Glickstein v. Sun Bank/Miami, N.A.
| Decision Date | 28 January 1991 |
| Docket Number | No. 89-5458,89-5458 |
| Parties | , RICO Bus.Disp.Guide 7672 Howard GLICKSTEIN, as de facto Personal Representative of the Estate of Lilly Glickstein and individually, Evelyn Klimpl and Helaine Newman, Plaintiffs-Appellants, v. SUN BANK/MIAMI, N.A., f/k/a Flagship First National Bank of Miami Beach, a branch of Flagship National Bank of Miami, Lucille Clum, and Lewis R. Elias, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Karen Coolman Amlong, William R. Amlong, Fort Lauderdale, Fla., for plaintiffs-appellants.
Howard Setlin, Therrel, Baisden & Meyer Weiss, Miami, Fla., for defendants-appellees.
Robert H. Schwartz, Fort Lauderdale, Fla., for Lewis Elias.
Diane Wagner Katzen, Miami, Fla., for Grayson and Bonomo.
Appeal from the United States District Court for the Southern District of Florida.
Before JOHNSON and CLARK, Circuit Judges, and BROWN *, Senior District Judge.
Howard Glickstein, on behalf of himself and the estate of Lilly Glickstein, 1 Evelyn Klimpl, and Helaine Newman, filed the instant action on November 23, 1988 against Sun Bank/Miami, N.A., Lucille Clum, Robert Grayson, Peggy Bonomo, and Dr. Lewis R. Elias alleging that the defendants conspired to "plunder" the assets of Lilly Glickstein and cheat the plaintiffs out of their inheritance. The complaint sought relief based on several state causes of action 2 and the civil remedies provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1964(c). The jurisdictional allegation in the complaint alleged that the district court had jurisdiction of the RICO claim based on 28 U.S.C. Sec. 1331 and 18 U.S.C. Sec. 1964(c). Jurisdiction for the state claims was based on the court's pendant jurisdiction and diversity of citizenship, 28 U.S.C. Sec. 1332(a)(1), as the plaintiffs are all residents of New York and the defendants are residents of Florida, California, and Virginia. 3
After the complaint was filed, the defendants moved for dismissal. Several defendants argued that the claims alleged in the complaint were claims of the estate which must be brought by the actual personal representative. As Glickstein was not the actual personal representative, they argued that he lacked "standing" to bring the suit on behalf of the estate. Other defendants argued that the complaint should be dismissed because the plaintiffs had not yet "exhausted" probate remedies. The district court granted both of these motions and dismissed the complaint with prejudice. The plaintiffs appeal the dismissal, and we now reverse.
The three living plaintiffs in this case are siblings. Defendants Bonomo and Grayson are also siblings and the cousins of the plaintiffs. The five cousins are the nieces and nephews of the late Lilly Glickstein. Defendant Sun Bank is the successor to Flagship First National Bank of Miami Beach. Flagship was appointed the trustee of a marital trust established by Edward Glickstein, Lilly Glickstein's late husband, after the original trustee died. 4 The bank administered the trust and was initially appointed the personal representative of the estate. Defendant Lucille Clum was the trust officer at Sun Bank who dealt directly with Lilly Glickstein in the course of administering the trust. Defendant Elias was the physician who treated Lilly Glickstein after she was referred to him by Clum.
After Lilly Glickstein died, her third will, which was executed on February 24, 1978, was admitted to probate. Under the terms of this will and an amended trust agreement, defendants Grayson and Bonomo were to inherit equal shares of the remainder of Lilly Glickstein's estate. In addition, the two defendants were to be appointed beneficiaries of the marital trust. A second will and testament, executed on December 13, 1977, contained essentially the same terms. Lilly Glickstein's first will, however, was substantially less generous to Grayson and Bonomo. Under the terms of the first will executed on January 9, 1975, Herbert Gladstone and Martha Hogarth were appointed the beneficiaries of the marital trust. 5 In addition, the first will provided that Grayson and Bonomo each would receive one quarter of the residual estate while the remaining half of the residual estate was to be distributed equally between the plaintiffs.
