Estate of Montanez, In re, s. 95-3160
| Decision Date | 12 February 1997 |
| Docket Number | 95-2713,Nos. 95-3160,95-1950,95-2275,s. 95-3160 |
| Citation | 687 So.2d 943 |
| Parties | 22 Fla. L. Weekly D413 In re The Estate of John MONTANEZ, Deceased. Prudence Melissa DIDIEGO, Appellant, v. CROCKETT, FRANKLIN & CHASEN, P.A., Comprehensive Personal Care Services, Inc., and Ouida Carolyn Ray, Appellees. |
| Court | Florida District Court of Appeals |
Rutherford, Minerley & Mulhall, Frank J. Mulhall and Andrew K. Fein, Boca Raton, for appellant.
Lawrence Jay Davis, Pembroke Pines; Crockett, Franklin & Chasen, Miami Beach; Robert S. Glazier, Miami, for appellees.
Metzger, Sonneborn & Rutter and Jennifer S. Carroll, West Palm Beach, for Snapper Creek Nursing Home, Inc., as amicus curiae.
Before NESBITT, JORGENSON and GREEN, JJ.
On Motion for Clarification Granted
The opinion of this Court filed on October 30, 1996, is vacated and this opinion is substituted in its stead.
Prudence Melissa DiDiego appeals from the denial of her petition to vacate an order approving a settlement between the estate of her deceased father and Snapper Creek Nursing Home. In these consolidated appeals, she seeks reversal of an order finding that her mother is entitled to a spouse's intestate share of the decedent's estate and of orders awarding attorney's fees to the attorney for the personal representative. For the following reasons, we reverse and remand with directions to appoint a successor personal representative.
Ouida Carolyn Ray and the decedent, John Montanez, were married in 1955. Their daughter, Prudence Melissa DiDiego, was born later that year. Ray and Montanez divorced in 1956; remarried each other in 1960; and had a second daughter in 1961. In February, 1961, Ray and Montanez separated for the last time. There is no evidence that a second divorce ever followed that separation.
Montanez was in the merchant marine, and had little contact with his family between 1961 and the time of his death. His wife remarried in 1971, representing in her application for that marriage license that she had been divorced from Montanez on October 29, 1965. She later divorced her second husband.
For the last year of his life, Montanez languished in the Snapper Creek Nursing Home, suffering from severe Alzheimer's disease. Comprehensive Personal Care Services was appointed guardian of his person and property. Comprehensive is a not-forprofit corporation that grew out of the Guardianship Program of Dade County in order to serve as a guardian of last resort of nonindigent wards. As such a guardian, Comprehensive was entitled to collect fees for its services, which were supposed to ensure the health and welfare of its wards. Comprehensive was neither a trust company, a banking corporation, a savings association, nor a savings and loan association.
No member of his family ever visited Montanez, or even knew that he was in Dade County. He died intestate on May 21, 1994 from septicemia, pneumonia, and deeply infected bedsores. Following Montanez' death, the probate court appointed Comprehensive Personal Care Services as the personal representative of the estate.
In September 1994, Snapper Creek Nursing Home filed a statement of claim in Montanez' estate for $20,696.23 for services rendered in the last months of Montanez' life--primarily to treat his advanced bedsores. Comprehensive objected to the claim; the nursing home filed suit; and the claim was settled for $15,000.00. In the meantime, an heir-locator service had located Montanez' former wife, Ouida Carolyn Ray, and their two adult daughters, Prudence Melissa DiDiego and Rhoda Bellaire. Consent forms relating to the settlement between Comprehensive and Snapper Creek were forwarded to the three potential beneficiaries, along with a copy of the proposed settlement agreement. That agreement provided in part:
That contemporaneously with the execution of this Settlement Agreement, Snapper Creek and CPCS on behalf of the Estate of John Montanez, shall execute reciprocal General Releases of one another, except for and excluding the terms and conditions of this Settlement Agreement, and shall immediately file a joint Stipulation Dismissing the above-captioned matter with prejudice, reserving jurisdiction for this Court for the sole purpose of enforcing the terms and conditions of this Settlement Agreement.
Ray and Bellaire consented to the settlement, but DiDiego refused to agree to the settlement and to the exchange of mutual releases. Comprehensive petitioned the probate court for approval of the agreement. At the hearing on Comprehensive's petition, Ray, Bellaire, and DiDiego attended, along with DiDiego's attorney. DiDiego contends that she instructed her attorney to object to the settlement at the hearing, but that he failed to do so. The court approved the settlement.
After the hearing, DiDiego fired her attorney and obtained new counsel, who, through a series of motions and petitions sought to make the trial court aware of the potential negligence and wrongful death claims against both Snapper Creek Nursing Home and Comprehensive Personal Care Services that had been compromised by the settlement. DiDiego petitioned the probate court to appoint an administrator ad litem, and to set aside the settlement order. The trial court denied that petition; DiDiego appeals (case no. 95-2275).
During the course of these proceedings, Ray, Montanez' former wife, petitioned the court for a determination that she was entitled to a surviving spouse's share of the decedent's estate. DiDiego opposed that petition, arguing that when her mother married after failing to obtain a divorce from Montanez, her mother was in fact repudiating her marriage to Montanez and was estopped from seeking benefits as a surviving spouse. The trial court entered summary judgment for Ray, finding that she was entitled to her share as a surviving spouse. DiDiego appeals from that order (case no. 95-3160).
Finally, throughout the proceedings, Comprehensive sought attorney's fees that it had incurred as personal representative. Following an evidentiary hearing, the trial court awarded Comprehensive $43,750.00 in attorney's fees, encompassing the nursing home settlement litigation and some of the spousal share litigation. DiDiego appeals this order and an earlier interim fee award (case nos. 95-2713, 95-1950).
The very appointment of Comprehensive as personal representative was improper, as Comprehensive was not legally qualified to serve as the personal representative of the estate. Section 733.305, Florida Statutes (1993), only allows corporations to serve as personal representatives of an estate when they are trust companies, banking corporations, savings associations, and savings and loan associations. § 733.305(1), Fla. Stat. All other corporations are specifically prohibited from serving as personal representatives of an estate. § 660.41, Fla. Stat. (1993).
Accordingly, we direct the probate court on remand to remove Comprehensive as the personal representative, and to appoint a successor personal representative to represent the estate. See Fla. Prob. R. 5.440; §§ 733.504-506, Fla. Stat. (1995).
The trial court erred in denying DiDiego's petition to set aside the settlement agreement, as the agreement was the product of proceedings that were fatally tainted by conflicts of interest.
The standard of care that applies to a personal representative is set forth in Chapter 733, Florida Statutes; a personal representative is a fiduciary, "under a duty to settle and...
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