Robinson v. Weiland, No. 5D07-1210.

• Decision Date: 11 July 2008
• Docket Number: No. 5D07-1210.
• Citation: 988 So.2d 1110
• Parties: Ramona ROBINSON, Appellant, v. Michael A. WEILAND and John M. Cetrano, Appellees.
• Court: Florida District Court of Appeals

988 So.2d 1110

Ramona ROBINSON, Appellant, v. Michael A. WEILAND and John M. Cetrano, Appellees.

No. 5D07-1210.

District Court of Appeal of Florida, Fifth District.

July 11, 2008.

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

Allan P. Whitehead and Erika McBryde of Frese, Hansen, Anderson, Anderson,

Heuston & Whitehead, P.A., Melbourne, for Appellee, John M. Cetrano.

No appearance for Appellee, Michael A. Weiland.

COHEN, J.

We review whether the trial court exceeded this court's mandate issued in Robinson v. Weiland, 936 So.2d 777 (Fla. 5th DCA 2006). Because the trial court's actions on remand exceeded our mandate, we reverse and remand for a new trial.

The facts of the underlying dispute were set out in the earlier opinion. In short, the dispute began as an interpleader action filed by two annuity companies seeking a determination of entitlement to the proceeds of two annuities purchased by the decedent, John S. Cetrano. The decedent's sister, Ramona Robinson, claimed 100 percent of the proceeds, while the decedent's female friend, Michael Weiland, and the decedent's son, John M. Cetrano, claimed 40 percent and 60 percent, respectively, based upon change of beneficiary forms allegedly executed by John S. Cetrano. Robinson claimed that the forms were not executed by the decedent or, in the alternative, were the product of Weiland's undue influence.

The earlier appeal, and to some extent this appeal, centered around allegations that Weiland committed fraud by intentionally concealing the whereabouts and other significant facts about Sally Adams, a witness to the events in question. Weiland responded "unknown" to specific interrogatories requesting Adams' current or previous address and telephone numbers. It was not until trial that Weiland acknowledged, for the first time, that Ms. Adams had been her roommate during the critical time frame. Utilizing that new information after the trial, but before judgment was entered, Robinson was able to locate Adams and filed a motion to reopen the trial based upon newly discovered evidence of Weiland's fraud. This court reversed the denial of that motion in the initial appeal.

In reversing the judgment of the lower court, this court declared, "Should the trial court determine that fraud occurred, as Robinson alleged, we believe that a new trial would be warranted." Robinson, 936 So.2d at 782. This was consistent with our earlier direction to the lower court that, given the allegations of fraud, "an evidentiary hearing was essential for the trial court to properly determine whether to grant the request to present the testimony of Adams." Id. at 781. Thus, this court's mandate directed the lower court to determine whether Weiland had fraudulently concealed Adams' identity and facts relating to the execution of the change of beneficiary forms, as Robinson, alleged, and, if so, to award a new trial.

At the outset, we recognize the difficult position of the lower court judge, a distinguished jurist. As the successor judge, he did not experience the full flavor of the original trial. As described in this court's earlier opinion, the trial was replete with conflicting and self-serving testimony. However, on remand, the trial court found that there was no fraud perpetrated on the court, weighed Adams' credibility, and effectively reevaluated the merits of the entire case without a new trial. Because we conclude that Adams' testimony, as well as Weiland's own affidavit filed in response to the motion for new trial, support Robinson's allegations that Weiland concealed Adams' identity to hamper the presentation of Robinson's claim,¹ the mandate necessitates a new trial.

Several instances demonstrate Weiland's repeated concealment of Adams' whereabouts and involvement. Adams had multiple contacts with the elder Cetrano. Weiland identified Nancy Rotti and Florence McGrath as individuals who visited Cetrano during the last few months of his life, but failed to name Adams, who testified that she visited Cetrano with Weiland two or three times a week during the several weeks he was hospitalized. Weiland's interrogatories exclude any mention of Adams' involvement despite the fact that Adams helped pack and move Cetrano's belongings into storage, Adams' knowledge of the contents of Cetrano's safe-deposit box and lockbox, as well as details concerning her delivery of his jewelry to the son's hotel. Weiland covered up not only knowledge of Adams' previous address, but also every facet of Adams' significant involvement in Cetrano's affairs, including facts surrounding the execution of the change of beneficiary forms.

This pattern of deception, in and of itself, is sufficient evidence of Weiland's fraudulent intent. If there was any doubt, the court need look no further than Weiland's affidavit filed in response to Adams' allegations. Weiland denied Adams' allegations, stating that Adams was hostile towards her because she accused Adams of a $2000 theft, filed a police report alleging Adams stole her jewelry, and had the police remove Adams' personal property from her residence.

Weiland's attorney...