Pasquale v. Loving

• Decision Date: 21 March 2012
• Docket Number: No. 4D10–3893.,4D10–3893.
• Citation: 82 So.3d 1205
• Parties: Dominic PASQUALE, Jr., individually, and Anthony Pasquale, individually, Appellants, v. Jack L. LOVING, individually and as Trustee, Ziad E. Habayeb, individually and as Trustee, Scott M. Stewart, individually, CitiGroup Trust, Delaware, N.A. by Karen A. Savage, as Trustee and Personal Representative, and Community Foundation of Broward, Inc., Appellees.
• Court: Florida District Court of Appeals

82 So.3d 1205

Dominic PASQUALE, Jr., individually, and Anthony Pasquale, individually, Appellants,

v.Jack L. LOVING, individually and as Trustee, Ziad E. Habayeb, individually and as Trustee, Scott M. Stewart, individually, CitiGroup Trust, Delaware, N.A. by Karen A. Savage, as Trustee and Personal Representative, and Community Foundation of Broward, Inc., Appellees.

No. 4D10–3893.

District Court of Appeal of Florida, Fourth District.

March 21, 2012.

Brian M. Beauchamp of Brian M. Beauchamp, P.A., Stuart, for appellants.

Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach, and Peter J. Forman of Gutter Chaves Josepher Rubin Forman Fleisher, P.A., Boca Raton, for appellee CitiGroup Trust, Delaware, N.A.

Peter A. Portley of Portley and Sullivan, Lighthouse Point, for appellee-Jack Loving.James R. George and Tattiana Brenes–Stahl of Greenberg Traurig, P.A., Fort Lauderdale, for appellee Community Foundation of Broward, Inc.Adrian Philip Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for appellees Ziad E. Habayeb and Scott Stewart.PER CURIAM.

This appeal stems from a notice of administration served on the appellants, Dominic Pasquale, Jr., and his brother, Anthony Pasquale, regarding administration of the estate of Mary N. Porter (“the decedent”) based on a will executed in 2005. In response, the Pasquales filed a four-count complaint challenging the validity of “estate planning” and “testamentary documents executed after the year 2000” by the decedent. The trial court concluded that the complaint did not constitute a will contest and dismissed it with prejudice. We find that the first three counts of the complaint sufficiently demonstrated a contest of the will and reverse as to dismissal of those counts. The fourth count alleged exploitation of a vulnerable adult and was properly dismissed by the trial court for lack of standing by appellants to assert the claim.

The decedent died on August 19, 2009, at the age of 98. The notice of administration advised that the decedent's will, dated October 10, 2005, and codicil, dated October 12, 2005, had been admitted to probate. Dominic Pasquale, Jr., was required to file an objection to the will by February 6, 2010, and Anthony Pasquale by February 13, 2010. On January 20, 2010, the Pasquales filed a complaint against the appellees, Jack R. Loving, individually and as trustee, Ziad E. Habayeb, individually and as trustee and Scott M. Stewart, individually. Also on January 20, 2010, the Pasquales filed a notice of independent action stating that a claim had been “filed against the estate of [the decedent] regarding all Trust Documents and Amendments thereto and the probate administration,” and a declaration that the “proceeding to probate the Last Will and Testament of [the decedent]” was adversary.

On February 10, 2010, prior to an answer being filed, the Pasquales filed an amended complaint adding CitiGroup, as trustee and personal representative of the estate, as a defendant. The amended complaint also contained an allegation identifying CitiGroup, but in all other respects was identical to the original complaint. The “subject matter” of the amended complaint “involve[d] the incapacity and testamentary capacity of [the decedent].” It alleged that she executed a will in 1991, leaving substantial bequests to each Pasquale brother and an irrevocable trust in 1999 for the benefit of the Pasquales and an individual named “George Jiminez,” also listed as “George Jimenez.” The amended complaint then listed thirteen trust amendments and will codicils made by the decedent between 1991 and 2007 that resulted in revocation of the bequests to the Pasquales and reduction of the trust res. The 2005 will was not specifically included in this list, even though it contained a provision which revoked and terminated “[a]ll interests” of the Pasquales under the trust. The Pasquales alleged in their complaint that Jimenez met the decedent in 1997 and acted in concert with Habayeb and Stewart to exert undue influence over her, causing her to modify her “testamentary plan” and “testamentary documents executed after the year 2000” for their benefit. Four counts were included. Count I alleged tortious interference with expectancy and sought a determination that all testamentary documents executed after 2000 were null and void. Count II alleged that the decedent lacked testamentary capacity and sought revocation of a restated trust executed in 2004 and reinstitution of the 1999 trust. Count III alleged fraud, duress and undue influence and sought revocation of administration of the amended and restated trust and its amendments. Count V ¹ alleged exploitation of a vulnerable adult and sought damages. CitiGroup was served with a copy of the amended complaint.

Each defendant filed a motion to dismiss, arguing multiple grounds for dismissal, including that the Pasquales failed to timely contest the will because neither the complaint, nor the amended complaint, could be considered a will contest. Dismissal as to count V was sought based on the Pasquales lack of standing. The trial court granted the motions to dismiss counts I–III, reasoning that the complaint focused on the trust and did not even name the 2005 will. A trial court's order of dismissal is reviewed de novo. See Horton v. Freeman, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006).

We note, first, that the Pasquales could not challenge the validity of the trust without also contesting the will. The trust was incorporated by reference into the 2005 will. See Lewis v. SunTrust Bank, Miami, N.A., 698 So.2d 1276, 1277 (...