Ellis v. Warner

• Decision Date: 16 February 2017
• Docket Number: CASE NO. 15-10134-CIV-GOODMAN
• Parties: CAROLYN ELLIS, Plaintiff, v. RICHARD E. WARNER, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

CAROLYN ELLIS, Plaintiff, v. RICHARD E. WARNER, et al., Defendants.

CASE NO. 15-10134-CIV-GOODMAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

February 16, 2017

[CONSENT CASE]

OMNIBUS ORDER ON MOTIONS TO DISMISS

This case is about allegations, including those asserting racketeering and racketeering conspiracy, of activities designed to funnel the proceeds of unlawful activity into a cat rescue charity.Specifically, the lawsuit alleges a wide-ranging conspiracy to defraud the estate of Sally Buehler("Sally"), who is PlaintiffCarolyn Ellis("Plaintiff")'s mother, and other decedents and funnel the proceeds into Forgotten Felines, Inc.("Forgotten Felines"), a cat rescue charity.

Cats are said to have nine lives,¹ but this cat-related lawsuit is already on its fourth life and Plaintiff will be hard-pressed to breathe a fifth life into some of herclaims.But other claims have survived for now in their fourth legal life, though they may not live beyond the summary judgment stage.

The legal details of this cat-focused alleged drama are outlined below:

Plaintiff filed a Corrected Second Amended Complaint ("SAC") -- the fourth version of the Complaint -- against DefendantsRichard E. Warner("Richard"), Nancy A. Warner("Nancy"), Richard Warner, P.A.("the Law Firm"), Pamela Steadman("Steadman"), Joy Tatgenhorst("Tatgenhorst"), and Forgotten Felines (referred to collectively as "Defendants").[ECF No. 86].

Plaintiff's SAC includes six counts: tortious interference with inheritance (Count 1);Racketeer Influenced and Corrupt Organizations Act("RICO")(Count 2); conspiracy to violate RICO(Count 3);Florida Criminal Practices Act ("CRCPA")(Count 4);Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA")(Count 5);² and constructive trust (Count 6).[ECF No. 86].

Defendants Richard, Nancy, and the Law Firm ("Warner Defendants") and Steadman, Tatgenhorst, and Forgotten Felines ("Non-Warner Defendants") filed motions to dismissPlaintiff's SAC, which include both jurisdictional and sufficiencychallenges.[ECF Nos. 93; 101].Plaintiff filed responses in opposition to Defendants' motions to dismiss.[ECF Nos. 96; 105].Warner Defendants and Non-Warner Defendants each filed a reply [ECF Nos. 100; 106].

Upon review of the motions, responses, replies, and the record, and for the reasons stated below, the Undersigned grants in part and denies in partDefendants' motions to dismiss.I am denyingDefendants' motions as to Counts 1 and 4 (tortious interference with inheritance and CRCPA) but granting them as to the remaining counts.The Undersigned dismisses without prejudice Counts 2 and 3 (RICO and conspiracy to commit RICO) and dismisses with prejudice Counts 5 and 6 (FDUTPA and constructive trust).However, if Plaintiff wishes to assert the two federal RICO claims in a fifth version of the Complaint, then she will need to file a Civil RICO Case Statement.Moreover, she will still need to file a Civil RICO Case Statement in connection with the existing CRCPA count, even if she does not file a new version of the lawsuit.

Allegations Regarding Sally's Death and the Forged Documents

Sally, Plaintiff's mother, died on May 22, 2011.[ECF No. 86, ¶¶ 36, 40].From June 2006 to May 2011, Sally worked for the Law Firm as a house sitter for properties owned by the estates the Law Firm represented.[ECF No. 86, ¶¶ 36, 40].Richard practices law at the Law Firm.The Law Firm also employs Nancy (Richard's wife),Steadman, and Tatgenhorst.[ECF No. 86, ¶ 16].Plaintiff alleges that Richard and Nancy established and are directors of Forgotten Felines, a non-profit cat rescue charity.[ECF No. 86, ¶ 15].

Plaintiff alleges that in January 2010, or five months before Sally died, Nancy drafted and forwarded to Sally her estate documents via email.[ECF No. 86, ¶ 37].Plaintiff alleges that these documents included a will, power of attorney, and a healthcare proxy -- all of which listed Plaintiff as a beneficiary or grantee of an entrusted power.[ECF No. 86, ¶ 37].

Plaintiff then claims that at some undisclosed time (after January 2010 but before Sally's death), Nancy forged Sally's estate documents so that Nancy could have power of attorney and serve as Sally's healthcare proxy.[ECF No. 86, ¶ 38].Plaintiff alleges that Nancy used these forged documents to limit Sally's contact with her children after she became ill and required hospitalization.[ECF No. 86, ¶¶ 38-39].

On June 6, 2011, Plaintiff further alleges, Nancy emailed Plaintiff that Sally had changed her mind about her estate plans shortly before she died.[ECF No. 86, ¶ 43].On June 9, 2011, Plaintiff alleges, Defendants emailed Plaintiff a copy of Sally's new will, which was executed on April 30, 2011(the "will").[ECF Nos. 86, ¶ 44; 86-3].This executed will did not include Plaintiff as a beneficiary or grantee and instead granted 85% of the sales of Sally's personal property to Forgotten Felines.[ECFNo. 86-3].Theremaining 15% of the proceeds were granted to Sally's son and Plaintiff's brother, Mark M. Buehler("Mark"), through $1,000 increments if Mark proved to be sober to Sally's personal representative, and this determination could be revisited every six months.[ECFNo. 86-3].If Mark was not sober, then the will provided that Forgotten Felines would receive Mark's distributions.[ECFNo. 86-3].

