Robinson v. Weiland

• Decision Date: 01 September 2006
• Docket Number: No. 5D05-2380.,5D05-2380.
• Citation: Robinson v. Weiland, 936 So.2d 777 (Fla. App. 2006)
• Parties: Ramona ROBINSON, Appellant, v. Michael A. WEILAND, et al., Appellees.
• Court: Florida District Court of Appeals

Page 777

936 So.2d 777

Ramona ROBINSON, Appellant, v.Michael A. WEILAND, et al., Appellees.

No. 5D05-2380.

District Court of Appeal of Florida, Fifth District.

September 1, 2006.

Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellant.

Anthony N. Brimo of Jacoby, Brimo, Figueroa, & Chase, Melbourne, for AppelleeMichael A. Weiland.

Erika McBryde, of Frese, Hansen, Anderson, Anderson, Roche, Heuston & Whitehead, P.A., Melbourne, for AppelleeJohn M. Cetrano.

No Appearance for other Appellees.

SAWAYA, J.

This appeal involves three individuals competing for the designation annuity beneficiary" in consolidated interpleader actions filed by two annuity companies seeking a judicial decree determining who is entitled to the proceeds of the two annuities purchased by the decedent, John S. Cetrano, prior to his death.In their respective pleadings filed in the underlying action, John M. Cetrano, son of the decedent, claimed 60% and Michael Weiland, a female friend of the decedent,¹ claimed 40% of the total proceeds based on change of beneficiary forms purportedly executed by the decedent prior to his death.Ramona Robinson, the sister of the decedent, claims 100% of the total proceeds, contending that the purported change of beneficiary forms are invalid to remove her as the preexisting beneficiary of both annuities because the forms were not executed by the decedent or, in the alternative, if they were executed by the decedent, they were the product of undue influence by Weiland over the decedent.

The trial court, after considering the testimony of the parties and the evidence they submitted, requested written closing arguments.Before a final judgment was rendered, Robinson filed a Motion to Reopen Trial For Newly Discovered Evidence, requesting the court to hear additional evidence showing that a fraud had been committed on the court as Robinson had located Weiland's former roommate, who would testify that Weiland had filled out blank change of beneficiary forms to benefit herself.The court refused and rendered final judgment in favor of Weiland and Cetrano, finding that the change of beneficiary forms were valid.Robinson then filed a Motion for Rehearing, New Trial, or Evidentiary Hearing, which the trial court denied.On appeal, Robinson raises several issues, two of which we will discuss: (1) the final judgment was contrary to the manifest weight of the evidence; and (2)the court committed reversible error in summarily denying Robinson's motion to reopen the evidence to consider her colorable claim of fraud on the court without an evidentiary hearing.²

It is not necessary to discuss in detail the facts and circumstances of this case or the testimony presented by each party in order to resolve the first issue.Suffice it to say that while much conflicting and self-serving testimony was offered by each claimant in an attempt to secure the annuity proceeds, their testimony was consistent in their description of the decedent.He was a surly old curmudgeon, rigid and harsh in his treatment of others, inexorable in his opinions and beliefs, and a person not easily cajoled or persuaded to do anything he did not want to do.Although not flattering, this testimony reflects the true nature of the relationships the decedent had with each party and reveals that the decedent was not a man to be easily duped or unduly influenced by anyone.Based on this and other evidence presented by Weiland and Cetrano, which the trial court apparently found to be credible, we believe that reasonable individuals may differ regarding the trial court's decision to deny Robinson a new trial based on the asserted ground that the judgment is against the manifest weight of the evidence.³Therefore, we are unable to conclude that the trial court abused its discretion in making that decision.⁴Although Robinson voices her indignation that the trial judge could find in favor of Weiland and Cetrano in light of the evidence that she presented, and while our reading of the trial transcripts leads us to question the trial judge's findings and the judgment he rendered, we must and do recognize that it was the trial judge who observed the witnesses testify, and he was in the better position to judge their credibility and weigh their testimony together with all of the other evidence presented.⁵It is not for us to reweigh that which was presented to, and considered by, the trial judge as the finder of fact.⁶Because we are unable to conclude that the trial court abused its discretion in not granting Robinson a new trial based on her argument that the judgment is against the manifest weight of the evidence, we must affirm as to this issue.

