In re EState Henry Warner.Herbert Y. Holcomb

• Decision Date: 01 April 2011
• Docket Number: No. 2D10–1411.,2D10–1411.
• Court: Florida District Court of Appeals
• Parties: In re ESTATE OF Charles Henry WARNER.Herbert Y. Holcomb, III, as the Grand Secretary of Grand Lodge A.F. & A.M. of Maryland, the sole residuary beneficiary of Decedent, Appellant,v.Lee County, Appellee.

57 So.3d 987

In re ESTATE OF Charles Henry WARNER.Herbert Y. Holcomb, III, as the Grand Secretary of Grand Lodge A.F. & A.M. of Maryland, the sole residuary beneficiary of Decedent, Appellant,
v.
Lee County, Appellee.

No. 2D10–1411.

District Court of Appeal of Florida, Second District.

April 1, 2011.

[57 So.3d 988]

Michael J. Farrar, Miami, for Appellant.David M. Owen, Lee County Attorney, and Jack N. Peterson, Assistant County Attorney, Fort Myers, for Appellee.BLACK, Judge.

The estate of Charles Henry Warner challenges a February 26, 2010, order denying its petition for alternative writ of mandamus. The estate filed the petition as a result of the Lee County Clerk of Court's denial of its request for payment of excess funds resulting from a tax deed sale of real property. Because we conclude that the estate has an available remedy at law, we affirm the trial court's denial of the petition.

“ ‘A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.’ ” Radford v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005) (quoting Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997)). “ ‘When a trial court receives a petition for writ of mandamus, its initial task is assessing the petition to determine whether it is facially sufficient. If it is not facially sufficient, the court may dismiss the petition.’ ” Id. at 1067–68 (quoting Davis v. State, 861 So.2d 1214, 1215 (Fla. 2d DCA 2003)). However, “[i]f the petition is facially sufficient, the court must issue an alternative writ of mandamus requiring the respondent to show cause why the writ should not be issued.” Id. at 1068 (citing Moore v. Ake, 693 So.2d 697, 698 (Fla. 2d DCA 1997); Conner v. Mid–Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989)).

On September 23, 2008, the estate filed its petition for alternative writ of mandamus with the circuit court. The petition sought to have Lee County perform the ministerial duty of issuing a check to the estate, pursuant to a March 18, 2008, ancillary summary administration order of the probate court. On February 26, 2010, the circuit court denied the petition. Although the court denied the petition on the merits, it noted that the estate failed to allege that it had no other adequate legal remedy.

Pursuant to the statutes governing disbursement of excess funds from tax deed sales, sections 197.582 and 197.473, Florida Statutes...