(Uncorrected OCR) IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA PROBATE DIVISION In Re: Estate of Lisa McPherson, Deceased. _______________________________/ CASE NO. 97-0589-ES-003 CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., ADVERSARY PROCEEDING #4 Petitioner/Plaintiff; vs. DELL LIEBREICH, Individually and as Personal Representative, Respondents/Defendant. ______________________________________________________/ PETITION FOR APPOINTMENT OF ADMINISTRATOR AD LITEM Petitioner/Plaintiff Church of Scientology Flag Service Organization ("the Church"), a creditor and "interested person" pursuant to Rule 5.120, Fla. Probate Rules, moves the court to appoint an administrator ad litem for the limited purpose of taking charge of and resolving litigation that is wasting the remaining assets of the Estate. In five years of service, the personal representative, Dell Liebreich, has apparently given away over two million dollars of Estate assets while making the Estate liable for nearly a million dollars in civil litigation judgments. Ms. Liebreich has also undertaken acts that will reasonably result in the imposition of further substantial liabilities against the Estate, and she has conflicts of interest between her individual interests and the interests of the 1 Estate. Further, Ms. Liebreich, as personal representative of the Estate, has caused the Estate to engage in protracted litigation with Petitioner and others, and the appointment of an administrator ad litem will assist in resolving ~that dispute. 1. The Estate is currently liable for final judgments totaling $548,010.87, plus post-judgment interest for breach of contract in the case entitled Religious Technology Center v. Liebreich, in the United States District Court, for the Eastern District of Texas, Case No. 6:00 CV503. (Exs. 1 & 2, Judgments of March 6, and June 28, 2002.) The Estate*s attorneys have also been personally sanctioned $98,296.00 in that action for conducting frivolous and vexatious litigation (Ex. 3, Order of May 22, 2002, at 12), and their motion for reconsideration of that sanction award was denied. (Ex. 4, Order of June 28, 2002.) 2. In the Circuit Court of the Sixth Judicial District for Pinellas County, in an action entitled Church of Scientology Flag Service Organization v. Liebreich, Case No. 00-002750-CI-20, liability of the Estate for breach of contract was established by means of partial summary judgment. In that case, the only remaining issue to be determined is the amount of damages and attorneys* fees to be awarded to the Petitioner. The damages and attorneys* fees claimed in that case exceed $650,000. The court has also imposed discovery sanctions against the Estate and its attorneys in the amount of $11,824.26. (Ex. 5, Judgment of January 10, 2002.) 3. The acts giving rise to the two judgments against the Estate were intentional and reckless. The Federal and the Pinellas County actions arose from the Estate*s breach 2 of a contract into which the Estate entered in December, 1997, containing a covenant not to sue a variety of corporations of the Scientology religion, their directors, agents, officers and employees - including the Chairman of the Board of Religious Technology Center, David Miscavige. Ms. Liebreich testified that she knowingly breached that contract, which then resulted in judgments against the Estate, which Ms. Liebreich has a fiduciary duty to preserve: Q. Ms. Liebreich, at the time that you were first served with the first lawsuit, the breach case in Pinellas County, and you realized you were being sued for breach of the Confidential Agreement, was that a surprise to you or did you expect to be sued? A. I knew I was going to be. (Ex. 6, Dell Liebreich Deposition Excerpt of January 10, 2001, at 106.) Q. So would it be fair to say, ma*am, that when you filed or authorized your attorney to file the second motion to add Mr. Miscavige as a defendant, you were fully aware that if you did so, you*d be sued? A. Isthatayes orno? Q. Yeah, that*s what it is; it*s a yes or no. A. Could be. Q. You were aware that you would be sued, right? A. Yes. Q. And it didn*t bother you, because you went forward, right? You went forward with the motion, right? A. Yes. 3 (Id., at 241-42.) 