Motion for Summary Adjudication in Peter Rathgeb, et al Plaintiff vs. Therold J Rathgeb, Jr. Defendant| Trellis.Law

On December 01, 2022 a Motion,Ex Parte was filed involving a dispute between Byrnes, Sandra, Rathgeb, Patricia, Rathgeb, Peter, and Rathgeb, Therold J, Jr., for 3 in the District Court of Broward County.

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FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.****

Filing # 154993768 E-Filed 08/09/2022 04:47:21 PM
22-00 17 60 4
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

IN RE: ESTATE OF
THEROLD JOHN RATHGEB, SR.
FILE NO.: PR-C-18-0002301 G.@? k@
11 AAZ
Deceased. .:.,1

PETER RATHGEB, SANDRA BYRNES, and
PATRICIA RATHGEB,

Plaintiffs,

V. DEC 0 1
2022
THEROLD J. RATHGEB, JR., individually
By-
And as Trustee of Therold J. Rathgeb
Revocable Trust,

Defendant.
i

PLAINTIFFS' RESPONSE TO
DEFENDANT'S MOTION FOR
PARTIAL SUMMARY JUDGMENT

COMES NOW, Plaintiffs', PETER RATGEB, SANDRA BYRNES, and

PATRICIA RATHGEB, by and through their undersigned counsel, hereby files

their Response to Defendant's Motion for Partial Summary Judgment, and in

support thereof state as follows:
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FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.****

Page(s)
Cases

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) Passim
Brady v. Southern R. Co.,
320 U.S. 476 (1943) 5
Brundage v. Bank ofAm.,
996 So.2d 877 (Fla.4th DCA 10, 11
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) 4
Congress Park O#ice Condos II, LLC v. First-citizensBank & Trust Co.,
105 So.3d 602 (Fla. 4th DCA 9
Dage Deutsche Bank Nat. Trust Co.,
v.

95 So.3d 1021 (Fla. 2d DCA 2012) 9
Davis v. Davis,
889 N.E.2d 374 (Ind.App. 2008), 10
First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253 (1968) 8,9
Goss Permenter,
v.

827 So.2d 285 (Fla. 5th DCA
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) 4,7
Owens v. Publix Supermarkets, Inc.,
802 So.2d 315 (Fla. 2001) 6
Romeo v. Romeo,
907 So. 2d 1279 (Florida Second DCA 2005) 3
In Sigel v. No,
k, 920 So.2d 89 (Fla. 4th DCA 10, 11
2. See also, Sp,
ek v. Taylor P.3d 428, 433 11
Ticor Title Guar. Co. v. Harbin,
674 So.2d 781 (Fla. 1st DCA 1996) 6
d to them.");,
XENIA u. Tseng 352 P.3d 74 11
Wilkerson v. McCarthy,
336 U.S. 53 (1949) 5

Rules

Fed.Rule Civ.Proc. 56(e),
Federal Rule of Civil Procedure 50(a) 5
Rule 1.510, Florida Rules of Civil Procedure 4
Rule 56(c) of the Federal Rules of Civil Procedure 6,8

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Other Authorities

Revocable Trusts and Fiduciary Accountability,
26 Elder L.J. 1 10

Case Narrative

Plaintiffs are the adult children of the decedent, Therold J. Rathgeb, Jr.,

and commenced this action through a Verified Complaint on August 28, 2018.

The Verified Complaint, which the court may consider the parties' initial

pleadings for purposes of summary judgment. See Romeo v. Romeo, 907 So. 2d

1279 (Florida Second DCA 2005). Further, Plaintiffs submit that Defendant's

argument in his motion for partial summary judgment is simply a recycled

argument made in a prior dispositive motion that was already denied by Judge

Levenson. [DE# 252, DE# 253]. Moreover, Defendant's motion cannot succeed

because Defendant has waived the affirmative defense of standing and related

defenses. Finally, there are genuine issues of material fact that preclude the

entry of summary judgment. These issues of fact are evident in the record: (1)

Verified Complaint; (2) Affidavit of Peter Rathgeb; (3) Deposition of Defendant; (4)

Deposition of Stuart Sluskey; (5) Records produced by Di Pietro Partners PA; (6)

Records produced by Fred Hochzstein; (7) Petition for Administration filed by

Defendant; (8) Inventory filed by Defendant.

