Appendix — Steigman v. Danese

la

APPENDIX

SUPREME COURT OF FLORIDA

Wednesday, January 18, 1995

Case No. 84,526

In RE: ESTATE OF BERNARD L. DANESE, Deceased

District Court of Appeal,

lst District—No. 93-1039

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Article V,

Section 3(b), Florida Constitution (1980), and the court

having determined that it should decline to accept ju-

risdiction, it is ordered that the Petition for Review is

denied.

No Motion for Rehearing will be entertained by the

court. See Fla. R. App. P. 9.330(d).

OVERTON, SHAW, KOGAN, HARDING and AN-

STEAD, JJ., concur

A True Copy

TEST:

/s/ Sid J. White

Sip J. WHITE

Clerk, Supreme Court

[SEAL]:

2a

DISTRICT COURT OF FLORIDA

FIRST DISTRICT

No. 93-1039

IN RE ESTATE OF BERNARD L. DANESE, Deceased,

Appellants.

July 29, 1994

Rehearing Denied Sept. 15, 1994

DAVIS, Judge.

Appellants, personal representatives of the estate of

Bernard L. Danese and Doris B. Danese, appeal from

an order granting appellees’, Helene A. Steigman and

Mary D. Edwin, petition for revocation of orders of dis-

charge of personal representative in order to conduct fur-

ther administration of the estate and denying appellants’

motion for entry of order pursuant to the mandate of

this court in Jn re Estate of Danese, 601 So.2d 570 (Fla.

Ist DCA 1992). In denying appellants’ motion for entry

of order pursuant to mandate and in granting appellees’

petition to reopen the estate, the probate court expressly

relied on its interpretation of this court’s decision in

Thames v. Jackson, 598 So.2d 121 (Fla. Ist DCA

1992). Because the probate court erroneously applied

the holding of Thames to the present case as its sole

predicate for revoking the orders of discharge of the per-

sonal representative, we reverse.

In Thames, this court, in conformity with the holding

of the United States Supreme Court in Tulsa Professional

Collection Serv., Inc. v. Pope, 485 U.S. 478. 108 S.Ct.

1340, 99 L.Ed.2d 565 (1988), held that section 733.702,

Florida Statutes (1985), which provides a time limit for

the filing of claims against a decedent’s estate, violated

3a

due process and could not, standing alone, serve as a bar

to the claims of known or reasonably ascertainable

creditors.

Appellants assert that the probate court erred (1) in

misconstruing this court’s holding in Thames by finding

that section 733.702 (1983) was unconstitutional as ap-

plied to the facts of the present case and; (2) in reopen-

ing the estate in view of appellants’ failure to file a

claim despite their actual knowledge of the opening of

the estate at the time of its opening.

Publication of the first notice of administration of the

estate of Bernard L. Danese began on November 19,

1984. On December 21, 1984, John Cattano, an attor-

ney for appellees, filed a civil action against the estate

of Bernard L. Danese. The civil action naming the es-

tate was filed and served upon all parties interested in the

estate within the three-month non-claim period. On May

15, 1985, appellees filed a notice of the civil action in

the probate court. Appellees, however, failed to file a

claim against the estate in the probate court within the

three-month claims filing period provided by section

733.702, Florida Statutes (1983).

Prior to filing the civil action, Mr. Cattano wrote a

letter to the estate’s sole beneficiary, Doris D. Danese.

Mr. Cattano’s November 2, 1984, letter read as follows:

Re: Distribution of Rea! Property in Estate—Ber-

nard Danese.

Dear Mrs. Danese: We represent Helene (McCall)

Steigman regarding the distribution of your late hus-

band’s estate. Mrs. Steigman is particularly inter-

ested in the real property known as The Danese

Homestead located in Mandarin. As I am sure you

know, this property is the subject of various and

questionable conveyances over the years. At this

point, we are merely attempting to ascertain the po-

tential distribution of this property from your hus-

4a

hand’s estate so that the various Danese family mem-

bers can be fully apprised.

At present, we are under the impression that no es-

tate or any file whatsoever has been opened in the

Probate Court of Duval County, Florida. We would

appreciate it greatly if you could please contact me

regarding this matter, or give this letter to your at-

torney for an appropriate informational response. I

will be looking forward to hearing from you in the

very near future.

Upon receipt of Mr. Cattano’s letter, Clay Tousey,

Jr., counsel for Florida National Bank as personal rep-

resentative of the estate, telephoned Mr. Cattano to dis-

cuss the letter and wrote a letter in response to Mr.

Cattano’s letter. Mr. Tousey’s November 15, 1984, letter

read as follows:

Re: Estate of Bernard L. Danese.

Dear John: We represent the Florida National

Bank, as personal representative of the above estate.

We have been forwarded your letter to Mrs. Danese,

dated November 2, 1984, regarding the estate. We

are unaware of any right that Mrs. Steigman may

claim as beneficiary or otherwise.

The probate court entered an order closing the estate on

January 23, 1986. The estate was reopened upon the

discovery of additional estate assets on May 22, 1989

and closed again on September 21, 1989. On December

21, 1990, 15 months after the estate was closed, appel-

lees filed a petition to reopen the estate based on the

pending civil action. The probate court entered an order

reopening the estate until disposition of the civil action.

In reopening the estate, the probate court relied on this

court’s decision in Steigman v. Danese, 502 So.2d 463

(Fla. Ist DCA 1987), rev. denied, 511 So.2d 998 (Fla.

1987). In Steigman, this court had held that the civil

complaint was filed and served upon all parties inter-

Sa

ested in the estate within the three-month statutory period

and, therefore, for purposes of the time constraints of

section 733.702, the complaint would amount to a timely

filed claim. Steigman, 502 So.2d at 470.

The estate appealed the probate court’s order grant-

ing appellees’ petition to reopen the estate. While the

appeal was pending, the Florida Supreme Court, in Spohr

v. Berryman, 589 So.2d 225 (Fla.1991), disapproved

this court’s decision in Steigman to the extent that it was

inconsistent with Spohr. In Spohr, the Florida Supreme

Court held that the institution of a civil action does not

constitute the filing of a claim under section 733.702.

