IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC06- TIMOTHY M. CORNELL, JR., and MARK CORNELL, petitioners, vs. JULIA MORGAN, respondent. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, CASE NO. 2D INITIAL BRIEF ON JURISDICTION Goldman Felcoski & Stone, P.A. Jon Scuderi, FBN Counsel for Petitioners The 745 Building th Avenue South Suite 101 Naples, FL

2 TABLE OF CONTENTS TABLE OF CONTENTS.. i TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 JURISIDICTIONAL STATEMENT 4 ARGUMENT 4 THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN IN RE BLOCKS ESTATE, 196 SO. 410 (FLA. 1940) THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE ALSO EXPRESSLY AND DIRECTLY CONFLICTS WITH NESBITT V. EISENBERG, 139 SO. 2D 724 (FLA. 3D DCA 1962).. 8 CONCLUSION 10 CERTIFICATE OF SERVICE. 11 CERTIFICATE OF FONT SIZE.. 11 i

3 Cases TABLE OF AUTHORITIES Boyle v. Howe, 171 So. 667 (Fla. 1935) 7 Burckhardt v. Burckhardt, 42 Ohio St. 474, 492, 1885 WL 42 (Ohio 1885). 9 Clifton v. Clifton, 553 So. 2d 192 (Fla. 5 th DCA 1989). 7 Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1 st DCA 1996) 10 Elmore v. Elmore, 99 So. 2d 265 (Fla. 1957)..6 Estate of Lesher, 365 So. 2d 815 (Fla. 1 st DCA 1979) 10 Estate of Murphy, 340 So. 2d 107 (Fla. 1976) 6, 7 Estate of Walters, 700 So. 2d 434 (Fla. 1935) 7 First Union National Bank of Florida, N.A. v. Frumkin, 659 So. 2d 463 (Fla. 3d DCA 1995) 5 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981) 4 In re Blocks Estate, 196 So. 410 (Fla. 1940). 5 In re Pratt s Estate, 88 So. 2d 499 (Fla. 1956) 7 Morgan v. Cornell, 939 So. 2d 344 (Fla. 2d DCA 2006) 4, 8 Nesbitt v. Eisenberg, 139 So. 2d 724 (Fla. 3d DCA 1962). 8, 9 Persaud v. State, 838 So. 2d 529 (Fla. 2003)..4 ii

4 Constitution and Statutes and Rules Art. V, 3(b)(3) Fla. Const. (1980) (1), Fla. Stat 6 Fla. R. App. P (a)(2)(A)(iv) 4 iii

5 STATEMENT OF THE CASE AND FACTS Timothy M. Cornell, Jr. and Mark Cornell are the petitioners before this Court, and the appellees in the district court ( petitioners ). The petitioners are the decedent Mr. Cornell s sons. The respondent is Julia Morgan, the decedent Mr. Cornell s long-time companion. Mr. Cornell passed away on April 6, (O.1). Mr. Cornell included the following clauses in his will: (O.1-2). (E) If I own the home [in] New Hampshire at my death, I leave said home and real estate together with the contents therein to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple as Tenants in Common to her children, per stirpes. (F) If I own the home [in] Naples, Florida at my death, I leave said home and real estate together with the contents therein which were purchased by Julia and myself to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple to my children, as Tenants in Common. In the probate court, the personal representative filed a petition seeking construction of the language used in the above quoted conditional devises. (O.2). The personal representative alleged that the language If I own the home was unclear in extent, nature and meaning and could be 1

6 interpreted two ways. (O.2). On the one hand, the words If I own the home could be read to mean to the extent I own the home so that the devise would be effective if Mr. Cornell owned less than one hundred percent of the homes. (O.2) On the other hand, the words If I own the home, could be interpreted literally, in which case the devise would be effective only if Mr. Cornell owned one hundred percent of the homes. (O.2). If the second interpretation were operative, the condition would fail and the property would pass to the residue of the estate. (O.2). We, the petitioners, filed a summary judgment motion asserting that the language was not ambiguous and that the devise would only be effective if Mr. Cornell owned one hundred percent of the home at the time of his death. (O.2). The probate court agreed and made the following ruling: (O.2). There is no genuine issue of material fact. The language in the will regarding the specific devises of real property is not ambiguous. If Mr. Cornell is not the 100% owner of the specified properties, then the specific devises will fail and Mr. Cornell s interests in the properties will pass through the residuary clause. The Second District Court of Appeal agreed that the language did not contain an ambiguity, however they reversed the probate court holding that the probate court erred when it placed a limitation on the kind of ownership 2

