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Filing #75781311 E-Filed 07/31/2018 04:29:11 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL
CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
NELLI KELLER as Personal CASE NO.: 18-CA-3073
Representative of the Estate of DIVISION: B
ALBERT J. RICHARDS,
Plaintiff,
Vi
CHERYL A. RIVERA,
Defendant.
PLAINTIFF’S MEMORANDUM OF LAW
The Plaintiff, by and through her undersigned attorney, hereby files
this memorandum of law in support of the Second Amended Complaint, and
says:
FACTS:
1 Albert J. Richards (herein “Decedent”) planned to sell his house
in Sun City Center, Florida by entering into a listing agreement on January
12, 2018 with Keller Williams Realty South Shore (Exhibit “C” to Second
Amended Complaint; also attached hereto).
2. The Decedent planned to sell his house for $97,500.00 cash on
March 29, 2018 by entering into a contract for sale on February 18, 2018
(Exhibit “D” to Second Amended Complaint; also attached hereto).
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3 The Decedent wanted the Defendant to receive none of his
property; to wit: “I have specifically made no provision in this my Last Will
and Testament for my...daughter, CHERYL A. RIVERA, for reasons that
are best known to me and I direct that they are not to share in my estate for
any reason whatsoever.” (Exhibit “B” to Second Amended Complaint)
4 On or about the same time the Decedent planned to sell his
home, the Defendant’s spouse expressed the following to the Decedent
(Exhibit “E” to Second Amended Complaint; also attached hereto):
a. “You have chosen to take Kevin who you have spoken about
and Nellie who you don’t really know over your own
blood...To make matters worst your daughter works as a real
estate agent and you chose to X her out to let a total stranger
sell your house...That sir is unacceptable.”
“You only have one daughter Cheryl and that is my wife and
one princess Renata and you sir have taken them out of your
life thinking I would go along with you... YOU’RE WRONG.”
“And have chosen Kevin and Nellie to govern your estate your
house and have eliminated Your only daughter thinking you
had me in Your Pocket, here is a reality check for you.”
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d. “Before you pass on I believe it would be wise to make things
right with your only Daughter Cheryl.”
5 The Decedent became ill during March 2018 and was
hospitalized at Unity Hospital, Rochester, NY and then transferred for
hospice care on March 17, 2018 to Hildebrandt Hospice Care Center,
Rochester, NY (Exhibit “F to Second Amended Complaint; also attached
hereto).
6 While the Decedent was hospitalized, and in the days
immediately prior to his death on March 21, 2018, the Defendant, using the
“A”
subject power of attorney (Exhibit to Second Amended
Complaint)(herein “POA”), followed through on the “reality check” and “to
make things right” by taking all of the Decedent’s property (without paying
for it) including his home on March 19, 2018 (Exhibit “G” to Second
Amended Complaint; also attached hereto) before it could be sold on March
29, 2018.
DEFENDANT’S BREACH OF FIDUCIARY DUTY:
7 Without limitation to the Plaintiffs causes of action in the
Second Amended Complaint, the primary issue in this action is the
Defendant’s breach o iducia
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8 Section 709.2114, Florida Statutes (“Powers of Attorney”),
mandates that “An agent is a fiduciary.” In using the POA to take the
Decedent’s property (without paying for it), the trier of fact will determine
whether the Defendant breached her Fiduciary Capacity which is defined as:
“One is said to act in a fiduciary capacity when the business which he
transacts, or the money or property which he handles, is not his own or for
his own benefit, but_for_the benefit_of another person” (Black’s Law
Dictionary)(emphasis supplied).
9 Here, the trier of fact will determine whether the Defendant, using
the POA to take all of the Decedent’s property against his Last Will and
Testament, was a breach of her Fiduciary Capacity. The Defendant’s use of
the POA was for her own benefit and did nothing to benefit the Decedent.
10. Here, the trier of fact will determine whether the Defendant,
using the POA to take Decedent’s home immediately prior to its sale, was a
breach of her Fiduciary Capacity. The Defendant’s use of the POA was for
her own benefit and did nothing to benefit the Decedent.
