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Ely
Ely, Counselor at Law
Category: Estate Law
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Experience:  Fully licensed attorney in Texas in private practice.
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Name Address SUPERIOR COURT J.D. OF AT JUNE , 2013 , Plaintiff, vs.

Resolved Question:

Name
Address
SUPERIOR COURT
J.D. OF
AT
JUNE , 2013

,
Plaintiff, vs.

Defendant :
:
:
:
RETURN DATE: Has to be a Tuesday
COMPLAINT FOR
LEGAL MALPRACTICE

INTENTIONAL TORT
DEMAND FOR JURY TRIAL

FACTS
1. The plaintiff is a beneficiary under the Will of XXX, plaintiff’s mother. (Exhibit)
2. The defendant is a commissioner of the superior court licensed to practice law in the states of Connecticut and New York with a mailing address of XXXXXXX.
3. Defendant prepared the Last Will and Testament for plaintiff’s mother in 1997 among other estate planning documents, and he knows the provisions therein.
4. Plaintiff’s mother died on January 31, 2011.
5. At the time of death, plaintiff was living with her mother in the real property located at XXXXX and had been living with her mother for the previous eight years.
6. Defendant was appointed executor of the estate on XXXX 2011.
7. Defendant was directed in the Will [Page One, Article IIC] to distribute the residual estate to the four beneficiaries in equal shares including the real property at XXXXXXX.
8. The estate was financially liquid when defendant was appointed executor.
9. As executor and fiduciary of the estate, defendant had a fiduciary responsibility and obligation to the estate and its beneficiaries—XXXXX—owing to them all the standard duty of professional care to administer the estate in the best interests of the estate and the four beneficiaries.
10. At the demand of a co-beneficiary, defendant filed an unnecessary eviction against plaintiff on July 18, 2011.
11. Defendant executed the eviction on April 17, 2012.
12. Eighteen months after being appointed executor defendant was properly removed as executor on November 25, 2012 by petition and decree brought by the judge of probate. (Exhibit)
13. Plaintiff’s repeated claims of defendant’s wrongdoing and ethics violations over a 21-month period were, in part, confirmed and admonished by The Honorable XXXX of Superior Court after a 2-day trial on October 4th and 5th, 2012 and were made clear in his Memorandum of Decision. (Exhibit)
14. Defendant presented an invoice to the estate on October 12, 2012 in the amount of $94,000—for a simple estate with one car, one house and a small portfolio.
15. As stated in Judge XXX’s Decision, if not for defendant’s delay, improper handling and deliberate wrongdoing, the executor would have had sufficient funds to pay the testator’s list of claims, the expenses of estate administration and a reasonable executor’s fee. And, if there was a need for additional funds, the executor could look to the beneficiaries for any shortfalls.

COUNT ONE – BREACH OF FIDUCIARY DUTY
16. Paragraphs 1-15 form a part of this Count, as if it were stated here.
17. Defendant failed to follow the provisions in the Will or to provide the standard of professional care to protect the assets of the testator, act in good faith, and administer this estate in the best interests of all the beneficiaries.
18. Defendant’s actions wasted the estate and put the estate in a position of illiquidity intentionally, in order to force a sale of the real property; and denied and stalled distribution of the estate to the four beneficiaries. This same conclusion was also reached by Judge XXX in Superior Court following the trial in October 2012, among other clear and intentional unlawful activity by the defendant as further described herein.
19. Defendant’s intentional actions caused ill will, turmoil and disorder and inflicted unnecessary harm on the plaintiff, among other injury.
20. Defendant withheld vital information from the beneficiaries, obscured and misrepresented specific provisions in the Will and intentionally delayed administration of the estate for 21 months—right up to the time he was removed as executor.
21. Before being appointed executor by XXX Probate Court, before any appraisal was performed on the real property, and while plaintiff’s mother lay in a coma in XXXXX on life support, defendant tried to persuade the plaintiff to agree to a $500,000 valuation of the property and to accept her one-fourth (1/4) share from a sale of the house to two co-beneficiaries. Plaintiff told the executor it was most inappropriate for him to be discussing such a proposal at this time; and he was not the executor of the estate.
22. Plaintiff petitioned the probate court on several occasions, following his appointment, to compel defendant—who after 14 months had not filed an Inventory or List of Claims—to follow the Will and distribute the estate and the real property to the beneficiaries; and to allow her to remain living in her mother’s home until the estate was closed.
23. Defendant stated falsely while under oath in XXX Probate Court, XXX Housing Court and XXX Superior Court that there needed to be a ‘unanimous agreement among all four beneficiaries’ before he could distribute the property.
24. Under direct examination, Judge XXX discovered that defendant deliberately chose to try and assume the ro
Submitted: 1 year ago.
Category: Estate Law
Expert:  Ely replied 1 year ago.
Hello friend,

First of all, note that your question was cut off at paragraph 24. Did you mean to send me anything else?

