Giller v. Giller
| Decision Date | 27 April 2016 |
| Docket Number | No. 3D15–376.,3D15–376. |
| Citation | 190 So.3d 666 |
| Parties | Ira D. GILLER and Anita Grossman, etc., Appellants, v. Brian J. GILLER, et al., Appellees. |
| Court | Florida District Court of Appeals |
Harper Meyer Perez Hagen O'Connor Albert & Dribin LLP and Michael A. Dribin and Michael V. Arroyave, for appellant Ira D. Giller; William C. Hearon, for appellant Anita Grossman; Gordon & Rees LLP and David M. Gersten and Christopher A. Noel, for appellants.
Lerman & Whitebook, P.A. and Carlos D. Lerman, Hollywood, for appellee Brian J. Giller.
Before ROTHENBERG, LAGOA, and SALTER, JJ.
LAGOA
, J.
The appellants, Ira D. Giller and Anita Grossman, as co-personal representatives of the Estate of Norman M. Giller (“Personal Representatives”), appeal from an order granting the appellee, Brian J. Giller's (“Brian”), motion to dismiss the first amended complaint with prejudice. Because the Personal Representatives' First Amended Complaint states a legally sufficient cause of action under section 689.07(1), Florida Statutes (2011)
, we reverse and remand for further proceedings.
The Personal Representatives and Brian1 are the surviving children of Norman M. Giller (“Norman”). Norman died on April 18, 2008, and his last will and testament, executed on March 24, 2000, was admitted to probate on May 27, 2008. The Personal Representatives were subsequently appointed as co-personal representatives of the Estate of Norman M. Giller (the “Estate”). The probate proceeding is pending in the Eleventh Circuit's Probate Division, and is styled In Re Estate of Norman M. Giller, Case No. 08–1878 CP 05.
The Personal Representatives filed a Complaint for declaratory relief on September 28, 2011, which sought a declaration that, pursuant to section 689.07(1), Florida Statutes (2011)
, six2 parcels of real property (the “properties”) titled in the name of “Norman Giller, Trustee” were actually owned in fee simple by Norman as of the date of his death, and that the properties became the assets of the Estate subject to probate administration as of the date of his death. Although the deeds refer to “Norman Giller, Trustee,” they do not reference the name or date of any trust, the beneficiary of any trust, or the nature or purpose of any trust. The Personal Representatives alleged that in administering the Estate, they discovered that these properties were being controlled and managed as rental properties by Brian, and that Brian remained silent in response to their inquiries regarding any trust instruments pertaining to the properties. The Personal Representatives further alleged that they could not render a complete administration and distribution of Norman's Estate until it is determined whether the properties are assets of the Estate.
Brian filed an Answer and Affirmative Defenses. As his Third Affirmative Defense, Brian asserted that the Personal Representatives “lack standing to sue under section 689.07(1)
because they are not a subsequent purchaser of one of the subject Properties[,] a mortgagee or lienholder[,] or creditor of the Estate, who are the only classes of persons to which 689.07(1) is available.” He also raised failure to state a cause of action as his Seventh Affirmative Defense, asserting that section 689.07(1) “does not apply until after a subsequent conveyance of the property from the grantee who ‘as Trustee’ takes title.”
At the June 25, 2012, hearing, Brian argued that he is the owner of the properties in his capacity as successor trustee of the Norman M. Giller Trust. Brian presented the probate court with an excerpt3 of the Norman M. Giller Trust agreement, which was dated “as of December 30, 1988.” The excerpt of the Norman M. Giller Trust agreement contained no reference to the properties. Indeed, it is apparently undisputed that none of the public records of the various counties in which the properties are located contain a declaration of trust executed by Norman declaring the purposes of the Norman M. Giller Trust or referencing these properties.
In August, 2012—after the hearing—Brian recorded two documents, each entitled “declaration of trust and trustee's affidavit” (collectively, “Brian's declarations of trust”). In Brian's declarations of trust, Brian attests that he is the sole successor trustee of the Norman M. Giller Trust dated December 30, 1988, and that he is familiar with the complete trust agreement; that at the time of the acquisition of the properties Norman intended to and did take title to them as the then current trustee of the Norman M. Giller Trust; and that Norman resigned as trustee as of December 31, 2005, and thereupon Brian accepted the responsibilities of serving as the sole successor trustee.