Defendant orchestrated the creation of a new Trust for Therold, Sr., on

June 3, 2013, and ensured that defendant was named as the Trustee of said

Trust agreement. [Complaint, ll 18]. Thereafter, he misappropriated the assets
that were intended by Therold, Sr., to be divided equally among all his chidren

at his death. As a result of the financial exploitation exacted upon Therold, Sr.,

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by defendant, assets have been diverted from Therold, Sr., and his Trust.

Accordingly, Plaintiffsued Defendantfor, among other things, breach of fiduciary

duty.

The deposition of Stuart Slutsky was taken on March 26, 2019. The

deposition transcript demonstrates that Defendant represented that a Trust was

in existence and that Defendant fraudulently represented to both Attorney

Slutsky and his father that "his siblings would get any other assets."

Allison Dachelet was deposed on March 12, 2019. According to Allison

Dachelet, Decedent never said that he wanted the defendant to take all of his

assets out of his Trust and give them to defendant [Dachelet 34: 12-19]. Further,

Therold, Sr., never told Attorney Dachelet that he wanted the defendant to go to

the bank and withdraw all of his money from his bank accounts and take it

[Dachelet 43:11-14].

Both the Petition for Administration and the Inventory submitted by

Defendant in the probate estate demonstrate that there are assets in the Trust.

Further, the records produced by the Decedent's estate planning attorneys

evidence the assets that Decedent had in his Trust. Defendant admitted in his

deposition that there was money in the Trust. Defendant has never accounted

for these trust assets and has breached his fiduciary duty.

SUMMARY JUDGMENT STANDARD

On December 31, 2020, the Florida Supreme Court sua sponte amended

Rule 1.510, Florida Rules of Civil Procedure, to adopt the summary judgment

standard articulated by the United States Supreme Court in Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242

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(1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.

574 (1986). The adoption of the federal construction and application of the rule

became effective on May 1, 2021.

The Supreme Court has held that the federal summaryjudgment standard

"mirrors the standard for a directed verdict under Federal Rule of Civil Procedure

50(a), which is that the trial judge must direct a verdict if, under the governing

law, there can be but one reasonable conclusion as to the verdict." Anderson at

250 (citing Brady v. Southern R. Co., 320 U.S. 476 (1943)). "If reasonable minds

could differ as to the import of the evidence, however, a verdict should not be

directed." Id. at 250-251 (citing Wilkerson v. McCarthy4, 336 U.S. 53

(1949)). Trial courts should act with caution in granting summaryjudgment and

may deny summary judgment where there is reason to believe the better course

of action is to proceed to a full trial. Anderson at 255.

The inquiry under both the federal summary judgment standard and the

federal directed verdict standard, which now dictates the inquiry in Florida, is

the same: "whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that the party must prevail as

a matter of law." Anderson at 251-252.

If the defendant in a run-of-the-millcivil case moves for summary
judgment or for a directed verdict based on the lack of proof of a

material fact, the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a
fair-mindedjury could return a verdict for the plaintiff on the
evidence presented. The mere existence of a scintilla of evidence in
support of the plaintiffs position will be insufficient; there must
be evidence on which the jury could reasonably find for the plaintiff.
The judge's inquiry, therefore, unavoidably asks whether reasonable
jurors could find by a preponderance of the evidence that the
plaintiff is entitled to a verdict "whether there is [evidence upon
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which jury carl properly proceed to
a find a verdict for the party
producing it, upon whom the onus of proof is
imposed." Anderson at 252.

Under Florida law, a trial court can grant a directed verdict only when no

proper view of the evidence could sustain a verdict in favor of the nonmoving

party. Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001). All

reasonable inferences must be drawn in favor of the nonmoving party. Id. A

directed verdict is not proper where there is any evidence to support a verdict for

the nonmovant. Ticor Title Guar. Co. v. Harbin, 674 So.2d 781, 782 (Fla.

