brennan wrongful death lawsuit: britton- final corrected brief 2-16-12

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Legal brief presented to the Federal Appeal Court, Florida, by Luke Lirot, representing Victoria Britton who has brought a wrongful death lawsuit over the death of her son Kyle Brennan. The lawsuit blames individual Scientolists including Thomas Brennan, Kyle's father, and Church of Scientology Flag Service Organization (their Florida operation) for Kyle's death.

TRANSCRIPT

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CASE NO. 12-10024-AA

The Estate of Kyle Brennan, by and through, its Administrator, Victoria L. Britton, Appellant, v. Church of Scientology Flag Service Organization, Inc., et al. Appellees.

APPELLANTS CORRECTED INITIAL BRIEF

On Appeal from the United States District Court Middle District of Florida Tampa Division Lower Tribunal Case No.: 8:09-cv-00264-SDM-EAJ Luke Lirot, Esquire Florida Bar No. 714836 2240 Belleair Road, Suite 190 Clearwater, Florida 33764 (727) 536-2100 Telephone (727) 536-2110 Facsimile Counsel for Appellant-Estate of Kyle Brennan

APPELLANT CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT THE ESTATE OF KYLE THOMAS BRENNAN, Appellant, by counsel and pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, respectfully submits a complete list of all persons and entities known to have an interest in the outcome of this appeal: 1. Judge Steven D. Merryday, District Court Judge. 2. Judge Robert Beach, Pinellas County Florida, Circuit Court Judge. 3. Martin Rice Counsel for Judge Robert Beach. 4. Church of Scientology Flag Service Organization, Inc., Defendant. 5. Estate of Kyle Thomas Brennan, Victoria L Britton, Personal Representative of Plaintiff. 6. Gerald Gentile, Defendant. 7. Denise Gentile, Defendant. 8. Thomas Brennan, Defendant. 9. Luke Lirot, Counsel for Plaintiff. 10. Thomas Dandar, Former Counsel for Plaintiff. 11. Kennan Dandar, Former Counsel for Plaintiff. 12. F. Wallace Pope, Jr., Counsel for all Defendants.

13. Robert Vernon Potter, Counsel for all Defendants. 14. Lee Fugate, Co-Counsel for Defendants, Denise and Gerald Gentile. 15. Nathan Michael Berman, Co- Counsel for Defendants, Denise and Gerald Gentile. 16. Richard C. Alvarez, Co-Counsel for Defendant, Thomas Brennan. 17. Peter J. Grilli, Mediator. CORPORATE DISCLOSURE STATEMENT Appellants hereby certify that there is no parent company, subsidiary, affiliate, or any corporate entity related to Appellants, The Estate of Kyle Thomas Brennan.

_______________________________ Luke Lirot, Esquire Florida Bar Number 714836

STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 34, Fed.R.App.P., Appellant respectfully requests oral argument in this matter. The complex and unique issues in this case can be clarified and reconciled in oral argument and that could assist the Court in dealing with, and giving proper consideration to, the conduct, policies and stringent religious beliefs that come to bear in this action. Oral Argument can also be useful in addressing any concerns or unanswered questions that the Court may have.

TABLE OF CONTENTS

Certificate of Interested Persons Statement Regarding Oral Argument Table of Contents Table of Authorities Statement of Jurisdiction Statement of the Issues Statement of the Case and of the Facts Summary of the Argument Argument and Citations of Authority I. II. Standard of Review The District Court Erred by Making Credibility Determinations and Rejecting Plausible Inferences That Should Have Been Left to a Jury The Estate Presented Sufficient Factual Bases to Support Its Allegations and Avoid any Legitimate Adverse Summary Judgment The District Court Erred by Failing to Find that the Defendants Owed a Duty of Care to Kyle Brennan Conclusion

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III.

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IV.

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V.

Certificate of Compliance Certificate of Service

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TABLE OF AUTHORITIES Cases: Aaron v. Palatka Mall, LLC, 908 So.2d 574, 578 (Fla. 5th DCA 2005) Adams v. Baldwin County Bd. of Ed. Of Baldwin County, Georgia, 628 F.2d 895 (5th Cir. 1980) Allen v Board of Public Education for Bibb County, 495 F.3d 1306 (11th Cir. 2007) Amin v. Loyola Univ. Chicago, 2006 WL 3371446 (W.D. Wis. 2006) Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, (1986) Banfield v. Addington, 104 So. 2d. 661, 893 (1932) Barfield ex rel. Barfield v. Langley, 432 So.2d 748 (Fla. 2d DCA 1983) Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2458 (1986) CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003) Conno v. Halifax Hosp. Med. Center, unpublished, 2002 WL 32290997, (11th Cir. 2002) Corbitt v. Home Depot U.S.A., 573 F.3d 1223 (11th Cir. 2009) Felder v. Howerton, 240 Fed.Appx. 404, (11th Cir. 2007) Flight Training, Inc. v. Tropical, Inc., 2007 WL 5117263, 6 (S.D. Fla. 2007) Food Lion, LLC v. Monument/Julington Assoc. Ltd., 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006) 30

