Florida Nat. Bank and Trust Co. at Miami v. Havris

• Decision Date: 16 January 1979
• Docket Number: No. 78-359,78-359
• Citation: 366 So.2d 491
• Court: Florida District Court of Appeals
• Parties: FLORIDA NATIONAL BANK AND TRUST COMPANY AT MIAMI, as Guardian of Ina M. Garrett, incompetent, Appellant, v. Mary HAVRIS a/k/a Marion C. Havris, Andrew Havris, her husband, and Mrs. Charles A. Carter, Appellees.

Page 491

366 So.2d 491

FLORIDA NATIONAL BANK AND TRUST COMPANY AT MIAMI, as Guardian of Ina M. Garrett, incompetent, Appellant, v. Mary HAVRIS a/k/a Marion C. Havris, Andrew Havris, her husband, and Mrs. Charles A. Carter, Appellees.

No. 78-359.

District Court of Appeal of Florida, Third District.

Jan. 16, 1979.

George J. Baya, Miami, for appellant.

Joseph P. Farina, Miami Shores, for appellees.

Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CARROLL, Associate Judge.

The plaintiff below, Florida National Bank and Trust Company at Miami, as guardian of Ina M. Garrett, incompetent, filed this appeal from the final judgment entered following a non-jury trial.

A defendant, Mrs. Charles A. Carter, was the employed housekeeper and attendant of Mrs. Garrett from 1973 to 1975, and was so employed when the involved activities relating to Mrs. Garrett's money and residence property took place. During this period, Mrs. Garrett, who was 94 years of age in 1975, lived alone with the housekeeper in Miami, in a home which she owned. The defendant Mary L. Havris, a niece of Mrs. Carter, the housekeeper, was not related to Mrs. Garrett, and was not her employee.

Mrs. Garrett had funds on deposit in certain savings associations and banks. With Mrs. Garrett's consent, the housekeeper and her niece Mary Havris became authorized to sign checks on Mrs. Garrett's said accounts, and during the interval of time above mentioned, by withdrawals and transfers, the funds of Mrs. Garrett became placed in bank accounts of Mrs. Havris and of Mrs. Havris and her husband, from which monies needed for care expenses of Mrs. Garrett were used.

In 1975, on March 19, Mrs. Garrett made a deed by which she conveyed her home and the furniture and fixtures therein to Mary L. Havris, reserving to Mrs. Garrett a life estate and right of possession. That deed was not recorded.

Nine days later, on March 28, 1975, a second deed of her home property was made by Mrs. Garrett to herself and to Mary Havris, as joint tenants with right of survivorship. That deed was recorded on the date upon which it was executed.

On October 17, 1975, in a proceeding which had been commenced on September 3, 1975, to determine competency of Mrs. Garrett, the plaintiff bank was appointed guardian of Mrs. Garrett's property and Ina M. Porcella, a niece of Mrs. Garrett, was appointed guardian of her person.

On January 7, 1976, the plaintiff bank, as guardian of the property of Mrs. Garrett, filed this action against Mrs. Havris and her husband and Mrs. Carter. Thereby, the plaintiff sought judgment to invalidate the recorded joint tenancy deed dated March 28, 1975, and to require the defendants to account to plaintiff for monies of Mrs. Garrett which had been obtained and were held by them.

In the course of that action, there was disclosed the existence of the earlier unrecorded deed dated March 19, 1975, from Mrs. Garrett to Mary Havris with reservation of a life estate. There was considerable evidence regarding the facts relating to that deed transaction, by testimony of the parties thereto and of the attorney who drew the deed and had it executed, and also as to the mental capacity of Mrs. Garrett at that time. Thus, although plaintiff's complaint did not allege the making and existence of the unrecorded deed and seek to have it declared invalid, the issues relating to the validity thereof were tried. The record so shows. Also it is clear the court recognized the issues thereon were tried, because the court ruled on the merits regarding the validity of that unrecorded (first) deed, as disclosed in the findings of fact and conclusions of law filed by the court. Such action by the court was in conformity with Fla.R.Civ.P. 1.190(b) which provides that where issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. That status of the case as to trial of issues relating to the first deed is not altered by the fact that the court denied a motion of the plaintiff, filed on the date on which the court filed its findings and conclusions of law, by which plaintiff sought leave to file a proposed amended complaint relating to said first deed, and for permission to introduce further evidence with regard thereto. It was within the discretion of the court to deny the request of the plaintiff for permission to file a new pleading and present further evidence after the trial had been completed and the court had made and filed its findings of fact and conclusions of law.