Spohr, 589 So.2d at 229. Thus, on the authority of

Spohr, this court vacated the probate court’s order re-

opening the estate and remanded the case to the probate

court for reconsideration in light of Spohr. In re Estate

of Danese, 601 So.2d 570, 571 (Fla. Ist DCA 1992).

On September 28, 1992, the estate filed a motion for

entry of order pursuant to mandate requesting that the

probate court apply Spohr and deny appellees’ petition

to reopen the estate. At the hearing on the estate’s mo-

tion, appellees argued that Spohr did not require a denial

of appellees’ petition to reopen the estate because this court,

in Thames v. Jackson, 598 So.2d 121 (Fla. Ist DCA

1992), held that section 733.702 was unconstitutional.

The probate court entered an order which granted ap-

pellees’ petition to reopen the estate and denied the es-

tate’s motion for entry of order pursuant to mandate.

The probate court found that, because Thames held that

section 733.702 violated due process of law, section

733.702 was unconstitutional and could not operate as

a bar to appellees’ claim.

Appellants argue that the probate court misconstrued

the holding of Thames, since section 733.702 is uncon-

stitutional only when applied to known or reasonably as-

certainable claimants. Appellants assert that appellees

were conjectural or contingent claimants to which the

6a

actual notice requirements of Thames do not apply. Ap-

pellants further argue that appellees’ actual knowledge

of the opening of the estate satisfied the due process no-

tice requirement of Thames.

Appellees argue that they were known or reasonably

ascertainable claimants and, therefore, the probate court

properly applied the holding of Thames in granting their

petition to reopen the estate. Appellees concede that they

had actual knowledge of the opening of the estate, but

argue that actual knowledge of the opening of the estate

is insufficient to satisfy due process. What is required,

they contend is actual notice.

Appellants rely on In re Estate of Gleason, 631 So.2d

321 (Fla. 4th DCA 1994), in support of their argument

that the probate court erred in relying on Thames to re-

open the estate. In Gleason, the probate court denied

claimant’s motion to reopen the estate of Jackie Gleason

so that claimant could pursue a claim based upon on-

going six-year litigation against Gleason in the state of

New York. Claimant sought to file his claim 14 months

after the estate had been closed. Claimant argued that

his failure to file a claim against the estate of Florida

was no bar because he was a known creditor who was

not given actual notice of the time in which to file claims

and was thus deprived of due process under Pope. It was

undisputed that the claimant was not given actual notice

of the three-month period in which to file a claim.

The Fourth District in Gleason stressed that the United

States Supreme Court reiterated in Pope what the Court

had stated in Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950),

which was that “whether a particular method of notice

is reasonable depends on the particular circumstances.”

Id. The court noted that it was not persuaded that the

Pope court would have been sympathetic to a claimant

who took no action until 14 months after the estate was

closed. Id.

Ta

Similar to the decision in Gleason, we are not per-

suaded that the Pope court would have been sympathetic

to appellees in the present case. Although appellees had

actual knowledge of the opening of the estate at the

time of its opening, appellees did not file a claim in the

estate. Instead, appellees filed and served a civil com-

plaint naming the estate within the three-month non-claim

period. Moreover, appellees argued the applicability of

Thames only after appellants filed a motion to enforce

this court’s mandate in In re Estate of Danese, 601

So.2d 570 (Fla. Ist DCA 1992).

We hold that the probate court erred in interpreting

Thames to permit reopening of the esiate and in denying

appellants’ motion for entry of order pursuant to man-

date. Even if appellees were known or reasonably as-

certainable claimants, appellees’ failure to file a claim in

the probate estate at any time before the estate was

closed when they had actual knowledge of the opening

of the estate makes Thames inapplicable to the present

case.

In Thames, a creditor who claimed to have been well-

known to the estate filed an untimely claim against the

estate. After the estate objected to the claim and moved

to strike the claim as untimely filed, the creditor moved

for an extension of time to file a claim pursuant to Flor-

ida Probate Rule 5.495.' The creditor alleged that de-

1 Florida Probate Rule 5.495, effective January 1, 1989, and

promulgated in response to the United States Supreme Court’s

decision in Pope, provided for an extension of time in which to

file a claim for a creditor who was known to the personal repre-

sentative, but was not served with a copy of the notice of admin-

istration. Rule 5.495 was repealed by the Florida Supreme Court,

effective October 1, 1991, in view of an amendment to section

733.702 providing for the right to petition for an extension of

time to file a claim. In re Amendments to the Florida Probate

Rules, 584 So.2d 964, 970 (Fla.1991). Former Rule 5.495 provided:

Petition to extend time for filing claim. If a creditor of the

estate file. a petition to extend the time for filing a claim,

8a

As ee emg 6 nen te

spite his status as a known creditor, he was not provided

a copy of the notice of administration of the estate or

information regarding the estate. The probate court en-

tered an order striking the creditor’s claim and denied the

crea.:or’s petition for an extension of time to file a claim.

This court adopted the reasoning employed by the

United States Supreme Court in Pope and held that sec-

tion 733.702, Florida Statutes (1985), violated due proc-

ess and could not, standing alone, operate to bar the

claim of a known or reasonably ascertainable creditor.

Thames, 598 So.2d at 125. The court recognized, how-

ever, that Rule 5.495 requires that a creditor establish

the absence of actual knowledge in order to file a claim

that would otherwise be barred under section 733.702.

The court therefore reversed and remanded for an evi-

dentiary hearing to determine whether, on the factual

issues presented, the creditor had knowledge of the open-

ing of the estate or whether his claim had been other-

wise satisfied. Id.

