All Children's Hosp., Inc. v. Owens

• Decision Date: 29 March 2000
• Docket Number: No. 2D99-610.,2D99-610.
• Citation: 754 So.2d 802
• Parties: ALL CHILDREN'S HOSPITAL, INC.; The Police Athletic League of St. Petersburg; Lutheran Ministries of Florida; Florida Sheriffs Youth Ranches, Inc.; The Hospice Foundation; St. Jude Children's Research Hospital; National Wildlife Federation; and American Red Cross, Appellants, v. Augusta H. OWENS, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 802

ALL CHILDREN'S HOSPITAL, INC.; The Police Athletic League of St. Petersburg; Lutheran Ministries of Florida; Florida Sheriffs Youth Ranches, Inc.; The Hospice Foundation; St. Jude Children's Research Hospital; National Wildlife Federation; and American Red Cross, Appellants, v. Augusta H. OWENS, Appellee.

No. 2D99-610.

District Court of Appeal of Florida, Second District.

March 29, 2000.

Joseph W. Fleece, III, and Karen M. Kelly of Holland & Knight LLP, St. Petersburg, for Appellants.

George F. Wilsey of Fisher and Wilsey, P.A., St. Petersburg, for Appellee.

ALTENBERND, Acting Chief Judge.

The appellants (hereinafter "the Charities") are a few of the charitable organizations entitled to receive a share of the residue from the Estate of Mary Helen Nolan ("the Estate"). They appeal a final summary judgment entered against them in their action against Augusta H. Owens for tortious interference with an expectancy and for imposition of a constructive trust on assets allegedly possessed by Mrs. Owens. We affirm.

If these Charities, as residual beneficiaries, are ever permitted to pursue a claim against Mrs. Owens for tortious interference with an expectancy, such a claim has not yet accrued because the estate administration is still pending, similar claims are being advanced by a representative of the estate, and these Charities cannot claim to have been damaged until the distribution occurs. The Charities' right to eventually receive a share of any residue left in the estate does not give them the right to obtain a constructive trust for their own benefit over property that they claim should be within the estate. Even if the personal representative has already transferred a parcel of real estate or a sum of money to Mrs. Owens under a specific devise, we conclude the task of retrieving that property for the benefit of the Estate and all of its residual beneficiaries should be left to the personal representative or the administrator ad litem and not delegated to a small group of the beneficiaries.

I. THE LITIGATION IN CIRCUIT COURT

This is the fourth time that the Estate of Mary Helen Nolan has been a source of controversy in this court. See Owens v. Swindle, 730 So.2d 684 (Fla. 2d DCA 1998) (table); Owens v. Swindle, 718 So.2d 185 (Fla. 2d DCA 1998) (table); and In re Estate of Nolan, 712 So.2d 421 (Fla. 2d DCA 1998). The basic facts for all of the cases are described in In re Estate of Nolan. In a nutshell, prior to her death in 1994, Ms. Nolan was an elderly woman with significant assets. Mrs. Owens was her caretaker. After Ms. Nolan's death, her attorney became the personal representative of her estate. He eventually came to the conclusion that Mrs. Owens may have improperly influenced a change in Ms. Nolan's will in 1993, and that Mrs. Owens and her husband may have also received questionable inter vivos transfers totaling in excess of $1.7 million. Due to a potential conflict of interest, the personal representative arranged for the appointment of an administrator ad litem to pursue any claim that the Estate might have against the Owenses. The administrator ad litem is now pursuing litigation against the Owenses, the full details of which are not disclosed by this record.

The Charities involved in this case are all residual beneficiaries of Ms. Nolan's 1993 will. There are twenty-eight charities listed as residual beneficiaries. Most of these entities are bequeathed 3.0303% of the residue. Thus, the eight charities involved in this appeal are entitled to receive about 24% of the residue. The other twenty charities, which are designated to receive 76% of the residue, are not involved in the litigation. Also absent from this action is the Estate of Ms. Nolan or any representative of the Estate.

In March 1997, the Charities filed this lawsuit, case number 97-1602, against Mrs. Owens, in the general civil division of circuit court. Count I of the complaint sought a constructive trust against assets which Mrs. Owens received as a specific devisee under the will. Count II requested damages under a theory of tortious interference with an expectancy, alleging that the inter vivos transfers from Ms. Nolan to the Owenses reduced the Charities' expected distribution under the will. Mrs. Owens filed a motion to dismiss alleging, in part, that the administrator ad litem had been given express authority to file an action for constructive trust and was the sole person with standing to pursue such an action. Mrs. Owens also filed a motion requesting that this action be abated or transferred to other divisions. In May 1997, the trial court entered an order severing the two counts and transferring count I to case number 94-2910-ES-3 in the probate division, and transferring count II to case number 96-7536-CI-08, which was the action filed by the administrator ad litem in the general division to recover funds from the Owenses.

