Shuck v. Bank of America, NA

• Decision Date: 19 September 2003
• Docket Number: No. 2D02-5410.,2D02-5410.
• Citation: 862 So.2d 20
• Parties: Lorraine M. Kanavas SHUCK, Appellant, v. BANK OF AMERICA, N.A., as Personal Representative of the Estate of David L. Shuck, deceased, and as Successor Trustee of the David L. Shuck Revocable Living Trust, u/a/d November 3, 1993, Appellee.
• Court: Florida District Court of Appeals

862 So.2d 20

Lorraine M. Kanavas SHUCK, Appellant, v. BANK OF AMERICA, N.A., as Personal Representative of the Estate of David L. Shuck, deceased, and as Successor Trustee of the David L. Shuck Revocable Living Trust, u/a/d November 3, 1993, Appellee.

No. 2D02-5410.

District Court of Appeal of Florida, Second District.

September 19, 2003.

Wm. Fletcher Belcher of Law Offices of Wm. Fletcher Belcher, St. Petersburg; James A. Byrne, St. Petersburg; and W. Russell Snyder of Snyder & Merritt, Venice, for Appellant.

W. Nelon Kirkland of Harrison, Hendrickson & Kirkland, P.A., Bradenton, for Appellee.

WALLACE, Judge.

Lorraine M. Kanavas Shuck ("the widow") appeals the trial court's order dismissing with prejudice her claim against Bank of America, N.A. ("the Bank"), in its capacity as successor trustee of her husband's revocable trust. The widow's claim against the Bank in its capacity as successor trustee was premature because her right to maintain the claim was contingent on events that may or may not occur in the future. Therefore, we affirm the dismissal but reverse the entry with prejudice.

The pertinent facts, as alleged in the widow's first amended complaint, are easily summarized. The widow is the surviving spouse of David L. Shuck ("the decedent"). The Bank is both the personal representative of the decedent's estate and the successor trustee of the decedent's revocable trust. On April 23, 2001, the widow and the decedent executed a prenuptial agreement which provided, in pertinent part, as follows:

The parties agree that the husband shall execute by will or trust provision or by primary beneficiary designation or by addition of the wife as joint holder for the purpose of providing that FIFTY PER CENT (50%) of assets and property, whether real and/or personal wherever located, at husband's death, to the wife, if she is living. The husband shall provide evidence of such execution as requested by the wife.

The parties were married later that day after executing the prenuptial agreement. The decedent died approximately three weeks later. As of the date of his death, the decedent had failed to take the action necessary to make the widow the beneficiary of fifty percent of his assets and property.

An estate was opened for the decedent in Manatee County, Florida, and the Bank was appointed as personal representative of the estate. The widow timely filed a statement of claim in the estate. The Bank objected to the claim, and the widow filed an independent action to enforce the claim. The first count of the widow's first amended complaint was an action for damages for breach of the prenuptial agreement brought against the Bank in its capacity as personal representative of the estate. The second count sought specific performance of the prenuptial agreement against the Bank in its capacities both as personal representative and as successor trustee of the decedent's revocable trust.

The Bank filed an answer to the first count of the widow's first amended complaint raising various affirmative defenses. The Bank also moved to dismiss the second count with prejudice on the ground that the widow did not have an enforceable claim as one of the decedent's creditors. The trial court granted the motion in part by dismissing the second count with prejudice as to the Bank in its capacity as successor trustee of the decedent's revocable trust. The trial court's order allowed the widow to proceed with her claims in both the first and second counts against the Bank in its capacity as personal representative. Thus we are here concerned only with the issue of the Bank's potential liability as successor trustee of the decedent's revocable trust.

At the time of the decedent's death in May 2001, the pertinent statute, section 733.707(3), Florida Statutes (2000), read:

Any portion of a trust with respect to which a decedent who is the grantor has at the decedent's death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent's creditors to the extent the decedent's estate is insufficient to pay them as provided in s. 733.607(2).

As the widow has conceded, the trial court's order correctly dismissed her claim against the Bank in its capacity as successor trustee. However, the widow argues that the trial court erred in dismissing with prejudice her claim against the Bank in its capacity as successor trustee "without in some manner qualifying or limiting that prejudice so as to permit [the widow] to seek relief under § 733.707(3), Fla. Stat. (2000), for such `enforceable claims' as she may now have or hereafter acquire." A dismissal with prejudice, the widow argues, overlooks the fact that if a judgment is ultimately entered in favor of the widow on her claim against the Bank in its capacity as personal representative, the widow's claim will then ripen into an "enforceable claim" for which the decedent's revocable trust may be liable under the statute. In that eventuality, the widow is understandably concerned that she would be confronted with the argument that the trust is not liable for the ripened "enforceable claim" because of the doctrine of res judicata or other preclusive effect of the earlier dismissal with prejudice.

