Thursday, May 22, 2014

Wilson v. Wilson

Wilson v. Wilson, --- So.3d --- (Fla. 4th DCA 2014), 2014 WL 2101226

This case involved a dispute between two parents over the disposition of their deceased son's ashes.  They agreed to have their son cremated, but disagreed about where to bury the ashes.  The father argued that the ashes were "property" under F.S. 731.201(32), and thus should be subject to partition among the decedent's heirs.  The mother was opposed to having the ashes divided for religious reasons.  The trial court ultimately found that the ashes were not "property" subject to partition, and gave the parents 30 days to decide how to dispose of the ashes.

On appeal, the Court affirmed the trial court's holding that the ashes were not property under F.S. 731.201(32).  In doing so, the Court reviewed how courts have treated ashes and deceased bodies over time.  Blackstone wrote that bodies and ashes were not the property of an heir.  English case law continued to express this view that there is no property interest in a corpse.  

The Court explained that Florida had continued the English tradition of excluding corpses and ashes from the definition of "property."  The Florida Probate Code defines property as "both real and personal property or any interest in it and anything that may be the subject of ownership."  F.S. 731.201(32).  Yet Florida courts have repeatedly held that there are no property rights in the remains of a decedent, and that the property right of a personal representative in the remains is limited to possession of the body for purposes of burial or disposition.  

Both parents relied on out-of-state cases dealing with feuding parents over the disposition of their deceased child's remains to support their position.  In Indiana, a court allowed ashes to be divided, since the practice of dividing remains of a decedent is common in the funeral service industry.  However,  the Florida Court found this case distinguishable, since the Indiana court did not make a finding that the remains were subject to division as inherited property, and there was evidence that the deceased child had wanted her ashes to be divided.  In Pennsylvania, a court refused to allow ashes to be divided, holding that the trial court abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of the remains.

The Florida Court held that the out-of-state cases were irrelevant, since Florida precedent clearly holds that a decedent's remains are not "property," and expressly adopted the following language of an earlier decision on this issue: 
It is a sorrowful matter to have relatives disputing in court over the remains of the deceased.  In this case in particular, there is no solution that will bring peace to all parties.  We express our sympathies to both sides in their loss, which must be magnified by these proceedings.  Cases such as this require the most sensitive exercise of the equitable powers of the trial courts.  We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented.

Friday, May 16, 2014

Blechman v. Dely

Blechman v. Dely, --- So.3d --- (2014), 2014 WL 1908813

Robert Blechman, as personal representative of his father's estate, was found in contempt and was removed as personal representative.  He appealed the trial court's decision, arguing that the court violated his due process rights by holding him in contempt without complying with Florida Rule of Criminal Procedure 3.840 and by removing him as personal representative without  complying with Florida Probate Rule 5.440.

The decedent left to appellee a devise of $5,000 per month to pay for the maintenance of a residence.  When the personal representative failed to make those payments, she filed a motion to compel payment, and the trial court granted that motion. requiring him to make the payments to the appellee, as well as fund the residuary bequests in the decedent's will.  Before the trial court entered its order, the personal representative explained that the estate's expenses and limited liquidity left him unable to fund the residuary bequests, but the court denied his motion.

Months later, appellee filed a motion to show cause, alleging that the personal representative had failed to comply with the court order.  She asked the court to issue an order to show cause why the personal representative should not be held in indirect criminal contempt for failing to comply with the order.  The personal representative again responded that the estate had limited liquidity and all of the estate's liquid assets were necessary to complete the estate's administration.

The trial court issued an order to show cause.  The personal representative did not appear, but he was represented by counsel.  Appellee asked the trial court to remove the personal representative.  The trial court orally found him in civil contempt, and said he could purge the contempt by filing an accounting and handing over the reins of the estate to a new personal representative.  In its written order, the trial court removed the personal representative, found him guilty of indirect criminal contempt, ordered him to provide an accounting and deliver the records of the estate to a new personal representative.