1st DCA 1996). If there are any conflicts in the evidence or different reasonable

inferences to be drawn from the evidence, a motion for directed verdict should

not be granted. Goss v. Permenter, 827 So.2d 285 (Fla. 5th DCA 2002). To

survive summary judgment, the plaintiff only needs to present evidence from

which a
jury might return a verdict in his favor. If he does, then there is a

genuine issue of fact that requires a trial. Id.

The United States Supreme Court has held that "Rule 56(c) of the Federal

Rules of Civil Procedure provides that summary judgment "shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law." By its very terms, this standard provides that

the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact." Anderson at

247-248.

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Under the federal rule, whether there is a "genuine" issue relates to

whether the evidence is significantly probative of the claim. Summary judgment

should not be granted if the evidence is such that a reasonable jury could return

a verdict in favor of the nonmoving party. Anderson at 248. The threshold

inquiry is whether "there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor

of either party." Id. at 250.

The purpose of summary judgment proceedings is to "pierce the pleadings

and to assess the proof in order to see whether there is a genuine need for

trial." Matsushita at 587 (citing Advisory Committee Note to 1963 Amendment

of Fed.Rule Civ.Proc. 56(e), 28 U.S.C.App., p. 626). Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there

is no "genuine issue for trial." Id.

The Anderson court held that "[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry

of summary judgment. Factual disputes that are irrelevant or unnecessary will

not be counted." Id. at 248. The materiality inquiry is different

from incorporation of the evidentiary burden into the summary judgment

determination.

[W]hile the materiality determination rests on the substantive law,
it is the substantive law's identification of which facts are critical
and which facts irrelevant that governs. Any proof or evidentiary
are

requirements imposed by the substantive law are not germane to
this inquiry, since materiality is only a criterion for categorizing
factual disputes in their relation to the legal elements of the claim
and not a criterion for evaluation the evidentiary underpinnings of
those disputes. Id.

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In other words, when considering a motion for summary judgment the

Court should confine his or her analysis to whether the summary judgment

evidence demonstrates facts exist to support the elements of a claim, not whether

the quantity and quality of those facts is sufficient to satis& the controlling

evidentiary burden or quantum of proof. The Supreme Court further observed

that:

The issue of material fact required by Rule 56(c) to be present to
entitle a party proceed to to trial is not required to be resolved
conclusively in favor of the party asserting its existence; rather, all
that is required is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury or judge to resolve the
parties' different versions of the trust at trial. Id. at 288-289
(citing First National Bank ofArizona v. Cities Service Co., 391 U.S.
253 (1968)).

Generally, in a civil action the quantum of proof is "preponderance" or

"greater weight" of the evidence. Accordingly, absent a different onus, when

considering a motion for summary judgment, the Court should consider

whether a jury could reasonably find the plaintiffproved his case by the quality
and quantity of evidence required by governing law. Anderson at 254.

Whether a jury could reasonably find for either party, however,
cannot be defined except by the criteria governing what evidence
would enable the jury to find for either the plaintiffor the defendant:
It makes no sense to say that a jury could reasonably find for either
party without some benchmark as to what standards govern its
deliberations and within what boundaries its ultimate decision must
fall, and these standards and boundaries are in fact provided by the
applicable evidentiary standards.

Accordingly, in a Florida civil action, a preponderance of the evidence

quantum of proof should be considered when ruling on summary judgment;

however, this does not authorize "trial by affidavit." Id. at 255. "Credibility

determinations, the weighing of the evidence, and the drawing of legitimate
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inferences from the facts are jury functions, not those of a
judge, whether he is

ruling on a motion for summary judgment or for a directed verdict. The evidence

of the non-movant is to be believed, and all justifiable inferences are to be drawn

in his favor." Id.

