Test To Apply When Party Seeking DNA In Paternity/Probate Dispute

In Doe v. SunTrust Bank, et al (2D08-1239), the Second District granted a petition for certiorari and reversed a trial court order that required the petitioners submit to DNA testing.  The court concluded the movant below failed to comply with the requirement of rule 1.360 that "the movant must make an affirmative showing that the 'condition as to which the examination is sought is really and genuinely in controversy' and that good cause exists for ordering the examination."  Judge Kelly wrote the opinion and Judge Altenbernd concurred.  Judge Silberman concurred in part and dissented in part.  After quashing the order below, the majority stated:

Because it seems likely that Madelin will again attempt to obtain discovery to assist her in establishing that she is a beneficiary of Doe's trusts, and because a request to test the relatives of a deceased putative father in the context of an action to determine the beneficiaries of a trust presents some unique issues, we believe it is appropriate to offer the parties and the court some guidance should this issue arise again.

First, we note that the issue of whether Madelin is Doe's child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee's verified complaint, which simply attests to the Trustee's knowledge that Madelin claims to be Doe's child and her verified motion to compel testing which states only that she "maintains she is a child born out of wedlock" to Doe. We believe something more is required, for example, an affidavit from Madelin's mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe.  See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be "really and genuinely" in controversy. See Schlagenhauf, 379 U.S. at 119. 

Madelin will also have to demonstrate "good cause" for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 34 Fla. L. Weekly at D1613. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe's legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee's verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin's guardian ad litem.

Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 34 Fla. L. Weekly at D1613. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe's child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-ofwedlock child to share in a parent's estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father.  See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom), 397 So. 2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs (In re Estate of Smith), 685 So. 2d 1206 (Fla. 1996). 

On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal—the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe's child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin's claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.

Prejudgment Interest On Attorneys Fees...

In McCarthy v. Estate of Robert Frederick Krohn (4D08-1742), the Fourth District considered and held the following:

We consider challenges to the circuit court’s rulings on prejudgment interest on attorney’s fees and costs established in a charging lien proceeding arising from the claim of a law firm discharged by the client in a personal injury action. We hold that prejudgment interest runs from the date the client received the proceeds of settlement, a time fixed by the contract between the client and the law firm.

***

Where a law firm obtains a quantum meruit recovery after being discharged in a contingent fee case, the firm is entitled to prejudgment interest on the award set by the court. See Quality Engineered, 670 So. 2d at 931; Arabia v. Siedlecki, 789 So. 2d 380, 384 (Fla. 4th DCA 2001). “[I]nterest accrues from the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination. . . .” Quality Engineered, 670 So. 2d at 933. Here, the underlying fee agreement made entitlement to attorney’s fees contingent on the “proceeds of recovery.” Thus the firm is entitled to prejudgment interest on the attorney’s fee award from the date McCarthy received the proceeds of settlement.

The Unambiguous Language Of A Will

In Chin v. Estate of Chin (3D08-1962), the Third District affirmed the trial court's interpretation of the "unambiguous language" of the decedent's will.

On April 12, 1989, Adolph Chin drafted a Will in Jamaica. When he died in 1997, he co-owned property in Miami-Dade County as tenants in common with his sister, Mary Chin. Adolph and Mary both lived on this property. David Chin, Adolph’s son, was named personal representative of Adolph’s estate.

When Adolph Chin died, "the lower court entered an Order of Summary Administration that transferred to David an immediate half interest in the Dade County property. Subsequently, David filed suit against Mary Chin to partition the subject property and force its sale." The trial court determined that David, as the administrator of the estate, erred by not giving Mary Chin the "original Order of Summary Administration or with notice that she was a beneficiary under Adolph’s Will." After the trial court reviewed all of the applicable facts, "Mary Chin was given a life estate in the subject property by her deceased brother, Adolph, and entered an Amended Order of Summary Administration."

The Third District held:

If a court finds the language of a will ambiguous, "[t]he Testator’s intent is the guiding and dominating factor in the construction of a Will." See In re Rodger’s Estate v. First Nat’l Bank, 180 So. 2d 167, 170 (1965). When interpreting ambiguous provisions of a will, courts may look upon the situation of the parties, such as ties and affection between the testator and his or her legatees. Id.

On de novo review, we agree with the trial court’s finding that paragraph seven grants a life estate to Mary Chin. Adolph shared a separate residence with each sibling. The trial court found this to be strong evidence that he did not have the intent to dispossess his siblings of their homes after his death. Additionally, to construe paragraph seven to apply only if there were co-ownership of property by all three individuals asks the Court to adopt the notion that Adolph Chin inserted a restriction into his Will with full knowledge that it had no meaning. This Court simply cannot adopt this explanation.

Second District Reverses Because Payments Improperly Circumvented Priority of Payments in Florida Probate Code

In Copeland v. Buswell (2D08-3238), the Second District reversed:

Because Mr. Buswell and Patco Transport's payment improperly circumvented the priority of payments set forth in Florida's probate code and because the payment was made without the knowledge and consent of the personal representative, we reverse the portion of the final judgment denying the claim for medical expenses. We affirm the remainder of the final judgment.

