IN THE SUPREME COURT OF FLORIDA BRIEF ON JURISDICTION OF RESPONDENT, EDWARD A. SCHILLING

Transcription

1 IN THE SUPREME COURT OF FLORIDA MARIA HERRERA, Petitioner, Case No.: SC v. EDWARD A. SCHILLING Respondent. BRIEF ON JURISDICTION OF RESPONDENT, EDWARD A. SCHILLING On Discretionary Review from the Third District Court of Appeal, Florida Adrian P. Thomas Florida Bar No Brandan J. Pratt Florida Bar No Adrian Philip Thomas, P.A. SunTrust Center, Suite East Las Olas Boulevard Fort Lauderdale, FL (954) Attorneys for the Respondent 1

2 Table of Contents Table of Citations...iii Issues Presented For Review...1 I. Whether this Court should exercise its discretionary jurisdiction to review the district court s decision on grounds that it directly conflicts with decisions of other district courts on the same question of law...1 Statement of the Case and Facts...1 Summary of the Argument...3 Argument...4 I. This Court should not exercise its discretionary jurisdiction to review the district court s decision because the decision does not expressly and directly conflict with the decision of another district court on the same question of law...4 A. This Court should not exercise its discretion to review the district court s decision because the questions of law related to who the tortious conduct is directed at are different...5 B. This Court should not exercise its discretion to review the district court s decision because the questions of law related to jurisdiction and relief in Clibbon are different from the questions in this case...6 C. This Court should not review the district court s decision because the questions of law related to the doctrine of collateral estoppel in Clibbon are different from the questions in this case...8 i

3 D. This Court should not review the district court s decision because the questions of law related to public policy are different...9 Conclusion and Statement of Relief Sought Certificate of Service Certificate of Compliance ii

4 Table of Citations Cases Claveloux v. Bacotti, 719 So. 2d 399, 400 (Fla. 2d DCA 2001)...5 In Re: Estate of Clibbon, 735 So. 2d 487 (Fla. 4 th DCA 1998)...4, 5, 6, 7, 8 Curry v. State, 682 So.2d 1091 (Fla. 1996)...4 Dept. of Health and Rehabilitative Services v. B.J.M, 656 So.2d 906 (Fla. 1995)..8 DeWitt v. Duce, 408 So. 2d 216, 219 (Fla. 1981)... 8, 9 Green v. State, Dept. of Health and Rehabilitative Services, Social and Economic Services Program, 412 So. 2d 413 (Fla. 3d DCA)...8 Smith v. Barnet Bank of Murray Hill, 350 So.2d 358, 359 (Fla. 4 th DCA 1977)...7 Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998)... 5, 7 Statutes Fla. Stat (2)...8 Court Rules Fla. R. App. P (2)...4 Miscellaneous 32A Fla. Jur 2d Judgments & Decrees Fla. Const. Art iii

5 ISSUES PRESENTED FOR REVIEW 1. Whether this Court should exercise its discretionary jurisdiction to review the district court s decision on the grounds that the decision directly conflicts with the decision of another district court on the same question of law provided that this decision involves a complaint in the general division regarding the tort of intentional interference with an expectancy of inheritance and when Ms. Herrera argues that the decision conflicts with another decision involving a petition in the probate court regarding reopening an estate based on fraud. STATEMENT OF THE CASE AND FACTS Mr. Schilling did not petition the probate court to reopen an estate based on fraud. (See. App. 1-13). Mr. Schilling sued Ms. Herrera in the general civil court for intentional interference with an expectancy of inheritance. (App. 2). The district court summarized the amended complaint by stating: In essence, the amended complaint alleges that Mr. Schilling was named as the sole beneficiary in the decedent s last will and testament; that based on this last will and testament, he expected to inherit the decedent s estate upon her death; that Ms. Herrera intentionally interfered with his expectancy of inheritance by convincing the decedent, while she was ill and completely dependent on Ms. Herrera to execute a new last will and testament naming 1