In the judgment entered, the court ruled in favor of the plaintiff as to Mrs. Garrett's funds found to be held by Mary Havris, granting judgment against Mary Havris for $19,787.62, with interest from November 13, 1975, plus certain costs. The judgment held that the second deed, dated March 28, 1975, was "null and void and of no effect." The final judgment made no reference to the earlier (unrecorded) deed of March 19, 1975. However, it appears that the basis of the holding in the judgment that the second (recorded) deed of March 28, 1975, was void, was because the court had found the prior (unrecorded) deed of March 19, 1975, was valid, and for that reason viewed the subsequent deed or attempted conveyance as being of no effect. See the trial court's finding of fact No. 6 and conclusion of law No. 4, quoted infra.

The appellant contends the court erred by failing to hold that the first deed of March 19, 1975, was invalid. The circumstances with regard to the validity of the two deeds were similar. If the first deed was invalid, the second deed likewise was invalid. In considering that question, it is necessary to give effect to the extensive findings of fact made by the trial court. With apology for the extent to which this opinion is lengthened, the trial court's findings of fact and conclusions of law are of sufficient importance to a determination of this appeal to require their inclusion. They were as follows:

"FINDINGS OF FACT

"1. On June 22, 1966, INA M. GARRETT executed her last will and testament whereunder her home described in Findings 6 and 7 hereof, together with the furniture therein, was devised unto her brother, LEWIS C. RICHARDS, and, in the event he predeceased her, an undivided one-third thereof was devised unto her nephew, HOMER M. RICHARDS; an undivided two-thirds thereof was devised unto her niece INA PORCELLA and LEO PORCELLA, her husband; and all the rest and residue of her estate in a like manner.

"2. On November 20, 1970, the said INA M. GARRETT executed a first codicil to her last will and testament, prepared by her attorneys, Smathers & Thompson, containing a gift to her church.

"3. On December 22, 1970, INA M. GARRETT executed a second codicil to her last will and testament, prepared by her attorneys, Smathers & Thompson, whereunder INA PORCELLA was named as the executrix thereof to serve without bond, and the remainder of said will was ratified.

"4. On November 7, 1973, INA M. GARRETT employed defendant MRS. CHARLES A. CARTER, as a housekeeper until October 16, 1975 at a starting salary of $70 per week, which was subsequently increased to $85 per week.

"5. On February 6, 1975, INA M. GARRETT executed her last will and testament prepared by James W. Swain, the attorney of defendant MARY HAVRIS, also known as MARY L. HAVRIS and MARION C. HAVRIS, whereunder said Defendant is the only beneficiary, and the said James W. Swain was employed by Defendant MRS. CHARLES A. CARTER, for such purpose.

"6. On March 19, 1975, INA M. GARRETT, a widow, in consideration of love and affection, executed a warranty deed prepared by the said JAMES W. SWAIN, conveying her home unto Defendant MARY L. HAVRIS, situated in Dade County, Florida, to-wit:

"Lot 6 in Washington Place, according to the Plat thereof in Plat Book 20 at Page 54, together with improvements thereon and furniture and fixtures therein contained, reserving unto the grantor a life estate therein and the sole possession, use, and occupancy thereof.

That Defendant MARY L. HAVRIS did not pay any consideration for the execution of said deed and the said James W. Swain was employed by Defendant MRS. CHARLES A. CARTER, to prepare and secure the execution of said deed.

"7. On March 28, 1975, INA M. GARRETT, an unmarried widow, in consideration only of love and affection, executed a warranty deed prepared by E. Paul Beatty, an attorney employed by Defendant MRS. CHARLES A. CARTER, conveying to INA M. GARRETT and MARY L. HAVRIS, as joint tenants, and not as tenants in common, with full right of survivorship, her home in Dade County, Florida, described as:

"Lot 6, of Washington Place, per Plat thereof recorded in Plat Book 20, at Page 54, together with the improvements thereon known as 623 N.E. 72nd Street, Miami, Florida

which was filed for record by said attorney on March 28, 1975, and recorded on said date in Official Records Book 8946, at page 1350.

"8. On April 4, 1975, the warranty deed referred to in Finding No. 6 above was forwarded by mail to INA M. GARRETT, and has not yet been recorded among the records of Dade County, Florida.

"9. On April 9, 1975, INA M. GARRETT executed her last will and testament, prepared by attorney E. Paul Beatty, employed for such purpose by Defendant MRS. CHARLES A. CARTER, whereunder all of the rest, residue and remainder of her estate, including her home, was devised to Defendant MARY L. HAVRIS, who was also appointed as the Executrix thereof.

"10. On July 6, 1975, Defendant MARY L. HAVRIS sent a mailgram to MRS. LEO PORCELLA, Renick, West Virginia (INA M. PORCELLA), containing the typewritten signature of INA M. GARRETT, stating that INA M. GARRETT had decided to leave everything she had to said Defendant.

"11. On September 3, 1975, INA M. PORCELLA filed in the Probate Division of this Court, Case No. 75-6045-N, a petition to determine the competency of INA M....