4. A motion to disqualify Kennan G. Dandar and Dandar & Dandar, P.A. is presently pending before the Honorable W. Douglas Baird, Circuit Court Judge, in the Pinellas County action, based on, inter alia, subornation of perjury in that case. That motion was brought to the attention of this Court at a hearing on May 2, 2002, resulting in this Court*s order of May 30, 2002. 5. A motion is also pending before the Honorable Susan F. Schaeffer, Circuit Court judge, in the case entitled, Estate of Lisa McPherson v. Church of Scientology Flag Service Organization, Case No. 00-5682-Cl-li, to dismiss the action and to disqualify Kennan G. Dandar and Dandar & Dandar, P.A. for suborning perjury and for the filing and prosecution of a sham pleading. Judge Schaeffer has conducted a 35-day evidentiary hearing on that motion and has taken the matter under submission. Meanwhile, Judge Schaeffer has denied the Estate*s motion to dismiss a counterclaim filed against the Estate in that action sounding in the tort of abuse of process for litigating the Estate*s wrongful death claim by means of a litany of improper acts unrelated to the legitimate purpose of the litigation. The Estate has now further complicated that action by filing its own "counter-counterclaim" on July 26,2002. 6. Ms. Liebreich has testified that the Estate is essentially judgment-proof. Her testimony indicates she has no intention of paying any judgments entered against the Estate: Q. Ms. Liebreich, you*re the personal representative of the Estate, correct? 4. A. Yes. Q. You*re responsible for the assets of the Estate, correct? A. Assets? Q. Assets. A. The Estate has no assets. (Ex. 7, Dell Liebreich Deposition Excerpt of April 20, 2002, at 306-07.) Q. Now, I mentioned before lunch that there was a judgment in the breach case in Texas arising out of the breach in this case. Do you remember that? A. Yes. Q. Who is going to pay that judgment? * * * A. When it comes due, I guess I*ll decide. I don*t know. Q. Could Mr. Dandar pay it? * * * A. Idon*tknow. Q. Have you had any discussions with your siblings about getting Mr. Dandar just to pay it? * * * A. No. Q. - but have you talked to your siblings about getting him to? 5 A. No. Q. Do you expect him to pay it? * * * A. I haven*t thought about it. Q. Well, would you expect him to pay it, thinking about it now? A. Probably. (Id., at 401- 02.) 7. The Estate*s attorney, Kennan G. Dandar, and the personal representative, Dell Liebreich, initially testified to having received over one million dollars in funding for the Estate*s prosecution of a wrongful death case from Robert Minton. Recently, evidence revealed another $750,000 was received by the Estate via Swiss bank checks, which additional checks were withheld from discovery. Now, Mr. Dandar and Ms. Liebreich assert that, despite having received in excess of two million dollars from Robert Minton, those monies were transferred to Mr. Dandar as a personal loan which he may use for any personal purpose he chooses. This changed position is simply a ruse by Mr. Dandar and Ms. Liebreich to deprive the Estate of funds which should be under the control and jurisdiction of this Court and to prevent the recoveryof judgments lawfully entered against the Estate. A further means to hide Estate assets from judgment creditors was recently attempted by Dandar & Dandar, P.A., through a motion signed by Thomas Dandar in the Federal action, arguing that the sanction against the firm and the two partners individually should be levied only against Thomas Dandar personally (who 6 argues he possesses few assets), thus shielding funds in the custody of Kennan Dandar, that are assets of the Estate. (Ex. 8, Excerpt of Motion for Recqnsideration, at 8-10.) The Estate effectively set up a scheme whereby it is expending millions of dollars to commit tortious acts, breaches of contract, and otherwise abuse legal process, costing millions of dollars to defend - and then shielding the harassment war chest to prevent its use to satisfy judgments for the Estate*s adjudicated wrongs. Unabated, the Estate will continue its wrongful conduct, further clogging the courts with vexatious litigation and, of necessity, prolonging the expensive and already protracted litigation with the Church even more. 8. The Pinellas County Circuit Court is now the