Kramer v. Freedman, 43442

• Decision Date: 10 October 1973
• Docket Number: No. 43442,43442
• Parties: Judith KRAMER et al., Petitioners, v. Evelyn Patricia FREEDMAN, Respondent.
• Court: Florida Supreme Court

Page 97

295 So.2d 97

Judith KRAMER et al., Petitioners, v. Evelyn Patricia FREEDMAN, Respondent.

No. 43442.

Supreme Court of Florida.

Oct. 10, 1973.

Rehearing Denied Feb. 20, 1974.

Marion E. Sibley, Miami Beach, of Talianoff & Bader, and Allan M. Glaser of Sibley, Giblin, Levenson & Ward, Miami Beach, for petitioners.

Edward A. Perse, of Horton & Perse, and Dunn & Johnson, Miami, for respondent.

PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution, F.S.A. Therefore, the writ must be and is hereby discharged.

It is so ordered.

CARLTON, C.J., AND ERVIN, BOYD, McCAIN and DEKLE, JJ., concur.

ON PETITION FOR REHEARING

On consideration of the petition for rehearing filed by attorneys for Petitioners.

It is ordered by the Court that said petition be and the same is hereby denied.

CARLTON, C.J., and ROBERTS, ERVIN, McCAIN and DEKLE, JJ., concur.

BOYD, J., dissents with opinion, in which ADKINS, J., concurs.

BOYD, Justice (dissenting).

I respectfully dissent.

I believe we do have jurisdiction, based on conflict between the decision sought to be reviewed and Moneyham v. Hamilton. ¹

The long and complicated details of this case were cogently set forth in the decision of the Third District, and, in view of the complex fact pattern involved, bear repeating here:

'Appellants, defendants before the trial court, seek review of an adverse final judgment in a non-jury trial impressing a constructive trust in appellee's favor upon the assets of the estate of her father, Harry Freedman.

'The status of the respective parties and the essential facts of the instant case were aptly pointed out by the trial judge below and are restated, in part, herein:

". . . In this cause, the Plaintiff, Evelyn Patricia Freedman, seeks to impress a constructive trust upon certain assets of the estate of her father now being administered in the County Judge's Court in and for Dade County, Florida, in a proceeding styled, In re: Estate of Harry Freedman, deceased, File No. 73787--B. The Plaintiff claims that she is entitled to a constructive trust on the legacies in that estate to the Defendant, Valerie K. Freedman, her father's estranged wife, and her two half-sisters, Harry Freedman's daughters, the Defendants, Roberta Miller and Judith Kramer, who are also co-executrices of the estate, and that the extent of this constructive trust should be one third of the amounts to be distributed to the Defendant, Roberta Miller and the Defendant, Judith Kramer, so that she would, in effect, share equally with her half sisters in the estate of her father. This claim for relief is based upon two essential factual contentions:

"A) That the Defendant, Valerie K. Freedman, maliciously and tortiously interfered with the Plaintiff's reasonable expectation of receiving a legacy from her father and his estate in an amount equal to her half sisters' bequests. This 'wrongful interference' allegedly consisted of many instances of conduct by Valerie K. Freedman directed toward Harry Freedman, the Plaintiff's mother, and the Plaintiff herself, which resulted in Harry Freedman's executing separation agreements with Valerie K. Freedman in the State of New York on March 5, 1953, and February 15, 1954, which were made a part of a Judgment of Separation of the Supreme Court, County of New York, State of New York, dated March 5, 1954. Under these agreements, Harry Freedman in effect bound himself not to leave any sums by Will to the Plaintiff. In fact, in accordance with the terms of these agreements, Harry Freedman's Will did not provide for the Plaintiff; and

"B) That, prior to his death, both of the Plaintiff's half sisters, Roberta Miller and Judith Kramer promised Harry Freedman that they would divide any legacies they received under his Will with the Plaintiff, so that, in fact, the three daughters of Harry Freedman would receive equal amounts of his estate.

"The Defendants, Valerie K. Freedman, Roberta Miller, her husband, and Judith Kramer and her husband, denied the essential factual bases of the Plaintiff's claim. In addition, they raise the defenses that this action is precluded under the doctrine of Res judicata by the decision of the County Judge's Court of Dade County which denied the Plaintiff's petition to revoke the probate of Harry Freedman's Will and which was affirmed by the Third District Court of Appeal in In re: Estate of Freedman, Fla.App.1969, 226 So.2d 423. It is also contended that the present action is barred by the terms of the Separation Judgment entered in New York in 1954, and that this proceeding is no more than an improper collateral attack upon That judgment.

