Probate, Trust & Guardianship Litigation Blog

By: Glenn M. Mednick, Esquire

 

Allegations of Fraud and Civil Theft Occurred 17 Years Before Suit was Filed Were Time-Barred Under Fla. Stat. §§ 95.031(2)(a) and 772.17

In Ognenovic v. David J. Giannone, Inc., 2015 Fla. App. LEXIS 14928 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court correctly found that Appellant's causes of action were time barred under Sections 95.031(2)(a), and 772.17, Fla. Stat. The Court also held that with regard to Appellant's Fla. R. Civ. P. 1.540 and Fla. R. Jud. Admin. 2.330 motions, the successor trial court correctly affirmed the initial trial court's ruling where it noted that the fact that there might have been a fraudulent transfer related...

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3rd DCA Rules Claimant in Negotiations Culminating in Settlement Cannot Rely on Oral Representations by the Party Asserted to have been Dishonest

In Sugar v. Estate of Stern, 2015 Fla. App. LEXIS 14018 (Fla. 3d DCA 2015), the Third DCA held that general releases executed in February 2011 and December 2011 barred an attempt (by three of Idelle Stern’s three daughters, “Appellees”) to relitigate transfers relating to a bank account located at Bank Leumi in Israel. Therefore the opposing parties (Idelle Stern’s fourth daughter and her husband, Judy and Sam Sugar, “Appellants”) did not have to disgorge pre-settlement transfers to them from Bank Leumi, but denied relief to the Appellants who...

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Alleged Battery Victim who Alleged she had an Unsecured Claim Based Upon an Imminent Private Tort Action was not an Ascertainable Creditor Entitled to Personal Service

In Soriano v. Estate of Manes, 2015 Fla. App. LEXIS 15196 (Fla. 3d DCA 2015) the Third DCA found that where a creditor failed to show that she was a reasonably ascertainable creditor and there was nothing in the affidavits filed by the creditor to suggest such.  The creditor’s petition for an order declaring her statement of claim timely filed was properly denied as her claim was untimely and barred by Section 733.702(1), Fla. Stat.

In the subject case, Luis F. Manes ("Decedent") died on November...

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Section 733.607(1) does not Extinguish the need to take Evidence when a Factual Issue Exists as to who is Entitled to Possession of Property Claimed by the Personal Representative

In Delbrouck v. Eberling, 2015 Fla. App. LEXIS 15247 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court erred by granting, in part, a personal representative's motion to compel surrender of real property held in the name of a decedent because Section 733.607(1), Fla. Stat. did not eliminate the need to take evidence since a colorable factual issue existed over the right to possession of the property.  In the subject case, a residence, an automotive repair shop and sales business were titled in the name of Leon G. Delbrouck (the “Decedent”)....

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Unsigned, “Notarial”, “Nuncupative” Will Violates Florida Probate Code, Third DCA Calling for Clarifying Legislation of the Probate Code’s Essential Terms

In Malleiro v. Mori, 2015 Fla. App. LEXIS 14475 (Fla. 3d DCA 2015) The Third DCA held that because a will executed in Argentina was unsigned, even though it was a notarial will, it was invalid under the Florida Probate Code. In the subject case, Elena Isleno (“Testator”) executed a valid will in New York five years before her death, which only distributed her real and personal property located in the United States.  Four months later, a second will was created for the Testator in Argentina.  The Testator while in Argentina orally provided...

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Circuit Court Lacks Ongoing Jurisdiction in an Incapacity Proceeding Unless a Guardian is Appointed

In Adelman v. Elfenbein, 2015 Fla. App. LEXIS 12773 (Fla. 4th DCA 2015), the Fourth DCA found that because a grandniece's petition to reopen a guardianship was barred by the finality of the court's previous order and because the directive documents of her great uncle entrusted his affairs to his former spouse the trial court erred in appointing a professional guardian as the trial court lacked jurisdiction.

In the subject case, Hillary Elfenbein (“Appellee”) sought to determine the capacity of her...

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COURT ORDER GRANTING RELIEF NOT REQUESTED BY ANY PARTY WAS VIOLATION OF DUE PROCESS RESULTING IN REVERSAL BY THE FOURTH DCA

In Zelman v. Zelman, 2015 Fla. App. LEXIS 9961 (Fla. 4th DCA 2015), the Fourth DCA reversed a trial court on due process grounds, finding that the trial court granted relief not requested in the pleadings and also that Appellants due process rights were violated because she was not afforded a meaningful opportunity to he heard at the guardianship proceedings. In the subject case, Robert Zelman (“Appellee”) filed petitions with the probate court seeking an appointment for a guardian of his 85-year-old father, Martin Zelman, due to his alleged incapacitation....

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FOURTH DCA HOLDS THAT KNOWLEDGE OF MEDICAL MALPRACTICE CAN ONLY BE IMPUTED TO A WARD FROM THE DATE A PERMANENT GUARDIAN OF THE PROPERTY WAS APPOINTED

In Barrier v. JFK Medical Center Limited Partnership, 2015 Fla. App. LEXIS 9264 (Fla. 4th DCA 2015), Appellees were improperly granted summary judgment in a medical negligence action because the Emergency Temporary Guardian’s knowledge of possible medical negligence could not be imputed to the Ward for statute of limitations purposes during the period of her appointment under Section 744.3031, Fla. Stat. In the subject case, Pamela Barrier (“Appellant”) as Guardian of her incapacitated son, Chad Barrier, filed a medical malpractice claim on her...

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AWARDING ATTORNEY’S FEES AND COSTS AS A SANCTION WITHOUT A FINDING OF BAD FAITH CONSTITUTES AN ABUSE OF DISCRETION

In Goldman v. Estate of Goldman, 2015 Fla. App. LEXIS 9222 (Fla. 3d DCA 2015), the Third DCA reversed the trial court, holding that it abused its discretion in imposing attorney’s fees and costs as a sanction where there was no bad faith found. In the subject case, Richard Goldman, Kenneth Goldman, Mitchel Goldman, Ethan Goldman, and Andrea Carless (“Appellants”) appealed the trial court's order awarding attorney's fees and costs in favor of Jonathan Lewin (“Appellee”). The Third DCA reversed the order without prejudice because the trial court...

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FOUR DAYS NOTICE OF A HEARING TO APPOINT AN EMERGENCY TEMPORARY GUARDIAN WHICH RESULTED IN THE TRANSFER OF STOCK WAS HELD TO BE INSUFFICIENT AND A DUE PROCESS VIOLATION, BUT THIS DID NOT SALVAGE THE SAME PARTIES FAILURE TO TIMELY OBJECT TO A FINAL REPORT AND TO SCHEDULE THEIR OBJECTION FOR HEARING PURSUANT TO FLA. PROB. R. 5.680(f)

In Flegal v. Swistock, 2015 Fla. App. LEXIS 10752 (Fla. 4th DCA 2015), the Fourth DCA held that giving four days notice of a hearing on a petition to appoint an emergency temporary guardian to interested persons which resulted in the transfer of stock where ownership was disputed was insufficient in a guardianship proceeding, resulting in a due process violation. In the subject case, a father and ward had four daughters (“Appellants”), to whom stock shares were devised as joint tenancy with the father. Appellants lived out-of-state, and the fifth daughter...

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