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  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
  • NELLI KELLER as Personal Representative of the Estate of ALBERT J RICHARDS vs RIVERA, CHERYL A Equitable Relief document preview
						
                                

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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). 4 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 1 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.” 2 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 2 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 3 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 3 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. 4 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 4 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 5 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 5 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 ‘Sertabs: O73903-200151-5804947 ‘Bacrrdealy Signed using eSigrOnina™ { Semon 1: CbecalncT ROG Sbd-cOaNAESS | Eo wh D> “a 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 48 Elecrronically Signed 03 2018 i ‘Centers Tite: OBE] Atanding Prysican ‘OTL] Physician actingon beta ot Atending Physiian ass 1 coroner, 217) Medics Baminer/ Deputy Medical aminer 2652 Ridgeway Avenue, Rochester, NY 14626 "BH coroner nota sys, eter Coroner's Physician's name & te: Teasees ra s ‘i erie is not atanding physic, enter Atading Physica name & Ge: Teasea: 258. Decsased ast sen ave B =aOF DEAT. volts [ir [ote oo Tat Tae 7 MANNER ee seo alos [at [2018 }x[02:40 PM. Ts YES WeSE ANON USED TO DETER NATURAL CAUSE ACOIOENT HOMICIDE SUICIDE GRGUSTNEES — OnESTNTON CoRR OSHED fe suse ie Bet G2 3 4 5 Os ovo 1S soho 1 Dives CONFIDENTIAL Seen TRUTon San in comeTTAE PES “cegnoerna ‘20, DEATH WAS CASED BY: ENTER ONLY ONE CAUSE PER LIREFOR (A, (8), AND (6) seTwene SET AND ESAT g "FART WRIEDIATE CAUSE. — (4) Congestive Heart Failure iyears: ‘DUETO ORAS A CONSEQUENCE i gz ) Coronar Disease jyears ‘ORAS A CONSEQUENCEOF: = 3: PART IL ‘DEATH OTS BUT SSMEEANT CONDITIONS iss PoeTaS USE CONTRIBUTET0 DEATH? NOT RELATED TO CALISECOWMRIBUTING GIVEN IN PARTT I (4): Chronic Kidney Disease, Coronary Artery ‘ONO 1 Lives 2Ciraossaty s Rlunaown ‘BE ROURY LOCALITY: (Cay or tow and county and sa) ‘io. DESCRIBE HOW RLVAY OPC ‘ND, PUACE OF DUR: ‘SE NUURY AT WORK? @ Oe | 1 wo Oo Or ge #5) FEF TASPORATN RUNT S {Liss Paso 3] Pein a i NO YS OC toe te ar tT pope tnestat 2D otra nro win dye ae wes, 28 STR ety Oo By 31] Wet regatta apt tf eth _— Eine tec me gi ¢ sok hk “F 7/31/2018 4:29 PM Electronically Filed Hillsborough County/13th J udicial Circuit Page 12 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 O SS SS In i(~*~ Cc“ INA\, HI Us SS SS) w\ | \,WN feo if \\YW (PS —) Ly L Ul | | = jt WX (7~* { \\ | D\ WJ Ie \\ TA | — |-wv l 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 1 [> = }—~ | 1 (Cs IN cw HX 1 \| —| | JUS,—) Wee u Sy )} \| U a =o —_= —_ {J rs {i \ } rN V/ {f sufficiency en | of whic! 1] = \ hereby ackhowledved, GGri ‘antoy/ )ersby_osit clai aCe ants and 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] 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 14 Bk 25629 Pg 1138 ==) | {I LS 7 q ({~ 1 || \N }} NY = Ww —~ {> [>=] = ~ => U/[7 (o> \| (f SO \ | i= Signatures |__| u Ly SS SL Grantor signed, sealed, and delivered this quit claim deed to Grantee on (date). Grantor (or authorized went) x Print Name: Fed asagend fe “Al beer F. Abad 7/31/2018 4:29 PM Electronically Filed: Hillsborough County/13th J udicial Circuit Page 15