"The Court has heard and weighed the testimony of the witnesses and read and considered the depositions and the exhibits, including the complete file of the County Judge's Court case, introduced into evidence at this trial. In addition, the Court has heard argument of counsel and has received and considered extensive memoranda of law from the parties involved. By and upon the basis of clear and convincing evidence in the cause, the Court finds as follows:

"1. A) Prior to his execution of the separation agreements of March 5, 1953 and February 15, 1954 and the entry of the Judgment of Separation in New York on March 5, 1954, Harry Freedman has formed the fixed purpose and desire of giving the plaintiff, his daughter, Evelyn Patricia Freedman, a share in his estate equal to that of his other daughters, Roberta Miller and Judith Kramer. This purpose, often and vehemently expressed by Harry Freedman, gave the Plaintiff the virtual certainty of receiving this share if her father's desires were carried out.

"B) The Defendant, Valerie K. Freedman, wrongfully, maliciously and tortiously interfered and effectively precluded the effectuation of Harry Freedman's fixed purpose and desire to this effect by engaging in a series of threats and actions that began upon Valerie K. Freedman's discovery of the existence of the Plaintiff, Evelyn Patricia Freedman. Valerie K. Freedman began a course of conduct characterized by the harassment of the Plaintiff and her mother, Alma Freedman. These acts, among others, consisted of the pounding on the door of their apartment, shouting threats and epithets such as, 'I'll kill that bastard child'; reporting to the school authorities that the Plaintiff, Evelyn Patricia Freedman, was a bastard child; and reporting to other authorities that Alma Freedman was an unfit mother; repeated telephone calls; and other acts of harassment wherein Valerie K. Freedman reported Alma Freedman to the Bureau of Internal Revenue and at the same time reported Harry Freedman to the Bureau of Internal Revenue, indicating to the Bureau that Harry Freedman has large sums of unreported cash. She then reported Harry Freedman to the Securities and Exchange Commission, alleging the improper transfer of stocks and other abuses of Federal law. She told Harry Freedman that his bastard child would never have an opportunity to enjoy Harry Freedman's money or wealth. These acts of harassment culminated in two actual attempts by Valerie K. Freemdman to cause grave bodily injury and death to the Plaintiff by attempting to run her down with an automobile in Asbury Park, New Jersey. These acts were the direct and 'proximate' cause of Harry Freedman's execution of the separation agreements in question and of the Judgment of Separation entered thereon. The pertinent part of the Separation Agreement and the reason for Harry Freedman's entering into said Agreement is quoted as follows:

". . . the wife agrees that as long as the husband complies with all the terms and conditions of this agreement on his part to be performed she will not, directly or indirectly, personally or through any other person, entity or agency, communicate with Alma Deering or her child, Evelyn Patricia Deering, or do or say anything to molest, harass, disturb or slander them, or either of them, or in any way to interfere or attempt to interfere, in their lives, or in the custody, upbringing or education of said child. It is distinctly understood that performance of the foregoing provision by the wife is of the essence of this agreement in its entirety, and that a breach thereof shall be deemed a material breach of this agreement.'

"By the terms of the said Separation Agreement, Harry Freedman was precluded from conferring any bequest or legacy upon Evelyn Patricia Freedman. It was the terms of these documents which resulted in the Plaintiff's being in fact 'cut out' of the Will executed by Harry Freedman.

"C) The Plaintiff would have received a bequest in the Will and from the estate of Harry Freedman equal to that of his other daughters, Roberta Miller and Judith Kramer, but for the tortious conduct of Valerie K. Freedman since he expressed the desire of having the Plaintiff, Evelyn Patricia Freedman, share in his estate equally with his other two daughters on numerous occasions.

"2. A) Harry Freedman died on January 31, 1967. Shortly before his death and during his last illness, the Defendant, Judith Kramer, promised Harry Freedman in writing and the Defendant, Roberta Miller, promised Harry Freedman, both orally and in writing that they would share their legacies from their father 'three ways'; that is, so that the Plaintiff, Judith Kramer, and Roberta Miller would receive equal shares of the estate. Letters from both Roberta Miller and Judith Kramer, which contained this promise, were in fact received by Harry Freedman.

"B) Harry Freedman relied upon these promises of Roberta Miller and Judith Kramer and did not in fact change his Will so as to leave the Plaintiff a share of his estate equal to that of Roberta Miller and Judith...