In Oreal v. Steven Kwartin, P.A., 2016 Fla. App. LEXIS 4922 (Fla. 4th DCA, 2016), the Fourth DCA found that the probate court erred in failing to award all of the interest due to the claimant under the promissory note because the plain language of Section 733.705(9), Fla. Stat. and the promissory note did not allow the probate court to relieve the estate of the interest as previously agreed to by the parties.
In the subject case, Wayne Oreal (“Decedent”), died in 2009, and his will was submitted to...
In Schlesinger v. Schlesinger, 2016 Fla. App. LEXIS 3075 (Fla. 3d DCA, 2016), Kathie Schlesinger (“Petitioner”), former-wife of James Schlesinger (“Decedent”), petitioned the Third DCA to quash an order by the trial court which denied her motion for protective order to disallow discovery of her banks' records by Pamula Schlesinger. Pamula was married to Decedent at the time of his death and had brought an action against Decedent’s estate, alleging that he violated the terms of their post-nuptial agreement by making gifts to Petitioner, decreasing...
In Casey v. Jensen, 2016 Fla. App. LEXIS 4445 (Fla. 2d DCA 2016), Marie Casey (“Appellant”) disputed her obligation to pay attorney’s fees following her failed attempt to reestablish a will (“the will”) allegedly executed by her late husband. Peggy Jensen and Martha Bombardi (“Appellees”) had opposed Appellant’s petition to reestablish the will and subsequently sought to collect fees pursuant to Section 57.105, Fla. Stat., which allows for sanctions for raising unsupported claims or defenses. The trial court found Appellants claim without...
In Estate of Novosett v. Arc Villages IL, LLC, 2016 Fla. App. LEXIS 3726 (Fla. 5th DCA 2016), the Fifth DCA addressed the enforceability of an arbitration agreement in a dispute between nursing home owner/operators and the estate of a deceased resident of the nursing home. The Court found that because the agreement contained an unenforceable cap on damages which went to the "financial heart" of the agreement, the entire agreement was unenforceable.
On this point, the Court cited Gessa v. Manor Care...
In Smith v. Smith, -- So.3d -- (Fla. 4th DCA 2016), the Fourth DCA upheld the trial court in finding that if a person is deemed incapacitated and had his or her right to contract taken away, he or she has no right to marry unless the court has authorized such. The reason for this is that Section 744.3215(2)(a), Fla. Stat. does not state that a “marriage” is subject to court approval, but rather the “right to marry” is.
In the subject case, Glenda Martinez Smith (“Appellant”) appealed the finding...
The Second DCA held in In re Guardianship of Mount, -- So. 3d -- (Fla. 2d DCA 2016), that unless an action was commenced by the guardianship against the co-trustees, the ward’s beneficial interest in the trust did not give the guardianship court the authority to override the decisions of the co-trustees in the management of the trust.
In the subject case, Rene Giacalone-Mount and Heather Mount (collectively, “Appellants”) as co-trustees of the revocable trust of Ronald Mount (“Trust) appealed...
In Parker v. Parker, 2016 Fla. App. LEXIS 1441 (Fla. 4th DCA 2016), the Fourth DCA held that where Appellants filed suit to set aside Decedent's inter vivos conveyances to Appellees, the trial court erred in dismissing their complaint with prejudice for failure to join Decedent's estate as indispensable party. As the Decedent transferred the properties prior to his death, his estate was not an indispensable party under Section 733.607, Fla. Stat.
In the subject case, Joe, Eddie, David, and Cornel Parker,...
In Gort v. Gort, 2016 Fla. App. LEXIS 1448 (Fla. 4th DCA 2016), the Fourth DCA held that because the guardianship and probate rules did not prohibit a party from voluntarily dismissing a petition to determine incapacity, and Section 744.331, Fla. Stat., did not mandate an adjudicatory hearing, the trial court did not err in finding the settlement agreement did not violate Florida law or public policy. In the subject case, older brother (“Petitioner”) petitioned to have his younger brother found incapacitated and for appointment of their cousin a limited...
In Franke v. State, 2016 Fla. App. LEXIS 1049 (Fla. 4th DCA 2016), the Fourth DCA held that Appellant was entitled to be acquitted of exploitation of the elderly under Section 825.103, Fla. Stat. because the State failed to present evidence inconsistent with Appellant's hypothesis of innocence, which was that she did not obtain or endeavor to obtain the alleged victim's property. In the subject case, Cynthia Franke (“Appellant”) appealed her conviction of financial exploitation of the elderly. Appellant and the alleged victim, Mary Teris, had been...
In Toomey v. Northern Trust Co., 2016 Fla. App. LEXIS 391 (Fla. 3d DCA 2016), the Third DCA held that a beneficiary of a trust was entitled to depose two witnesses, under Florida Rule of Civil Procedure 1.280, because the depositions were within the general scope of discovery relating to the allegations in an amended complaint and the depositions were to preserve the testimony of the witnesses as they were elderly and one of the witnesses was in ill health. In the subject case, Kristen Toomey (“Petitioner”), was a great-grandchild and beneficiary of...
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