ARGUMENT

Defendant's argument is essentially one of standing. Plaintiffs have

standing to challenge Defendant's conduct. Preliminarily, it is not proper for

Defendant to raise standing in a motion for summaryjudgment where Defendant

failed to raise standing as an affirmative defense. Congress Park Office Condos

It LLC v. First-citizens Bank & Trust Co., 105 So.3d 602 (Fla. 4th DCA 2013)

("There is no
question that lack of standing is an affirmative defense that must

be raised by the defendant and that the failure to raise it generally results in

waiver"). Florida courts recognize lack of standing as an affirmative defense.

Dage u. Deutsche Bank Nat. Trust Co., 95 So.3d 1021 (Fla. 2d DCA 2012).

Even if Defendant raised lack of standing as an affirmative defense, which

he failed to do, Defendant is liable to Plaintiffs as vested beneficiaries for

breaches of duty that occurred while Decedent was alive that ultimately impact

the financial interests of the Plaintiffs- the vested beneficiaries. Brundage u.

Bank ofAm. 996 So.2d 877,882 (Fla.4th DCA 2016).

The Complaint sufficient sets forth breaches and conduct by Defendant

both before and after the death of the settlor. Contrary to the statements made

in the Motion for Partial Summary Judgment, Plaintiffs do have standing to

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challenge actions taken by a trustee during the settlor's lifetime.1 In discussing

beneficiarystanding, a
leading treatise observes:

[M]any courts have allowed other beneficiaries to

pursue breach of duty claims after the settlor's death,
related to the administration of the trust during the
settlor's lifetime, when, for example, there are
allegations that the trustee breached its duty during the
settlor's lifetime and that the settlor had lost capacity,
was under undue influence, or did not approve or ratify

the trustee's conduct. George G. Bogert, THE LAW oF
TRUSTS AND TRUSTEES, note 9, §964 (3d.ed. 2010)

In Sigel v. Novak, 920 So.2d 89 (Fla. 4th DCA 2006) the settlor created a

revocable trust naming herself as sole lifetime beneficiary and her three children

as remainder beneficiaries. During the settlor's lifetime, her daughter withdrew

large amounts from the trust, and the corporate trustee approved the

withdrawals despite their questionable nature. After the settlor's death, her sons

objected to the trustee's accounting, claiming that at least some of the

withdrawals were
improper. The court held that the sons had standing to

challenge the withdrawals, noting that a denial of a beneficiary standing would

allow a trustee to violate its fiduciary duties with impunity if the wrongdoing

remained undetected during the settlor's lifetime. Id.

Similarly, in Brundage v. Bank ofAmerica, 996 So.2d 877 (Fla. 4th DCA

2016), after the settlor's death, the beneficiaries or a revocable trust challenged

1
See, e.g., Grayson M.P. McCouch, Revocab/e Tmsts and Fiduciary AccountabWty, 26
Elder L.J. 1,11 n.43 (2018)("Afterthe settlor's death, the beneficiariesshould have
standing to protect their interests because the trustee committed a breach that harmed
the beneficiaries' interests and was not ratified by the settlor."); Davis v. Davis, 889
N.E.2d 374 (Ind.App. 2008)(holding trustee of revocable trust accountable after settlor's
death to remainder beneficiary for unauthorized lifetime breaches of trust).
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stock transfers executed by the trustees during the settlor's lifetime. The court

held that "[t]he beneficiary may sue for breach of a duty that the trustee owed to
the settlor/beneficiary which was breached during the lifetime of the settlor and

subsequently affects the interest of the vested beneficiary." Id. at 882. See also,

Spacek v. Taylor, 381 P.3d 428, 433 a trustee's actions

breach a fiduciary duty to a settlor, causing harm to.the trust's beneficiaries,the

beneficiaries ought to be able to recover for the harm caused to them."); Tseng v.

Tseng 352 P.3d 74 (Or.Ct.App. 2015) involved a court emphatically rejecting the

trustee's position, explaining that the statutory bar on beneficiary standing to

enforce the trust during the settlor's lifetime was not intended to prevent them

from pursuing remedies after the settlor's death for breaches that occurred

during the settlor's lifetime:

"To the contrary, the relevant statutory provisions and
their comments indicate that, in the case of a
revocable trust, a beneficiary's ability to take steps to
protect and enforce the beneficiary's interest in the
trust is simply deferred until the settlor's death, at
which point the beneficiary is entitled to invoke the
provisions of the [trust code] to protect the
beneficiary's beneficial interest in the trust." Id., at 80

The Complaint sufficiently sets forth numerous events wherein the

Defendant breached his fiduciary duty by engaging in self-dealing transactions

and financial abuses without the knowledge or consent of the Decedent during

his life and that have negatively impacted Plaintiffs as beneficiaries of the Trust.

