Chapter 10-xe fcfcD_20240409_134134_0000.pdf
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This document summarizes Sections 145-148 of the Code of Criminal Procedure related to disputes over immovable property that could lead to a breach of peace. Section 145 gives the Executive Magistrate power to intervene in disputes likely to cause a breach of peace involving land or water. The Magistrate can summon parties, take written explanations of claims, and pass orders. Section 146 allows the Magistrate to attach the subject of dispute and appoint a receiver if emergency action is needed. Section 147 covers disputes over the right to use land or water. Section 148 permits a local inquiry, with its report considered evidence. The document outlines the provisions and conditions for applying each section, and summarizes some relevant case laws.
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From my experience, it feels like this court system works against the grieving family instead of protecting them. Everything becomes expensive, complicated, and overwhelming during one of the hardest times in life.
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This transcript is from a trust litigation hearing held on October 26, 2023, in the Sixth Judicial Circuit Court of Florida (Pinellas County). The plaintiff is Nancy Gorby, represented by attorney Michael Kouskoutis, and the defendants are Alessandra Kurchinski and her daughters Jacqueline and Caroline, who are representing themselves (pro se). The case centers around the estate and trust of Alessandras late husband, Franklin R. Kurchinski.
1. Objection to the Estate Inventory and Discharge:
Alessandra objects to the closing of the estate.
She says the estate is simple and that the listed asset of $2,863.50 was likely a refund from a credit card tied to a joint account, which she believes should not be treated as estate property.
The court determined that the refund check was made out to Franklin (the deceased), so it correctly belonged to the estate.
Special Master Judge Robert Persante ruled to deny Alessandras objection, stating prolonged litigation would reduce what the family ultimately receives.
2. Challenge to Trustee Fees and Administration Costs:
Alessandra claims excessive charges: $10,000 total $3,500 for the Personal Representative (PR), $5,000 for the attorney, and $1,500 for administration for a simple estate.
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She agrees to reasonable compensation (e.g., $50/hour)
3. Videos and Evidence:
Alessandra submitted videos, including police bodycam footage and recordings of conversations with Nancy Gorby.
The judge reserved judgment on their admissibility and promised to review them privately before deciding if they are legally relevant.
4. Trust Inventory Errors and Omissions:
The Kurchinski family claimed missing assets in the original trust inventory, including a 401(k) account and an account with Republic Bank.
Attorney Kouskoutis admitted the initial inventory was incomplete but said it was amended when errors were discovered.
The judge agreed there were mistakes but noted they were corrected, and this didnt invalidate the trust.
5. Dispute Over Communication and Process:
Alessandra and her daughters emphasize a lack of transparency, poor communication, and feeling excluded.
They claim Nancy Gorby and her attorney didnt clearly explain the trust or estate process and refused to meet or provide documentation.
They also mention Alessandra being trespassed from the attorneys office and not allowed to contact Nancy, making cooperation difficult.
6. Trust Validity Concerns:
The Kurchinski family questions whether the trust is valid, partly because Schedule A (listing the trusts assets) was missing.
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Chapter 10-xe fcfcD_20240409_134134_0000.pdf
- 1. DISPUTES RELATED TO BREACH OF PEACE AND IMMOVABLE PROPERTY CHAPTER X-D : SEC.145-148 CODE OF CRIMINAL PROCEDURE EMIMA THANGAPANDI SEM IV. BBA. LL.B ROLL NO. 15 ROLL NO. 15
- 2. Sections Sec. 145 : Procedure where dispute concerning land or water is likely to cause breach of peace Sec. 146 : Power to attach subject of dispute and to appoint receiver Sec. 147 : Dispute concerning right of use land or water Sec. 148 : Local inquiry CODE OF CRIMINAL PROCEDURE
- 3. Background The Executive Magistrate passes orders for the disputes mentioned in this chapter. It deals with issues related to MAINTAINANCE OF PUBLIC ORDER & TRANQUILITY. CHAPTER X X-A : Unlawful assembly X-B : Public nuisances X-C : Urgent cases of nuisance or apprehended danger X-D : Disputes as to immovable property
- 4. Sec. 145 : Power & Procedure 1. Executive Magistrate is convinced of breach of peace: -makes written order -mandates summon of parties in person or by pleader on a 2. Parties make written explanation of their claims: -A copy of orders issued for service of summons to persons -Atleast 1 copy to be published by being attached to some 3. Magistrate then, -Reviews the claims submitted -Listens to both the parties -Accept evidences if necessary . -Passes order Police report contains: Nature of conflict Clear description of property Parties to conflict Perceived nature of danger on public peace Breach of peace : Conflict between two parties/ groups over the ownership of land, water or borders thereby likely to cause breach of peace. particulat date & time prominent place at or near subject of conflict
- 5. Conditions to Sec. 145 1. Conflict 2.Likely to result in breach of peace 3. Involves land or water or its borders & houses, markets, fisheries, crops or other products of the land and the rentals of income of such properties. 4.Suspected dispossession occured within 2 months of Magistrate issuing initial order 5.Within the Magistrate's teritorial limit -Any standing crop or property which is prone to gradual decline: The Executive Magistrate may issue : 1. Order for appropriate custody or 2. Sale of property after inquiry
- 6. Sec. 146 : Power to attach & appoint receiver to subject AFTER ORDER IS PASSES, MAGISTRATE FINDS THAT: -Matter is of emergency -Neither party was in possession -It cannt be assured who was in possession Is with the City Civil Court. Incase it takes time to appoint, the magistrate appoints one till the time another is appointed by City Civil Court. Power to appoint receiver: THEN THE MAGISTRATE MAY, Attach the subject-matter of dispute till competent court decides the rights of parties. REMOVAL OF ATTACHMENT: When the magistrate is convinced that there is no chance of breach of peace with the subject-matter in dispute.
- 7. Sec. 147 : Disputes concerning right to use of land/water -Executive Magistrate is informed -Examination of claims is done -Order to prevent the intervention is passed within 3 months of information being received Magistrate can change the proceeding to u/s 145 of Crpc. If the Executive Magistrate is not satisfied as to custody of a party he/she may issue orders to move the case to District Judge.
- 8. On inquiry under Sec .145, 146 & 147 DISTRICT MAGISTRATE OR SUB-DIVISIONAL MAGISTRATE MAY, 1.Appoint and Magistrate who is subordinate to conduct investigation 2.Provide with basic instruments 3.Decide who will pay for basic expeses Judgement &. Order 1. To whom costs shall be paid 2. By such party or any other party 3. In whole/ part/ proportion 4. The cost is inclusive of witnesses and pleaders fees Sec. 148 : Loc al Inquiry The report produced after local enquiry is considered as EVIDENCE here.
- 9. Case Laws 1) SADAR AMRIT SINGH & ORS. v. GYANDEO SHARMA & ANR. -Mere finding of an anticipation of breach of peace is not enough. -Sec.146 Should be properly distinguished in the incident. 2) BAJINATH CHOUBEY & ORS. v. DR. RAM EKBAL CHOUBEY & ORS. -In this case, inpite of missing of emergency, order was passed u/s. 145 & 146. 3) N. A. Ansary v. Jakiriya -A Magistrate is not bound to give a preliminary order if he/she is not satisfied with the evidence proving of breach of peace. Thankyou