubt, clear and convincing. A
letter by Melanie in November 2002 proves she did not even have a room in
Thomas’s house in Micanopy, in direct contradiction to Thomas Pflaum’s
lies. The petitioner submitted overwhelming evidence proving the domicile
issue.
See http://www. google. com/search?hl=en&rls=com.
microsoft%3Aen-us%3AIE-SearchBox&q=Melanie+Pflaum&btnG=Search
56.
WHETHER THE COURT MADE AN ERROR WHEN IT ALLOWED A GROSS CONFLICT OF
INTEREST BY THE PERSONAL REPRESENTATIVE. (PR) WHEN HE ANNOUNCED IN WRITING HIS
INTENTION TO TAKE FOR HIMSELF AND HIS WIFE ALL THE ASSETS OF THE ESTATE AND DID
SO WHICH CLEARLY FAILED TO PROTECT THE ESTATE AND FAITHFULLY CARRY OUT THE
WISHES OF THE DECEASED
57.
The Personal Representative. (PR) Thomas is who also a beneficiary and Leanne
Pflaum have failed to protect the estate and in fact have stolen all the
assets. The cause of the litigation is the failure of the personal
representative (PR), because of greed and a gross conflict
of interests, to faithfully carry out the wishes of the deceased who
cannot represent herself.
58.
Were The Courts, Merrill Lynch and or Thomas doing their General fiduciary
duties? Benjamin Cardozo, while sitting on the Court of Appeals of New York
made perhaps the most famous description of fiduciary duties in Meinhard v.
Salmon, 249 N. Y. 458, 464 (1928):
Many forms of conduct permissible in a workaday world for those acting at
arm’s length, are forbidden to those bound by fiduciary ties. A trustee
is held to something stricter than the morals of the market place. Not honesty
alone, but the punctilio of an honor the most sensitive, is then the standard
of behavior. In its essence this case makes a distinction between form and
substance. Generally, the law recognizes three major fiduciary
duties:
1. duty of loyalty, i. e. a fiduciary must not place his own interests ahead of
the departed and the beneficiary’s interest;
2. duty of care, i. e. a fiduciary must exercise an amount of care appropriate
to manage the beneficiary’s interest; and
3. duty of disclosure, i. e. a fiduciary must disclose certain information to
the beneficiary.
Fiduciary law is particularly relevant to the law of trusts, partnerships,
agency, and corporate officers and directors. Fiduciary duties are always
particularized to the actual relationships they occur in, and often they can be
modified (or even waived) by contract.
(1) A personal representative’s fiduciary duty is the same as the
fiduciary duty of a trustee of an express trust, and a personal representative
is liable to interested persons for damage or loss resulting from the breach of
this duty. In all actions for breach of fiduciary duty or challenging the
exercise of or failure to exercise a personal representative’s powers,
the court shall award taxable costs as in chancery actions, including
attorney’s fees.
59.
By 2003, Melanie, aged 94, could no longer handle her affairs. Thomas being
fully aware of her condition had her sign papers (including power of attorney)
without the ability to consent. He has used these documents to take everything
of her property, including $100,000 reported to IRS as bank accounts, art
works, government payments, without any inventory going to the estate. Respondent Thomas Pflaum clearly has a
conflict of interests as big as all outdoors. He can not fairly administer the
estate while at the same time claiming the whole amount. He is attacking the
other beneficiaries while he is required to look after their interests.
Thomas (PR) and Leanne
Pflaum have failed to protect the estate, in fact, have stolen all the assets.
60.
Melanie Pflaum’s long time residence in Javea, Spain, is part of the
estate. She lived in her home there since 1969. The home could have been sold
for cash (300,000 euros free and clear after expenses) FOUR times since her
death, but Thomas and Leanne blocked all sales each time. The house (from
recent descriptions from the neighbors to us personally) is in disrepair; some
windows are boarded up and some are broken out - Squatters squat frequently.
This is an abomination and an embarrassment to Petitioner and his family
and to our country.
61.
The trial judge ordered
in the face of all the fact and the law and all reality and the
requirement justice that Respondent Thomas Pflaum had no conflict of interest
and Melanie was domiciled in Micanopy. The Judge ordered mediation without
agreement and with no hope of progress, in a case of extortion that was not
proper, in a manner that was improper, and he has allowed the Respondents
attorneys to write court orders, and based on their manipulations order false
sanctions against Petitioner . The trial court would not compel or require
Respondent Thomas Pflaum or Leanne to answer interrogatives or discovery while
compelling the same against the petitioner. The court allowed Mr. Hoppe to
harass Petitioner and his wife Mary Anne in endless procedures and
complaints, sanctions and
motions. Decisions were made before hearing both sides. The court allowed the
Respondent Thomas Pflaum and his lawyers to write the court orders before the
Petitioner had time to respond or even before hearing and before the facts were
known. These cases include a false charge of forgery, a false charge of
contempt, a false criminal case, and a false civil case.
62.
There were several private meeting ex parte (case management) without notice
and many other violations of simple due process. Here
comes Dr. Peter E. Pflaum with the claim that the court has no discretion
in removing the
Personal Representative (PR), Thomas Pflaum for a gross
conflict of interest. The respondent has not done anything to see that the
Estate is managed according to law and on the other had has done everything to
take it all for himself and his wife. The bulk of the estate was in an account
with Merrill Lynch. It is the duty of the PR to see this property of the
deceased is included in the estate as it should be according to law. At the
same time Thomas claims it as his property. IT is impossible that Thomas can
act on both sides of this dispute and must be removed according to law. Thomas
is clearly holding or acquiring conflicting or adverse interests against the
estate that will or may interfere with the administration of the estate as a
whole disqualifies the Thomas as the PR
63.
33. 504 The
respondent has failed to account for
the sale of property or to produce and exhibit the assets of the estate when so
required. Thomas Pflaum
has committed perjury when he signed a sworn statement notarized by Mr. White
who committed subordination of perjury as a respondent and co-conspirator in
the bold faced lie that Melanie Pflaum lived (resided,
domiciled) in Alachua County at the Pflaum home in Micanopy, claimed
in the case of IRS since 1989. The venue for the letters of administration in
probate (2004) was based on this false sworn claim of residence, domicile or
even presence in the county. This is completely untrue. They further argue that
Melanie Pflaum was competent to sign and make an informed decision to agree to
the JTWROS on the Merrill Lynch Client Relationship Agreement in November 2003
and to was competent to execute several powers of attorneys (POA). [exhibit C in
May until Nov. 2003 Thomas sends Melanie several POA which she signs without
the ability to read or understand, a copy of address and return envelope Thomas
Pflaum, Attorney at law used sends and provides for Melanie to return to him..
Petitioner was in Javea from late Aug to end of Oct 2003 and sees Melanie
sign long detailed POA as was the caregiver Tulia. Petitioner has
asked for theses POA in discovery, and has tried to subpoenaed from Thomas and
Northern Trust, without success.
64.
Thomas Pflaum must have believed the POA Melanie signed and he submitted as
evidence of her domicile were valid and were signed when Melanie was competent.
If she was competent the POA was unnecessary if she since she was not competent
then there should have been a conserver who would have had a clear duty to
protect Melanie’s assets. Thomas Pflaum clearly believes that he has the
legal right using these powers obtained by fraud, POA used to take and hold all
of the property including bank accounts, tax refunds and all other of
Melanie’s assets.
65.
After Melanie died on March 5th 2004 he declared in e-mail (in exhibits) on
March 27th that he and Leanne intended to take everything Melanie owned and
would abuse the legal process to keep it all with a crack and expensive legal
team. [exhibit E page 32] This is exactly what has
happened with the guidance of Mr. White a respondent and co-conspirator and the
friendly help of a Judge that bent over in their direction. Mr. Hoppe’s
role is to run along the sidelines and throw sand in the face of the petitioner
and try to trip the opposition with legal tricks. So far it has been working
but a great expense, ($700,000) pain and suffering, waste of resources and
abuse of the judicial process.
66.
“If you have the facts on your side and honest conviction in your heart,
you rarely lose by fighting for your idea all the way. ” WIT & WISDOM
FROM LEO BURNETT
67.
ISSUE FIVE: A UNJUSTIFIED DELAY WHETHER THE TRIAL COURT MADE AN ERROR IN NOT HEARING THE MATERIAL ISSUES OF
THIS PROBATE CASE OR MAKING A DECISION ON ITS MERITS IN A TIMELY MANNER; A
UNJUSTIFIED DELAY THAT CAUSED SERIOUS MATERIAL HARM TO THE PETITIONER.
68.
The grounds for tortious interference with inheritance
include the lack of possibility when a probate proceeding does not have the
potential to provide full redress of any damages suffered by a plaintiff, and
some courts will require that the probate court proceeding be completed before
a tort action may be brought. The attached order of the probate court in the
8th circuit bars Petitioner from further claims and denies all the
issues, so it is over as far as the petitioner is concerned.
