Dimuccio v. D'Ambra, 90-271-CIV-T-17A.
| Decision Date | 09 October 1990 |
| Docket Number | No. 90-271-CIV-T-17A.,90-271-CIV-T-17A. |
| Citation | 750 F. Supp. 495 |
| Parties | Anna DIMUCCIO and Frank Ciaramello, Jr. as Executors of the Estate of Frank B. Ciaramiello a/k/a Bartholomeo Ciaramiello, Sr. a/k/a Bartholomeo Ciaramiello, a/k/a Bartholomeo Ciaramello, Plaintiffs, v. Gladys D'AMBRA, Gabriel D'Ambra and Louis Kirshenbaum, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Steven Gale Nilsson, Clearwater, Fla., for plaintiffs.
Thomas Theron Steele, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Fla., for defendants.
This cause is before the Court on the following:
Frank B. Ciaramiello, who died November 25, 1988, at age 86, was a citizen of Rhode Island. He had five children of whom Gladys D'Ambra was the eldest. Anna Dimuccio, another daughter, and Frank Ciaramello, Jr., a son, are executors of the Decedent's estate which is currently being administered in the Probate Court of the City of Providence, Rhode Island. The Defendants, Gladys D'Ambra and her husband Gabriel (Gabe) D'Ambra live in Sarasota, Florida.
As he aged, the Decedent's health failed. During the period from approximately February to June of 1988, the Decedent left his home in Providence, Rhode Island and stayed with Gladys and Gabe D'Ambra at their home in Sarasota, Florida, except for periodic visits to other locations in Florida. Thereafter, he returned to Providence. The Decedent suffered a stroke in September, 1988, and was subsequently declared incompetent by a Rhode Island Court.
Louis Kirshenbaum had previously practiced law in Providence, Rhode Island, and had represented various members of the D'Ambra family for approximately forty years before his death on April 14, 1990. Kirshenbaum and his wife had moved to Sarasota but he was not licensed to practice law in Florida. The Kirshenbaums socialized with the D'Ambras in Sarasota. Since Louis Kirshenbaum is deceased, he is no longer a party to this action.
Plaintiffs contend that the D'Ambras exerted undue influence over the Decedent so that the Decedent placed real property (a home) and financial bank accounts in joint names with Gladys D'Ambra. They further allege that Defendants breached their fiduciary duties toward the Decedent and fraudulently induced him to make the transfers. As a result, in 1989, Plaintiffs sued the D'Ambras in the Twelfth Judicial Circuit Court in and for Sarasota, Florida. Louis Kirshenbaum was not a Defendant in the state court case. The proceedings in the state court are described below.
A. Plaintiffs filed an original complaint that named Gladys D'Ambra as Defendant. The complaint consisted of only two counts for declaratory judgment, and no count for civil theft.
B. On September 11, 1989, Plaintiffs filed their First Amended Complaint naming Gladys and Gabriel D'Ambra as Defendants. The First Amended Complaint set out three counts:
In Count I, Plaintiffs requested the Court to issue a declaratory judgment (i) that creation of the financial accounts in the joint names of Gladys and the Decedent, along with the transfers to the accounts described in paragraph 19 hereof, were the direct result of the fraud, undue influence and breach of fiduciary duties perpetuated by Defendants upon the Decedent; (ii) that the financial accounts belonged to the Decedent and passed to his estate at the time of his death; and (iii) awarding to Plaintiffs such portions of the financial accounts that remain in existence plus all costs, attorney's fees, additional and supplemental relief and damages, including statutory prejudgment interest, to which Plaintiffs are entitled.
In count II, Plaintiffs sought a declaratory judgment (i) that Gladys' name was only placed upon the warranty deed to the home as a joint owner with right of survivorship because of the fraud, undue influence and breach of fiduciary duties perpetuated by Defendants upon the Decedent; (ii) that the home belonged to the Decedent and passed to his estate at the time of his death; (iii) that the warranty deed was not effective to pass title to the home to Gladys upon the Decedent's death; and (iv) awarding to Plaintiffs all costs, attorney's fees and additional and supplemental relief to which Plaintiffs are entitled."
In Count III, Plaintiffs alleged that Defendants had committed thefts of the Decedent's property in violation of Fla.Stat. § 812.014. Plaintiffs asked that the Court issue a judgment pursuant to Florida Statutes § 772.11 awarding Plaintiffs treble damages based on the value of the financial accounts and the home at the time of the Decedent's death, plus accrued statutory interest, along with all costs, attorney's fees and other relief to which Plaintiffs are entitled.