Although the present case does not involve a petition

for extension of time for filing a claim pursuant to Flor-

ida Probate Rule 5.495, the Florida Supreme Court,

in enacting Rule 5.495, and this court in Thames, im-

plicitly recognized that actual knowledge of the informa-

after the time allowed by law for presenting claims, or a

petition to require payment of claim, which claim was filed

after the time allowed by law for presenting claims, and the

petition alleges that the creditor was known to or reasonably

ascertainable by the personal representative, but was not

served with a copy of the notice of administration, such peti-

tion shall specifically allege facts showing that such creditor

was known to or reasonably ascertainable by the personal

representative. It shall also include a verified statement alleg-

ing either (i) the creditor did not have actual knowledge of

those matters relating to creditors’ claims required to be set

forth in the notice of administration during the period allowed

for filing claims against the estate, or (ii) facts sufficient to

obtain relief under Florida Rule of Civil Procedure 1.540(b).

a CT nn nennee Roem we

94

tion necessary to timely file a claim satisfies due process

requirements. It is undisputed that appellees in the in-

stant case had actual knowledge of the opening of the

estate. Appellees, in fact, sued the estate, naming and

serving the appropriate personal representative, within the

three-month non-claim period prescribed by section

733.702, Florida Statutes. We, therefore, hold that the

probate court erred in relying on Thames in denying ap-

pellants’ motion for entry of order pursuant to mandate

and in granting appellees’ petition to reopen the estate.

Accordingly, we reverse and remand with instructions

to the probate court to apply the decision of the Florida

Supreme Court in Spohr v. Berryman, 589 So.2d 225

(Fla.1991) and deny appellees’ petition to reopen the

estate, based upon their failure to file a timely claim in

the estate.

SMITH and JOANOS, JJ., concur.

10a

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

No. BJ-95

HELENE A. STEIGMAN, formerly known as

HELENE D. MCCALL, and ELIZABETH D. DROZE,

Appellants,

Vv.

Doris B. DANESE, FLORIDA NATIONAL BANK, as per-

sonal representative of the ESTATE OF BERNARD L.

DANESE, JOHN B. DANEsSE, III, DoroTHY MATHIAs,

and BARBARA DANESE,

Appellees.

Jan. 13, 1987

Rehearing Denied March 9, 1987

JOANOS, Judge.

Appellants Helene A. Steigman and Elizabeth B. Droze

seek review of a summary final order which dismissed

their fourth amended complaint with prejudice. Appel-

lants contend the dismissal was improper if predicated

on any of the following grounds: (1) the sufficiency

of the allegations of the complaint, (2) the failure to

comply with the provisions of sections 733.702 and

733.703, Florida Statutes, and (3) the statute of limi-

tations or the doctrine of laches. We affirm in part and

reverse in part.

Appellants’ brother, Bernard L. Danese, died on Feb-

ruary 18, 1984. On November 19, 1984, the first notice

of administration of the Danese estate was published.

lla

On December 21, 1984, appellants filed their initial

complaint and notice of lis pendens. Shortly thereafter,

appellants filed an amended complaint to include exhibits

omitted from the original complaint due to clerical error.

On January 17, 1985, a second amended complaint was

filed to include Barbara Danese as a party.

The second amended complaint contained four counts:

Count I was an action for cancellation of deeds, Count

II was an action for resulting trusts, Count III was an

action for constructive trusts, and Count IV was an

action for damages. Each count was based on the allega-

tion that in 1968 Bernard L. Danese wrongfully procured

quitclaim deeds to real property from his sisters, appel-

lants herein.

Defendants filed a motion to dismiss alleging the com-

plaint failed to plead ultimate facts, the complaint was

barred by the applicable statute of limitations and the

doctrine of laches, and failure to comply with the Florida

non-claim statute. Appellants filed a memorandum of

law opposing the motion. After a hearing, the second

amended complaint was dismissed and appellants were

given fifteen days to file a third amended complaint.

The order provided no reasons for dismissal:

A third amended complaint was filed, providing greater

detail concerning the confidential and fiduciary relation-

ship between Bernard L. Danese and his sisters. Upon

motion to dismiss and a hearing thereon, the third

amended complaint was dismissed. Appellants were al-

lowed twenty days to file another complaint, but the

order of dismissal was silent with regard to reasons

therefor.

Appellants filed their fourth amended complaint.

Again, appellees filed a motion to dismiss, and appel-

lants filed memorandum of law opposing the motion.

After a hearing, the trial court entered an order dis-

missing the fourth amended complaint with prejudice.

Again the order was silent as to reasons for the dismissal.

12a

Because of the silence of the trial court’s order with

respect to the grounds for dismissal, this court has been

required to attempt to determine those grounds in order

to effect meaningful appellate review. In addition, this

omission has required counsel for both parties to argue

each conceivable ground which may have been the basis

for the dismissal with prejudice. While a trial court is

not always required to state its reasoning in an order,

it makes the appellate process more effective when it

does.

Appellants’ first argument is addressed to the suffi-

ciency of the allegations of the complaint. A claim for

relief “must state a cause of action and shall contain

. a short and plain statement of the ultimate facts

showing that the pleader is entitled to relief.” Fla.R.

Civ.P. 1.110(b)(2); Trawick, Fla.Prac. and Proc. s. 6-5

(1985). Each element essential to recovery for the par-

ticular cause of action must be alleged. Foley v. Hialeah

Race Course, Inc., 53 So.2d 771 (Fla.1951). And while

it is not sufficient to allege conclusions alone, “conclu-

sions are not objectionable if they are supported by suffi-

cient allegations of ultimate facts.” Trawick, Fla.Prac.

and Proc. s. 6-6 (1985). The purpose of a motion to

dismiss is to test the legal sufficiency of the pleading.

The motion admits all well pleaded allegations to which

it is directed, and asserts that the pleading does not state

a cause of action on the grounds specified. Connolly v.

Sebeco, Inc., 89 So.2d 482 (Fla.1956). If the motion

is directed to the pleading as a whole and any count or

alternative cause of action alleged is sufficient, then the

motion should be denied. Wilson v. Clark, 414 So.2d

526 (Fla. Ist DCA 1982); Trawick, Fla.Prac. and Proc.,

s. 10-4 (1985).

Count I of the complaint in this case is an action for

cancellation of a deed. Jn Harrell v. Branson, 344 So.2d

604 (Fla. Ist DCA), cert. denied, 353 So.2d 675 (Fla.