Some fundamental questions:
69.
The core of a functional civilization is self regulation, either guilt or shame
and professional and social pressures creating a context of good social
behavior. Despondently, the legal system has become for some lawyers, a game of
only what you can get away with - the only issue is the material damages of
getting caught. It is not how you play the game but only winning by any means
necessary. If the law is against them (the estate should be divided three ways
within four years) they argue the facts, and since the facts are also against
them (there is a clear conflict of interests, and Melanie did not live with
them in Micanopy) they attack the other side.
#INTERFERENCE
WITH INHERITANCE;
70.
ARGUMENT_4:_TORTIOUS_INTERFERENCE WITH
INHERITANCE; ISSUE FIVE: WHETHER THE
LOWER COURT MADE AN ERROR WHEN IT
DID NOT COMPELLED THOMAS AND THE ATTORNEY MR. WHITE TO PRODUCE A REALISTIC
INVENTORY INCLUDING A MERRILL LYNCH ACCOUNT AND A HOME IN SPAIN AND IS IN ERROR
BY LETTING FOUR YEARS TO PASS WITH AN INVENTORY OF $100 ON A TWO MILLION DOLLAR
ESTATE. See APPENDIX THREE THE LAW
71.
The Petitioner seeks damages including attorney fees, the value of the
Petitioner’s work time, compensation for the mental anguish incurred from
the will contest, and punitive damages based on the intentional and malicious
conduct of the Respondents. Huffey, 491 N. W. 2d 518. The court allowed the
Petitioner to proceed in tort because the probate court could not address these
damages Proponents of the theory that “every wrong should have a
remedy” believe that the tort of intentional interference with inheritance
is a necessity. Here comes Petitioner
72.
There is sufficient evidence in the exhibits
of our plea to preserve the assets under contest. The Law[1] The
Petitioner has a valid claim is tortious inference with inheritance, and a
number of states are now recognizing the claim. This is a claim that one will
beneficiary intentionally interfered with the free will of the decedent so that
he or she made a testimentary disposition in the JTWROS that wrongfully
excluded the claimant from an inheritance, and that the claimant would have
inherited absent the wrongful conduct.
USE_OF_JTWROS IN MERRILL
LYNCH ACCOUNT
ISSUE SIX: INVENTORY OF $100 ON A TWO MILLION DOLLAR
ESTATE
73.
WHETHER THE LOWER COURT MADE AN ERROR WHEN IT DID NOT COMPELLED THOMAS AND THE
ATTORNEY MR. WHITE TO PRODUCE A REALISTIC INVENTORY INCLUDING A MERRILL LYNCH
ACCOUNT AND A HOME IN SPAIN AND IS IN ERROR BY LETTING FOUR YEARS TO PASS WITH
AN INVENTORY OF $100 ON A TWO MILLION DOLLAR ESTATE. See APPENDIX THREE FOR THE
LAW
74.
When Melanie died (March 5, 2004) the account was changed again to 719-46275
from 719-46081 the account at the time of Melanie’s death because Melanie
was removed and now shows only Thomas and Leanne. Madrid sent the report of the
death of American Citizen on April 21 2004, - during May the account was
changed. The document showing the change Client relationship agreement has a
forged address claiming Melanie living in Micanopy where she had not been for
years (not since 9/11 2001) and never lived, resided or was domiciled.
(NOTE: Florida - Davison v. Feurerherd, 391 So. 2d 799 ( Fla. Dist. Ct. App.
1980); Allen v. Leybourne, 190 So. 2d 825 (Fla. Dist. Ct. App. 1966).
75.
The property in question is in a Merrill Lynch account which was held jointly
with rights of survivorship (JTWROS) and now claimed as the sole property
of Thomas Pflaum. (Was 2. 5 million in 2000) JTWROS is not under some
conditions a probate asset; the first and most important issue is to ask the
court to rule that it is included in the estate for the reason of fraud given
in this document. Probate has venue in Leon County Florida because the money is
in Merrill Lynch (M/L) (Broker Robert Hayward of a Joint Tenants with Rights of
Survivorship (JTWROS) account in Tallahassee , Leon County, Florida, Melanie
signed this arrangement without any understanding of the difference, when or if
it was changed. and how it was done. There is no evidence of gift tax
consequences upon the creation of a joint tenancy with rights of survivorship
(JTWROS). Banking law does not apply to broker accounts- stocks and
bonds.
76.
In 1985 or 1986 after Irving Pflaum, Melanie’s husband of over 50 years
and father of Petitioner and Thomas, died the initials JTWROS were added
to the account. M/L has no record of this transaction. In 2003, Melanie is now
94 years old, Thomas sends to her in April and she signed in May a
“Merrill Lynch Client Relationship Agreement. ” [exhibit A] This document is of a legal size
(or bigger) multi- page document with pages with several carbon copies of a
form – self cc. Thomas and Leanne signed this document in November, of
2003, some six months after Melanie signed it. The first copy goes to M/L and
ends up in storage in New Jersey; the second copy goes to the financial
advisor, Mr. Robert Hayward. ; the third is kept by the client, Thomas and
Leanne Pflaum. After many requests, subpoenas, deposition, threats of contempt
of court M/L has not provided readable copies of this document.
77.
In July and August 2005 the petitioner subpoenaed the documents and went to deposition
in Tallahassee that established the account which existed at
the time of Melanie’s death (the one set up in November 2003 that added
Leanne) If Thomas and Leanne argue that the JTWROS was long standing (it
appears to be added to the account about the time of father’s death in
1985) they have to overcome the fact there is no record that could show how it
was set up and if any of the legal requirements to override a last will and
testament were followed. Mr. Hayward testified that it was for convenience only (clearly if
Melanie was injured or sick and needed emergency funds, Thomas would be in a
position to help after the death of his father). Thomas NEVER made a single
transaction on the account from 1985 to 2003. (Phone call to Mr. Hayward) It
had no joint function except in case of emergency and there was no emergency
until late in 2003.
78.
The records provided by M/L could not be read – were poor fax copies reduced more that 150%
and repeated requests (starting at the deposition on Aug 2nd 2005) to provide
legible copies have had no response. Finally in Sept 2005,
79.
There is sufficient evidence to show bad faith, unethical conduct if not fraud
by using documents signed by Melanie Pflaum after a time when she could no
longer read or comprehend the contents, that Thomas Pflaum just took assets
that belonged to the estate, Thomas Pflaum as Personal Representative had a
gross conflict of interest doing everything in his power to take everything and
give nothing. That Thomas Pflaum misused large amounts of estate assets (about
$700,000 in this useless case) in his efforts to take everything, paying
vast legal fees and fighting every step of the way with a stubborn passion that
became unreasonable and illogical. There is a clear finding of fault by Thomas
and Leanne Pflaum, Thomas White a respondent and co-conspirator and Robert
Hayward as individuals and Merrill Lynch as a company.
80.
MOTIONS to review and declare inventory in the estate - including the Merrill
Lynch Account because there has been a clear attempt at a testamentary devise
without complying with the strict requirements of the statute and would be a
nullity. Therefore the Merrill Lynch account was simply in the name of Melanie
Pflaum at her death and as such is an asset of the estate. The PR files taxes
and has a duty to ask for an extension of time if there are delays. They have
only done so June 22, 2007 a year late and Petitioner has complained for
four years about endless delays and stalling tactics. Holding or acquiring
conflicting or adverse interests against the estate that will or may interfere
with the administration of the estate as a whole makes Thomas ineligible to serve
as PR.
81.
[2]This complaint is based on a
pattern of legal and judicial abuse over four years which is based
on a pattern of legal and judicial abuse which has denied the Petitioner his
basic civil rights. In the furtherance of the tortious interference with the
Petitioner inheritance of his one third share of (Melanie Pflaum) his
mother’s estate of two million dollars, the Respondents committed a
series of action to deny the Petitioner his civil rights, due process and equal
protection of the laws. prohibition
[3] MOTIONS FOR a petition for writ of prohibition November
5, 2006
82.
Here comes
83.
The basic principle of American governance in our Constitution is separation of
powers, because concentration of power in any one person or institution is
dangerous to freedom. To adapt James Madison
84.
If judges were angels, no appeals would be necessary. If angels were to
judge men, neither external nor internal controls on courts would be necessary.
In framing a judicial system which is to be administered by men over men, the
great difficulty lies in this: you must first enable the judges to control the
courts; and in the next place oblige them to control themselves. A dependence
on the people is, no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary precautions.
85.