The Bank argued in the trial court and argues on this appeal that the widow is not a creditor of the decedent because the widow's claim did not exist at the time of the decedent's death and thus did not vest against the decedent during his lifetime. In support of its position, the Bank cites Sharps v. Sharps, 219 So.2d 735 (Fla. 3d DCA 1969). However, Sharps is clearly distinguishable. The prenuptial agreement under consideration in Sharps obligated the husband to leave his wife the sum of $150,000 if she survived him as his widow. The trial court in Sharps ruled that the surviving spouse was not a creditor of her husband's estate. The appellate court affirmed the trial court's finding on the basis that the husband had in fact left his surviving spouse $250,000, which greatly exceeded his contractual obligation. Id. at 737. In Sharps, the surviving spouse was not a creditor of her deceased husband's estate because he had fully performed his obligations under the prenuptial agreement. In this case, unlike Sharps, the widow alleges that the decedent died without performing the obligations he had assumed under the prenuptial agreement.

We disagree with the Bank's argument that the widow, on the facts alleged in the first amended complaint, could never have an "enforceable claim" as a creditor of the decedent's estate. In Gridley v. Galego, 698 So.2d 273, 275 (Fla. 2d DCA 1997), we said:

In Florida, an antenuptial agreement is a valid contract and is enforceable against the estate. If a decedent breaches a contract to make a will, the right being enforced is a contract right. See Lindeburg v. Lindeburg, 162 So.2d 1, 3 (Fla. 3d DCA), cert. denied, 166 So.2d 754 (Fla.1964) (A husband can be required to answer personally through his estate for his breach of contract of a property settlement agreement).

See also Spohr v. Berryman, 589 So.2d 225 (Fla.1991).

Thus the widow's claim, if established, would be enforceable against the estate of the decedent. Under those circumstances, if and when they occur, both parties appear to assume that the widow may then have an "enforceable claim" that she could enforce directly against the revocable trust to the extent that the decedent's estate may be insufficient to pay claims and expenses of administration pursuant to section 733.707(3). The accuracy of this assumption is not material to the disposition of this appeal and our instructions on remand. Therefore, we will make the same assumption for the purposes of this opinion.¹ All elements of a cause of action must exist and be complete before an action may properly be commenced. See, e.g., Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610 (Fla. 4th DCA 1975); Hasam Realty Corp. v. Dade County, 178 So.2d 747, 748 (Fla. 3d DCA 1965). The trial court's order dismissed the widow's amended complaint with prejudice because it was prematurely filed. The dismissal with prejudice of a prematurely filed claim does not bar a subsequent action once the claim has ripened. In the case of Smith v. St. Vil, 714 So.2d 603 (Fla. 4th DCA 1998), the Fourth District said:

[I]t is not the inclusion of the words "with prejudice" which determines whether a dismissal is res judicata, but rather whether the order actually was an adjudication on the merits.

Id. at 605 (citing N. Shore Realty Corp. v. Gallaher, 99 So.2d 255 (Fla. 3d DCA 1957)). The dismissal on the pleadings of a prematurely filed claim does not constitute an adjudication on the merits.² Therefore, the doctrine of res judicata does not bar a second action on the claim. See Malunney v. Pearlstein, 539 So.2d 493, 495 (Fla. 2d DCA 1989).

The appropriate disposition of prematurely filed actions varies depending upon the circumstances that give rise to the premature element of the claim. For example, an action filed before the expiration of a statutory waiting period is deemed premature. The premature element of an action filed before the expiration of an applicable statutory waiting period is cured once the waiting period has expired. In cases where the premature element of an action is curable simply by the passage of time, Florida courts have generally disapproved dismissal of the action. Instead, the favored disposition is abatement of the action until the cause matures. See Thomas v. Suwannee County, 734 So.2d 492, 497 (Fla. 1st DCA 1999) (holding that an action challenging a zoning special exception filed prior to the required expiration of thirty days from filing a complaint with the county should have been abated instead of dismissed with prejudice); Interlatin Supply, Inc. v. S & M Farm...