13a

1977), this court held that entitlement to rescission or

cancellation of a deed will lie when the deed has been

obtained (1) through misrepresentation upon which the

grantor relied, (2) inadequate consideration, and (3)

an abuse of a confidential or fiduciary relationship. The

court said “[iJt is not necessary that a direct statement

be made to the representee in order to give rise to the

right to rely upon the statement, for it is immaterial

whether it passes through a direct or circuitous channel

in reaching him, provided it be made with the intent

that it shall reach him and be acted on by the injured

party.” 344 So.2d at 606.

The term “confidential relationship” encompasses “vir-

tually all relationships of trust and dependence,” and

“courts have been especially quick to find a confidential

relationship where . . . [as in the instant case] the grantor

and grantee are related by blood and the grantor has

become dependent on the grantee.” Thomas for Fennell

v. Lampkin, 470 So.2d 37, 39, f.n. 2 (Fla. 5th DCA

1985).

Thus, a presumption of undue influence will arise when

the evidence establishes: (1) the existence of a confi-

dential relationship between the grantor and the bene-

ficiary, and (2) that the beneficiary actively procured

the deed. Jordan v. Noll, 423 So.2d 368, 369 (Fla. Ist

DCA 1982), pet. for rev. denied, 430 So.2d 451 (Fla.

1983). Once the presumption of undue influence arises,

the beneficiary has “the burden of giving a reasonable

explanation for the active role in the affairs of the

grantor.” 423 So.2d at 369. See also Thomas for Fen-

nell v. Lampkin, 470 So.2d at 39, where the court said:

“It is a well-established proposition in Florida that a

deed may be set aside because of undue influence exer-

cised on the grantor by the grantee.” Accord Adams v.

Stringfellow, 91 Fla. 305, 107 So. 633 (Fla.1926);

Pratt v. Carns, 80 Fla. 243, 85 So. 681 (Fla.1920).

l4a

In the instant case, Count I of the complaint alleges:

(1) a confidential relationship arising out of both the

blood relationship between the grantors and their brother

Bernard L. Danese, as well as their dependence upon him

as the dominant family figure; (2) reliance upon the

representations of their brother that the subject property

would always belong to them and would be reconveyed to

them at a later date, and (3) a lack of consideration.

In addition, the complaint alleges specific incidences of

the dominance and control exerted by Danese over his

sisters. Another significant factor is the inference that

the sisters would not have quitclaimed their respective

interests in their deceased parents’ property absent rea-

sonable assurances that their interests would be protected.

For the most part, the conclusions expressed in Count

I are supported by allegations of fact. However, there

are no allegations of ultimate facts to support the allega-

tion of paragraph 19 that the sisters “received no con-

sideration for the purported conveyance” of their inter-

ests in the real property. Also, the recitals of the at-

tached exhibits to the effect that consideration of $1.00

had been paid, could be viewed as inconsistent with the

allegation of “no consideration.” Despite this minimal

suggestion of inconsistency, Count I alleges the requisite

elements established by case law from this court and

other district courts of appeal, which if proved, would

entitle the sisters to rescission or cancellation of the

quitclaim deed.

Count II of the complaint is an action for acknowl-

edgement and establishment of resulting trusts. In Wad-

lington v. Edwards, 92 So.2d 629, 631 (Fla.1957), the

court explained the nature of the implied trust termed

“resulting trust” thusly:

A resulting trust is simply a status that automatically

arises by operation of law out of certain circum-

stances. ... In the creation of a resulting trust it

is essential that the parties actually intend to create

Se ae acne = -

15a

the trust relationship but fail to execute documents

or establish adequate evidence of intent. The typical

illustration is where one man furnishes the money to

buy a parcel of land in the name of another with

both parties intending at the time that the legal title

is held by the named grantee for the benefit of the

unnamed beneficiary.

And in Steinhardt v. Steinhardt, 445 So.2d 352, 357-358

(Fla. 3d DCA); pet. for rev. denied, 456 So.2d 1181

(Fla.1984), the court stated that—

A resulting trust . . . arises in three situations, (1)

where an express trust fails in whole or in part, (2)

where an express trust is fully performed without

exhausting the trust estate, and (3) where a person

furnishes money to purchase property in the name

of another, with both parties intending at the time

that the legal title be held by the named grantee

for the benefit of the unnamed purchaser of the

property.

See also Lowell and Grimsley, Florida Law of Trusts,

Ss. 14-2 (3rd ed. 1984): “The inference raised from

lack of consideration in a conveyance continues today

as one of the several bases for declaring that a resulting

trust exists.”

Count II of the complaint incorporates the allegations

of Count I, and further alleges that at the time of the

“purported conveyances” Bernard L. Danese represented

to his sisters that legal title would be held by the three

brothers for the benefit of the sisters, and then recon-

veyed to them at a later time. This count also alleges,

at paragraph 25, that Bernard Danese assured his sisters

that he had the same understanding of the conveyances

as did the sisters. Paragraph 26 alleges the sisters’ in-

tent “to create a trust relationship with their brothers

regarding legal title of the subject real property,” and

paragraph 27 alleges Bernard Danese died on February

16a

18, 1984, without arranging a reconveyance of the real

property and without a will which would facilitate such

reconveyances. This count, however, contains no recita-

tions of ultimate fact to indicate that Bernard Danese

intended to hold legal title to the real property for the

benefit of his sisters. Thus, we conclude the allegations

of Count II are insufficient to state a cause of action for

resulting trust.

Count III of the complaint is an action for establish-

ment of constructive trusts. A constructive trust is an

implied trust having wide application, because based

upon principles of fairness. Lowell and Grimsley, Flor-

ida Law of Trusts, s. 14-1 (3rd ed. 1984). The essen-

tial elements of a constructive trust are: (1) a confiden-

tial relationship, by which (2) one acquires an advantage

which he should not, in equity and good conscience, re-

tain. Lowell and Grimsley, citing Quinn v. Phipps, 93

Fla. 805, 113 So. 419 (1927). See also Mayer vy. Cian-

ciolo, 463 So.2d 1219, 1222 (Fla. 3r¢ DCA 1985),

where the court held a constructive trust may arise even

in the absence of fraud, where there is (1) a confidential

relation, (2) a transaction induced by the relation, and

(3) a breach of the confidence reposed. The court went

on to state:

Thus, where one person having legal and equitable

title in property transfers it to another with whom

he has a confidential relationship to hold for a par-

ticular purpose, a constructive trust arises in favor

of the promisee which may be enforced where the

promisor acts in a fashion so as to harm the bene-

ficiary’s interest. 463 So.2d at 1222.