7 required to trigger the condition. The district court reversed and remanded for further proceedings consistent with its opinion. (O.3). SUMMARY OF THE ARGUMENT Expressly and directly conflicting with several of this Court s cases and several district courts of appeal cases, the second district has not only rewritten Mr. Cornell s will, but has also rewritten the law of wills. In construing Mr. Cornell s will, the Second District Court of Appeal expressly and directly conflicted with long standing Florida law that a court cannot use extrinsic evidence to construe an unambiguous will. Additionally, the court expressly and directly conflicted with the cases that state the language employed in the will must control rather than the language intended to be used or rather than the intention which existed in the mind of the testator. Finally, in making its ruling, the district court of appeal directly and expressly conflicted with the decisions of this Court and other districts that a court cannot alter a will, that the intention of the testator as expressed in his will controls the legal effect of his dispositions, and that the words in the will should be given their plain and ordinary meaning. 3

8 JURISDICTIONAL STATEMENT The Supreme Court of Florida has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art. V, 3(b)(3) Fla. Const. (1980); Fla. R. App. P (a)(2)(A)(iv). The conflicting decisions need not be explicitly identified in the opinion so long as the conflicting rule of law is expressed in the opinion under review. Persaud v. State, 838 So. 2d 529, 532 (Fla. 2003); Ford Motor Co. v Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN IN RE BLOCKS ESTATE, 196 SO. 410 (FLA. 1940) The Second District Court of Appeal relied on extrinsic evidence to construe an unambiguous will. In the decision of the district court, reported as Morgan v. Cornell, 939 So. 2d 344 (Fla. 2d DCA 2006) (Appendix A), the court determined that the language in devises was not ambiguous. (O.2). In construing the devise, the court clearly considered that Mr. Cornell owned the properties as a tenant in common (O.3) and also assumed that Mr. 4

9 Cornell was attempting to devise life estates in his real property interests to Julia Morgan (O.1). The second district s decision directly and expressly conflicts with In re Blocks Estate, 196 So. 410 (Fla. 1940) and First Union National Bank of Florida, N.A. v. Frumkin, 659 So. 2d 463 (Fla. 3d DCA 1995). Those cases state that a court may not consider parol or extrinsic evidence in analyzing an unambiguous will. Yet that is exactly what the district court did. The district court, on page three of the opinion, clearly focused on the fact that Mr. Cornell owned the property as a tenant in common. (O.3). 1 Both the probate court and the district court agreed that the will was not ambiguous, thereby precluding either court s consideration of extrinsic evidence. (O.2) How the property was titled was extrinsic to the will and should not have been considered by the district court. Id. at 464. Additionally, the district court said, In his will executed some eighteen months before his death, Mr. Cornell attempted to leave a life estate in his real estate interests to Ms. Morgan, but his heirs challenged the devises. (O.1). The district court also stated, and each devise validly passed a life estate in his undivided half interest to Ms. Morgan just as he 1 The opinion states on page 3 that the parties agreed that the property was owned as tenants in common. That statement is misleading. While the manner in which the property was titled is not in issue, it was irrelevant for purposes of our summary judgment motion. 5

10 intended. (O.3) Here, the district court not only considered extrinsic evidence, but it improperly assumed what was in Mr. Cornell s mind when he executed his will and assumed that Mr. Cornell wanted his conditional devises to be effective as long as he owned any part of the homes. It is not clear how the district court could make such an assumption. It is, of course, impossible to tell from the will what a testator might actually have had in mind when contemplating the distribution of his or her estate. That is why courts are required to focus on the testator s intent as expressed in the will. 2 Estate of Murphy, 340 So. 2d 107, 109 (Fla. 1976); (1), Fla. Stat. The district court, again considering extrinsic evidence, made the following conclusion, And there is no question that Mr. Cornell knew that he owned these properties as a tenant in common with Ms. Morgan. 3 (O.2). The district court analyzed how the property was titled, assumed what Mr. Cornell knew, assumed that it was Mr. Cornell s intent to devise his interests to Ms. Morgan, and then interpreted the will accordingly, even 2 A will speaks to assets owned at death, so how Mr. Cornell owned assets at the time he executed his will, if properly considered, is not dispositive of intent. See Estate of Murphy, 340 So. 2d 107, 109 (Fla. 1976). 3 The district court stated that we asserted that Elmore v. Elmore, 99 So. 2d 265 (Fla. 1957) was exactly on point and controls this case. That statement is inaccurate. Elmore is not on point and we never argued that it was. We only pointed out that to the extent this Court in Elmore applied the literal language used in the will causing the devise to fail, and to the extent this Court refused to rewrite the will, then Elmore has some applicability to our pending case. 6

