DiProspero v. Shelby Mut. Ins. Co. of Shelby, Ohio, s. 79-285
| Decision Date | 24 June 1981 |
| Docket Number | Nos. 79-285,80-184 and 80-232,s. 79-285 |
| Citation | 400 So.2d 177 |
| Parties | Angela DiPROSPERO, Administratrix of the Estate of Mauro DiProspero, Deceased, Appellant, v. SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, West American InsuranceCompany, and Kathleen Doyle, Administratrix of the Estate of James Doyle,Deceased, Appellees. Felice DiPROSPERO and Angela DiProspero, his wife, jointly and severally,Angela DiProspero, as Administratrix of the Estate of Maria L. DiProspero,Deceased, Lisa Filomena DiProspero, individually and Linda Marie DiProspero, aminor, by FeliceDiProspero, her father and next friend, Appellants, v. Kathleen DOYLE, individually, and Kathleen Doyle, Administratrix of the Estateof James Doyle, Deceased, Appellee. Robert E. FUER, personal representative ad litem of the Estate of MauroDiProspero, Deceased, Appellant, v. Kathleen DOYLE and Angela DiProspero, personal representatives of the Estate ofMauro DiProspero, Deceased, Appellees. |
| Court | Florida District Court of Appeals |
H. Mark Purdy of Parkhurst, LaHurd & Purdy, P.A., Fort Lauderdale, for appellant.
Jack H. Vital, III, of Simons & Schlesinger, P.A., Fort Lauderdale, for appellees, in both cases.
Gerald M. Morris and Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, and Gary M. Fader of Pallotto, Weir & Hayson, Hollywood, for appellants.
Joel D. Eaton of Podhurst, Orseck & Parks, P.A., Miami, for appellee, Doyle.
This opinion disposes of three appeals designated as Case No. 79-285, Case No. 80-184, and Case No. 80-232. We affirm in part and reverse in part. The basic facts are that on December 15, 1975, Mauro DiProspero shot and killed two neighbors (James Doyle and Howard Wentworth), and his own wife, Maria DiProspero. Mauro DiProspero then shot himself but he did not die until February 9, 1976. Although Mr. DiProspero was charged with murder, he died before being brought to trial. These incidents brought about extensive legal proceedings and the complex appellate problems presented in the three aforementioned cases.
In the Circuit Court of Broward County at least two probate actions were filed along with three wrongful death actions the latter being designated as:
(1) Wentworth v. DiProspero, Case No. 76-703;
(2) Doyle v. DiProspero, Case No. 76-5343; and
(3) DiProspero v. DiProspero, Case No. 76-8290.
Unfortunately, these three cases have never been consolidated. Indeed, the probate cases and the separate wrongful death cases have each proceeded before different judges and have resulted in conflicting orders and judgments. Each of the three wrongful death cases was settled by agreement which generally provided that the plaintiff in each case would receive one-third of the net assets of Mauro DiProspero's estate. Numerous disputes arose within each wrongful death action in attempting to compute the value of the estate and these disputes are the bases for the present appeals. 1
We are not certain how the status and title to the real property could be determined in a wrongful death action without making all interested persons parties to that action. Clearly, from a practical point of view, the net assets of the estate of the decedent, Mauro DiProspero, should be determined in the estate proceeding in the probate division and not in three separate wrongful death actions. A determination of net assets requires consideration of the claims of creditors. These are within the exclusive jurisdiction of the probate division. Strangely, no party has raised this problem in any of the appeals.
At the time of his death, Mauro DiProspero and Maria DiProspero owned a marital home as tenants by the entireties. In addition, Mauro DiProspero and Maria DiProspero along with their daughter Angela DiProspero, and her husband, Felice DiProspero owned an interest in an apartment house. By virtue of the stipulations entered in the two wrongful death actions on the appeal here, the two judges in the different wrongful death actions were called upon to decide the ownership status and value of the real estate in which Maria and Mauro DiProspero had an interest prior to their deaths. They were also called upon to decide what property passed to Mauro as a result of Maria's death and what property passed to Mauro and Maria's child Angela. Since each settlement was to be based on the net value of Mauro's estate all of the rulings and cases are interrelated.
We will discuss initially Case No. 80-184. Mrs. Doyle filed a wrongful death action against Angela DiProspero as personal representative of the estate of Mauro DiProspero for the wrongful death of Mrs. Doyle's husband. This wrongful death case was settled by an agreement that plaintiff, Doyle, was to receive either $30,000, or one-third of the net estate of Mauro DiProspero, whichever was greater. No determination was made in the settlement as to exactly what constituted the value of or the property within Mauro DiProspero's estate. Eventually, the judge in the Doyle wrongful death action was asked by the parties to determine what real estate and personal property was to be included within Mauro DiProspero's estate. A judgment was entered which determined the percentage interest and the value of the interest in all of the real estate and personalty which Mauro DiProspero owned prior to his death. The court then awarded one-third of the dollar value of this property to the plaintiff, Doyle, because said amount exceeded the $30,000 minimum provided in the stipulation. This judgment is attacked on appeal for various reasons, and we conclude that it must be reversed. While numerous arguments are made regarding improper procedure, it clearly appears that the stipulation for settlement was based upon the net assets of the estate and the court computed the judgment based on the gross assets of the estate. The judgment in Case No. 76-5343 is, therefore, reversed.
We next consider appeal No. 79-285. The case, originally styled DiProspero v. DiProspero, was a wrongful death action for Maria DiProspero's death brought by Angela DiProspero, as personal representative of her mother's estate against herself as personal representative of her father's estate. Robert Fuer was substituted as personal representative ad litem and is the appellant. Although not initially a...
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Board of Trustees of Internal Improvement Trust Fund of State v. Mobil Oil Corp.
...Brown 156 Fla. 655, 24 So.2d 37, 39-40 (1945), Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943), DiProspero v. Shelby Mutual Insurance Co., 400 So.2d 177, 179 (Fla. 4th DCA 1981), Royal Globe Insurance Co. v. Gehl, 358 So.2d 228, 229 (Fla. 3d DCA 1978), Hogan v. Millican, 209 So.2d 7......