Equitable Lien, Vendor's Lien, Unjust Enrichment, Merger, etc.

In Golden v. Woodward (1D08-3324), the First District affirmed the trial court's final judgment that "is entitled to an "equitable lien" or "vendor’s lien" in the amount of $89,000.00 against Appellants on certain real property that is the subject of an earlier agreement between Appellants and Mr. Woodward, Sr."

"Mr. Woodward, Sr., and Appellants signed a January 28, 2003, written "Agreement to Sell Personal Real Estate Property" (2003 Agreement) by which Mr. Woodward sold his property to Appellants, who were his next-door neighbors in Graceville, Florida. Under the express terms of the 2003 Agreement, Mr. Woodward contracted to sell his home and approximately 7.8 acres of land to Appellants for a purchase price of $109,000.00, including all interest and fees. The 2003 Agreement provided that Appellants would pay Mr. Woodward $550.00 a month for seven years (totaling $46,200.00), beginning on March 1, 2003, and ending on March 1, 2010. After the expiration of the seven-year period, Appellants would tender a balloon payment----$62,800.00, the remaining balance of the purchase price----to Mr. Woodward."

***

"After the execution of the 2003 Agreement, Mr. Woodward had become aware that Appellants were making improvements on the property. Upon further investigation, he discovered that Appellants had executed a first mortgage on the property, despite the express provision in the 2003 Agreement that the buyers would not allow any liens on the property until the full purchase price was paid to the seller. In May 2006, Mr. Woodward filed a four-count complaint against Appellants. Upon Mr. Woodward’s death a month later, Mr. Woodward, Jr., in his capacity as the personal representative of his father’s estate, was substituted as the plaintiff, and Appellants stopped making payments on the property."

***

"In its final judgment, the trial court found no evidence either of Mr. Woodward, Sr.’s, incapacitation or of Appellants’ undue influence or fraud. However, the court concluded that Appellants had breached the 2003 Agreement with Mr. Woodward, Sr., when they mortgaged the subject property and ceased making payments on the property before satisfying the full purchase price. The court determined that the equities lay with the estate, which is entitled to an equitable lien or vendor’s lien on the property for $89,000.00, the sum due under the 2003 Agreement. The court entered a judgment in favor of Mr. Woodward’s estate as to Count Two, and judgment in favor of Appellants on the other claims. This appeal ensued."

***

Appellants argue that if they had received notice that Mr. Woodward, Sr., was asserting the right to a vendor’s lien, they could have presented evidence and defenses (e.g., laches) relating to that claim. This argument is without merit. "Every complaint shall be considered to demand general relief." Fla. R. Civ. P. 1.110(b). Thus, the court must "look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted...[G]enerally, courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer."

An "equitable lien" is "[a] right, enforceable only in equity, to have a demand satisfied from a particular fund or specific property, without having possession of the fund or property...Equitable liens become necessary on account of the absence of similar remedies at law...A "vendor’s lien," also known as a "grantor’s lien," is "a creature of equity, a lien implied to belong to a vendor for the unpaid purchase price of land, where he has not taken any other lien or security beyond the personal obligation of the purchaser...The lien does not result from agreement, but is given by implication of law, as an incident to the debt, and is enforceable in equity where the vendor is entitled to it...Given the Florida courts’ recognition that a "vendor’s lien" is one type of "equitable lien," id., we conclude that, in the context of his specific pleadings in Count Two of the complaint, Mr. Woodward’s request for an "equitable lien" upon the property reasonably should have put Appellants on notice that a "vendor’s lien" was being requested.

***

In their second issue, Appellants assert that the trial court erred in granting an equitable lien in favor of Mr. Woodward’s estate without a finding of Appellants’ fraud or misconduct. In Rinker Materials Corporation v. Palmer First National Bank & Trust Company of Sarasota, 361 So.2d 156 (Fla. 1978), the Supreme Court of Florida held that "a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception." [However], "[t]he basis of equitable liens may be estoppel or unjust enrichment." "In Florida, an equitable lien is an appropriate remedy to prevent unjust enrichment between family members or those with close personal relationships."

To state a cause of action based on unjust enrichment to justify the imposition of an equitable lien, Appellee had to meet the following requirements:

To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

"An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity."

***

Appellants’ final argument is that the 2003 Agreement merged with or was subsumed into the 2004 Warranty Deed, thereby precluding Appellee from recovering under an "equitable lien" theory based on Appellants’ having breached the terms of the 2003 Agreement. "The general rule is that all preliminary agreements and understandings relative to the sale of land usually merge into the deed of conveyance." Opler v. Wynne, 402 So.2d 1309, 1311 (Fla. 3d DCA 1981); see Rubell v. Finkelstein, 679 So. 2d 889 (Fla. 3d DCA 1996). However, this rule is not absolute.