After the third will was admitted to probate, Sun Bank was appointed as the personal representative of the estate. Plaintiffs Howard Glickstein and Helaine Newman along with Hogarth and Gladstone challenged the validity of the third will. On October 9, 1987, a Florida probate court set aside both the second and third wills along with the related trusts and codicils. The court rejected these wills after finding that defendant Grayson exercised undue influence on Lilly Glickstein. The court found that Glickstein suffered from advanced organic brain syndrome and Alzheimer's disease at the time the second and third wills were executed. The court concluded that Lilly Glickstein's illness reduced her mental capacity and made her susceptible to the "undue influence" of Grayson. The court ordered the 1975 will to be offered to probate as soon as all formalities were completed. This decision was affirmed on appeal, Sun Bank/Miami, N.A. v. Hogarth, 536 So.2d 263 (Fla.Dist.Ct.App.1988), and became final on June 8, 1989, when the Florida Supreme Court denied review, Sun Bank/Miami, N.A. v. Hogarth, 545 So.2d 1369 (Fla.1989).
During the proceedings in the state probate court over the validity of the wills, the bank represented the estate pursuant to the letters of administration issued on December 5, 1984 that appointed the bank the personal representative. After the probate court set aside the second and third wills, the court appointed the bank the estate's "curator" pending appeal of the decision. After the prior proceedings became final, the probate court admitted the first will into probate and appointed Glickstein as personal representative.
Glickstein filed the instant action after the probate court set aside the second and third wills. At the time the defendants filed their motions to dismiss the case, the appeal of the probate court's decision had not become final. After the federal district court granted the motion to dismiss this action, the Florida Supreme Court denied review of the decision of the district court of appeals affirming the probate court's judgment. After the plaintiffs filed the instant appeal, the probate court entered its order admitting the first will into probate and appointing Glickstein personal representative.
The plaintiffs have also brought a state court action against these same defendants apparently alleging similar claims. This action, however, has not been actively litigated and was apparently brought to ensure that the statute of limitations would not bar the action in state court if the federal courts refused to hear the claim.
The district court dismissed the case after holding that Howard Glickstein did not have standing to represent the estate as he was not the estate's personal representative. Alternatively, the court held that Florida law requires an administrator ad litem to be appointed to bring this action on behalf of the estate. 6 After reviewing these issues we determine that the district court erred in dismissing the complaint on these grounds.
We first turn to standing. It is clear that the Lilly Glickstein estate has "standing" to bring this action. The traditional requirement that the plaintiff show an injury in fact that is fairly traceable to the conduct of the defendant 7 is met by the allegation in the complaint that the defendants' actions resulted in the diminishment of the assets of the estate. The standing doctrine, which "has been very much tied to litigation asserting the illegality of governmental action," is of limited applicability in cases between private parties. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3531, at 340-41 (2d ed. 1984). As Wright and Miller explain, "[c]laims of private wrongdoing ordinarily are asserted by persons obviously having the enforceable interest, if anyone has; such problems as arise commonly are handled in terms of defining private causes of action or of identifying the real party in interest." Id. at 341.
The question in this case is whether Howard Glickstein is able to bring this case on behalf of the estate. This is not a question of standing; rather, this issue involves the question of whether Glickstein has the capacity to bring this action on behalf of the estate. As Wright & Miller note, the doctrine of capacity is often incorrectly considered under the rubric of a standing claim. Id. at 342.
The capacity doctrine relates to the issue of "a party's personal right to litigate in a federal court." 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1542, at 327 (2d ed. 1990). In civil cases brought in federal court, Federal Rule of Civil Procedure 17(b) governs the capacity question. That rule provides:
The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held....
Fed.R.Civ.P. 17(b). As Glickstein is seeking to represent the estate, the third sentence of Rule 17(b) requires us to look to the law of the state in which the district court is sitting to determine Glickstein's capacity. Therefore, we now turn to a review of Florida law.
Florida law provides that the personal representative has the capacity to bring actions on behalf of the...
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