In footnote 1 the court observed that “confidential rela-

tions” is a broad concept which “extends to every pos-

sible case in which a fiduciary relation exists as a fact,

though it may be a moral, social, domestic, or merely

personal relationship.” (citations omitted).

T= fe |e en ace ee et

17a

In Circle Finance Company v. Peacock, 399 So.2d 81,

85 (Fla. Ist DCA), pet. for rev. denied, 411 So.2d 380

(Fla.1981); this court noted the vehicle of constructive

trust “is particularly applicable in those situations where,

although the property was not originally fraudulently

acquired, it is against equity that the property should

be retained by the person holding it.” A constructive

trust contains no element of agreement or intent to cre-

ate a trust relationship. Rather, “[t]he trust is ‘con-

structed’ by equity to prevent an unjust enrichment of

one person at the expense of another as the result of

fraud, undue influence, abuse of confidence or mistake

in the transaction that originates the problem.” Wad-

lington v. Edwards, 92 So.2d at 631. See also Steinhardt

v. Steinhardt, 445 So.2d at 356.

As does Count II, Count III of the complaint incor-

porates the allegations of Count I. In addition, Count III

includes allegations that Bernard L. Danese obtained the

conveyances through exertion of undue influence and

abuse of the confidential relationship with his sisters.

Also, this count alleges an antagonistic relationship en-

sued between Bernard Danese and his sisters which ren-

dered Danese and his brothers trustees for the sisters’

future benefit. Appellees maintain there is a fatal in-

consistency in the counts of the complaint. Although the

allegation concerning an antagonistic relationship could

be construed as inconsistent with the allegations of a

confidential relationship, we consider that, though inart-

fully phrased, this allegation is a permissible conclusion,

because based on sufficient allegations of ultimate fact

rather than on an inconsistency which would render the

count a nullity.

Count IV of the complaint is an action for damages,

which appears to be predicated on an allegation of con-

structive fraud. A cause of action for fraud must allege:

(1) a representation by the defendant designed to prompt

action by the plaintiff, (2) falsity of the representation

18a

and the defendant’s knowledge of the falsity, and (3)

the plaintiff's reliance on the representation to his detri-

ment. Arnold v. Weck, 388 So.2d 269, 270 (Fla. 4th

DCA 1980), pet. for rev. denied, 399 So.2d 1140 (Fla.

1981). “Constructive fraud arises when a confidential

or fiduciary relationship has been used to take advantage

of the party seeking affirmative relief.” Trawick, Fla.

Prac. and Proc., s. 6-19 (1985). When fraud is relied

upon, “the allegations relating thereto should be specific

and the facts constituting the fraud clearly stated.” Kutner

v. Kalish, 173 So.2d 763, 764 (Fla. 3rd DCA), cert.

denied, 183 So.2d 210 (Fla.1965). See also Fla.R.Civ.

P. 1.120(b), which requires that the circumstances con-

stituting fraud “shall be stated with such particularity as

the circumstances may permit.”

Count IV of the complaint incorporates the allegations

of Count I, and further alleges misrepresentation, detri-

mental reliance, abuse of confidential relationship, unjust

enrichment resulting from fraud, undue influence, abuse

of confidence, and breach of fiduciary duty. In addition,

Count IV alleges the sisters were not aware of the mis-

representation, fraud, and breach of fiduciary duty until

after Bernard’s death, at which point it became known

that he had made no provision to secure or reconvey the

sisters’ interest in the real property.

The Count IV allegations are not models of specificity.

Nevertheless, the factual account set forth in detail in

Count I taken together with the allegation that the sis-

ters did not realize, until Bernard’s death, that he had

made no provision to reconvey their interest in the real

property, satisfies the requirement of Florida Rule of

Civil Procedure 1.120(b), and sets forth the essential

legal elements for constructive fraud.

In summary, we conclude that Count I states a cause

of action for cancellation of deed, Count II lacks sup-

porting factual allegations regarding the intent of Ber-

oF a Ne ich teh) 8

Sb) RN Sek toh

19a

nard L. Danese to state a cause of action for “resulting

trusts,” Count III states a cause of action for constructive

trust, and Count IV states a cause of action for construc-

tive fraud.

Appellants’ second argument is addressed to their pur-

ported failure to comply with the provisions of sections

733.702 and 733.703, Florida Statutes. Section 733.702

provides in relevant part:

733.702 Limitations on presentation of claims.—

(1) No claim or demand against the decedent’s

estate that arose before the death of the decedent,

including claims of the state and any of its subdivi-

sions, whether due or not, direct or contingent, or

liquidated or unliquidated; no claim for funeral or

burial expenses; no claim for personal property in

the possession of the personal representative; and

no claim for damages, including, but not limited to,

an action founded on fraud or other wrongful act

or omission of the decedent, shall be binding on the

estate, on the personal representative, or on any

beneficiary unless presented:

(a) Within 3 months from the time of the first

publication of the notice of administration, ...

Section 733.703 provides:

733.703 Form and manner of presenting claim.—

A creditor shall file with the clerk a written state-

ment of the claim, indicating its basis, the name and

address of the creditor or his agent or attorney, and

the amount claimed. The claim is presented when

filed. If a claim is not yet due, the date when it

will become due shall be stated. If the claim is

contingent or unliquidated, the nature of the uncer-

tainty shall be stated. If the claim is secured, the

security shall be described. Failure to describe cor-

rectly the security, the nature of any uncertainty,

20a

or the due date of a claim not yet due does not

invalidate the presentation made. A creditor shall

deliver a copy of the claim to the clerk who shall

serve the copy on the personal representative, in the

manner provided for service of informal notice un-

der s. 731.301(2)(a), and note the fact on the

original.