An independent judiciary is critical to a constitution system that protects
individual rights. The basis of the lack of external supervision and the
quality of respect for judicial decisions, the behavior of trial judges and
just outcomes depends on the professional self-regulation. The internal balance
of power in the judicial system depends on the appeals process from lower to
higher courts. It is up to appeals courts to control unfair courts run by
corrupt, prejudiced, bad judges or some outside powers will begin to intervene.
86.
MAY IT PLEASE THE COURT: I, Petitioner Edward Pflaum PRO SE, son and heir
to Melanie Sophia Pflaum’s estate MOVE that the personal representative
of the deceased be ordered by the COURT to disclose and reveal to his or her
best knowledge and belief all assets past and present of the late Melanie Sophia
Pflaum and as her personal representative all assets and income received from
the late Melanie Sophia Pflaum. Prior and previous inventory has not been
forthcoming and is still only $100.00. The deceased had a residence in Spain .
She had several bank accounts, investment accounts, and valuable personal
possessions
87.
MOTIONS to review and declare inventory in the estate - including the Merrill
88.
HERE comes
89.
Sanctions: Respondent and his attorneys have lied and deceived the court in
matters of critical substance in order to pervert the course of justice, he has
tampered with documents (Bank of America Account) he has illegally used POA,
and with the intent to obstruct justice. The Bank of America (attached) would
be a respected, competent and neutral replacement. Thomas is claiming an asset
of the estate that places him in a conflict as personal representative and he
should be replaced. Mr. White and Thomas Pflaum have failed in their duties and
described by Mr. White. MOTIONS to restore to my family an allowance of $2000 a
month because of serious financial stress and bankruptcy.
90.
MOTIONS to compel Mr. Hoppe to return Melanie Pflaum’s letter of intent
of June 2003.
91.
The Petitioner makes MOTIONS for the court to affirm and agree there is a
danger that the decedent’s property is likely to be wasted, destroyed, or
removed beyond the jurisdiction of the court and therefore orders Merrill Lynch
Pierce Fenner and Smith, Inc. to freeze or suspend the account’s) of
Thomas and Leanne Pflaum and demand Merrill Lynch to verify what is currently
in the account’s).
92.
Since the Respondents are holding and acquiring conflicting or adverse
interests against the estate that have interfered with the administration of
the estate as a whole, the court can protect the assets while the case is under
litigation. When it is necessary, the court may appoint a curator after
formal notice to the person apparently entitled to letters of administration.
The curator may be authorized to perform any duty or function of a personal
representative. If there is great danger that any of the decedent’s
property is likely to be wasted, destroyed, or removed beyond the jurisdiction
of the court and if the appointment of a curator would be delayed by giving
notice, the court may appoint a curator without giving notice. The core of
Petitioner’s argument is that Thomas’s strategy is to avoid a final
judgment and just keep the money by fraud, making appeal difficult. Summary
judgment for relief; An alternative the court could consider is MOTIONS for
removal of the PR as no longer qualified because of conflict of interests, and
gross neglect of legal responsibilities under law. The Codicil of
Melanie’s will appoint the Lewis State Bank in the case Thomas and Leanne
are not able to serve. The Lewis state bank was bought by the Nation’s
Bank which was bought by Bank America which accepts its duties as successor
institution and would do a professional job.
93.
Because of the extensive evidence of misconduct the court should appoint a
curator without notice and hearing to take hold of the property in contest and
report to the court on how to quickly and with due process close the estate and
distribute the results to the beneficiaries. Thomas and Leanne owe Petitioner
extensive damages to remedy the harm he has caused. The claim by the Petitioner
is for $1,500,000 in direct financial damage AND PAIN, SUFFERING and punitive
damages. This includes but is not limited to the original amount in the estate
divided three ways, including a fair assessment of the house in Spain, with
interest over four years and direct costs over the last four years. The damages
in pain and suffering by the Petitioner and his family over these years have
been real and substantial and will require a remedy.
94.
PETER PFLAUM, PRO SE makes a claim against the Petitioner, THOMAS M. PFLAUM,
his claims for damages against them the for One and one half millions dollars
($1,500,000) for Summary: $861,000 as Petitioner’s share of his
mother’s estate in 2004 ($500,000) plus interests over four years is 25%
($125,000) and INCLUDES $140,000 claims on the abandoned the property in Spain
. Another $100,000 for legal and other direct expenses, loss work, and mental
distress, $380,000 in false arrest, pain and suffering, and time spent on these
cases. They are charged with grand larceny of a million dollars or more by
fraud. In the furtherance of a joint enterprise they have committed perjury,
subornation of perjury and obstruction of justice and public corruption.
Allowing the presentation of false testimony rises to the level of subornation
because the attorneys used the material as part of the testimony to make the
case and forward the enterprise. Punitive damages made up the total of $1.5
million. There are additional claims against Mr. White of $200,000 as all
the fees he has charged in the enterprise and the same for Mr. Hoppe. All
the respondents should be stripped of their ill gotten gains.
95.
PETITIONS AND MOTIONS FOR INJUNCTIVE RELIEF and MOTIONS FOR DEFAULT JUDGMENT OF
$861,000 FOR THE Petitioner FROM THE Respondents
96.
RULE 5. 020. PLEADINGS; VERIFICATION; MOTIONS Forms of Pleading. Pleadings shall be signed by the
attorney of record, (OR PRO SE) and by the pleader when required by these rules.
All technical forms of pleadings are abolished. No defect of form impairs
substantial rights, and no defect in the statement of jurisdictional facts
actually existing renders any proceeding void.
The Petitioner moves the records be included as correspondence because almost
everything put in evidence is in the record and does not need to be copied.
I HEREBY CERTIFY that a true copy of the foregoing was
furnished by U. S. Mail this Saturday, June 16, 2007 to Bill Hoppe, P. A. d/b/a
The Hoppe Law Firm 2313 N. W. 7th Road Gainesville, Florida 32607
Signed
________________________________________date____________
Certificate
of Compliance This
brief was prepared in Times New Roman 14-point font.
In the Supreme Court of Florida
Dr.
225 Robinson Road
New Smyrna Beach, FL 32169
386 428 9609 PETITIONER
V
Leanne Pflaum, Esq. and Thomas Pflaum Esq.
17306 S. W. 10th Terrace
Micanopy, Florida 32667-9802
352 466 0252 fax 1 352 466 0251
And Richard White Esq. of White & Crouch, P. A.
5303 SW 91 Drive, Suite 200 Gainesville, FL 32608
Board Certified in Wills, Trusts & Estates
RESPONDENTS
(Lower
Tribunal No. 1 D06-6618(Trial court No: 2004-CP-0770)
(Trial
court in Gainesville, Alachua County,
Probate
of MELANIE SOPHIA PFLAUM)
Dr.
Peter E. Pflaum, PRO SE
225 Robinson Road
New Smyrna Beach, FL 32169
386 428 9609
The
Florida Supreme Court has received on 3/20/2007 a Petition for Writ of
Prohibition as an Appeal from the District Court of Appeal(Defamation And
Extortion Lower Tribunal No. CASE NO. 2005-CA-2363 DIV. K) Former CASE NO.
1DCA06-3240, 1D06-2762, and 1DCA05-5830, DCA05-5212, 2005-CA-2363
CASE
NO: SC07-655 Supreme Court of Florida 1
CASE
TWO: DEFAMATION and EXTORTION 4
CASE
THREE: CRIMINAL FALSE REPORT TO DCF 6
CASE
FOUR: (and five) Civil complaint of False arrest and Negligence 8
CASE
SIX: FIRST DISTRICT COURT OF APPEAL 9
CASE
SEVEN: CASE NO: SC07-655 Supreme Court of Florida 9
The
central issue is a monumental act of betrayal 9
The
inventory could raise concerns of fraud, 11
In
1986 Thomas and Leanne formed a joint enterprise 11
The
Petitioner (Dr.
ORDER GRANTING MOTIONS
FOR SANCTIONS
The following is just wrong. The petitioner is innocent of the charges and
never had a hearing. There is no record of violations and the forgery charge is
based on only one side of the case.
This order is an extreme example of the bias of the
trial court.
This cause came before the Court on the personal representative’s
MOTIONS for sanctions, including dismissal of claims. Upon review of the
evidence proffered, and after a review of the court file, including the
submissions of
Accordingly, it is hereby ORDERED AND
ADJUDGED
1. The subject MOTIONS for sanctions is hereby granted as more specifically set
forth below.
2.
3. All claims, Motions, and other pleadings or papers filed herein by said
4. Except appropriate appellate filings pertaining to this order, no further
pleadings, Motions or papers may be filed herein by said
Leanne Pflaum pending review by the 1DCA case Appellant / Petitioner(s),
Dr. Peter E. Pflaum v. Thomas and Leanne Pflaum
CASE
NO. : 1 DO6-6618
The appeal of this case is part of an ongoing enterprise to deprive the defendant,
The
heart of Petitioner’s case is that Thomas, Leanne and his legal team (Mr.