Second, you did not have to open a new thread, but simply could have replied on the other thread we had. But that is okay. I will reply on this thread.

Third, I am heading out at the moment due to an unforeseen matter, and may not be able to reply util sometime later on today - would this be acceptable?
Customer: replied 1 year ago.

Sure. No problem. I was unable to use original thread. Kept getting error messages.


 


I will send the rest that was cut off. Reply when you can. Thanks.



  1. Defendant owed plaintiff a fiduciary duty to act in good faith and in plaintiff’s best interests at all times, and had an obligation to perform these duties with reasonable care and skill and to not expose plaintiff to any unnecessary risk or peril.

  2. By reason of the facts and circumstances stated above and as a direct and proximate result of defendant’s aforementioned deliberate breach of fiduciary duty, his ongoing pattern of misconduct, and his malice directed at the plaintiff throughout this 21-month period, the Plaintiff suffered bodily harm, financial injury, unnecessary risk and peril and loss of her rightful inheritance and continues to endure extreme debilitating emotional and mental distress by his actions as further described herein.

  3. The acts and omissions constituting breach of fiduciary duty by the defendant were committed intentionally and with oppression, fraud and malice. As a result, and in accordance with …..enter cgs here….plaintiff may, in addition to actual damages, recover punitive or exemplary damages for the sake of example by way of punishing the defendant.


WHEREFORE, plaintiff prays for Judgment against defendant as hereinafter set forth:


 


As to Count One – Breach of Fiduciary Duty


 



  1. For actual damages in a sum in excess of the jurisdiction of the Court, according to proof (ELY, KINDLY EDIT THIS No. 1. I THINKS IT’S WORDED INCORRECTLY)

  2. For costs of suit incurred

  3. For exemplary damages, as stated above

  4. For other such and further relief as the court deems just and proper.


 



COUNT TWO - ABUSE OF LEGAL PROCESS



  1. Paragraphs One through Fourteen (1-14) inclusive of Count One and Count Two are hereby inclusive of this Count Three, and made part hereof as if more fully set forth herein.

  2. Defendant did not have authority from the probate court through a petition and an order or decree to file court documents to evict plaintiff from her mother’s home.

  3. Defendant threatened plaintiff with eviction if she did not execute an LLC Agreement in which to transfer the real property to assist a co-beneficiary in hiding his inheritance from the IRS.

  4. Defendant retained legal counsel and filed suit in XXX Superior Court to evict plaintiff from her family home—without authority from the probate court.

  5. Defendant had no just or probable cause to evict plaintiff.


(cut some off here because apparently there's a limit to the amount of text I can paste in one response...will past the ending now...)



  1. The acts and omissions constituting breach of fiduciary duty by the defendant were committed intentionally and with oppression, fraud and malice. As a result, and in accordance with …..enter cgs here….plaintiff may, in addition to actual damages, recover punitive or exemplary damages for the sake of example by way of punishing the defendant.


WHEREFORE, plaintiff prays for Judgment against defendant as hereinafter set forth:


 


As to Count One – Breach of Fiduciary Duty


 



  1. For actual damages in a sum in excess of the jurisdiction of the Court, according to proof (ELY, KINDLY EDIT THIS No. 1. I THINKS IT’S WORDED INCORRECTLY)

  2. For costs of suit incurred

  3. For exemplary damages, as stated above

  4. For other such and further relief as the court deems just and proper.


 



COUNT TWO - ABUSE OF LEGAL PROCESS



  1. Paragraphs One through Fourteen (1-14) inclusive of Count One and Count Two are hereby inclusive of this Count Three, and made part hereof as if more fully set forth herein.

  2. Defendant did not have authority from the probate court through a petition and an order or decree to file court documents to evict plaintiff from her mother’s home.

  3. Defendant threatened plaintiff with eviction if she did not execute an LLC Agreement in which to transfer the real property to assist a co-beneficiary in hiding his inheritance from the IRS.

  4. Defendant retained legal counsel and filed suit in XXX Superior Court to evict plaintiff from her family home—without authority from the probate court.

  5. Defendant had no just or probable cause to evict plaintiff.


(skipping more content here so I can get to the bottom of count two...)



  1. The acts and omissions constituting an abuse of the legal process by the defendant were committed with oppression, fraud and malice. As a result, plaintiff in addition to actual damages may recover punitive or exemplary damages for the sake of example by way of punishing the defendant. (according to CGS….. )


WHEREFORE, plaintiff prays for Judgment against defendant as hereinafter set forth:


 


As to Count Two – Abuse of Process


 



  1. For actual damages in a sum in excess of the jurisdiction of the Court, according to proof

  2. For costs of suit incurred

  3. For exemplary damages, as stated above

  4. For other such and further relief as the court deems just and proper.



COUNT THREEMalicious Prosecution



  1. Paragraphs One through Twenty-three (1-23) inclusive of Count One, Count Two and Count Three are hereby inclusive of this Count Four, and made part hereof as if more fully set forth herein.