For reasons that are unclear in our record, the parties then stipulated that the Charities could file an amended complaint, which was not consolidated with either case number 96-7536 or case number 94-2910, but remained as case number 97-1602. The amended complaint is similar in many respects to the initial complaint, except that it is drafted to contain one count alleging tortious interference and requesting both damages and a constructive trust. Mrs. Owens attacked the amended complaint with a motion to dismiss and a motion for summary judgment. The motions asserted that any challenge to the provisions of the will were time-barred and that the personal representative was the only party who could seek to recover estate assets. Mrs. Owens filed documents supporting the motion for summary judgment, establishing that the Charities were given proper notice of the probate proceeding and filed no objection to the will. The trial court granted the motion for summary judgment and entered the judgment that is now pending on appeal.

II. THE CHARITIES' LEGAL THEORIES

The Charities' amended complaint contains two unusual theories of tortious interference with an expectancy. Neither theory of tortious interference is the typical claim of tortious interference "with an expected bequest" in which a plaintiff claims to have been left out of a will due to the improper actions of the defendant. See, e.g., Allen v. Leybourne, 190 So.2d 825, 826 (Fla. 3d DCA 1966). Thus, these claims warrant a closer inspection.

The Charities' first theory could be described as the "bigger piece of pie" theory. They claim that Mrs. Owens surreptitiously took in excess of $1.7 million from Ms. Nolan prior to her death. They reason that this money would have increased the residue in the estate and that their eventual payment from the estate would be larger but for this conversion. They claim that Florida recognizes a theory of tortious interference with an expectancy that permits them to pursue a monetary judgment directly against Mrs. Owens or to seek a constructive trust, as an equitable remedy, over the inter vivos transfers that she received.

The Charities' second theory could be described as the "concealed tortious specific devise" theory. Ms. Nolan's 1993 will contained a specific devise that bequeathed her home and the sum of $550,000 to Mrs. Owens. Ms. Nolan instructed her personal representative to give $50,000 of this bequest to Mrs. Owens "as soon as practicable after my death." The Charities allege that the devise was procured by undue influence, and that Ms. Nolan would not have made the specific devise if she had known about the inter vivos transfers received by the Owenses. They contend that Mrs. Owens fraudulently concealed the inter vivos transfers, thus preventing the Charities from discovering the alleged misconduct in time to file a timely objection to the specific bequest in the will. They reason that, had they filed such an objection, they would have prevailed and these additional assets would have become a part of the residual estate.¹ They request either a constructive trust of the home and all other assets devised to Mrs. Owens or an equivalent monetary judgment.²

III. DISCUSSION

As to both theories, we begin with the concern that the Charities are only a fraction of the residual beneficiaries. Their lawsuit seeking a monetary judgment is not a class action for all beneficiaries.³ Given that the personal representative or the administrator ad litem can pursue claims for the benefit of all recipients under the will, this action either duplicates those efforts or is an attempt to gain an advantage over the other beneficiaries. See generally, § 731.303(2)(b)(3), Fla. Stat. (1993). We are not inclined to believe that such a lawsuit should be permitted during the pendency of the Estate, at least barring some exceptional circumstance not present in this case. Even if the Charities could obtain a constructive trust consisting of the home and the money received by Mrs. Owens for all residual beneficiaries and not just for themselves, we are inclined to believe that this equitable remedy would duplicate the functions that should be performed within the probate proceeding.

a. The "Bigger Piece of Pie" Theory.

As we have previously noted, tortious interference with an expectancy is a relatively new and undeveloped tort in Florida. See Whalen v. Prosser, 719 So.2d 2 (Fla. 2d DCA 1998). We have never permitted a claim similar to the Charities' theories except perhaps in Carlton v. Carlton, 575 So.2d 239 (Fla. 2d DCA 1991). Carlton, however, is distinguishable because it involved a unique circumstance in which the tortfeasor had died and any claim against his estate needed to be filed by other members of the family within the time allowed for claims against that estate.

To support their cause of action, the Charities focus upon one sentence of dicta in DeWitt v. Duce, 408 So.2d 216, 219 (Fla.1981):

If defendant's tortious conduct had caused the testator to make an inter vivos conveyance to

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