Superimposed on these examples of financial exploitation is the Defendant's

conduct in orchestrating the 2013 Trust terms and conditions. Further,

following the death of Mr. Rathgeb, Plaintiffs have sufficiently alleged the failure

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of the Defendant to keep the Plaintiffs reasonably informed provide and to

the trust accountings. Additionally, the record evidence
provide required
issue of material fact regarding whether, when and to what
evidences a genuine
extent the Trust was funded with assets that were squandered by Defendant.
the
Finally, regarding the issues of damages, Florida law holds that

inability to calculate precise damages is not fatal to a cause of action on a

breach of fiduciary claim. Where a breach of fiduciary duty is shown but no

actual damages are proved, nominal damages may be awarded. Stevens v.

Cricket Club Condo, Inc., 784 So. 2d 517, 519 (Fla. 3rd DCA 2001).

WHEREFORE, Plaintiffs respectfully request this court enter an order

denying Defendant's Motion for Summary Judgment and for any other relief this

court deems just, including an award of attorney's fees and costs.

Dated August 9,2022

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Respectfully submitted,
ADRIAN PHILIP THOMAS, PA
Counsel for Plaintiffs
Las Olas Square, Suite 1050
515 E. Las Olas Blvd.
Fort Lauderdale, FL 33301
(954) 764-7273 Office
-

(954) 764-7274 Facsimile
-

/ s/ Daniel A. McGowan
Adrian P. Thomas, Esquire
Florida Bar No. 981559
Daniel A. McGowan, Esquire
Florida Bar No. 94482

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CERTIFICATE OF SERVICE AND COMPLIANCE

I HEREBY CERTIFY that a true and correct copy of the foregoing pleading
was sent by e-mail via the Florida Courts eFiling Portal (pursuant to Rule 2.516,

Florida Rules of Judicial Administration and Administrative Order SC 13-49), on

this to all those listed on the attached Service List where an e-mail address is

indicated below; otherwise, e-mail service was not made to pro se individuals

who have not provided an e-mail address for service but were served via regular
U.S. Mail.

Dated August 9,2022

/s/ Daniel A. McGowan
Daniel A. McGowan, Esquire
For the Firnn

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SERVICE LIST

Brandan J. Pratt, Esquire
Zander J. Retamar, Esquire
Huth, Pratt & Milhauser
2500 N. Military Trail, Ste. 460
Boca Raton, FL 33431

Counsel for Therold Rathgeb

Case Info

Judge

Haury, William W., Jr. Track Judge’s New Case

Case No.

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Document Filed Date

December 01, 2022

Case Filing Date

December 01, 2022

County

Parties

Byrnes, Sandra Plaintiff
Rathgeb, Patricia Plaintiff
Rathgeb, Peter Plaintiff
Rathgeb, Therold J, Jr. Defendant
Vincent, Arthur Attorney for the Defendant
Brandan Pratt Attorney
Daniel McGowan Attorneys for Plaintiffs
Adrian Thomas Attorneys for Plaintiffs
Barbara Cass Attorney
Emily Harrison-Jolly Attorney
David Di Pietro Attorney
Charles Zimmerer Attorneys for Defendants
Alexander Platt Attorneys for Defendants
Ryan Nagle Attorney
Bryan Ramos Attorneys for Defendants
Kenneth Mikos Attorneys for Defendants
Stuart Slutsky Attorney
Steven Fredman Attorney
John Huss Attorney
Joseph Huss Attorney
Kathleen Johnson Attorney

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Motion,Ex Parte: Peter Rathgeb, et al Plaintiff vs. Therold J Rathgeb, Jr. Defendant

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