6 Ms. Herrera as the sole beneficiary; and that Ms. Herrera s fraudulent actions and undue influence prevented Mr. Schilling from inheriting the decedent s estate. (App. 7-8). The district court further commented on the allegations in the amended complaint when it stated: A review of the amended complaint reflects that Mr. Schilling has alleged two separate frauds. The first alleged fraud stems from Ms. Herrera s undue influence over the deceased in procuring the will, whereas the second alleged fraud stems from Ms. Herrera s action in preventing Mr. Schilling from contesting the will in probate court. (App ). Ms. Herrera moved to dismiss the amended complaint. The circuit court dismissed Mr. Schilling s amended complaint with prejudice. (App. 1-2). The circuit court held (1) that the complaint failed to state a cause of action for intentional interference with an expectancy of inheritance because Mr. Schilling failed to allege that Ms. Herrera breached a legal duty that she owed to Mr. Schilling, and (2) that Mr. Schilling was barred from filing a claim for intentional interference with an expectancy of inheritance because he failed to exhaust his probate remedies. (App. 1-2). Mr. Schilling appealed this Order. 2

7 The district court reversed the circuit court on both grounds. (App. 2). First, the district court held that Mr. Schilling properly alleged a cause of action for intentional interference with an expectancy of inheritance because he properly alleged each and every element of the tort. (App. 6-8). Second, the district court held that Mr. Schilling was not barred from filing a claim for tortious interference with an expectancy of inheritance for failing to exhaust his probate remedies because the circumstances surrounding the tortious conduct effectively preclude[d] adequate relief in the probate court. (App. 11). Ms. Herrera is seeking to appeal this decision on the grounds that the district court s decision governing the tort of intentional interference with an expectancy of inheritance expressly and directly conflicts a decision of another district court governing when a petitioner can reopen an estate based on fraud. SUMMARY OF THE ARGUMENT This Court should not exercise its discretionary jurisdiction to review the district court s decision. The decision does not directly conflict with a decision of another district court on the same question of law. The decision in this case involves a complaint in the general civil division regarding the tort of intentional interference with an expectancy of inheritance. Ms. Herrera argues that the decision conflicts with another decision involving a petition in the probate court regarding reopening an estate based on fraud. This is a critical factual distinction 3

8 that inherently renders the questions of law different. There are different questions of law related to (a) the party to whom the tortious conduct must be directed towards, (b) jurisdiction and relief, (c) the application of collateral estoppel, and (d) public policy. These cases do not involve the same questions of law. Therefore, this Court should not review the decision. ARGUMENT The Supreme Court of Florida has discretionary jurisdiction to hear cases in which the decision of a district court directly conflict[s] with a decision of another district court on the same question of law. 1 This jurisdiction is only discretionary, and this Court is not required to hear the case. 2 This Court should not exercise that discretion. I. This Court should not exercise is discretion to review the district court s decision because the decision does not directly conflict with the decision of another district court on the same question of law. Ms. Herrera argues that this Court should exercise its discretionary jurisdiction to review the district court s decision because it is inconsistent with In Re Estate of Clibbon, 735 So. 2d 487 (Fla. 4 th DCA 1998). Although the decision in Clibbon may appear to conflict with the decision in this case, Clibbon is inapplicable to the facts at hand. In Clibbon, the petitioner was petitioning the probate court to reopen an estate; however, in this case, Mr. Schilling has brought a complaint in the 1 Fla. R. App. P (2). 2 See Curry v. State, 682 So. 2d 1091 (Fla. 1996). 4

9 general jurisdiction for intentional interference with an expectancy of inheritance. This is a critical factual distinction because (a) the questions of law related to who the tortious conduct must be directed towards are different, (b) the questions of law related to jurisdictional and relief are different, (c) the questions of law related to the doctrine of collateral estoppel are different, and (d) the questions of law related to public policy are different. The decisions in these cases are not required to be consistent because the cases involve different questions of law. A. This Court should not exercise its discretion to review the district court s decision because the questions of law related to who the tortious conduct is directed at are different. First, the questions of law related to who the tortious conduct must be directed at are different. In Clibbon, the petitioner alleged that the probate court should reopen the estate because the personal representative perpetrated a fraud on him by failing to notify him of the probate proceedings. 3 The Court in Clibbon held that since the personal representative was not required to notify the petitioner of the probate proceedings, a failure to notify him could not constitute fraud. 4 In contrast, with a claim for tortious interference with an expectancy of inheritance, the tortious conduct is directed at the decedent, not the expectant beneficiaries. The Second District explained the purpose behind the tort: 3 Clibbon, 735 So. 2d at Id. at