In Barnett Bank of Palm Beach County v. Estate of

Read, 493 So.2d 447 (Fla.1986), the supreme court

held that section 733.702 is a statute of limitations. And,

while recognizing the strong public policy favoring speedy

settlement and closing of estates, the court also observed

that—

justice requires us to hold that section 733.702 is a

statute of limitations. Valid grounds, such as estoppel

or fraud, may exist that would and should excuse

untimely claims. A creditor would lose the right to

assert these potentially valid claims were we to hold

that section 733.702 is a statute of nonclaim. Our

holding that section 733.702 is a statute of limita-

tions confirms the fact that estates and creditors

must adhere to well-established practices when deal-

ing with untimely claims. The estate must file a

motion to strike or other objection to an untimely

claim. If the creditor wishes to raise the issue of

estoppel or fraud he may file a reply pursuant to

Florida Rule of Civil Procedure 1.100. (citation

omitted). This procedure guarantees that claims

such as fraud and estoppel are properly adjudicated.

493 So.2d at 449. (emphasis supplied )

In Notar v. State Farm Mutual Automobile Insurance

Company, 438 So.2d 531, 533 (Fla. 2d DCA 1983),

the court held that Notar’s motion for substitution of

parties and appointment of personal representative could

be considered a presentation of her claim. Similarly, in

Koschmeder v. Griffin, 386 So.2d 625 (Fla. 4th DCA

1980), the inference arises that filing a civil action

She AeNieni ant elie, SORE

2la

within the statutory period prescribed by section 733.702

satisfied the filing requirements of section 733.703.’

As a collateral argument, appellants urge the “trust

exception” is applicable with regard to Counts II and

Ill. The rationale for the “trust exception” is that the

subject property does not become a part of the estate

because it was held in trust by the decedent at the time

of his death. Hodges v. Logan, 82 So.2d 885 (Fla.

1955); In Re Estate of Kulow, 439 So.2d 280 (Fla.

2d DCA 1983); In Re Estate of Peterson, 433 So.2d

1358 (Fla. 4th DCA 1983); Fisher v. Creamer, 332

So.2d 50 (Fla. 3d DCA), cert. dismissed, 336 So.2d

600 (Fla.1976).

With regard to limitations applicable to actions for

constructive and resulting trusts, the supreme court has

held that (1) the limitations period will not begin to run

against the rights of a beneficiary of a resulting or ex-

press trust until the trustee moves to set up an antagonis-

tic interest, and (2) “the claims of a beneficiary of a con-

structive trust are subject to the application of the doc-

trine of laches which may be based on the provisions

in statutes of limitations relating to actions at law of

like character.” The court went on to note that:

This statement of the proposition recognizes that

technically in the absence of a statutory provision,

equity is not bound absolutely to apply a statute of

limitations but in following the law, absent the pres-

ence of intervening equities to the contrary, a court

1A recent case from this court addressed the adequacy of the

notice provisions of the statute, but as a collateral matter the

court implicitly found that individual claims filed against an estate

and a wrongful death action filed against the administrator of an

estate would be presentment within contemplation of the statute.

Coley v. Estate of Odom, 500 So.2d 188 (Fla. 1st DCA 1986).

(In Coley the respective claims were time barred because filed

seventeen and eighteen months after expiration of the statutory

period.) Coley is presently pending consideration by the Florida

Supreme Court, Case No. 69,169.

22a

of equity will base its application of the doctrine

of laches on the provisions of the appropriate stat-

ute of limitations.

Wadlington v. Edwards, 92 So.2d 629, 632 (Fila.

1957). See also Fisher v. Creamer, where the court said

on petition for rehearing, “the failure to assert one’s

rights in circumstances where a relation of constructive

trusteeship has arisen will not bar a suit if the action

is brought as soon as the occasion arises for the assertion

of his rights by the beneficiary.” 332 So.2d at 52.

In this case, the first Notice of Administration was

published on November 19, 1984, and this suit was filed

December 21, 1984. Service of process was effected upon

all parties interested in the estate within the 3-month

statutory period. Thus, for purposes of the time con-

straints of sections 733.702, appellants’ complaint was

timely filed.

Appellants’ final argument is directed to the applica-

bility of the statute of limitations and the doctrine of

laches as a possible ground for dismissal of the complaint.

Appellants take the position that the 20-year limitation

period set forth in section 95.231(2), Florida Statutes,*

is applicable to Counts I, II, and III of the complaint.

We cannot agree. Although the first three counts of the

complaint relate to an interest in real property, we con-

clude that all four counts of the complaint are predicated

primarily upon allegations of fraud. Therefore, the ap-

plicable limitations provisions are section 95.11(6), Flor-

ida Statutes, which states that—

Laches shall bar any action unless it is commenced

within the time provided for legal actions concern-

2s, 95.231(2), Fla.Stat. (1983), provides:

(2) After 20 years from the recording of a deed or the

probate of a will purporting to convey real property, no person

shall assert any claim to the property against the claimants

under the deed or will or their successors in title.

23a

ing the same subject matter regardless of lack of

knowledge by the person sought to be held liable

that the person alleging liability would assert his

rights and whether the person sought to be held

liable is injured or prejudiced by the delay. This

subsection shall not affect application of laches at

an earlier time in accordance with law.

and section 95.11(3)(j), Florida Statutes, which pro-

vides that legal or equitable actions founded on fraud

or deceit must be commenced within four years of dis-

covery of the facts constituting the fraud. See First Fed-

eral Savings & Loan Association of Wisconsin v. Dade

Federal Savings & Loan Association, 403 So.2d 1097

(Fla. 5th DCA 1981).

Although Counts I, II, and III are equitable actions

for cancellation of deeds, and resulting and constructive

trusts upon real property, the claims are founded upon

misrepresentation and fraud. Thus, these counts, with

Count IV, are controlled by the section 95.11(3)(j) 4-

year limitations period. The period would not run, how-

ever, until discovery of the facts constituting fraud, which

in this case allegedly occurred when Bernard Danese

died. According to the allegations of the complaint, ap-

pellants did not become aware that their brother had

made no provision to secure their rights to the subject

real property until after his death.

