Antitrust Law Daily Wrap Up, RICO—11th Cir.: Separate accrual rule does not permit RICO claims over execution of will, (Aug 29, 2013)

By Tobias J. Gillett, J.D., LL.M.

An attorney’s RICO claims over the activities of the step-children of a decedent in opposing the attorney’s executorship over the decedent’s estate were barred by the RICO Act’s four-year statute of limitations because he did not identify any new and separate injuries for purposes of the separate accrual rule, the U.S. Court of Appeals in Atlanta has ruled (Lehman v. Lucom, August 28, 2013, Wilson, C.).

On June 2, 2006, William C. Lucom passed away. His will established the Wilson C. Lucom Trust Fund Foundation to address the needs of Panamanian children, left $1 million to the Mayo Clinic, provided a $240,000 annuity to his wife, Hilda Piza Lucom, and left smaller bequests for his step-children from her previous marriage. The will also appointed Richard Lehman, Lucom’s attorney; Hilda; and a third individual as the executors of the will, but a scrivener’s error in a codicil allegedly mistakenly struck the clause appointing the executors.

Lehman successfully applied to a Panamanian probate court for appointment as the estate’s sole executor, and also successfully petitioned a Palm Beach County, Florida probate court for ancillary administration of the will. According to Lehman, however, Hilda and other members of her family, aided by bribes, corruption, and perjury, were able to get him suspended as the estate’s executor, eventually leading to a Supreme Court of Panama ruling declaring Hilda the sole executor and “universal heir” of the estate. They also obtained a $1,013,547.05 judgment in a surcharge action against Lahman in the Florida probate court, a ruling that found he had breached his fiduciary duty to the estate by comingling funds and declared him a “covetous opportunist.”

Hilda’s children and their attorney (“the Arias Group”) also allegedly filed false criminal charges against Lehman with the Panamanian police, published newspaper articles about those charges, and used the charges to place him on “Red Notice Alert” with Interpol and shut down his websites. In response, Lehman filed a complaint on January 11, 2007 against the Arias Group and their attorneys asserting claims for breach of process and civil conspiracy, an action later dismissed.

On September 23, 2011, Lehman filed a complaint against the Arias Group, asserting claims under the RICO Act. The district court found the claims were barred by RICO Act’s four-year statute of limitations, because he was aware of his injuries at least as early as January 2007.

Lehman appealed, citing the separate accrual rule. The appellate court explained that the separate accrual rule “provides that if a new RICO predicate act gives rise to a new and independent injury the statute of limitations clock will start over for the damages caused by the new act,” but that “the plaintiff cannot use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period.”

Here, the court “agree[d] with the district court that Lehman ha[d] done little more than repackage his 2007 abuse of process complaint,” rejecting his contention that his only pre-September 2007 injury was his expenditure of attorney’s fees on behalf of the estate. The court noted as examples that both complaints alleged that the Arias Group had used its “political influence in Panama to access estate assets, dissipate the assets before they are probated, and thereby attempt to totally deplete the estate before its assets can be probated,” and that both complaints described the criminal charges filed against Lehman in Panama.

The court concluded “that Lehman knew, or should have known, of most of the injuries that justify the allegations in the complaint prior to September 2007,” and that all of his alleged injuries were merely “continuations of the same injuries previously alleged.” The court rejected Lehman’s contention that he had suffered new and independent post-September 2007 injuries from (1) the Interpol Red Notice Alert, (2) the Arias Group’s newspaper articles, (3) the shutting down of his websites, and (4) the harm to his business reputation from being called a “covetous opportunist by the Florida probate court. All of these alleged injuries were “merely reaffirmations of a previous act,” because the Red Notice Alert, the newspaper articles, and the website closures arose from the criminal charges, and the Florida court’s language arose from the introduction of allegedly “corrupt Panamanian orders” from Hilda’s challenge to his executorship into the Florida judicial proceedings.

Therefore, the court found the district court did not err in granting summary judgment to the Arias Group, “because it is readily apparent that [Lehman] was aware of the Arias Group’s activities four years before he filed his RICO complaint.”

The case is No. 12-14126.

Attorneys: Juan Jose Rodriguez (Carey Rodriguez Greenberg O'Keefe, LLP) for Richard S. Lehman. Matias Rafael Dorta (Tew Cardenas LLP) for Margarita Arias Piza.

Companies: Richard S. Lehman, P.A.; Wilson C. Lucom Trust Fund Foundation

Cases: RICO AlabamaNews FloridaNews GeorgiaNews