The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance. Contractual provisions as to considerations to be paid by the purchaser are ordinarily not merged in the deed and, accordingly, evidence of such contractual provisions is admissible to show what consideration is to be paid by the purchaser although a deed has been accepted.

Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 4th DCA 1967); see Rubell, 679 So. 2d at 889. "There can be no merger at law, without a union of titles in the same person; nor, in equity unless, also, there is an express or presumed intention on the part of those concerned in the transaction that it should operate as a merger." Polk Bond & Mortgage Co. v. Dwiggins, 147 So. 855, 857 (1933). That is, one must look at the intent and conduct of the parties.

Order that Reduced Fees Awarded to Counsel Reversed by Fourth District

In Glantz and Glantz, P.A. v. Chinchilla (4D07-3279), the Fourth District reversed the trial courts reduction of an attorney fee award.

The personal representative of the estate was a member of a prepaid legal services program. The prepaid program provided legal services at a 51% discounted rate, or $115 per hour [in this situation]. The attorney worked 123 billable hours and an expert testified that - with the discount - $13,500 was a reasonable rate for the services. The trial court entered an order awarding 50% of the reasonable rate.

On appeal, "The law firm argues that the trial court abused its discretion in applying the 51% discount to the reasonable fee attested to by the expert without considering that the reasonable hourly rate had already been discounted by 51% pursuant to the prepaid legal services program."

Reviewing for abuse of discretion, the Fourth District reversed.

"Attorneys representing probate estates are entitled to receive reasonable compensation. § 733.6171, Fla. Stat. (2007). '[A] probate court should consider the nature of the services rendered and the necessity for their performance, together with the reasonableness of the charges'.

The trial court accepted the expert’s affidavit that $13,500 was a reasonable, already discounted fee. The trial court did not find the hours or the discounted rate to b e unreasonable. Nevertheless, the trial court inexplicably reduced the reasonable fee by another 51%. In doing so, it abused its discretion.

We therefore reverse and remand the case to the trial court to award the law firm $12,400 in attorney’s fees plus costs."

Fourth DCA Reverses Imposition of Lien on Homestead Property

In Herrilka v. Yates (4D08-1727), the Fourth District reversed the trial court's imposition of a lien in favor of the "Curator of the Estate" on homestead property.

"The trial court’s decision to impose the lien pursuant to section 733.608 was improper because, in accordance with the plain meaning of the statute, Yates failed to meet its requirements. This is because: (1) Yates has not, and cannot, take possession of the property, as it is occupied by an “interested person;” and (2) the fees incurred by Yates for which the lien was imposed were not incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property."

***

For purposes of probate litigation, the Florida Legislature has defined an “interested person” as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Id. § 731.201(23). In order to impose a lien, section 733.608(3) also requires that the “expenditures and obligations incurred,” which include “fees and costs,” for which the lien is imposed were incurred for the purpose of “preserv[ing], maintain[ing], insur[ing], or protect[ing]” the homestead property. In this case, the trial court erred in imposing the lien because the homestead property was never taken into possession, either legally or factually, by Yates, as Constance still occupies it. This failure to take possession negates a claim for the imposition of the lien because, to do so, section 733.608 first requires that the personal representative take possession of the property “for the limited purpose of preserving, insuring, and protecting it.” § 733.608(2). Furthermore, Yates cannot legally take possession of the property because it is “occupied by a person who appears to have a n interest in the property..."

***

"Even if Yates met the threshold possession requirement of section 733.608, the lien was still not properly imposed. This is because the expenses the lien represents were incurred for legal services having to do with the administration of the Estate."

Trustee Cannot Challenge Revocation of Inter Vivos Trust after Settlor's Death

In MacIntyre v. Wedell (4D08-754), the Fourth District held "[t]he issue in this appeal is whether a trustee may challenge the settlor’s revocation of an inter vivos revocable trust, on undue influence grounds, after the settlor’s death. We answer this question in the negative and affirm the trial court’s order dismissing the instant claim brought by appellant, Liz MacIntyre as Trustee of the Helen M. Wedrall Trust."

Decedent's Wife Entitled to Life Estate with Homestead Status

In Bayview Loan Servicing, LLC v. Giblin (4D08-1117) the Fourth DCA affirmed the circuit court's order concluding that the decedents child and former wife were protected by Florida's homestead laws. The Fourth DCA stated:

Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.

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The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.

Merger Doctrine Inapplicable Due to Beneficiaries Interests

Noting that "[t]he polestar of trust interpretation is the settlors' intent," the Second DCA reversed the circuit court's decision applying the merger doctrine in Hansen v. Bothe (2D08-2688). The Second DCA held "Merger is inapplicable here. To the extent that Andreas Bothe became the sole grantor/trustee upon divorce, he held sole legal title; his intended remainder beneficiaries, however, retained an equitable interest. See Wells, 259 B.R. at 779; see also Denver Found. v. Wells Fargo Bank, N.A., 163 P.3d 1116, 1125 (Colo. 2007)(emphasizing that for the doctrine of merger to apply, the legal and beneficial interests must be completely coextensive; if other equitable interests remain, the trust will not terminate).