We hold that dismissal of the complaint was proper

with respect to the heirs of Francis T. Danese and John

B. Danese, and affirm the order of dismissal in this re-

gard. We reverse, however, with respect to the estate

of Bernard L. Danese, because we find the allegations

of Counts I, HI, and IV of the fourth amended com-

plaint sufficiently state a cause of action. We do not

reach the question of the affirmative defenses which may

be available, since the posture of this case does not bring

that issue before ws. We observe, however, that it is

improper to raise affirmative defenses in a motion to dis-

24a

miss, just as it is improper to anticipate the outcome with

respect to a plaintiff's ability to prove the allegations of

a complaint. This case should have proceeded through

the filing of an answer with affirmative defenses, followed

by a motion for summary judgment, rather than the time-

consuming process of amended pleadings.

Therefore, the order of dismissal is affirmed with re-

spect to the heirs of Francis and John Danese, reversed

with respect to the estate of Bernard L. Danese, and the

cause is remanded for proceedings consistent with this

opinion.

THOMPSON and NIMMONS, JJ., concur.

25a

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

No. 91-2583

IN RE ESTATE OF BERNARD L. DANESE, Deceased

May 11, 1992

Rehearing Denied Aug. 12, 1992

KAHN, Judge.

The personal representatives of the estate of Bernard

L. Danese and the decedent’s spouse appeal an order of

the circuit court, the effect of which was to reopen the

estate in order to conduct further administration. Since

1984 the estate, through the personal representatives of

the decedent, has been a party defendant in a civil claim

pending in the circuit court. In Steigman v. Danese, 502

So.2d 463 (Fla Ist DCA 1987), rev. denied, 511 So.2d

998 (Fla.1987), this court ruled, inter alia, that a civil

complaint naming the estate, filed and actually served

upon all parties interested in the estate within three

months of publication of the first notice of administra-

tion, was sufficient to satisfy the provisions of section

733.702, Florida Statutes. Unbeknownst to the success-

ful appellants in that case, however, the probate court

had entered an order closing the estate matter on Janu-

ary 23, 1986. The estate was briefly reopened for admin-

istration on May 22, 1989, and closed on September 21,

1989. In the order now under review, the lower court

reopened the probate matter, finding that “further admin-

istration of the Estate is necessary until the disposition

26a

of the tort action against the Personal Representative.”

After entry of the lower court order, and during the

pendency of this appeal, the Florida Supreme Court de-

cided Spohr v. Berryman, 589 So.2d 225 (Fla.1991),

expressly disapproving this court’s Steigman decision, and

holding that filing of a civil lawsuit within the nonclaim

period does not constitute compliance with section

733.702.

The Spohr decision would appear to apply to the civil

action against the estate. This is necessarily true, since,

during the pendency of the civil action, the supreme

court has specifically disapproved our prior holding in

Steigman. See Maserati Automobiles, Inc. v. Caplan,

551 So.2d 501 (Fla. 3d DCA 1989).

We vacate the order and remand to the lower court

for reconsideration in light of Spohr, with due regard for

the current status of the civil action, which, on the state

of the record before us, remains pending against the

estate.’

BOOTH and WOLF, JJ., concur.

1 We decline to address appellants’ argument that the trial court

incorrectly reappointed the two prior personal representatives

without regard to their willingness to serve. We note that the

reappointed personal representatives are not required to serve as

personal representatives. See § 733.502, Fla.Stat. (1989).

27a

IN THE CIRCUIT COURT

FOR DUVAL COUNTY, FLORIDA

PROBATE DIVISION

File Number: 84-1632-CP

Division: L

IN RE: ESTATE OF BERNARD L. DANESE, Deceased

ORDER GRANTING PETITION FOR

REVOCATION OF ORDERS OF DISCHARGE

OF PERSONAL REPRESENTATIVE IN ORDER

TO CONDUCT FURTHER ADMINISTRATION

OF THE ESTATE

THIS CAUSE came on for hearing as an adversary

proceeding on a Petition for Revocation of Orders of

Discharge of Personal Representative in Order to Con-

duct Further Administration of the Estate, filed on De-

cember 21, 1990, pursuant to § 733.903, Florida Stat-

utes. Upon consideration thereof, the Court finds as

follows:

The administration of this estate was first opened on

November 15, 1984; closed on January 23, 1986; re-

opened upon the discovery of additional estate assets on

May 22, 1989, and closed again on September 21, 1989.

A tort claim against the former Personal Representa-

tive, Florida National Bank was filed in the Fourth Ju-

dicial Circuit of Duval County, Florida, Case No. 84-

15717-CA, during the initial phase of the administration

of this Estate. Florida National Bank appeared in that

action as Personal Representative of the Estate of Ber-

nard L. Danese, and the bank has remained an active

28a

party defendant in the action since it was filed. The

action is pending.

A Petition for Discharge, as Personal Representative,

was filed on December 13, 1985, by Florida National

Bank, representing that the estate had been completely

administered. However, an appeal was then pending on

a dismissal of the tort case, and the attorneys represent-

ing the Personal Representative in the tort action were

aware of the existence of that appeal as was the at-

torney representing the Personal Representative in the es-

tate proceedings.

The petitioners herein and their attorneys were not

given notice of the mentioned petition for discharge.

Furthermore, the Court was not informed by the Per-

sonal Representative of the existence of the tort action

and the fact it was pending on appeal.

Florida National Bank was then discharged by Order

of Discharge entered herein on January 23, 1986.

When the estate was reopened in May, 1989, and

during the further administration thereof, the Court was

not made aware of the existence of the tort case.

The successor personal representative, Esther Baker,

did not give petitioners herein, or their attorneys, notice

of the further administration of the estate.

Petitioners, Steigman and Erwin, as parties in the tort

case, consequently did not receive notice of the petitions

for discharge filed by the respective personal representa-

tives.

The Court was not informed of the existence of the

tort case, which remains an incompleted aspect of the

administration of the estate.