ELI, I HAVE SKIPPED OVER THE MIDDLE OF THE COMPLAINT AND GONE STRAIGHT TO THE LAST COUNT (7) SO YOU CAN SEE WHAT I’VE DONE, and TO HELP ME WITH WHAT I N EED TO DO. THANK YOU SO MUCH!!!


COUNT SEVEN – Intentional Infliction of Emotional Distress



  1. Paragraphs…blah.blah…blah

  2. Defendant was relentless in his infliction of harm on the plaintiff—whether directly or indirectly.


  1. The infliction of emotional distress by the defendant was committed intentionally upon plaintiff with oppression and malice. As a result, plaintiff in addition to actual damages may recover punitive or exemplary damages for the sake of example by way of punishing the defendant. (according to CGS )


WHEREFORE, plaintiff prays for Judgment against defendant as hereinafter set forth:


 


As to Count Seven – Intentional Infliction of Emotional Distress


 



  1. For actual damages of a sum in excess of the jurisdiction of the Court, according to proof

  2. For costs of suit incurred

  3. For exemplary damages, as stated above

  4. For other such and further relief as the court deems just and proper


 


Dated this day of June, 2013
















By:







XXXXX


Self represented


xxxxx





CERTIFICATION


The Plaintiff herein duly certifies that a copy of this complaint has been mailed, postage pre-paid, to the defendant and all parties of record on


Dated this day of June, 2013
















By:







XXXXXXXX






VERIFICATION


I verify under penalty of perjury that the facts alleged in the foregoing complaint are true and correct to the best of my information, knowledge, belief and personal experience.


Dated this day of June, 2013
















By:







XXXXXX






(separate page) PRAYER FOR RELIEF/STATEMEND IN DEMAND?








DEMAND FOR JURY TRIAL Eli, does this demand for a jury trial go inside the complaint or on a separate page?


Plaintiff hereby demands a trial by jury on all issues so triable



end of complaint...



Expert:  Ely replied 1 year ago.
S,

Okay, you kinda have the right idea, but here is what the standard format is - each capitalized word is a new heading.

INTRODUCTION
FACTS
COUNT ONE
COUNT TWO
COUNT THREE
(etc).

- - - No need for the "wherefore" statement in each one - - -

PRAYER
Wherefore, Plaintiff respectfully requests:
1. Monetary damages;
2. Punitive damages;
2. Interest;
3. Reasonable legal fees; and
4. Such other relief as the Court deems just and equitable

Sincerely,

Signature

Name

- - -

Hi, Ely. My complaint consists of 7 counts against the defendant. When I am describing the monetary damages I've lost, do I include them separate inside of each count, or in the aggregate at the end of the complaint?

At the PRAYER part of the paragraph, or what you called the "aggregate."

Also, I have included a "WHEREFORE" paragraph at the end of each count and before the next Count, using the language you provided. It this the correct format?

No. See above. One only attaches that at prayer.

Also, Once I have all seven counts in my complaint completed, what paragraph ends the complaint part?

The PRAYER paragraph.

I know the Statement/Prayer for relief is a separate motion with its own signature by me.

I am not sure who told you this, but this is not true. The prayer is the paragraph that 'ends' the complaint.

But how do I end the Complaint before signing as the Plaintiff?

As you now should understand, that question is moot, since PRAYER is part of the complaint.

Also, remember the following:

The actual amount lost and the request for punitive damages (if made) is in the body of the complaint; the PRAYER is left general. The Plaintiff can also request specific amounts in their testimony and/or closing if they wish, although many choose to have the Judge/Jury to come up with their own amount, so as not to undershoot and thus curtail what they may otherwise receive (i.e. it is best to be general and possibly get $10, then to be specific and ask for $5, and get $5).

In other words, one can have:

COUNT 1
blah blah

COUNT 2
blah blah

COUNT 3
blah blah

COUNT 4
blah blah

PRAYER
Defendant's actions cost me $5 total. Defendant should pay me $5 for the loss total and $2 punitive damages (punitive damages - optional).

OR

COUNT 1
blah blah

COUNT 2
blah blah

COUNT 3
blah blah

COUNT 4
blah blah

PRAYER
Defendant should pay me damages and punitive damages (punitive damages - optional).

- - -

On the second one, NO MENTION of any amount is made in the complaint. The amounts of loss are made by statement and evidence at trial. Then the jury/judge decides on their own what the final monetary amount should be, and possibly punitive damages. The last one is favored by most.

I hope this clarifies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 89060
Experience: Fully licensed attorney in Texas in private practice.
Ely and other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

What constitutes the INTRODUCTION? Something simple? One paragraph? Many paragraphs? Everything in a nut shell, and briefly?

Expert:  Ely replied 1 year ago.
Hello,

For a good example of INTRODUCTION, as well as other sections, see here, although there is is called PREAMBLE.

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