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Frede v. J.C. Penney Corp., Inc., 2007 WL 2254513 (M.D. Fla. 2007) Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980) Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) Horton v. Freeman, 917 So.2d 1064, 1066 -1067 (Fla. 4th DCA 2006) Ja Dan, Inc. v. L-J Inc., 898 F.Supp. 894, 900 (S.D.Fla.1995) Johnson v. Bd. of Regents, 263 F.3d 1234 (11th Cir.2001) Jones v. Caddo Parish School Bd., 499 F.2d 914, 918 (5th Cir. 1974) Malicki v. Doe, 814 So.2d 347 (Fla. 2002) McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir. 1996) Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988) Rafferman v. Carnival Cruise Lines, Inc., 659 So.2d 1271 (Fla. 3rd DCA 1995) Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328, (11th Cir. 1988) Sogo v. Garcia's National Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993) Spadafora v. Carlo, 569 So.2d 1329, 1331 (Fla. 2nd DCA 1990) Stewart v. Happy Hermans Cheshire Bridge, Inc., 117 F.3d 1278, (11th Cir. 1997) T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987)

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U.S. v. Maxwell, 579 F.3d 1282 (11th Cir. 2009) Williams v. Davis, 974 So.2d 1052 (Fla. 2007) Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067 (11th Cir. 2003) Wyke v. Polk County School Bd., 129 F.3d 560 (11th Cir. 1997) Wood v. Camp, 284 So.2d 691, 695 (Fla.1973) TABLE OF OTHER AUTHORITIES Constitutional, Statute and Rule Provisions: Constitution of the United States, Article III 28 U.S.C. 1291 28 U.S.C. 1332 Rule 54, Fed.R. Civ. P Rule 56 (c) Fed.R.Civ.P. Rule 102 Fed.R.Evid. Florida Wrongful Death Act 768.16 Fla. Stat. 768.0170 (1) Fla. Stat. 768.1355 Fla. Stat. 790.17 Fla. Stat. 825.102

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2 1 1 18 18, 23 32 8 30 10 40 32, 41

STATEMENT OF JURISDICTION The matter before the lower court was a Complaint for Wrongful Death. The District Courts jurisdiction was invoked pursuant to 28 U.S.C. 1332, on the basis of diversity of citizenship of the parties. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1291. This is a direct appeal as a matter of right from a final Order of the District Court granting a Motion for Summary Judgment in favor of Defendants, the Church of Scientology Flag Service Organization, Inc., Denise Gentile, Gerald Gentile, and Thomas Brennan, which was filed in District Court as case 8:09-cv-00264-SDM-EAJ. The Order granting Defendants Motion for Summary Judgment was entered on December 6, 2011, which Order also directed the Clerk to close the case (Doc. 229). A Final Judgment was entered in favor of all Defendants on December 7, 2011 (Doc. 230). On December 29, 2009, the Plaintiff timely filed a Notice of Appeal in this action (Doc. 236). This appeal is from a final judgment in favor of Defendants. The Order granting Summary Judgment disposed of all claims with respect to all parties.

STATEMENT OF THE ISSUES I. Whether the District Court committed reversible error by granting Summary

Judgment on the basis of a variety of credibility determinations, and failing to follow the doctrines applicable to summary judgment considerations? II. Whether the District Court committed reversible error by making credibility

determinations and rejecting plausible inferences that should have been left to a jury? III. Whether the District Court committed reversible error by failing to find that

the Estate presented sufficient factual bases to support its allegations and avoid any legitimate adverse Summary Judgment? IV. Whether the District Court committed reversible error by failing to find that

the Defendants owed a duty of care to Kyle Brennan and that his damages and injuries were certainly foreseeable?

STATEMENT OF THE CASE AND FACTS In 2007, Kyle Thomas Brennan (Kyle), the son of Thomas Brennan and Victoria Britton, was a 20 year old college sophomore. Even though his parents had been divorced for many years and he had primarily resided with his Mother, Kyle still maintained a relationship with his Father. Kyle had been under psychiatric care for many years, and maintained a prescription for psychiatric drugs. Through therapy and treatment, Kyle was able to stabilize his depression and schizophrenia and was able to lead a happy and productive life. Kyle had left his home in Charlottesville, Virginia on November 27, 2006, and flew to Des Moines, Iowa, to look at colleges. Kyle took his community college classes online as he traveled. Kyle also carried some substantial savings that he had acquired for his travels. Not unlike his contemporaries, Kyle was adept at using a laptop computer that he consistently carried with him. He traveled from Des Moines to San Diego, CA, where he visited his father's two sisters, then flew to Hawaii, upon the suggestion of his uncle. Kyle had some challenging moments as he travelled the Country, staying with different relatives, in hotels and maintaining sporadic communication with his Mother. In Hawaii, he was assaulted on February 5, 2007, and a police report was taken.

Kyle then flew to Tampa on February 7 or 8, 2007, and then