10 Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator s interest rather than the disappointed beneficiary s expatiations. The tortious conduct required for this tort is directed at the testator. The beneficiary is not being directly defrauded, the testator is Thus, the common law court has created this cause of action... to protect the deceased testator s former right to dispose of property freely and without improper interference. 5 This distinction is critical because if someone is going to interfere with an expectancy of inheritance, that person must cause damages. 6 Causation of damages does not occur until the testator dies and the tortfeasor receives possession of assets. Therefore, preventing beneficiaries of prior estate plans from receiving assets is part of the tort of intentional interference. The district court s decision in this case does not directly conflict with Clibbon because the questions of law related to whom the tortious conduct is directed are different. B. This Court should not exercise its discretion to review the district court s decision because the questions of law related to jurisdiction and relief in Clibbon are different from the questions in this case. Second, the questions of law related to jurisdiction and relief are different. In Clibbon, the petitioner was petitioning the probate court to reopen an estate. Probate proceedings are subject to in rem jurisdiction and the probate court has equitable power to distribute the decedent s property. In Clibbon, the petitioner 5 Whalen v. Prosser, 719 So. 2d, 6 (Fla. 2d DCA 1998). 6 Claveloux v. Bacotti, 778 So. 2d 399, 400 (Fla. 2d DCA 2001). 6

11 essentially asked the court to overturn its rulings and revoke distributions of the decedent s property that had previously been made. In contrast, Mr. Schilling is not seeking to overturn probate rulings. The outcome of this case will not revoke the distributions of the decedent s property in the probate proceedings, it will not revoke distributions made to creditors, it will not reverse payment of fees to attorneys in probate, and it will not revoke orders related to family and spousal protections. Additionally, Mr. Schilling will not be able to receive an in kind distribution of the decedent s property. If Mr. Schilling is successful with this action, the rulings of the probate proceedings will not be affected. In this case, Mr. Schilling filed a Complaint in the general jurisdiction for intentional interference with an expectancy of inheritance. The trial court has in personam jurisdiction and can award remedies at law. Intentional interference with an expectancy of inheritance is an intentional tort for which the relief is money damages. 7 If Mr. Schilling is successful, he will receive the monetary value of what he would have received from his sister s estate if Ms. Herrera had not tortiously interfered with his expectancy of inheritance. This remedy will come in the form of a judgment for monetary damages against Ms. Herrera. The outcome of this case will not revoke any distributions of the decedent s property in the 7 See. Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998). Petitioner also has a constitutional right to have trial by jury in this action, which further distinguishes it from petitions in probate. Fla. Const. Art Smith v. Barnet Bank of Murray Hill, 350 So. 2d 358, 359 (Fla. 4 th DCA 1977) 7

12 probate proceedings. The district court s decision in this case does not directly conflict with Clibbon because the questions of law related to jurisdiction and relief are different. C. This Court should not review the district court s decision because the questions of law related to the doctrine of collateral estoppel in Clibbon are different from the questions in this case. Third, the questions of law related to the doctrine of collateral estoppel are different. A petition to reopen an estate will, under most circumstances, be considered a collateral attack on the probate proceedings. A completed probate proceeding is considered a final judgment on the merits. 8 A petition to reopen an estate is a direct collateral attack on a final judgment. In contrast, a suit for intentional interference with an expectancy of inheritance cannot be considered a collateral attack on probate proceedings unless the all of the elements of collateral estoppel are present. For collateral estoppel to apply to any proceeding, the cases must have both continuity of issues and continuity of parties. 9 Collateral estoppel can apply to prevent a party to the probate proceeding from collaterally attacking the probate proceeding by later filing an action for intentional interference with an expectancy of inheritance; however, for collateral estoppel to apply the party filing the action must have been a party to the probate (2) Fla. Stat. (2005). 9 Dept. of Health and Rehabilitative Services v. B.J.M, 656 So. 2d 906 (Fla. 1995); Green v. State, Dept. of Health and Rehabilitative Services, Social and Economic Services Program, 412 So. 2d 413 (Fla. 3d DCA); See. 32A Fla. Jur 2d Judgments & Decrees