I HEREBY CERTIFY that a true and correct copy hereof has been
furnished through the Florida Portal this 31‘ day of July, 2018 to Thomas P.
Whitaker, Esq., 518 13" Street West, Bradenton, Florida 34205.
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Yj
ie
Herb Fiss, P.. A.
Florida Bar No 898491
341 South Pla Avenue
Tampa, Florida 33606
813-258-1133
Attorney for Plaintiff
hwf@att.net
ce Jack Reiber, Esq
Haydn Trechsel, Esq
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Exclusive Right of Sale Listing Agreement ¥ Realtors
This Exclusive Right of Sale Listing Agreement (‘Agreement’) is between
ALBERT J RICHARDS (‘Seller’)
Keller Wiliams Realty South Shore ("Broker").
and
4. Authority to Sell Property: Seller gives Broker the EXCLUSIVE RIGHT TO SELL below, the real and personal
Januai 42,20' 8 te
(collectivel *Property") described below, at the price and terms
and terminatingat 11:59 p.m. on July 14, wie
(Termination Date"). Upon
full execution of a contract for sale and purchase of the Property, ail rights and obligations of this Agreement will
e
automatically extend through the date of the actual closing of the sales contract. Seller and Broker acknowledg
that this Agreement does not guai rantee a sale. This Property will be offered to any person without regard to race,
10 color, religion. sex, handicap, famili ial status, national origin, or any other factor protected by federal, state, or local
1 Jaw. Seller certifies and represents that sheshe/it is tegally entitled to convey the Property and all improvements.
12 Description of Property:
13° {a) Street Address: 2301 GRENOBLE PL. SUN CITY CENTER, FL 33573
4
18° Legal Description: GLOUCESTER G CONDOMINIUM UNIT 190 TYPE HAMPTON 1/24TH UNDIVIDED
16 SHARE OF OWNERSHIP OF COMMON ELEMENTS AND EXP [1 See Attachment
we {b) Personal Property, including appliances:
138
(See Attachment
18 {c) Occupan:
20" roperty ‘Sis {&]is not currently occupied by a tenant. if occupied, the lease term expires
2 Price and Terms: Theie property is offered for sale on the following terms or on other terms acceptable to Seller:
{a} Price: $125,000.
a {b) Financing g Terms: Tel Cash [=] Conventional (IVA CIFHA [7 Other (specify)
24" (Seller Financing: Seller will hold a purchase money mortgage in the amount of $.
2s" with the following terms:
26° (Assumption of Existing Morigage: Buyer may assure existing mortgage for $ plus
a an assumption
fee of S. jage is for a term of years beginning in
28° . at an interest rate% of —% Cifxed. rane le (describe) .
29° Lender approvai of assumption is required (Tis not required Clunknown. Notice to Seller: (1) You may
remain liable for an assumed mortgage for a nurnber
of years after the Property
is sold. Check with your
3 lender to determine the extent of your liability. Seller will ensure that all mortgage payments and required
escrow deposits
are current at the time of closing
and will convey
the escrow deposit to the buyer at closing.
(2) Extensive regulations affect Seller financed transactions. It is beyond the scope of 4 real estate licensee's
authority to determine whether the terms of your Seller financing agreement comply with all applicable iaws or
whether you must be registered and/or licensed as a loan originator before cffering Seiler financing. You are
advised to consult with a legal or mortgage professional to make this determination.
{c) Seiler Expenses: Seller will pay mortgage discount or other closing costs not to exceed _% of the
38 purchase price and any other expenses Seller agrees to pay in connection with a transaction.
Broker Obiiyations: Broker agrees to make diligent and continued efforts to sell the Property until a sales
40 contract is pending on the Property.