site of eveii more litigation arising from the affairs of the Estate. A third-party complaint against the Church was filed in response to an attempt by Religious Technology Center to domesticate its federal judgment. Judge Baird struck the third-party complaint and ordered Religious Technology Center*s judgment domesticated. (Ex. 9, Order of July 17,2002.) The expenditure of judicial resources is, therefore, substantial and ongoing, with Judge Schaeffer, Judge Baird, the United States District Court for the Eastern District of Texas, the United States Court of Appeals for the Fifth Circuit, and this Court, each with matters relating to the Estate. The Church is concerned, because the likelihood of payment of its judgment and future attorneys* fees in the Pinellas County breach case diminishes as each day passes. 7 9. As manifested by her conduct, Ms.. Liebreich also has a conflict of interest and an adverse interest to the Estate: X Notwithstanding Ms. Liebreich*s duty, as personal representative, to maximize the Estate*s assets for purposes of paying the Estate*s judgment creditors, she claims $2,050,000 received as an asset available to the Estate does not belong to the Estate, thereby depriving such creditors of a potential source of payment. X Ms. Liebreich*s conduct in litigation has resulted in more than $560,000 in outstanding judgments against the Estate to date, with liability established and only a quantum of damages and fees to be determined in another action against the Estate. By continuing to authorize and/or direct the Estate*s attorney to multiply and prolong litigation with attempts to evade payment of outstanding judgments, Ms. Liebreich is potentially creating future judgments and fee awards against.the Estate. Thus, rather than acting to maximize Estate assets, her conduct continues to create Estate liabilities. X Ms. Liebreich has directed or allowed Estate counsel to expend Estate funds in the defense of Ms. Liebreich personally, as an individual defendant, in the Pinellas County case and in other proceedings stemming from her own improper acts and those of Estate counsel. X Ms. Liebreich has repeatedly rejected settlement offers. Four and a half years ago, she rejected a seven figure offer that far exceeded the value of 8 the case. Ms. Liebreich also recently rejected such offers, despite having accumulated judgments against the estate and despite the fact that her attorney is facing misconduct charges in two Pinellas County courts. 10. Florida Probate Rule 5.120(a) authorizes the appointment of an administrator ad litem under these circumstances: Where, as in this case, the personal representative is also a survivor of the decedent and therefore has a personal stake in the allocation of proceeds between the survivors and the estate, we conclude that the personal representative may have an interest adverse to the estate. Therefore, the trial court may appoint an individual without self-interest as administrator ad litem. Continental National Bank v. Brill, 636 So.2d 782, 783-84 (Fla. 3rd DCA 1994). 11. Rule 5.120(a) also expressly allows the appointment of an administrator ad litem where "the necessity arises otherwise." The necessity of such an appointment is manifest on the face of this Petition. 12. The Estate is not being administered in a responsible or appropriate fashion and its assets are being squandered. The Court should appoint an independent and competent administrator ad litem to review and attempt to settle all outstanding litigation that the Estate is engaged in, both as a plaintiff and as a defendant. The Estate is engaged in eight separate actions in the Sixth Judicial Circuit, the Middle District of Florida federal court, and the Eastern District of Texas federal court, brought about by the irresponsible, abusive acts of the personal representative and her counsel. 