The further administration of the Estate is necessary

until the disposition of the tort action against the Per-

sonal Representative. It is, therefore,

29a

ORDERED that the Petition for Revocation of Orders

of Discharge of Personal Representative in Order to Con-

duct Further Administration of the Estate be and the

same is hereby granted and this estate is reopened for

the purpose of completion of its administration. The

Orders of Discharge dated January 23, 1986, and Sep-

tember 21, 1989 are hereby revoked and the Estate of

Bernard L. Danese, Deceased, shall be reopened for fur-

ther administration; it is further

ORDERED that Florida National Bank and Esther

Baker are appointed Co-Personal Representatives of the

Estate of the decedent and that upon taking the pre-

scribed oath, filing designation of resident agent and Ac-

ceptance, Letters of Administration shall be issued with-

out the requirement of bond.

ORDERED in Chambers in Jacksonville, Florida, this

23rd day of July, 1991.

/s/ Charles O. Mitchell

Circuit Judge

30a

IN THE CIRCUIT COURT

FOURTH JUDICIAL CIRCUIT

IN AND FOR DUVAL COUNTY, FLORIDA

Probate Division

Case No.: 84-1632-CP

Division: L

IN RE: ESTATE OF BERNARD L. DANESE, Deceased

ORDER ON MANDATE OF

THE FIRST DISTRICT COURT OF APPEAL

THIS CAUSE came before the Court on the Motion

for Entry of Order Pursuant to Mandate of the First

District Court of Appeal. This Court previously granted

the Petition for Revocation of Orders of Discharge of

Personal Representative in Order to Conduct Further

Administration of the Estate (the “Petition to Reopen’),

filed by Petitioners in this adversary proceeding. There-

after, the First District Court of Appeal vacated this

Court’s Order granting the Petition to Reopen and re-

manded for reconsideration. /n re Estate of Danese, 601

So.2d 570 (Fla. Ist DCA 1992). Upon careful review

of the mandate of Danese and First District’s recent de-

cision in Thames v. Jackson, 598 So.2d 121 (Fla. Ist

DCA 1992), the Court finds that it must deny Petition-

er’s motion.

In Thames, the First District Court of Appeal held

that the version of Florida Statutes, Section 733.702, ap-

plicable under the facts of the instant case violated due

process of law. Id. at 125. The Thames holding was in

conformity with the holding of the United States Supreme

Court in Tulsa Professional Collection Services, Inc. v.

Pope, 485 U.S. 478, 99 L.Ed.2d 565 (1988). Thus,

3la

the version of Section 733.702, which Respondents as-

sert as a bar to Petitioners’ status as claimants in the

estate is unconstitutional and “cannot, standing alone,

operate as a bar to appellant’s claim.” Thames, 598

So.2d at 125.

This holding is entirely consistent with the mandate of

the First District Court of Appeal in Danese, which di-

rected the court to reconsider the case in light of Spohr

v. Berryman, 589 So.2d 225 (Fla. 1991), with due re-

gard for the current status of the civil action. Such a

mandate returns the case to this Court in the same con-

dition as though the order from which the appeal was

taken had not been made and vests the Court with broad

discretion in handling or directing the course of the cause

thereafter. Stossel v. Gulf Life Ins. Co. of Jacksonville,

123 Fla. 227, 166 So. 821 (Fla. 1936); Pritchett v.

Brevard Naval Stores Co., 134 Fla. 649, 185 So. 134

(Fla. 1939). Thus, the Court is free to apply the hold-

ing of Thames, which explicitly declares the version of

Section 733.702 relied upon by Respondents to be un-

constitutional.

This holding is also consistent with the decision of the

Florida Supreme Court in Spohr in that, even if the

filing of a lawsuit is not a sufficient presentment of a

claim under the non-claim statute, the failure to file a

timely claim will not prevent assertion of that claim

where an unconstitutional non-claim statute is relied upon

as the only authority for barring the claim. Thames, 598

So.2d at 125.

Accordingly, this Court finds that it must deny the

relief sought by Respondents in their Motion for Entry

of Order Pursuant to Mandate of the First District Court

of Appeal as a result of the First District’s recent holding

in Thames v. Jackson, 598 So.2d 121 (Fla. Ist DCA

1992). It is therefore

ORDERED:

32a

1. Respondents’ Motion for Entry of Order Pursuant

to Mandate of the First District Court of Appeal is

DENIED.

2. The Petition for Revocation of Orders of Dis-

charge of Personal Representative in Order to Conduct

Further Administration of the Estate filed herein by Pe-

titioners is GRANTED.

DONE AND ORDERED in Chambers at Jacksonville,

Duval County, Florida, this 23rd day of March, 1993.

/s/ Charles O. Mitchell, Jr.

CHARLES O. MITCHELL

Circuit Court Judge

ahs to a, sce be Dewan! | Sd

33a

DISTRICT COURT OF APPEAL

FIRST DISTRICT

Tallahassee, Florida 32399

Telephone No. (904) 488-6151

September 15, 1994

CASE NO: 93-01039

L.T. Case No. 84-1632-CP

IN RE: ESTATE OF BERNARD L. DANESE, Deceased

BY ORDER OF THE COURT:

Appellee’s motion for rehearing or, in the alternative,

certification, filed August 12, 1994, is DENIED.

I HEREBY CERTIFY that the foregoing is (a true

copy of) the original court order.

/s/ Jon S. Wheeler

Jon S. WHEELER

Clerk

By: /s/ Karen Roberts

Deputy Clerk

[SEAL]

Cray B. TousEy, JR.

JAMES M. MCLEAN

34a

MANDATE

FROM

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, the Judges of the Circuit Court

for Duval County

WHEREAS, in that certain cause filed in this Court

styled:

Case No. 93-1039

Your Case No. 84-1632-CP

IN RE: ESTATE CF BERNARD L. DANESE.

The attached opinion was rendered on July 29, 1994,

YOU ARE HEREBY COMMANDED that further pro-

ceedings be had in accordance with said opinion, the rules

of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer, Chief

Judge of the District Court of Appeal of Florida, First

District and the Seal of said court at Tallahassee, the

Capitol, on this 4th day of October, 1994.

[SEAL]

/s/ Karen Roberts

Deputy Clerk

District Court of Appeal

of Florida

First District

;

)

|