In re: Anna Read v. a.D.K. Properties, 2
| Decision Date | 12 May 2000 |
| Docket Number | 2D99-2962,2 |
| Parties | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED In re: The Estate of ANNA K. READ, ANNA K. READ TRUST dated |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Charlotte County; Donald E. Pellecchia, Judge.
J. Michael Rooney, Punta Gorda, for Appellants.
John A. Schaefer and Sharon E. Krick, Clearwater, for Appellee.
This is an appeal from a final summary judgment entered in favor of A.D.K. Properties ("South Port Square") against appellants, the Anna K. Read Trust ("the Trust") and Ralph DeSimone as heir to Anna K. Read and successor trustee of the Trust. Because we find that South Port Square failed to obtain an enforceable claim, we reverse.
South Port Square is an independent living and licensed healthcare facility providing assisted living and skilled nursing care. On May 24, 1993, South Port Square and Anna K. Read entered into an agreement for Mrs. Read's occupancy of an apartment at South Port Square. The agreement provided that Mrs. Read was to make an initial payment of $31,900 into a South Port Square escrow account. South Port Square would then give her a mortgage bond to secure repayment. When the residency agreement terminated, South Port Square would then become obligated to return the entire initial price of the apartment. At the same time, Mrs. Read would become obligated to pay South Port Square anywhere from 6% to 50% of the mortgage bond amount as an occupancy fee. In November of 1996, Mrs. Read terminated her agreement with South Port Square, vacated her apartment, and departed the facility. Shortly thereafter Mrs. Read passed away. Once Mrs. Read terminated the residency agreement, South Port Square sent Mr. DeSimone, as successor trustee of the Trust, a check in the amount of $31,900 as the redemption payment for the mortgage bond. Under the terms of the agreement, an occupancy fee in the amount of $15,900 then became due to South Port Square. Appellants refused to pay the occupancy fee which resulted in this action for breach of contract.
Appellants raise several issues on appeal; however, we find that only one merits discussion. Appellants argue that South Port Square failed to obtain an enforceable claim against the estate of Mrs. Read, and thus, it failed to meet the condition precedent to obtaining relief from the Trust. We agree.
Section 733.707(3), Florida Statutes (1997), provides:
Any portion of a trust with respect to which a decedent who is the grantor has at the decedent's death a right of revocation, as defined in paragraph(e), either alone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent's creditors to the extent the decedent's estate is insufficient to pay them as provided in s. 733.607(2).
§ 733.707(3), Fla. Stat. (1997). In Tobin v. Damian,...
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