9 13. Because the litigation is multiplying and promises to continue to expand with future potential judgments levied against the Estate, it is a matter of urgency that an ad litem personal representative be appointed. I HEREBY CERTIFY that a true copy hereof has been furnished by regular U.S. mail to Kennan G. Dandar, Esq., Dandar & Dandar, P.A.,1715 N. Westshore Blvd., Suite 750, Tampa, FL 33607; and William Rambaum, Esq., 28960 U.S. Hwy. 19 North, Suite 100, Clearwater, FL 33761-2403, this j~ff~iay of September, 2002. JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A. By: PostOffice Box 1368 Clearwater, Florida 33757 (727) 461-1818 (727) 441-8617 fax Attorneys for Plaintiff SPN #00002797 275046 10 IN THE CIRCUIT COURT OF THE SIXTH J1JDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA GENERAL CIVIL DIVISION ESTATE OF LISA McPHERSON, by and through the Personal Representative, DELL LJEBREICH, Plaintiff; vs. CASE NO.: 00-5682-Cl-li DIVISION: 11 CHURCH OF SCIENTOLOGy FLAG SERVICE ORGANIZATION, JAN15 JOHNSON, ALAIN KARTUZ1NSKI, and DAVID HOUGHTON, Defendants. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, Counter-claimant, vs. ESTATE OF LISA MCPHERSON, by and through the Personal Representative, DELL LIEBREJCH, and ROBERT MINTON, Counter-defendants. _______________________________________________________________/ CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION*S AMENDED COUNTERCLMM TO THE FIFTH AMENDED COMPLAINT Defendant, Church of Scientology Flag Service Organization (the "Church"), by its undersigned attorneys, herewith files an Amended Counterclaim, as follows: COUNTER-CLAIM FOR ABUSE OF PROCESS 1. Since Dell Liebreich filed this action, she and several co-conspirators have willfully and intentionally misused the legal process for a wrongful and unlawful object and for a collateral purpose for which it was not by law intended. 2. This action was filed as a one-count wrongful death claim. Thereafter, Robert Minton provided $100,000 to Liebreich*s counsel, co-conspirator Kennan Dandar, to expand the action for the collateral purposes of attacking the Scientology religion, establishing a basis to acquire adverse media, and as a monetary investment. Dandar thereafter threatened to name ecclesiastical leaders of the religion and other unrelated ecclesiastical organizations as parties, unless FSO put up a $30 million bond, to which Liebreich, as the plaintiff herein, had no legal entitlement. Dandar knew that he had no claim against such persons and entities, but based upon an agreement with Minton, threatened to add them as parties to force FSO to undertake actions that Liebreich had no right to require or compel. Eventually, in order to prevent the expansion of this case far beyond any reasonable issues and in an effort to prevent the harassment and expense of ecclesiastical leaders being named as parties, FSO agreed to encumber several properties worth over $10 million in exchange for plaintiffs and Dandar*s agreement not to add as parties defendant, any Scientology churches or their officers, directors, employees, or agents that had no involvement in the events at issue here. 3. Minton arranged a deal with Liebreich whereby Liebreich would permit Minton to use this case and the processes available herein, in ways in which, and for purposes for which, it was not intended and to harass the defendants with frivolous legal issues and false allegations of fact in exchange for Minton*s complete financing of the case. 2 Liebreich and the other beneficiaries of Lisa McPherson*s Estate agreed to provide Minton the bulk of any hoped-for proceeds of this case brought about through a harassment-induced settlement or judgment. 4. In February of 1998, Minton provided Dandar an additional $100,000 and in exchange, Liebreich, through her counsel, Dandar, sought the production of confidential, priest-penitent counseling records of Lisa McPherson that were entirely unnecessary to prosecution of her claim, for the purpose of causing great distress to the Church and its parishioners, in order to obtain a settlement out of all proportion to the issues and merits of this litigation. Minton has provided a total amount in excess of $2,000,000 directly to Dandar for the purpose of attacking the religious beliefs and practices of the defendants in a fashion not reasonably related to any issue in this case - both to force settlement and to forward Minton*s independent agenda to disrupt FSO and the Scientology religion. 