White, a respondent and co-conspirator for the PR and Mr. Hoppe as a personal
attorney) are abusing the legal process by endless delays, diversions including
a civil case for defamation and extortion.
(IN
THE CIRCUIT COURT OF THE 8™ JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY ,
FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2005-CA-2363 DIV. K THOMAS M.
PFLAUM and LEANNE J. PFLAUM, Respondents, vs. PETER PFLAUM, MARY ANNE PFLAUM,
and JOHN PFLAUM, Petitioners) went to trial February 5th and 6th 2007, without
any judgment by the court as of Friday, June 15, 2007. RefMADE AN ERROR to as Civil Case; Mr. Hoppe has filed
this completely worthless suits designed only to harass Petitioner and
his wife Mary Anne that the court should not have allowed in the same COURT AT
THE SAME TIME. He has continually lied to the court on matters of great
importance with the clear intent to subvert justice.
as follows: (without the
trouble of hearing the case from both sides) done Jan 30th and received Feb 1st
TALK ABOUT EQUAL JUSTICE UNDER THE LAW?
a. Counsel and all pro se parties shall appear in person on MONDAY, FEBRUARY 5,
2007, AT 9:00 A. M. ready to commence trial. Two (2) days have been reserved.
The parties shall contact the undersigned’s judicial assistant on the
Friday before trial to verify who the presiding judge will be and in which
courtroom the trial will take place.
b. The matters for jury trial include:
i. Plaintiff’s claim for defamation against all defendants;
ii. Plaintiffs claim for civil extortion against all defendants.
Plaintiffs’ claims against the defendants are not only for their
individual acts, but also as joint ventures. Plaintiffs have withdrawn any
claim for lost wages or inability to earn money in the future and seek only
recovery for intangible losses herein. The cross claim and counterclaim filed
by Defendant John Pflaum is hereby stricken, said Defendant not having obtained
leave of court to file same.
c. As to Defendants
d.
Without objection, there shall be six (6) peremptory challenges per side. The
six challenges for the Plaintiffs shall be exercised jointly, and each
peremptory challenges for the Defendants may be exercised jointly or, at their
discretion, maybe exercised separately by dividing the total number of
Defendant’s challenges equally. In the event that the Defendants all fail
lo appear for trial, Plaintiffs shall have three peremptory challenges. In the
event that only one Defendant appears for trial, the parties shall have three
peremptory challenges per side. In the event that only two Defendants appear
for trial, there will be six (6) peremptory challenges per side which may be
exercised jointly or separately (divided equally).
e. The Defendants having failed to comply (not true but papers filed were
ignored) with this Court’s order requiring pretrial exhibit lists and
witness lists, the Defendants shall not be permitted to call any witness or use
any exhibit other than those listed on Plaintiffs witness and exhibit lists.
f. The Defendants having failed to comply with this Court’s pretrial
order regarding submission of jury instructions, no jury instructions will be
used other than those proposed by Plaintiff, subject to the Court’s
ruling on objections, if any, to said instructions.
TRIAL ON FEBRUARY 5 AND 6 2007 WITHOUT JUDGMENT
The process has not been even close to fair and equal. The court has shown a
clear preference and favor for Thomas and his team and strong prejudice against
Petitioner . The Judge should have rescued himself more than a year ago.
As to
Defendants
Further
harassment is a worthless criminal case
(STATE
OF FLORIDA -vs- PETITIONER EDWARD PFLAUM Division: 3 Judge: GLANT, DAVID
A. for making an alleged false report to Department of Children and Families
(DCF) State Filed Case Number: 01-2005-CF-002238-A) which is still in case
management after an alleged incident of two years ago. RefMADE AN ERROR to as Criminal Case after two years still
in case management
And
there is now evidence that at Mr. Hoppe a lawyer for Thomas Pflaum directly
contacted prosecutors regarding ongoing criminal investigations. This is
ethically wrong and may even be illegal. In either case, such secret pressures
cuts to the very core of prosecutorial independence, without which the state
judiciary system cannot function. There’s a lot more to come on this
story.
Dr. Pflaum a citizen of Volusia County has made ten
trips from his home in New Smyrna Beach to Gainesville and is being ordered to
make ten more trips. He is held on $50,000 bail with a payment of $5,000 bail
bond fee.
The trip
is 250 miles round trip and takes up a whole day for what has been an
appearance of less than a few minutes. His wife Mary Anne has suffered extreme
mental anguish and loss of income. Professor Pflaum complains that he is being
punished without probable cause.
There
is no evidence
A
report found not to require further action is not a false report.
A
false report has to be done with knowledge it is false.
Therefore,
to prove a case the state must show that Petitioner made a report and he knew
the report was false.
The
evidence shows that Petitioner in fact never made any report at all (a
fax of an e-mail is not a report). There is no evidence that he knowing caused
the High School Counselor to make a report. Clearly Petitioner is fully
protected by the shield law. This is clearly impossible to show this case at
all not to say beyond a reasonable doubt.
The
offer by the state of PTI, PDR (pre trial diversion) or pretrial settlement was
not made in writing but was reported to Petitioner and Mary Anne by the
public defender as including conditions set by the victims. It included an
admission of guilt. The offer included a condition of a default in a probate
case. It is highly improper for the state to take sides in a civil case and
become a tool of blackmail. It is clear this criminal case is being used to
further the economic interests of Thomas and Leanne.
On the
crime report the “victims” are named as Petitioner’s brother
and sister in law, Thomas and Leanne Pflaum. The victims are the plaintiffs in
a civil case. This criminal case is part of a pattern of harassment conducted
by Thomas, Leanne, and their lawyers, Mr. White a respondent and co-conspirator
and Mr. Hoppe as a stratagem in a probate case over the last four years to
steal Petitioner’s inheritance. THERE IS NO CRIME COMMITTED:
The
Florida Department of Children and Families CSA Abuse report ABUSE REPORT
2005-341973-01 3/10/2005 by Jean Warner called to Wilmaelaine Kennan –
Wilfredo Gonzalez says on page two that the reporter is the school counselor at
East side high school.
The
defendant is not identified as a reporter see 39. 205 (4) and (5) below –
THESE LEGAL REQUIREMENTS DID NOT HAPPEN
(4)
The department shall establish procedures for determining whether a false
report of child abuse, abandonment, or neglect has been made and for submitting
all identifying information relating to such a report to the appropriate law
enforcement agency and shall report annually to the Legislature the number of
reports refMADE AN ERROR .
(5) If
the department or its authorized agent has determined after its investigation
that a report is false, the department shall, with the consent of the alleged
perpetrator, refer the report to the local law enforcement agency having
jurisdiction for an investigation to determine whether sufficient evidence
exists to refer the case for prosecution for filing a false report as defined
in s. 39. 01(28). During the pendency of the
investigation by the local law enforcement agency, the department must notify
the local law enforcement agency of, and the local law enforcement agency must
respond to, all subsequent reports concerning children in that same family in
accordance with s. 39. 301. If the law enforcement
agency believes that there are indicators of abuse, abandonment, or neglect, it
must immediately notify the department, which must assure the safety of the
children. If the law enforcement agency finds sufficient evidence for
prosecution for filing a false report, it must refer the case to the
appropriate state attorney for prosecution.
Anyone making a report who is acting in good faith is
immune from any liability under this subsection.
SEVENTH CIRCUIT: Judge Robert K. Rouse, Jr. Division 02
101 N. Alabama Ave. DeLand , FL 32724 CASE NO. 2006 20441-CINS False arrest,
harassments, and lack of due process, and tortious interference with
inheritance PETITIONER E PFLAUM v. THOMAS PFLAUM, ET AL Case Number: 2006
20441 CINS Category: Other Negligence Case Type: Circuit Civil Filing Date:
11/15/2006 Case Status: Open Related Cases: NO Venue Information - 02 - Robert
K. Rouse, Jr. Processing Location: New Smyrna Beach Annex Court Location: New
Smyrna Beach Annex Disposition Information - Pending Disposition Date:Jury
Trial: YES Case Style: PETITIONER E PFLAUM v. THOMAS PFLAUM, ET AL
Case
Number: 2005 20356 CINS Category: Other Circuit Civil Case Type: Circuit Civil
Filing Date: 10/19/2005 Case Status: Closed Related Cases: NO Venue Information
- 02 - Robert K. Rouse, Jr. Processing Location: New Smyrna Beach Annex Court
Location: New Smyrna Beach Annex Disposition closed Information - Other
Disposition Date: 04/06/2006 Jury Trial: NO dismissed on jurisdiction
APPEAL
to 5th DCA withdrawn Fifth district court of Appeals Case Number 5D06-787
Fifth District Court of Appeals the Clerk of the Court 300 South Beach Street
Daytona Beach, FL. , 32114
Mr.