11 though the will actually said something different. By first analyzing the extrinsic evidence and then construing the will in accordance with the extrinsic evidence, the district court has changed the way that courts analyze unambiguous wills. Finally, to the extent the district court made assumptions about what Mr. Cornell was intending to accomplish (O.1), here too, the district court of appeal is in direct and express conflict with Estate of Murphy, 340 So. 2d at 109 (the intention expressed in the will controls and not that which the testator might have had in mind when the will was executed); Boyle v. Howe, 171 So. 667 (Fla. 1935) (the language employed in the will must control rather than the language intended to be used or rather than the intention which existed in the mind of the testator); Estate of Walters, 700 So. 2d 434 (Fla. 4 th DCA 1997) (intention expressed in the will controls and not that which the testator had in mind when the will was executed); Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5 th DCA 1989) ( The actual intent of the testator not expressed in the will itself must give way to the residuary clause, as the only valid indicator of the decedent s intent. ); and In re Pratt s Estate, 88 So. 2d 499 (Fla. 1956) ( The law of wills is calculated to avoid speculation as to the testator s intent and to concentrate upon what he said rather than what he might, or should, have wanted to say. ). 7

12 The rules in the conflicting decisions are the very foundation for the construction of wills in Florida. They are relied upon by all estate planners. It is important for this Court to maintain the consistency and certainty of those rules because they impact every citizen s estate plan. We respectfully request that this Court grant discretionary review and resolve the conflict by quashing the decision of the district court. THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE ALSO EXPRESSLY AND DIRECTLY CONFLICTS WITH NESBITT V. EISENBERG, 139 SO. 2D 724 (FLA. 3D DCA 1962) The Second District Court of Appeal, in Morgan v. Cornell, 939 So. 2d 344 (Fla. 2d DCA 2006) (Appendix A), improperly added words to reconstruct or alter the language in the will. The district court, in its ruling, effectively rewrote the devises to say as follows: If I own the home, or an interest in the home, [in] New Hampshire at my death, I leave said interest in the home and real estate together with the contents therein to Julia H. Morgan. The words in bold reflect the words the district court effectively added. The second district s decision directly and expressly conflicts with the legal principle stated in Nesbitt v. Eisenberg, 139 So. 2d 724, 726 (Fla. 3d DCA 1962). A court may not reconstruct or alter a will according to the 8

13 notion of what the testator should have done. Id. Yet that is what the district court did in our case 4. Instead, the district court should have considered the plain language in the will. If Mr. Cornell had intended for the conditional devises to be effective if he owned less than one hundred percent of the homes, then he easily could have said so. He easily could have said, if I own the home, or any part of the home, or if I own the home, or an interest in the home. However, he did not. Additionally, if the condition were met, Mr. Cornell, in the same clause of the will, devises a remainder interest to various folks as tenants in common. He was very specific and very aware of what form of ownership the remainder folks would have if the conditional devises were effective. Yet he chose not to use similar language when specifying the terms that would satisfy the condition and make the devise effective. He did not say, If I own the home as a tenant in common. One must conclude that he did not 4 The district court suggested that the fact that Mr. Cornell omitted the word solely in the conditional devises further bolstered their opinion. (O.3). However, plain English would dictate that the words If I own the home mean the same thing as If I solely own the home. See Burckhardt v. Burckhardt, 42 Ohio St. 474, 492, 1885 WL 42 (Ohio 1885) ( I own Blackacre, which means that I possess the right as against all the world to use and enjoy it, without lawful interference, and to transfer it at pleasure. ) 9

14 do so by choice. The district court cannot reconstruct the will in order to accomplish what it assumes Mr. Cornell was trying to do. And once they started adding words, they could not stop. Mr. Cornell specifically said, If I own the home I leave said home. That clause only makes sense if he owned one hundred percent of the home. If he did not own one hundred percent of the home, then he would only have an interest in a home to devise, not the home to devise. Finally, by refusing to apply the words If I own the home literally, the second district s decision directly and expressly conflicts with Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1 st DCA 1996) ( The intention of the testator as expressed in his will controls the legal effect of his dispositions. ) and Estate of Lesher, 365 So. 2d 815 (Fla. 1 st DCA 1979) (words should be given their plain and ordinary meaning when construing a will). We respectfully request that this Court grant discretionary review and resolve the conflict by quashing the decision of the district court. CONCLUSION This Court has discretionary jurisdiction to review the district court s decision below. And, in light of the core will construction issues presented by this case, the Court should exercise its discretion and re-settle Florida law. 10

15 Respectfully submitted, GOLDMAN FELCOSKI & STONE P.A. The 745 Building Suite th Avenue South Naples, FL Telephone: (239) Jon Scuderi, FBN CERTIFICATE OF SERVICE I CERTIFY that a true copy of this document was served by U.S. mail on Laird Lile, Laird A. Lile, P.A., 3033 Riviera Drive, #104, Naples, FL and D. Keith Wickenden, Esquire, counsel to respondent Julia Harmon Morgan, 5551 Ridgewood Drive, Suite 501, Naples, FL on November, Jon Scuderi CERTIFICATE OF FONT SIZE I CERTIFY this brief complies with the font requirements of rule 9.210, Florida Rules of Appellate Procedure. Jon Scuderi 11