5. Liebreich has also misused the process by purchasing testimony of fact witnesses in violation of Florida law and rules of the Florida Bar. She has done so by having Minton pay large sums of money to purported "consultants" of Liebreich*s counsel, Stacy Young, Jesse Prince and Vaughn Young, who are in reality no more than purported fact witnesses who know nothing of the facts. Plaintiff has also paid or caused to be paid, sums of money and valuables to other alleged fact witnesses Teresa Summers, Karsten Lorenzen, Hana Whitfield, Peter Alexander and Gerry Armstrong. Each of these persons has provided whatever testimony, affidavits and declarations Minton and Dandar wish for Liebreich and her attorney to use in this case in exchange for such funds, regardless of its relevance or lack of truth. 6. Minton has also tampered with witnesses by sending several of plaintiffs paid 3 witnesses and "expert" witnesses to an anti-religious "counseling" establishment prior to their testimony in this case. Further, Minton and persons he hired have sought to intimidate defendants* witnesses in this action by virulent demonstrations, threats and harassment at their Church, their places of work and their residences. 7. Through this fabrication of evidence, witness tampering, intimidation of witnesses, paying the expenses of others to aid in this effort, and engaging in activities calculated to infect the jury pool, Liebreich, her attorney Kennan Dandar and Minton, have sought to increase the value of Minton*s investment in this lawsuit. 8. Plaintiffs and her attorney*s misconduct in turning this lawsuit into a business deal with Minton, in coordination with and with the approval of the other beneficiaries of the estate of Lisa McPherson, is knowing, willful and intentional. Plaintiff has perverted the processes of this Court and with the funds provided by Minton after this case was filed, undertaken to force defendants to relinquish fights so that she and Minton could obtain advantages not otherwise available to them, including using their actions to create adverse media through purchased and created testimony, forcing the Church to encumber valuable properties to provide an advantage not normally available to a plaintiff and poisoning the jury pool, all for the purpose of running up the value of this case to procure a large settlement out of all proportion to what the case could or should be worth. Liebreich and Minton have thus misused the court*s processes for a wrongful and unlawful purpose. Defendants have been substantially harmed monetarily, and harmed with respect to their rights to privacy and to freely exercise their religion. 9. The Church has been harmed by the conduct of Liebreich and Minton in excess of$1,000,000, to be determined at trial. 4 WHEREFORE, defendant Church of Scientology Flag Service Organization prays for: (1) monetary relief in an amount to be determined at trial; (2) attorneys* fees in this action; (3) its costs of suit; and (4) any and all other relief which the Court believes just. DATED: August 28, 2002 ( LBarNo. 0170928 Morris Weinberg Florida Bar No. 0486401 Zuckerman, Spaeder, LLP. 101 East Kennedy Blvd., Suite 1200 Tampa, Florida 33602 Tel: (813)221-1010 Fax: (813) 223-7691 Eric M. Lieberman RABINOWITZ, BOUDIN, STANDARD, KRJNSKY & LIEBERMAN, P.C. 740 Broadway, 5th Floor New York, NY 10003-95 18 Telephone:(212) 254-1111 Facsimile: (212) 674-4614 Kendrick Moxon MOXON & KOBR1N 1100 Cleveland Street, Suite 900 Clearwater, Florida, 33755 Telephone:(727) 443-5620 Facsimile: (727) 443-5640 ATTORNEYS FOR COUNTERCLAIMANT CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing CIIIJRCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION*S AMENDED COUNTERCLAIM TO THE FIFTH AMENDED COMPLAINT has been furnished by U.S. Mail this 28~ day of August, Kennan G. Dandar Dandar & Dandar, P.A. 1715 N. Westshore Blvd., Suite 750 Tampa,FL 33607 Attorney for Plaintiff Luke Lirot 112 East Street Suite B Tampa,FL 33602 Attorney for Plaintiff Anthony S. Battaglia Battaglia Ross Discus & Wein 980 Tyrone Blvd. St. Petersburg, Florida 33743 Attorney for Robert Minton Bruce G. Howie Ludin, Howie and Werner 5720 Central Avenue St. Petersburg, Florida 33707 Attorney for Robert Minton Ronald P. Hanes Trombley & Hanes, 707 N. Franklin Street, 10th Floor Tampa, FL 33602 Attorney for Janis Johnson Douglas J. Titus George & Titus Post Office Box 3240 Tampa, FL 3360 1-3240 Attorney for Alain Kartuzinski |
Life and Death of Lisa McPherson