Donohue v. Brightman, 4D05-3711.

• Decision Date: 25 October 2006
• Docket Number: No. 4D05-3711.,4D05-3711.
• Parties: Frances DONOHUE, Appellant, v. Richard BRIGHTMAN, Jr., Appellee.
• Court: Florida District Court of Appeals

939 So.2d 1162

Frances DONOHUE, Appellant, v. Richard BRIGHTMAN, Jr., Appellee.

No. 4D05-3711.

District Court of Appeal of Florida, Fourth District.

October 25, 2006.

Gerald S. Lesher, Edna L. Caruso and Diran V. Seropian, West Palm Beach, for appellant.

No brief filed on behalf of appellee.

WARNER, J.

Frances Donohue appeals a final judgment denying her claims for declaratory relief and the imposition of a constructive trust on the condominium unit titled in the name of her nephew, Richard Brightman, but in which she has lived for the past fifteen years and paid half of all expenses. Although she obtained a default against her nephew, who never answered the complaint, the court denied her motion for final judgment and required a full trial. We reverse, as Frances was entitled to a default final judgment.

Frances filed a complaint against Brightman, seeking a declaratory judgment and a constructive trust. In the complaint she alleged that her husband, Joseph Donohue, leased a condominium unit in 1988. The owner wished to sell the unit and contacted Frances and Joseph about the prospect of purchasing the property. According to the complaint, the Donohues and their great-nephew Brightman agreed to purchase the property together. Brightman was extremely close to the Donohues, who treated him like a son.

Shortly before the closing of the transaction, Brightman convinced the Donohues that he should take title to the property alone, and that he would hold their interest in trust for them. The Donohues were to put up half the cash needed to close, and thereafter they would pay half of the mortgage payment, taxes, maintenance and assessments to Brightman. The Donohues would remain in sole possession of the condominium unit and would pay for all repairs. In the event that they vacated the property, the condo would be sold and the net proceeds would be divided one-half to Brightman and one-half to the Donohues.

From the date of the closing until 2004, the Donohues paid Brightman one-half of the mortgage payments, taxes, maintenance and assessments. However, in April 2004, after the death of Joseph Donohue, Frances Donohue learned that Brightman was in default on the mortgage. On April 10, 2004, Frances brought the mortgage current and continued to pay the mortgage payments directly to the bank. She attempted to contact Brightman concerning the mortgage, but he would not respond.

Frances discovered that Brightman intended to sell the property and use the proceeds from the sale to pay his federal tax lien. According to the complaint, Brightman had no intention of sharing the proceeds of the sale with Frances. The complaint noted that Frances was "unsure of her rights" and in count I she sought a declaratory judgment to determine her interest in the property. Frances sought a "one-half undivided interest in the property."

In count II, Frances sought a constructive trust over one-half of the property. She alleged that she lacked an adequate remedy at law and that she had clean hands. Frances alleged that Brightman breached his fiduciary duties as a trustee by: 1) not making mortgage payments from funds she paid to him; 2) allowing her interest in the property to become encumbered with a federal tax lien for Brightman's personal tax liabilities; and 3) attempting to sell the property and divest her of her equitable interest in the property.

Brightman never filed any responsive pleading to the complaint. Frances moved for an entry of default by the clerk. Shortly thereafter, the clerk entered a default against Richard Brightman for failure to serve a pleading. Frances filed a motion for final judgment after default. In support of Frances' motion for final judgment, she filed the affidavit of Sherlyn Brightman, Brightman's ex-wife, who was married to him at...