44 Multipie Listing Service: Placing the Property in a multiple listing service (the "MLS") is beneficial to Seller
42 because the Property will be exposed to a | number of potential buyers. As a MLS participant, Broker is
obligated to timely deliver this listing to the MLS. This listing wiil be promptiy published in the MLS uniess Seller
directs Broker otherwise in writing. Seller authorizes Broker to report to the MLS this listing information and price,
terms, and financing information on any resuiting sale for use by authorized Board / Association members and
MLS participants and subscribers uniess Seller directs Broker otherwise in writing.
ohJh san proeroues reseel OY’)(__asiondign ont te pan wih tape et
ERS-17 Rov 6/17 ©2017 Florida Realtorst
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7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 6
“AS IS" Resldential Contract For Sale And Purchas
‘THIS FORM HAS SEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR Ck RoridaReattrs
PARTIES:Aibert) Richards
end Robert
A. Hmrell
agree that Seller shall sel and Buyer shall buy Raa Properly and Farsonal Prosar
care. et, preety) partusnt tothe fee ene! concitioe o his Is Reskentiol Dontrett or Salo Ard Pureness
and ary ees ore
” Street address, city, zipeaot Grande 2, 8am Gly Canter FL S078
{) ‘ounly, Florida. Property Tax ID #o1zsz1eivuvven0000190.0
{c) Real Property:
The fegaldescription GLOUCESTERG UNIT
190 TYPE UNDIVIDED SHARE
0 OF OWNERSHIP OF COMMON ELEMENTS AND
”
wih all ‘existing
jogether existing improvements
and fidures, including builtin appliances, bult-in
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INSTRUMENT#: 2018106982, BK: 25629 PG: 1136 PGS: 1136 - 1140 03/19/2018 at
10:10:20 AM, DOC TAX PD(F.S.201.02) $0.70 DEPUTY CLERK: JPOSTLE Pat
Frank,Clerk of the Circuit Court Hillsborough County
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RECORDING REQUESTED BY:
Cheryl A Rivera
INSTRUMENT PREPARED BY:
Cheryl A Rivera
1218 Parker Den Drive
Ruskin, Florida 33570 {Above reserved for official use only)
RETURN DEED TO: SEND TAX STATEMENTS TO
Chery] A Rivera Cheryl A Rivera
1218 Parker Den Drive 1218 Parker Den Drive
Ruskin, Florida 33570 Ruskin, Florida 33570
Tax Parcel ID/APN # #056776.5248
QUIT CLAIM DEED FOR FLORIDA
STATE OF FLORIDA
COUNTY OF HILLSOBOROUGH
THIS DEED is made this day of March 19, 2018 by and between the "Grantor,"
Albert J. Richards, 2301 Grenoble Place, Suncity Center, Florida 33573
AND the "Grantee,"
Cheryl A Rivera, a married individual residing at 1218 Parker Den Drive, Ruskin,
Florida 33570
FOR VALUABLE CONSIDERATION of the sum of one dollar ($1.00), the receipt and
sufficiency of which is hereby acknowledged, Grantor hereby quitclaims to Grantee and
Grantee's heirs and assigns forever, all of Grantor's rights, titles, interests, and claims in or to the
following described real estate (the “Property"), together with all hereditaments and
purtenances belonging thereto, located in Hillsoborough county, Florida, subject to any
atwlethn
7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 13
Bk 25629 Pg 1137
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Grantees" hei irs and ‘Assi gis forever, all of Grantor's Tights, titles, interests, ~and ‘ldims i in of to the
following described real estate (the “Property"), together with all hereditaments and
appurtenances belonging thereto, located in Hillsoborough county, Florida, subject to any
restrictions herein
Property Address: 2301 Grenoble Place, Suncity Center. Florida 33573
Legal Description City/Municipality/Township: UNINCORPORATED COUNTY Census
Tract: 120570140.112005 Carrier Route: C062 Abbreviated Description
CITY/MUNI/TWP:UNINCORPORATE D COUNTY SEC/TWN/RN G/MER:SEC 11 TWN 32
RNG 19 GLOUCESTER G CONDOMINIUM UNIT 190 TYPE HAMPTON 1/24TH
UNDIVIDED SHARE OF OWNERSHIP OF COMMON ELEMENTS AND EXPENSES MAP
REF:MP CB03 PG 2 Book/ Volume Book 3673 page 1138 Plat3 pag 2of records of
Hillsborrough County
[SIGNATURE PAGE FOLLOWS]
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Bk 25629 Pg 1138
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Grantor signed, sealed, and delivered this quit claim deed to Grantee on
(date).
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Print Name:
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