The Personal Representatives subsequently filed a Motion for Summary Judgment arguing that because the deeds, on their face and when read in conformity with section 689.07(1)
, conveyed title to Norman in fee simple, the properties were part of Norman's estate at the time of his death. On March 13, 2013, the probate court entered an order denying the Personal Representatives' Motion for Summary Judgment, concluding that the Personal Representatives lack standing to bring the action. Relying upon Raborn v. Menotte, 974 So.2d 328 (Fla.2008), Callava v. Feinberg, 864 So.2d 429 (Fla. 3d DCA 2003), and Adams v. Adams, 567 So.2d 8 (Fla. 4th DCA 1990), the probate court held that “[t]he Personal Representatives are not ‘subsequent parties' dealing with the properties which are the subject of the Action, and as a result are not entitled to the relief they seek under § 689.07(1), Fla. Stat.”
Subsequently, the Personal Representatives filed a First Amended Complaint, adding a count for quiet title (count II).4 On November 7, 2013, Brian filed a Motion to Dismiss the First Amended Complaint, which raised the same argument he successfully raised in opposition to the Personal Representatives' Motion for Summary Judgment i.e., the Personal Representatives failed to state a cause of action for declaratory relief pursuant to section 689.07(1)
because they are not parties who relied on the public records in acquiring an interest in the properties.
On February 5, 2014, the probate court entered an order dismissing count I (declaratory relief) of the First Amended Complaint with prejudice, but denied the motion as to count II (quiet title). The Personal Representatives subsequently voluntarily dismissed count II of the First Amended Complaint without prejudice on January 20, 2015. This appeal ensued.
In reviewing an order granting a motion to dismiss, our standard of review is de novo. See Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081 (Fla. 3d DCA 2014)
; see also
On appeal, the Personal Representatives argue that they are entitled to seek relief under section 689.07(1)
and that the trial court erred in granting Brian's Motion to Dismiss. We agree.
“The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.”
Pac. Ins. Co. v. Botelho, 891 So.2d 587, 590 (Fla. 3d DCA 2004)
. When considering a motion to dismiss, the trial court must accept the well-pled allegations of the complaint as true, and may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations. See
Minor v. Brunetti, 43 So.3d 178 (Fla. 3d DCA 2010) ; Pac. Ins. Co., 891 So.2d at 587 ; Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). Moreover, a motion to dismiss cannot be granted based on an affirmative defense unless the defense appears on the face of a pleading. Pac. Ins. Co., 891 at 590. To that end, and particularly relevant here, a motion to dismiss is not a substitute for a motion for summary judgment. Perry v. Schlumbrecht, 724 So.2d 1239 (Fla. 2d DCA 1999) ; accord
Consuegra v. Lloyd's Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001) ().
We begin our analysis by noting that the Personal Representatives are duly appointed legal representatives of the Estate, with the capacity to bring an action on the Estate's behalf and charged with the obligation to take possession of Norman's property for purposes of administration. See §§ 733.602; 733.607(1), Fla. Stat. (2011)
; Tennyson v. ASCAP, 477 F. App'x 608 (11th Cir.2012) ; Sullivan v. Sessions, 80 So.2d 706 (Fla.1955) ; Brake v. Murphy, 687 So.2d 842 (Fla. 3d DCA 1996) ; cf.
Disque v. Unger, 955 So.2d 1121 (Fla. 4th DCA 2007) (). To that end, the Personal Representatives sought a declaratory judgment from the trial court that under the provisions of section 689.07(1), the properties are assets of the Estate subject to probate administration. As such, the issue here is whether the Personal Representatives stated a claim for a declaratory judgment sufficient to survive a motion to dismiss. Section 689.07(1) states:
(1) Every deed or conveyance of real estate heretofore or hereafter made or executed in which the words “trustee” or “as trustee” are added to the name of the grantee, and in which no beneficiaries are named, the nature and purposes of the trust, if any, are not set forth, and the trust is not identified by title or date, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey,...
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