The issue whether the trial court erred in refusing to reopen the case to allow additional evidence is much more problematic and troubling.Robinson argues that the trial court committed reversible error by failing to allow her to present Sally Adams' testimony, particularly where the motion to reopen was made well before the final judgment was rendered and it was Weiland's own false answer to an interrogatory that prevented Robinson from locating Adams in time for the trial.Adams was the only person other than Weiland who had information about the completion of the beneficiary change forms and her testimony, if believed, proved that Weiland had committed a fraud on the court.

A paralegal employed by Robinson's attorney explained, in an affidavit, how Adams was discovered as a witness and how Weiland failed to truthfully disclose information relative to her prior address.The paralegal states that four months prior to the October 2004 trial, she spoke with Weiland's ex-husband, who told her that a Flo McGrath and Sally Adams might have information that was pertinent.Weiland, McGrath, and Adams previously worked together.Although the ex-husband did not know where either McGrath or Adams lived currently, he knew that McGrath was working at a 7-Eleven on Wickham Road.Three days after obtaining this information, Robinson's attorney propounded interrogatories to Weiland asking for current or prior addresses for Adams.Weiland answered that she did not know of any.

The paralegal eventually located McGrath at a 7-Eleven, and McGrath stated that she thought Adams was working at a bar in Orlando, adding that Adams used to live with Weiland.This was the first indication that Robinson had of the roommate relationship.On October 22, three days before trial, the paralegal conducted an unsuccessful Internet search for Adams.On December 17, almost two months post-trial, the paralegal was training on a new Internet locator service and learned of a new way to trace persons.Using Weiland's address (where Adams used to live), the paralegal traced Adams to a Sally Bassham in Tennessee.Because no phone number was provided, the paralegal wrote to the address asking that the woman contact her if she was the correct Sally Adams.On January 9, 2005, Sally Adams called from her current residence in California and left a voice mail message on the firm telephone.The paralegal returned the call the next day.Adams subsequently executed an affidavit wherein she stated that she knew the decedent and had visited him in the hospital with Weiland in February 2002; that the decedent was clear that he did not want Cetrano to have any part of the annuities; and that the decedent never indicated, in her presence, that he wanted Weiland to have them.Adams' affidavit also stated that the decedent had signed the forms in March 2002, without them being completed, and that Weiland brought the uncompleted forms back to their residence and left them on Weiland's desk for several weeks.Her affidavit then states:

After the forms were at the house for a number of weeks, I personally was present when she completed the annuity beneficiary change forms.She told me she was including herself as a 40% beneficiary because she did not want to appear to be too greedy....The forms were definitely not completed in the presence of John S. Cetrano[the decedent] and were not placed in their envelopes for mailing by John S. Cetrano; Michael Weiland filled them out at 1711 Joshua Drive, NE, Palm Bay, Florida and mailed them many weeks after she first had possession of the forms.

Armed with this information, Robinson's attorney filed a Motion to Reopen Trial For Newly Discovered Evidence so he could have Adams testify.The trial court summarily denied the motion on February 16, 2005, and the final judgment in favor of Weiland and Cetrano was rendered March 4, 2005.

Robinson argues that Weiland actively concealed the fact that she and Adams had been roommates during the critical time frame, pointing out that even when Weiland testified to who was present during her visits with the decedent, Weiland had failed to list Adams, yet Adams specifically stated in her affidavit that she had visited the decedent in the hospital with Weiland in February 2002.Too, when Weiland testified that she had put the decedent's wife's jewelry in a safety-deposit box using the account of a girlfriend to acquire the box as Weiland had no bank account, Weiland failed to name the girlfriend.It turns out that that girlfriend was Adams and Adams and Weiland were roommates at that time.Thus, Robinson alleges, Weiland's fraud is both intrinsic, in that she apparently committed perjury in the trial, and extrinsic, in that her answer to the interrogatory concealed the fact that Adams had been her roommate during the pertinent time period.The fact that the two had been roommates during the pertinent time frame made Adams all the more critical to interview, yet Weiland stonewalled this effort.Robinson asserts that it was error to deny her motion to reopen the case to present the testimony of Adams.

The courts consistently agree that the trial court has discretion to grant a motion to reopen a case for presentation of additional evidence after the...