Jon S. Wheeler 301 S. Martin Luther King Jr. Blvd Tallahassee, FL 32399-1850
Peter E. Pflaum, Pro Se Appellant/Petitioner v. Thomas and Leanne Pflaum,
Appellee/Respondents Case No. 1 DCA06-6618 (Trial court No : 2004-CP-0770
Defamation Lower Tribunal No. 1 D06-6618) Former CASE NO. 1DCA06-3240,
1D06-2762, and 1DCA05-5830, DCA05-5212, 2005-CA-2363
500
South Duval Street Tallahassee , Florida 32399 Peter E. Pflaum Pro Se
Appellant/Petitioner v. Thomas and Leanne Pflaum, Appellee/Respondents Lower
Tribunal No. 1 D06-6618 (FSC05-2330)
CASE
EIGHT: (and nine) dismissed;
Arthur
B. Briskman United States Bankruptcy Judge The Central District of Florida,
Bankruptcy filed Feb. 28th 2006 dismiss for lack of credit counseling
Case
Number 6:06-bk-00358-ABB Bankruptcy Trustee Gene T. Chambers Post Office Box
533987 Orlando, FL 32853 Telephone number: 407-872-7575
Federal
court central district of Florida (Orlando) because of international
jurisdiction letter sent Feb 26th 2006 Case Number 6:06-cv-244-Orl-28KRS Case
6:06-cv-00244-JA-KRS filed 3/24/2006 George C. Young U. S. Courthouse &
Federal Building 80 North Hughey Avenue Orlando, Florida 32801 407-835-4200
John Antoon II Judge The Honorable Patricia C. Fawsett Chief United States
District Judge Sheryl L. Loesch Clerk of Court
The central issue is a monumental act of betrayal
where Thomas, acting as the PR for his deceased mother
and with responsibilities for the other beneficiaries who are his brothers,
announced in an e-mail days after Melanie’s death, that he and his wife,
Leanne, (a Respondent) also an attorney, were taking everything in
Melanie’s estate for themselves. The grounds for tortious interference
with inheritance include the lack of possibility when a probate proceeding does
not have the potential to provide full redress of any damages suffered by a
Petitioner.
The grounds for tortious interference with inheritance
include the lack of possibility when a probate proceeding does not have the
potential to provide full redress of any damages suffered by a Petitioner, and
some courts will require that the probate court proceeding be completed before
a tort action may be brought. The attached order of the probate court in the
8th circuit bars Peter from further claims and denies all the issues. If a
court determines that a probate court cannot adequately remunerate a Petitioner
for his loss, a tort action may be available. For example, in Huffey, the court
held that the probate process could not afford the Petitioner a complete
remedy.
The trial court has not reviewed or acted on uncontested
evidence submitted proving the Respondent used a friendship with Mr. Hayward,
the financial advisor at Merrill Lynch, (M/L) to falsely put the Respondents
name on 1.5 million of estate assets. M/L was guilty of gross neglect of duty
in putting the JTWROS falsely on the account.
The trial court has not reviewed or acted on uncontested
evidence submitted proving the Respondent used a friendship with Mr. Hayward,
the financial advisor at Merrill Lynch, (M/L) to falsely put the Respondents
name on 1.5 million of estate assets. M/L was guilty of gross neglect of duty
in putting the JTWROS falsely on the account and refusing to produce a readable
copy of the contract evidence. The Respondents never presented an affirmative
case for his claim to the 1.5 million dollars. The court did not seriously
review the issues, of great and critical importance, but accepted the
Respondents case as a given. The Petitioner has a overwhelming case of why the
money is part of the estate and must be in inventory.
Thomas
abusing the trust the family had in him,
had Melanie sign a blank M/L Client Relationship
Agreement in May 2003, forged her address as being in Florida at his house, and
fabricated a JTWROS account in November 2003 when Melanie was on her deathbed.
The account executive, Mr. Hayward, testified in a deposition in August 2005
that this was Melanie’s money and Thomas was added only for convenience.
The Respondents claim all of the (M/L) account of 1.5
million dollars based on it being a joint account (JTWROS). We reasoned that
establishment of the joint account JTWROS at ML under these circumstances was
an ineffectual attempt to do that which could only be accomplished by a last
will and testament. In order for this claim to prevail, it has to be shown that
the creator intended a gift inter vivos at the time the account was opened.
Subsequent cases produced such diverse results that one commentator was
prompted to characterize them as a “muddle. “Richard B.
Stephens, Jr. , Survivorship Rights in Joint Accounts, 24 U. Fla. L. Rev. 476
(1972).
The inventory could raise concerns of
fraud,
either through a significant transfer of money all of a
sudden or disputes filed by the Respondents. The “Merrill lynch client
relationship agreement” is a contract that is required to establishes the
account. Melanie Pflaum, the deceased, signs these papers (in blank) on May 11,
2003, and Thomas and Leanne sign on November 10, 2003, to create Account #719-46081
which added Leanne without a contract or approval of the principle owner,
Melanie Pflaum. (or anyone) Since the Respondents cannot produce a real
readable copy of the contract, it does not have a real legal existence. An
illegible fax of a microfiche of one page of a multi-page complex contract is
not a binding contract. Without a contract the ownership is in complete doubt
and no party should have the opportunity to waste, destroy, or spend on
excessive legal fees in a attempt to keep money obtained by fraud or have the
money removed beyond the jurisdiction of the court while the issue is before
the court.
CHAPTER 678 UNIFORM COMMERCIAL CODE: INVESTMENT
SECURITIES and 517. 121 Books and records requirements (1) A dealer, investment
adviser, branch office, or associated person shall maintain such books and
records as the commission may prescribe by rule.
In 1986 Thomas and Leanne formed a
joint enterprise
with Mr. Hayward of Merrill Lynch office in Tallahassee
Florida where Thomas worked and Leanne was in Law school. The money in the
account came from Melanie’s parents and grandparents was moved from
Chicago to Mr. Hayward’s care as financial advisor. They put JTWROS on
the account without Melanie’s understanding what was involved. In May
2003 as Melanie was sick and dying they had her sign a blank “Merrill
Lynch Client Relationship agreement” a long multiage document. Mr.
Hayward conspired with Thomas and Leanne to have Leanne added to the account in
November without any authorization from Melanie (or anyone). Thomas had
Melanie sign Power of Attorney when she had no idea of the content. If she
could manage her affairs she would have, (as she had done for 50 years) and if
she couldn’t she had no ability to consent.
In March 2004 Melanie Pflaum (94) died in her long term
home in Javea Spain. She left a formal and uncontested will (1978) giving equal
shares of all he property among her children. The will was drafted at the law
firm of Thomas Pflaum and sign in the counsel in Barcelona. She appoints her
son Thomas Pflaum as personal representative. Thomas and his wife Leanne are
attorneys and live in Micanopy Hammocks south of Gainesville Florida. After the
death Thomas and his wife decided to take the whole estate and so notified
Thomas appointed Mr. White a respondent and
co-conspirator as attorney for the estate and filed letters of administration
in the 8th Circuit Court (July 2004) in Gainesville based on the perjured claim
that Melanie lived with them in Micanopy. Since then there has never been a hearing
of the will and the claims of the descendents.
I HEREBY CERTIFY that a true copy of the foregoing was
furnished by U. S. Mail this Saturday, June 16, 2007 to Bill Hoppe, P. A. d/b/a
The Hoppe Law Firm 2313 N. W. 7th Road Gainesville , Florida 32607
Signed
________________________________________date___________
In the
Supreme Court of Florida
Dr.
225 Robinson Road
New Smyrna Beach, FL 32169
386 428 9609 PETITIONER
V
Leanne Pflaum, Esq. and Thomas Pflaum ESq.
17306 S. W. 10th Terrace
Micanopy, Florida 32667-9802
352 466 0252 fax 1 352 466 0251
And Richard White Esq. of White & Crouch, P. A.
5303 SW 91 Drive, Suite 200 Gainesville, FL 32608
Board Certified in Wills, Trusts & Estates
RESPONDENTS
(Lower Tribunal No. 1 D06-6618 (Trial court No:
2004-CP-0770)
(Trial court in Gainesville, Alachua County, Probate of
MELANIE SOPHIA PFLAUM)
ESTATES_AND_TRUSTS
NOTICE OF FINAL ACCOUNTING AND PETITION FOR
DISCHARGE 6
Dr.
Peter E. Pflaum, PRO SE
225 Robinson Road
New Smyrna Beach, FL 32169
386 428 9609
The
Florida Supreme Court has received on 3/20/2007 a Petition for Writ of
Prohibition as an Appeal from the District Court of Appeal(Defamation And
Extortion Lower Tribunal No. CASE NO. 2005-CA-2363 DIV. K) Former CASE NO.
