Becklund v. Fleming

• Decision Date: 10 October 2003
• Docket Number: No. 2D02-4069.,2D02-4069.
• Citation: 869 So.2d 1
• Parties: Janice Melroe BECKLUND, Appellant, v. Donna M. FLEMING, individually and as Trustee of the William J. Fleming Family Trust dated 7 May 1993, Appellee.
• Court: Florida District Court of Appeals

869 So.2d 1

Janice Melroe BECKLUND, Appellant, v. Donna M. FLEMING, individually and as Trustee of the William J. Fleming Family Trust dated , Appellee.

No. 2D02-4069.

District Court of Appeal of Florida, Second District.

October 10, 2003.

Rehearing Denied November 26, 2003.

Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and William C. Merchant of Cottrell, Warchol, Merchant & Rollings, L.L.P., Cape Coral, for Appellant.

Renée Marquis-Abrams and J. Stephen Tierney of Neill, Griffin, Fowler, Tierney, Neill & Marquis, Chartered, Fort Pierce, for Appellee as Trustee.

No appearance for Appellee individually.

WALLACE, Judge.

This case concerns a claim made by the creditor of a decedent against the decedent's revocable trust and the trustee individually. Janice Melroe Becklund ("the Creditor") appeals the trial court's order dismissing with prejudice her amended complaint filed against Donna Fleming, individually and as trustee of the William J. Fleming Family Trust ("the Trustee"). For the reasons set forth in this opinion, we affirm in part, reverse in part, and remand for further proceedings.

The Facts

The pertinent facts are alleged in the Creditor's amended complaint. For purposes of our review, we must assume the factual allegations of the amended complaint to be true and construe them in the light most favorable to the Creditor as the nonmoving party. See Hosp. Constructors Ltd. v. Lefor, 749 So.2d 546, 547 (Fla. 2d DCA 2000)

. The Creditor was married to William J. Fleming ("the Decedent"). The Decedent was the father of the Trustee and the settlor of the William J. Fleming Family Trust dated May 7, 1993 ("the Trust").¹ Upon the Decedent's death, if not earlier, the Trustee became the successor trustee of the Trust.

The Creditor and the Decedent obtained a dissolution of their marriage in Arizona on March 22, 1993. The Arizona decree of dissolution approved and incorporated by reference their property settlement agreement. As part of the property settlement agreement, the Creditor paid the Decedent $150,000 in exchange for a promissory note from the Decedent in a like amount. The Decedent's $150,000 promissory note held by the Creditor provided, in pertinent part:

This note shall be due and payable in installments of fifty percent (50%) of any and all proceeds received by the undersigned in connection with the sale of the real property commonly known as "Cape Coral" located in the State of Florida in which the undersigned has an ownership interest. These payments shall be made to Payee within thirty (30) days of the receipt of those proceeds by the undersigned. Any unpaid balance shall be due at the time of the death of the undersigned and shall be paid in full from any of the assets of the undersigned.

The note was unsecured and did not bear interest. On July 7, 1993, the Decedent conveyed the Cape Coral property referred to in the note to himself as trustee of the Trust.

The Decedent died on May 15, 1995. At the time of his death, he had not made any payments on the note to the Creditor. The note remains unpaid.

In September 1994, the Decedent had entered into a contract for the sale of the Cape Coral property to Rottlund Homes of Florida, Inc. After his death, the Trustee sold a portion of the property. The Trustee's representatives told the Creditor's attorney that "the sale was to insure payment of taxes." The Creditor's amended complaint did not contain allegations concerning the disposition of the remaining portion of the property. Nevertheless, copies of numerous addenda to the contract with Rottlund Homes appear in the record on appeal. These addenda indicate that the closing date for the sale of the property was repeatedly extended over a number of years. The Trustee's counsel informed this court at oral argument that the sale of the remaining portion of the property still has not occurred.

After the Decedent's death, the Creditor's attorney corresponded with the Trustee's representatives. The Creditor's attorney made "numerous requests" for payment on the note, requested a mortgage on the property to secure payment, and threatened legal action. Although this fact is not entirely clear from the allegations of the amended complaint and the exhibits attached to it, the Creditor's attorney may have also had informal discussions by telephone with the Trustee's representatives concerning these matters. The Trustee's representatives assured the Creditor's attorney that the Creditor would be paid upon the sale of the property and asked the Creditor's attorney to forbear from any legal action because this would jeopardize the pending sale of the property to Rottlund Homes.