Due Process

The personal representative argued that the trial court's order violated his due process rights by failing to comply with the procedures set forth in Florida Rule of Criminal Procedure 3.840.  Appellee argued that Rule 3.840 did not apply, since the court found he had committed indirect civil contempt.  The Court agreed that the order was one of criminal and not civil contempt, because while civil contempt is used to obtain compliance with a court order, criminal contempt is used to punish.  The Court found that removing the personal representative was a punishment, since once the personal representative was removed, he was incapable of complying with the court order.   

Under Rule 3.840, an order to show cause must state the essential facts constituting the criminal contempt charged.  Since the order did not set forth the "essential facts" and did not state whether the contempt was civil or criminal, it did not comply with Rule 3.840.

Proper Notice for Removal

The Court also found that the personal representative did not receive proper notice before being removed as required by Florida Statutes § 733.504(3).  Since no petition for removal was filed, and the removal was ordered without notice or evidentiary hearing, the trial court did not comply with the requirements of due process.

Thursday, May 8, 2014

Bookman v. Davidson

Bookman v. Davidson, --- So.3d --- (2014), 2014 WL 1772707

This case centered around the rights of a successor personal representative to (1) sue the attorney who represented the original personal representative for malpractice and (2) seek disgorgement of fees paid to that attorney in a separate civil case.  For purposes of discussion, the initial personal representative will be referred to as PR1 and her successor will be referred to as PR2.  

PR1 served as personal representative of the estate for approximately 3 years. During those three years, she engaged the legal services of an attorney.  In total, the attorney received $195,000 in fees from the estate.  

When PR2 was appointed as successor personal representative, he filed suit against both PR1 and her attorney, alleging that PR1, with her attorney's guidance, had improperly disclaimed or transferred assets out of the estate that could have been used to pay its creditors.  PR1 filed her affirmative defenses, which included the defense that her actions were done in reliance on the advice of legal counsel, and she filed a cross-claim against her attorney.

Malpractice Claim

The trial court held that as a matter of law, PR2 did not have standing against the attorney who represented PR1 in her administration of the estate.  The Appellate Court, noting that the question of whether a successor personal representative may bring a cause of action for legal malpractice against an attorney hired by his predecessor was a question of first impression, found that this was not a question of privity, and rather should be governed by the relevant statutes of the Florida Probate Code.  It then walked through the Probate Code to ultimately find that PR2 had the right to sue PR1's attorney for malpractice:

          (1)  F.S. 733.602(1) grants the personal representative broad general duties and requires the personal representative to act in the best interests of the estate and all interested persons, including creditors;

          (2)  To accommodate those broad general duties, F.S. 733.612 authorizes the personal representative to hire an attorney and prosecute lawsuits for the protection of the estate; and

          (3)  F.S. 733.614 provides that the powers granted to the original personal representative flow to the successor personal representative.

Thus, since PR1 had the authority to bring suit against her attorney for legal malpractice, by virtue of F.S. 733.614, PR2 had the same authority.

Disgorgement of Fees

The trial court also granted the attorney's motion to dismiss PR2's claims for disgorgement of attorney's fees, concluding that while PR2 had the right to pursue the claim, he should have done so in the estate proceedings.  The Appellate Court affirmed the trial court's decision on principal, but held that the court could, in its discretion on remand, exercise its subject matter jurisdiction to hear that issue along with the other counts of the civil case.  Citing F.S. 733.6175(2), the Court noted that the Florida probate court had exclusive jurisdiction over the matter of compensation, so it was "more appropriate" for this claim to be heard in the probate court.  However, the Court also pointed out that the trial court did not actually lack subject matter jurisdiction to consider the claim for disgorgement, since the "court" as defined in the Probate Code is the "circuit court" and thus F.S. 733.6175(2) does not preclude a circuit court of general jurisdiction from hearing, in a related civil suit, the issue of compensation of a person who was employed by the personal representative of an estate as part of the estate's administration.