1DCA06-3240, 1D06-2762, and 1DCA05-5830, DCA05-5212, 2005-CA-2363
THE
LAW: Tortious Interference 1
PROBATE
CODE: ADMINISTRATION OF ESTATES 2
THE
LAW: Tortious Interference 8
POLICIES
SUPPORTING THE TORT 14
NOTICE
OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE 17
Additional
Proposed $12,554. $183,140 20
FINAL
ACCOUNTING OF PERSONAL REPRESENTATIVE 20
Totals
value of the estate is $100 21
PETITION
FOR ATTORNEY’S FEES 22
[1]
· Accountings Required by Statute. 24
Petitioner
is In violation of 25
RULE
5. 200. PETITION FOR ADMINISTRATION 26
TABLE OF CONTENTS
top of document
PROBATE CODE: ADMINISTRATION OF ESTATES View Entire
Chapter. 733.
Removal of personal representative; causes for removal.
–
A
personal representative may be removed and the letters revoked for any of the
following causes, and the removal shall be in addition to any penalties
prescribed by law:
(1) Adjudication of incompetence.
(2) Physical or mental incapacity rendering the personal representative
incapable of the discharge of his or her duties.
(3) Failure to comply with any order of the court, unless the order has been
superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the
assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any
corporate personal representative.
(9) Holding or acquiring conflicting or adverse interests against the estate
that will or may interfere with the administration of the estate as a whole.
This cause of removal shall not apply to the surviving spouse because of the
exercise of the right to the elective share, family allowance, or exemptions,
as provided elsewhere in this code.
(10) Revocation of the probate of the decedent’s will that authorized or
designated the appointment of the personal representative.
(11) Removal of domicile from Florida , if domicile was a requirement of
initial appointment.
(12) The personal representative would not now be entitled to appointment.
Title XLII
ESTATES AND TRUSTS Chapter
733
PROBATE CODE: ADMINISTRATION OF ESTATES
View
Entire Chapter
733. 608 General power of the personal representative. -
(3) If the personal representative expends funds or incurs obligations to
preserve, maintain, insure, or protect the property referenced in subsection
(2), the personal representative shall be entitled to a lien on that property
and its revenues to secure repayment of those expenditures and obligations
incurred. These expenditures and obligations incurred, including, but not
limited to, fees and costs, shall constitute a debt owed to the personal
representative that is charged against and which may be secured by a lien on
the protected homestead, as provided in this section. The debt shall include
any amounts paid for these purposes after the decedent’s death and prior
to the personal representative’s appointment to the extent later ratified
by the personal representative in the court proceeding provided for in this
section.
Title XLII
ESTATES AND TRUSTS Chapter 733
PROBATE CODE:
ADMINISTRATION OF ESTATES
View
Entire Chapter
733. 619 Individual
liability of personal representative. -
(1) Unless otherwise provided in the contract, a personal representative is not
individually liable on a contract, except a contract for attorney’s fee,
properly entered into as fiduciary unless the personal representative fails to
reveal that representative capacity and identify the estate in the contract.
(2) A personal representative is individually liable for obligations arising from
ownership or control of the estate or for torts committed in the course of
administration of the estate only if personally at fault.
(3) Claims based on contracts, except a contract for attorney’s fee,
entered into by a personal representative as a fiduciary, on obligations
arising from ownership or control of the estate, or on torts committed in the
course of estate administration, may be asserted against the estate by
proceeding against the personal representative in that capacity, whether or not
the personal representative is individually liable.
(4) Issues of liability as between the estate and the personal representative
individually may be determined in a proceeding for accounting, surcharge, or
indemnification, or other appropriate proceeding.
22.
69W-600. 014 Books and Records Requirements.
Except as otherwise provided herein, every dealer, investment adviser, branch
office, and associated person conducting business in this state shall prepare
and maintain on a current basis, and preserve for the periods of time
specified, such records, prescribed herein, as are appropriate for said
dealer’s, investment adviser’s, branch office’s, or
associated person’s course of business, and are sufficient to provide an
audit trail of all business transactions by said dealer, investment adviser,
associated person, or branch office © A copy in writing of each agreement
entered into by the investment adviser with any client. (b) Those records required
under subsections (2) of this rule shall be preserved for a period of not less
than five (5) years while effectively registered with the Office of Financial
Regulation, nor for less than five (5) years after withdrawal or expiration of
registration in this State
We
reasoned that establishment of the joint account under these circumstances was
an ineffectual attempt to do that which could
only be accomplished by a last will and testament. In order for the survivor to
prevail, it had to be shown that the creator intended a gift inter vivos at the
time the account was opened.
732. 6005 Rules of construction and intention. --
(1) The intention of the testator as expressed in the will controls the legal
effect of the testator’s dispositions. The rules of construction
expressed in this part shall apply unless a contrary intention is indicated by
the will.
(2) Subject to the foregoing, a will is construed to pass all property which
the testator owns at death, including property acquired after the execution of
the will.
History. -s. 1, ch. 74-106; ss. 33, 35, ch. 75-220; s. 965, ch. 97-102; s. 49,
ch. 2001-226. 241.
Florida Supreme court says IN RE:
ESTATE OF LETTIE V. COMBEE, Deceased.
LINDA RAE FARMER, et al. , Petitioners, vs. IRMA A. WALKER , et al. ,
Respondents. [May 28, 1992} Chase Fed. In a subsequent Sav. & Loan
Ass’n v. Sullivan, 127 So. 2d 112 ( Fla. 1960).
ii. We reasoned that establishment of the joint account JTWROS at Merrill Lynch
under these circumstances was an ineffectual attempt to do that which could
only be accomplished by a last will and testament. In order for the survivor to
prevail, it had to be shown that the creator intended a gift inter vivos at the
time the account was opened.
Subsequent cases produced such diverse results that one commentator was
prompted to characterize them as a “muddle. “ Richard B. Stephens,
Jr. , Survivorship Rights in Joint Accounts, 24 U. Fla. L. Rev. 476 (1972).
iii. The uncertainty created grave implications to estate planners and
financial institutions as well as those who wished to utilize this informal
dispositional tool to make post death distributions. Richard e. Warner, Joint
Accounts and Decedent’s Estates-An Update, Fla. B. J. , July/Aug. 1987,
at 45. Beginning in 1965, the legislature sought to solve the problem by
legislation. iv.
Broker accounts are NOT covered
by
the provision that a joint bank account with right of survivorship creates a
presumption that the depositor of the funds intended that upon his or her death
the funds remaining in the account should vest in the survivors. As in the case
of savings and loan associations, the presumption may be overcome by proof of
fraud or undue influence, but in the case of banks, it may also be overcome by
clear and convincing proof of a contrary intent.
v. Constitutional equal protection attack on the difference between these two
statutes was rejected in In re Estate of Gainer, 466 So. 2d 1055 ( Fla. 1 9 8
5). Significantly, section 6 5 8. 5 6 ( 1 ) eliminated the requirement for banks
but not brokers of showing a gift inter vivos by providing that the creator of
a joint account “shall be presumed to have intended that upon the death
of any such person all rights, title, Although the deceased coincidentally had
the same last name, this case is unrelated to In re Estate of Gainer, 579 So.
2d 739 ( Fla. 1st DCA 1 9 9 1 )
vi. “interest, and claim in, to, and in respect of such deposits and
account . . . shall vest in the surviving account holder or holders. “
The presumed intent is not intent to make an inter vivos gift but rather intent
that the remaining accounts holders receives the funds remaining in the account
when the depositor dies. The statute further provides that the presumption will
prevail notwithstanding the absence of proof of any donative intent or
delivery, possession, dominion, control, or acceptance on the part of any
person and notwithstanding that the provisions hereof may constitute or cause a
vesting.
We have to deal with this presumption because JTWROS is in such common use and
financial institution and planners make assumptions that are not supported by
law but by common practice. This behavior or language is boldly arrogant or
offensive; effrontery but very common and the courts have not been strict in
their enforcement of the requirements of the law of estates regarding broker
accounts requiring clear intent and formal process.
We will show that this JTWROS is fatally flawed and there is overwhelming
evidence that the common belief that jointly with rights of survivorship
(JTWROS) is not a probate asset; can be overcome by the law, cases, and the
clear and convincing evidence that the owner did not intend the transfer and
clear and convincing evidence to the contrary.
[2] The
Law is not perfectly clear - but there is an assumption that estates are to be
divided in equal shares - it seems the
burden of proof is to show a joint account is a gift of the whole when the will
intends equal shares. There is no evidence that the millions were intended as a
gift but claimed on the JTWROS that was never granted with full knowledge and
informed consent but by fraud and deceit or See Mulato vs. Mulato 705. SO2 57
Fl 4th Dist.