Plaintiff alleges that Defendants"ultimately, destroyed, donated or disposed of [Sally's] personal property, including but not limited to sentimental journals, financial records and photo-albums, leaving almost nothing to Sally Buehler's children."[ECF No. 86, ¶¶ 48-49].

Plaintiff further alleges that she began to doubt Defendants' honesty in August of 2011 and that despite her continuous demands to Defendants for information regarding Sally's assets, Defendants refused to provide the requested information.[ECF No. 86, ¶ 50].

Predicate Acts Alleged in Support of the RICOandCRCPA Claims

Plaintiff alleges that Defendants operate an ongoing, association-in-fact enterprise to undertake a coordinated scheme of deceptive and unlawful acts to confiscate property, unduly influence the estate plans of persons who seek legal advice, and forge documents, all for the purposes of self-aggrandizement.[ECF No. 86, ¶ 22].

Plaintiff claims that the documents prepared for Sally by Defendants were forgeries and part of a larger scheme to steal Plaintiff's inheritance.Plaintiff claims that (1) Richard and the Law Firm falsely drafted the will, the power of attorney, and healthcare proxy documents; (2) Tatgenhorst falsely witnessed the will; and (3) Steadman falsely notarized the will.[ECF No. 86, ¶ 54(A)].Plaintiff claims that these acts violate 18 U.S.C. § 1956(a)(3)(B)("Laundering of Monetary Instruments") and Florida Statutes §§ 817("Fraudulent Practices"), 825.103 ("Exploitation of an Elderly Person or Disabled Adult), 831.01 ("Forgery"), and 831.02 ("Uttering Forged Instruments").[ECF No. 86, ¶ 54(A)].

Plaintiff alleges that Nancy used the forged healthcare proxy to admit Sally into hospitals, to control outside communication with Sally before her death and "inform[ed]Plaintiff on multiple dates in May 2011 via telephone calls[.]"[ECF No. 86, ¶ 54(B)].Plaintiff claims that Nancy "used the forged power of attorney to take the property of Sally Buehler, by opening Sally's safe deposit box on or near June 8, 2011 and then informing via telephone calls Plaintiff on multiple dates thereafter that nothing was in said box[.]"[ECF No. 86, ¶ 54(C)].Plaintiff claims that these acts violate 18 U.S.C. § 1343("Wire Fraud") and Florida Statutes §§ 817,825.103,831.01, and831.02.[ECF No. 86, ¶¶ 54(B) & (C)].

Plaintiff alleges that on June 14, 2011, Richard, on behalf of the Law Firm, deposited Sally's forged will with the clerk of court in Monroe County, Florida and mailed notice of this filing to Plaintiff's siblings.Plaintiff claims that this violates 18 U.S.C. § 1341("Mail Fraud") and Florida Statutes §§ 817,825.103,831.01, and831.02.[ECF No. 86, ¶ 54(D)].

Plaintiff alleges that Forgotten Felines was falsely named the beneficiary of Sally's will and received her property and that this violates 18 U.S.C. § 1956(a)(3)(B) and (7)(A)andFlorida Statutes, §§ 817,825.103,831.01, and831.02.[ECF No. 86, ¶ 54(E)].

Plaintiff also alleges that she contacted local law enforcement and the FBI about Warner Defendants in 2012 and that Warner Defendants attempted "to intimidate Plaintiff into submissive acceptance of said losses by threatening through third persons violence to Plaintiff and by directly threatening Plaintiff with criminal prosecution and lawsuits in violation of 18 U.S.C. § 1512(b)(3)[Retaliation]."[ECF No. 86, ¶¶ 51-53, 54(G)].Plaintiff alleges that Joseph Ardolino told Plaintiff over the phone to stop causing problems for Warner Defendants or "face the consequences."[ECF No. 86, ¶ 53].

Plaintiff's Allegations as to Pattern in Support of her RICOandCRCPA Claims

Plaintiff alleges that Defendants' racketeering scheme has been occurring for more than 10 years and victimized several other clients in the Key West community,including Carolyn Wilson-Garrrison, Harold Guppy, Benson Martin, Joan Temple, Harry B. Decker, John Gergle, and Joseph Ardolino.[ECF No. 86, ¶¶ 29-35].Plaintiff attaches Carolyn Wilson-Garrison's and Harold C. Guppy, Jr.'s wills as exhibits to the SAC.[ECFNos. 86-1; 86-2].

Plaintiff alleges that Defendants also forged these non-party victims' estate planning documents to disinherit their family members.Plaintiff alleges that for these victims, Defendants included as beneficiaries in the forged probate documents non-profits associated with Defendants' enterprise, specifically Forgotten Felines and Whiskas & Paws.[ECF No. 86, ¶¶ 29-35].

Key West Probate Proceeding

On June 14, 2011, the will was deposited in the Monroe County Probate Court in a Disposition of Personal Property Without Administration ("Key West...