C. Gladys D'Ambra moved for dismissal of the Amended Complaint. On January 16, 1990, Circuit Judge James S. Parker granted the motion to dismiss Plaintiffs' Amended Complaint. Judge Parker's dismissal order stated:
Plaintiffs claim that the dismissal order is ambiguous as to whether the original complaint, or the Amended Complaint was dismissed, (although the first sentence states that "Defendant's Motion to Dismiss Plaintiffs' Amended Complaint is granted.")
In support, Plaintiffs point out that the style of the case on the order was the style used in the original complaint and named only Gladys D'Ambra. Because the order names only Gladys D'Ambra as Defendant, Plaintiffs contend that the order affects only Gladys D'Ambra and does not adjudicate any of the claims against Gabriel D'Ambra. In addition, because the order dismissed Count III of the Complaint, not the Amended Complaint, Plaintiffs contend that the order is ambiguous because the original Complaint did not contain Count III.
D. On February 1, 1990, Plaintiffs filed an Amended Complaint in state court. The first paragraph read, "By filing this Amended Complaint, Plaintiffs do not waive or concede any rights they have to the causes of action specified in their First Amended Complaint because of defects which exist on the face of the Order on Motion to Dismiss or for any other reason." In their Amended Complaint, Plaintiffs asked for imposition of a constructive trust and reformation and cancellation of part of the deed.
E. On February 22, 1990, Plaintiffs filed a notice of voluntary dismissal of the Amended Complaint they filed February 1, 1990.
On March 6, 1990, Plaintiffs filed a complaint in the United States District Court for the Middle District of Florida, and on April 2, they filed their First Amended Complaint in the District Court. The First Amended Complaint, except for minor jurisdictional allegations and allegations regarding Defendant Kirshenbaum, is identical to all three counts of the Amended Complaint dismissed by the Sarasota Circuit Court.
Plaintiffs set out three counts in their First Amended Complaint filed in this Court. In Count I, Anna Dimuccio and Frank Ciaramello, Jr. (Plaintiffs), as executors of the estate of Frank B. Ciaramiello a/k/a Bartholomeo Ciaramiello, Sr. a/k/a Bartholomeo Ciaramello (Decedent) seek a declaratory judgment under Chapter 86 of the Florida Statutes (i) that creation of financial accounts in the joint names of the Decedent and Defendant Gladys D'Ambra, along with transfers to those accounts were the direct result of the actual and constructive fraud, undue influence and breach of fiduciary duties perpetrated by Gabriel (Gabe) and Gladys D'Ambra (D'Ambras) upon the Decedent; (ii) that the financial accounts belong to the Decedent and passed to his estate at the time of his death; and (iii) that Plaintiffs should be awarded the portions of the financial accounts that remain in existence plus all costs, attorney's fees, and additional and supplemental relief and damages, including statutory prejudgment interest, to which Plaintiffs are entitled.
In count II, Plaintiffs seek a declaratory judgment (i) that Defendant Gladys D'Ambra's name was placed on a residential real estate warranty deed (with Decedent's) as a joint owner with right of survivorship because of the actual and constructive fraud, undue influence and breach of fiduciary duties perpetuated by Defendants D'Ambra and Louis Kirshenbaum (Kirshenbaum); (ii) that the home belonged to the Decedent and passed to his estate at the time of his death; (iii) that the warranty deed was not effective to pass title to the home to Gladys upon the Decedent's death; and (iv) that Plaintiffs should be awarded all costs, attorney's...
To continue reading
Request your trial
-
Britain v. Britain (In re Estate of Britain)
...to dismiss, the district court obviated any need to certify the issue.4 The district court and Kelly also cite to Dimuccio v. D’Ambra, 750 F.Supp. 495, 499 (M.D. Fla. 1990) which states: "A request that the Court determine rights due to alleged fraud and undue influence, which are facts ext......
-
Dimuccio v. D'Ambra
...estate, sue their eldest sister and her husband, alleging fraud, undue influence and breach of fiduciary duty. See, Dimuccio v. D'Ambra, 750 F.Supp. 495 (M.D.Fla.1990). Plaintiffs, Anna Dimuccio and Frank Ciaramello, Jr., contend their father intended that upon his death his five children s......
-
Doctor Rooter Supply & Serv. v. McVay
...co-owner has a superior legal interest that authorizes the withholding of the property." (citation omitted)), and Dimuccio v. D'Ambra, 750 F.Supp. 495, 501 (M.D. Fla. 1990) (concluding plaintiffs' allegations did not meet the elements of civil theft because the party who took the money was ......
-
Tangerine Bay Co. v. Derby Road Investments
...dismissed the civil theft claim, that the claim lacked substantial fact or legal support. The subsequent federal case, Dimuccio v. D'Ambra, 750 F.Supp. 495 (M.D.Fla.1990), describes the state court procedural history; it appears that there was no trial, summary judgment, or other evidentiar......