Gift,
Intent, Delivery, Joint Bank Account Not Part of Bankruptcy Estate-In re:
Kellman, 248 B. R. 430 (Bankr. MD Fla. 1999)- For a deposit by a person into a
joint account to constitute a gift to the other account holder, the party must
show a clear intention to transfer a present interest, delivery by surrender of
dominion and control, and acceptance of the gift. Mulato vs. Mulato, 705 So. 2d
57 ( Fla. Dist. Ct. App. 1997).
Deposits
and accounts in two or more names; presumption as to vesting on death. --
(1) Unless otherwise expressly provided in a contract, agreement, or signature
card executed in connection with the opening or maintenance of an account,
including a certificate of deposit, a deposit account in the names of two or
more persons shall be presumed to have been intended by such persons to provide
that, upon the death of any one of them, all rights, title, interest, and claim
in, to, and in respect of such deposit account, less all proper setoffs and
charges in favor of the institution, vest in the surviving person or persons.
(2)
The presumption created in this section may be overcome only by proof of fraud
or undue influence or clear and convincing proof of a contrary intent. In the
absence of such proof, all rights, title, interest, and claims in, to, and in
respect of such deposits and account and the additions thereto, and the
obligation of the institution created thereby, less all proper setoffs and
charges in favor of the institution against any one or more of such persons,
upon the death of any such person, vest in the surviving person or persons,
notwithstanding the absence of proof of any donative intent or delivery,
possession, dominion, control, or acceptance on the part of any person and
notwithstanding that the provisions hereof may constitute or cause a vesting or
disposition of property or rights or interests therein, testamentary in nature,
which, except for the provisions of this section, would or might otherwise be
void or voidable.
AUTHORITIES: tortious
interference with an expectancy of inheritance
Florida -
Davison v. Feurerherd, 391 So. 2d 799 ( Fla. Dist. Ct. App. 1980); Allen v.
Leybourne, 190 So. 2d 825 ( Fla. Dist. Ct. App. 1966).
Courts around the United States have begun to embrace the notion that the law
should afford as much protection to noncommercial expectancies as it does to
commercial ones. The law has long recognized the tort of intentional
interference with commercial contractual relations. See, e. g. , Restatement
(Second) of Torts § 767. At the same time, several, but not all,
jurisdictions have adopted a cause of action for tortious interference with
expectancy. From its inception, the tort has received relatively little
attention. That is about to change.
In recent months alone, several state higher courts have wrestled with whether
the tort is cognizable. For example, in Jackson v. Kelly, 44 S. W. 3d
( Ark.
2001), the Supreme Court of Arkansas refused to recognize the tort. The court
expressed hesitancy to adopt a new tort that could lead to duplicative
litigation. Relying on the rationale of other jurisdictions, the Jackson court
found that most courts prohibit a Petitioner from pursuing an interference tort
unless conventional probate relief is either unavailable or inadequate.
Therefore, a claimant should exhaust all other traditional probate remedies,
such as a will contest, before pursuing a tort action. Since the probate court
provided the claimant with an adequate remedy, the Arkansas court managed to
avoid adopting the tort. See also Douglass v. Boyce, 542 S. e. 2d 715 (S. C.
2001) (refusing to recognize the tort); Fell v. Rambo, 36 S. W. 3d 837 ( Tenn.
Ct. App. 2001) (side-stepping the issue of whether to adopt the tort by noting
that, in the particular facts of the case, two of the elements of the tort
could not be satisfied, but thus implying that, if the elements are satisfied,
the tort might be viable)
The Restatement (Second) of Torts
recognizes the tort:.
One
who by fraud, duress or other tortious means intentionally prevents another
from receiving from a third person an inheritance or gift that he would
otherwise have received is subject to liability to the other for loss of the
inheritance or gift. . Restatement (Second) of Torts § 774B (1977). The
Restatement describes the tort as “an extension of a type of
noncontractual relation of the principle found in the liability for intentional
interference with prospective contracts. “ Id. cmt. a.
A
number of states currently recognize the tort of intentional interference with
expectancy, in varying degrees. See, e. g. , Davison v. Feurerherd, 391 So. 2d
799 ( Fla. Dist. Ct. App. 1980); Allen v. Leybourne, 190 So. 2d 825 ( Fla.
Dist. Ct. App. 1966); In re Estate of Roesler, 679 N. e. 2d 393 (Ill. App. Ct.
1997); Nemeth v. Banhalmi, 425 N. e. 2d 1187 (Ill. App. Ct. 1981); Minton v.
Sackett, 671N. e. 2d 160 (Ind. Ct. App. 1986); Huffey v. Lea, 491 N. W. 2d 518
( Iowa 1992); Frohwein v. Haesemeyer, 264 N. W. 2d 792 ( Iowa 1978); Morrill v.
Morrill, 712 A. 2d 1039 (Me. 1998); Cyr v. Cote , 396 A. 2d 1013 (Me. 1979);
Graham v. Manche, 974 S. W. 2d 580 ( Mo. Ct. App. 1998); Hammons v. Eisert, 745
S. W. 2d 253 ( Mo. Ct. App. 1988); Doughty v. Morris, 871 P. 2d 380 (N. M. Ct.
App. 1994); Brandes v. Rice Trust, Inc. , 966 S. W. 2d 144 ( Tex. App. 1998); King
v. Acker, 725 S. W. 2d 750 ( Tex. App. 1987); Kessel v. Leavitt, 511 S. e. 2d
720 (W. Va. 1998), cert. denied, 525 U. S. 1142, 119 S. Ct. 1035, 143 L. Ed. 2d
43 (1999); Barone v. Barone, 294 S. e. 2d 260 (W. Va. 1982); Harris v. Kritzik,
480 N. W. 2d 514 ( Wis. Ct. App. ), review granted, 485 N. W. 2d 412 ( Wis.
1992); see also Mitchell v. Langley , 85 S. e. 1050 ( Ga. 1915); Labonte v.
Giordano, 687 N. e. 2d 1253 (Mass. 1997); Monach v. Koslowski, 78 N. e. 2d 4
(Mass. 1948); Griffin v. Baucom, 328 S. e. 2d 38 (N. C. Ct. App. ), review
denied, 332 S. e. 2d 481 (N. C. 1985); and Allen v. Hall, 974 P. 2d 199 (Or.
1999).
Most
states recognize at least four elements to bring a successful claim of tortious
interference with expectancy: (1) an actual expectancy existed; (2) the
Respondent intentionally interfered with the expectancy; (3) the interference
was tortious; (4) reasonable certainty exists that the devise would have been
received by the potential devisee-claimant; and (5) damages. Each of these
elements is addressed in turn below.
The Petitioner must show that expectancy existed sufficient to warrant the
court’s protection. Courts generally agree that it is the expectation of
receiving a future benefit by way of inheritance, not the actual certainty
thereof that deserves protection. The expectancy may impede by: conduct
affecting the execution, alteration or revocation of a will; suppression,
destruction or loss of a will; or deprivation of an inheritance by induction of
inter vivos transfers.
Interference with the execution, revocation or alteration of a will is a
generally recognized cause of action.
In the
doctrinal case of Lewis v. Corbin, a Massachusetts court in 1907 sustained an
action in tort where the Petitioner alleged that the Respondent deprived the
Petitioner of a legacy through fraud, by inducing a testator to execute an
invalid codicil. 81 N. e. 248 ( Mass. 1907). The court stressed that the
fraudulent conduct of misleading a testator to believe that a codicil was valid
was a wrong perpetrated on the Petitioner as well as on the testator, and the
recovery of damages was entirely outside of the probate court’s
jurisdiction to remedy. As a result, the tort action was valid because no other
forum for recovery was available.
Other
states have fallen in line with the Lewis progeny. In West Virginia , a
tortious interference claim by a sister was sustained against her brother who
had written their father’s will with dispositive provisions that were
contrary to the father’s wishes. Barone, 294 S. e. 2d 260. In Iowa , the
courts have found that wrongfully causing the revocation of a prior will and
the execution of a new will is actionable in tort. Huffey, 491 N. W. 2d 518.
Similarly, North Carolina courts recognize the existence of the tort of
malicious and wrongful interference with the making of a will. In Griffin, the
Petitioner alleged that the testator’s wife and sister-in-law persuaded
the testator through false representations to change his estate plan which had
left a large share of the estate to Petitioner. Griffin, 328 S. e. 2d 38.
On the
other hand, a Wisconsin court found that there was no reasonable expectation of
an inheritance. Harris, 480 N. W. 2d 514. There, Petitioner could not proceed
with her claim for tortious interference against her live-in boyfriend’s
son following the death of her boyfriend. The son allegedly told the decedent
that the Petitioner was a prostitute, and that she was afflicted with a
venereal disease, stole from him, and engaged in other unlawful conduct. The
court held that Petitioner, as a mere cohabitant, did not have a reasonable
expectation of the $5,000,000 which she stated the decedent had promised to
leave to her but which he had left out of his will.