The Probate Proceeding

An estate was opened for the Decedent in Indian River County, Florida, more than two years after his death. The Trustee was appointed as the personal representative of the Decedent's estate. The Creditor's claim on the note, filed in the probate proceedings more than two years after the expiration of the two-year statute of nonclaim imposed by section 733.710, Florida Statutes (1993), was ultimately held to be barred. See Becklund v. Fleming (In re Estate of Fleming),786 So.2d 660 (Fla. 4th DCA 2001)

. The Fourth District held that the Creditor's contention that she had been fraudulently induced to delay filing her claim in the estate was ineffective to extend the bar of the statute of nonclaim. Id. at 661. See generally May v. Ill. Nat'l Ins. Co., 771 So.2d 1143 (Fla.2000); Dobal v. Perez, 809 So.2d 78, 80 (Fla. 3d DCA 2002).

The Creditor's Claims

On March 21, 2000, after the Trustee had objected to the Creditor's claim filed in the probate proceeding but before the objection was finally resolved, the Creditor filed a separate action in Lee County, Florida. The Creditor initially sued the Trustee not only individually and as trustee of the Trust but also in her capacity as personal representative of the Decedent's estate. After the Fourth District held that the Creditor's claim filed in the probate proceeding was barred, Becklund, 786 So.2d at 661, the Creditor dropped her claim against the Trustee in her capacity as personal representative. She then filed her amended complaint against the Trustee individually and as trustee of the Decedent's Trust. The claims that the Creditor pleaded in her amended complaint were as follows:

Count I—Fraud, based upon the socalled "lulling promises" allegedly made by the Trustee's representatives.

Count II—Promissory Note, an action on the note executed by the Decedent.

Count III—Equitable Lien, a request for the imposition of an equitable lien on the Cape Coral property to secure the payment of the note.

Count IV—Oral Contract, an action based upon promises of payment to be made upon the sale of the Cape Coral property allegedly made by the Trustee after the Decedent's death.

Count V—Unjust Enrichment, a claim that the Trustee would be unjustly enriched at the Creditor's expense if she were not required to pay the note.

The Trustee moved to dismiss the amended complaint for failure to state a cause of action and on account of improper venue. After consideration of extensive memoranda of law submitted by the parties, the trial court entered a thoughtful and detailed order finding that all of the Creditor's claims, as pleaded, were barred. Based upon that conclusion, the trial court dismissed the Creditor's amended complaint with prejudice. The trial court's order did not address the Trustee's objections to venue. This appeal followed.

The Standard of Review

The applicable standard of review for a trial court's decision granting a motion to dismiss is de novo review. See Ruiz v. Brink's Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001)

; W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999). Moreover, where, as in this case, the trial court dismisses a complaint with prejudice at a relatively early stage in the proceedings, we follow the principles summarized in Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998):

A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action. See Countryside Christian Center, Inc. v. City of Clearwater, 542 So.2d 1037 (Fla. 2d DCA 1989)

; Central Florida Inv., Inc. v. Levin, 659 So.2d 492 (Fla. 5th DCA 1995). Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion. See Harper Companies v. Scott, Royce, Harris, Bryan, Barra, & Jorgensen, P.A., 656 So.2d 627 (Fla. 4th DCA 1995); Kovach v. McLellan, 564 So.2d 274 (Fla. 5th DCA 1990).

Therefore, unless we are able to conclude that the Creditor is unable to plead any facts that would entitle her to relief, we are required to give her an opportunity to do so. See Clements v. Hillsborough County Health Dep't, 837 So.2d 1085, 1085 (Fla. 2d DCA 2003)

; Dominion of Can. v. State Farm Fire & Cas. Co., 754 So.2d 852, 857 (Fla. 2d DCA 2000); Williams v. Sebring Hous. & Dev., 723 So.2d 359, 359 (Fla. 2d DCA 1998).

The Applicable Law

The Creditor's claim against the Decedent's estate was barred by her failure to file her claim against the estate within the two-year period established by section 733.710, Florida Statutes (1993). Becklund, 786 So.2d at 661. Likewise, the Trust was protected from any liability it may have had under sections 733.607(2) and 733.707(3) because the Creditor did not hold an "enforceable and timely filed" claim in the Decedent's estate.² See Estate of Read v. A.D.K. Props., 766 So.2d 393 (Fla. 2d DCA 2000)

(construing a later version of section 733.707(3) that was substantially similar to the version of section 733.707(3) in effect on the...