13 proceedings and must be seeking to overturn issues that were resolved in probate. 10 The district court s decision in this case does not directly conflict with Clibbon because the questions of law related to collateral estoppel are different. D. This Court should not review the district court s decision because the questions of law related to public policy are different. Finally, the questions of law related to public policy are different. The Defendant argues that public policy in favor of the finality of probate proceedings should prevent Mr. Schilling from bringing this cause of action. Ms. Herrera cites DeWitt to support this proposition, which states [t]he state has an undeniable interest in settling title to property passing through probate. Consideration of public policy requires that all questions of succession to property be authoritatively settled. 11 The public policy concerns favoring finality of probate proceedings do not apply to the facts at hand for two reasons. To begin with, this case is not a collateral attack on the finality of the probate proceedings. Mr. Schilling is not seeking to invalidate a will or overturn probate rulings. The probate ruling and the distribution of the assets there under will remain in effect. If Mr. Schilling is successful, the remedy will come in the form of a judgment for monetary damages against Ms. Herrera. Since the finality of the 10 See. DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). 11 DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). 9

14 probate proceedings will not be affected, the public policy favoring finality of probate proceedings does not apply. Next, the public policy concerns allowing all harms to be redressed trump the public policy concerns favoring finality of probate proceedings under these circumstances. In this case, part of the cause of action arises from the fact that Ms. Herrera concealed the existence of the probate proceedings from Mr. Schilling. In other words, the tortious conduct continued through the conclusion of the probate process. Mr. Schilling did not discover the tortious conduct until the estate was closed. The Court in DeWitt recognized this exception, stating if the defendant s fraud is not discovered until after probate, plaintiff is allowed to bring a later action for damages since relief in probate was impossible. 12 This Court recognized that, under these circumstances, the relief in probate is inadequate and that the plaintiff is entitled to seek relief. The public policy concerns allowing all harms to be redressed trump the public policy concerns favoring finality of probate proceedings under these circumstances. CONCLUSION AND STATEMENT OF RELIEF SOUGHT This Court should not exercise its discretionary jurisdiction to review the district court s decision because it does not directly conflict with the decision of another district court on the same question of law. Mr. Schilling respectfully 12 DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981) (emphasis added). 10

15 requests this Court to deny the Ms. Herrera s request to invoke this Court s discretionary jurisdiction. Respectfully submitted by, ADRIAN PHILIP THOMAS, P.A. Attorneys for Mr. Schilling 515 Las Olas Boulevard, Suite 850 Ft. Lauderdale, FL Telephone (954) Facsimile (954) Brandan J. Pratt, Esquire Florida Bar No

16 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief of respondent has been served this day of May, 2007 upon Clark D. Mervis, Esq., 1575 San Ignacio Avenue, Suite 100A, Coral Gables, FL and upon Robert S. Glazier, 540 Brickell Key Drive, Suite C-1, Miami, Fl by regular U.S. Mail. ADRIAN PHILIP THOMAS, P.A. Attorneys for Mr. Schilling Schilling 515 Las Olas Boulevard, Suite 850 Ft. Lauderdale, FL Telephone (954) Facsimile (954) Brandan J. Pratt, Esquire Florida Bar No

17 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing initial brief of appellant complies with the requirements of Rule of Appellate Procedure 9.210(a). ADRIAN PHILIP THOMAS, P.A. Attorneys for Mr. Schilling 515 Las Olas Boulevard, Suite 850 Ft. Lauderdale, FL Telephone (954) Facsimile (954) Brandan J. Pratt, Esquire Florida Bar No