To
satisfy the second element of the tort, a Petitioner must prove that the
Respondent intentionally interfered with the expectancy and that the
interference was tortious. Common examples of tortious interferences include
fraud, duress, undue influence, defamation, abuse of fiduciary duty, forgery,
or alteration or suppression of a will. Doughty, supra, 871 P. 2d at 387. The
interference must be, in and of itself, tortious. Id. ; see also Restatement
(Second) of Torts § 774B, cmt. c (1977) (“[O]”ne who by
legitimate means merely persuades a person to disinherit a child and to leave
the estate to the persuader is not liable to the child”). Liability for
tortious interference is limited to those who have actually interfered by means
that are independently tortious in character.
The notion that tortious interference with inheritance might be the result of
negligence has been all but put to rest. As early as 1943, a district court in
Massachusetts addressed the issue.
In
order to find against the Respondents you would have to find that they not only
interfered but that they knew they were interfering. Now someone might
accidentally drop a remark to a donor which would cause him to change his will
or change the disposition of the property he is going to leave behind him. If
he merely does it accidentally without thought of its effect, without purpose
or intent, he cannot be held liable.
Hegarty v. Hegarty, 52 F. Supp. 296, 299 (D. Mass. 1943) (emphasis added). In
this case, the court emphasized the intent element with its jury instruction
that “it will be necessary for you to deliberate as to whether there was
intent to interfere. “ Id. at 300.
More recently, a court explicitly noted that “[t]ortious interference
with expectancy is an intentional tort. A Petitioner must show an intentional
invasion or destruction of Petitioner’s prospective interest or
expectancy of which the Respondent had actual knowledge. “ In re Marshall
, 253 B. R. 550, 560 (Bkrptcy. C. D. Cal . 2000).
These cases are illustrative of the trend that courts refuse to recognize the
tort of negligent interference with inheritance.
The
Petitioner must prove with reasonable certainty that he would have realized the
inheritance but for the Respondent’s tortious acts. In other words,
“there must be proof amounting to a reasonable degree of certainty that
the bequest or devise would have been in effect at the time of the death of the
testator. . . if there had been no such interference. “ Restatement
(Second) of Torts § 774B, cmt. d (1977); see also Doughty, supra, 871 P.
2d 380.
According
to the Restatement, [i]f there is reasonable certainty established by proof of
a high degree of probability that the testator would have made a particular
legacy or would not have changed it if he had not been persuaded by the
tortious conduct of the Respondent and there is no evidence to the contrary,
the proof may be sufficient that the inheritance would otherwise have been
received.
Restatement
(Second) of Torts § 774B cmt. d (1977) (emphasis added). Under the
Restatement, then, complete certainty is not required. Id. All that need be
shown is a “high degree of probability. “
The
causation requirement has precipitated litigation over whether a claim may be
brought prior to the death of the testator. Some jurisdictions have permitted
such an action to proceed in limited circumstances. For instance, in a Florida
case, the testator remained alive but the alleged tortfeasor had died. Carlton
v. Carlton , 575 So. 2d 239 ( Fla. Dist. Ct. App. 1991). The rationale was
that, if the Petitioners were forced to wait until after the testator died to
contest the tortious conduct of the tortfeasor, the statute of limitations
might bar their claim against the tortfeasor’s estate. Similarly, a Maine
court held that the “lifetime suit” allows Petitioners to seek
relief for injuries when they occur. Harmon v. Harmon, 404 A. 2d 1020 ( Me.
1979).
Finally,
the Petitioner must show injury as a result of the Respondent’s tortious
conduct. Petitioners typically seek the value of the property that they would
have been received, or the lost expectation had the tortious conduct not
occurred. See Restatement (Second) of Torts § 774B, cmt. e (1977)
(“The normal remedy . . . is an action in tort for the loss suffered by
the one deprived of the legacy. “); see also In re Estate of Knowlson,
562 N. e. 2d 277 (Ill. App. Dist. Ct. 1990). Some courts, however, have been
amenable to awarding additional consequential damages.
Punitive
damages may be available, too. See, e. g. , King, supra, 725 S. W. 2d 750.
Petitioners have been permitted to bring claims for emotional distress
resulting from the interference as well. Carlton , 575 So. 2d 239. In such
cases, a claimant need not prove outrageous conduct by the tortfeasor. Huffey,
491 N. W. 2d 518. However, damages for emotional distress have only been
awarded as against the tortfeasor, not against the decedent’s estate. Id.
The courts might even consider awarding damages for legal fees or loss of time
at work due to the will contest. Huffey, 491 N. W. 2d 518.
Proponents of the
theory that “every wrong should have a remedy” believe that the
tort of intentional interference with inheritance is a necessity. The will
contest process may not afford an adequate remedy in certain situations.
Consider, for example, a situation in which a claimant asserts that the
Respondent prevented the decedent from making a will or induced the decedent to
revoke a will, causing the estate to pass by intestate succession. This
claimant asserts that he would have taken a larger share under the will. No
will contest may be available in this scenario, because no will exists.
A will
contest would not provide adequate relief if a Petitioner claims that a
decedent was induced to make a probated will instead of another will that would
have benefited the Petitioner. If the contest were to succeed, the will would
be invalidated and the Petitioner would only receive his intestate share. This
might be considerably less than what he would receive under the
“other” will. See William J. Bowe & Douglas H. Parker, Page on
the Law of Wills § 14. 8 (3d ed. 1961) (“Probate can strike from the
will something that is in it as a result of fraud but cannot add to the will a
provision that is not there nor can the probate court bring into being a will
which the testator was prevented from making and executing by fraud”).
Generally
speaking, when a probate proceeding has the potential to provide full redress
of any damages suffered by a Petitioner, some courts will require that the
probate court proceeding be completed before a tort action may be brought. If a
court determines that a probate court cannot adequately remunerate a Petitioner
for his loss, a tort action may be available. For example, in Huffey, the court
held that the probate process could not afford the Petitioner a complete
remedy. There the Petitioner sought damages including attorney fees, the value
of the Petitioner’s lost work time, compensation for the mental anguish incurred
from the will contest, and punitive damages based on the intentional and
malicious conduct of the Respondents. Huffey, 491 N. W. 2d 518. The court
allowed the Petitioner to proceed in tort because the probate court could not
address these damages.
The
tort of intentional interference with inheritance continues to percolate. As
estate litigation grows, and as disgruntled beneficiaries test the limits of
their legal rights, the tort will be tested. The states’ higher courts
are grappling presently with whether to adopt the tort and, if so, the
parameters of the cause of action. The tort is on the brink of national
recognition and treatment.
279. © 2001 Archer & Greiner, P. C.
For
some sample cases, see Martin v. Martin, 687 So. 2d. 903 (FL App. 1997;
Jurgenson v. Haslinger, 692 N. e. 2d 347 (IL App 1998); Firestone v. Galbreth,
616 N. e. 2d 202 (OH 1993); Allen v. Hall, 974 P. 2d 199 (OR 1999); Morrill v.
Morrill, 679 A. 2d 519 (ME 1996); Brown v. Kirkham, 926 S. W. 2d 197 (MO App.
1996); Doughty v. Morris, 871 P. 2d 380 (N. M. App. 1994); Vogt v. Witmeyer,
665 N. e. 2d 189 (NY App. 1996). )
IN THE
CIRCUIT COURT FOR ALACHUA COUNTY, FLORIDA PROBATE DIVISION
IN RE: ESTATE OF File No. 2004-CP-0770 MELANIE SOPHIA
PFLAUM Division A Deceased.
DOCUMENTS RECEIVED AND NOT RECEIVED
SEE HTTP://WWW.WIREDBRAIN.NET/
NOTICE
OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE
PETITION
FOR PERSONAL REPRESENTATIVE’S FEE
Here
comes
Over
$400,000 has been spent on a estate they claim is of $100,00 value. DO YOU HAVE
EYES, can you see, DO YOU HAVE EARS, can you hear, DO YOU HAVE A VOICE, can you
speak? The Estate is close to two million dollars and includes a substantial
property in Spain. June 22, 2007 a year late!
Petitioner,
THOMAS MARTIN PFLAUM, as Personal Representative of this estate, alleges:
1. Petitioner was appointed Personal Representative of
this estate by order of this Court dated June 9, 2004. Letters of
administration were issued on June 9. 2004.
2. Petitioner has furnished services to the estate. The
nature and extent of those services will be detailed in an affidavit in advance
of a hearing on this petition.
3.
4. Inasmuch as the probate assets were insufficient to
pay any personal representative’s fees, all the impact of personal
representative’s fees will be borne by Thomas M. Pflaum, who does not
object to this petition. If there had been additional probate assets, the
impact of personal representative’s fees would be borne by the residuary
beneficiaries named below.