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Bivins v. Guardianship of Bivins

Florida Court of Appeals, Fourth District

May 10, 2017

JULIAN BIVINS, as the ancillary personal representative of the Estate of Oliver Wilson Bivins, Appellant,
v.
GUARDIANSHIP OF OLIVER BIVINS, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Martin H. Colin, Judge; L.T. Case No. 50-2011-GA-000006-XXXX-SB.

          R.G. (Mack) McCormick Jr. and J. Ronald Denman of The Bleakley Bavol Law Firm, Tampa, for appellant.

          Ashley Crispin Ackal, Brian M. O'Connell, and Joielle A. Foglietta of Ciklin Lubitz & O'Connell, West Palm Beach, for appellee.

          Levine, J.

         The appellant raises two issues for our review. The first issue is whether a trial court must enforce a settlement agreement concerning the assets of an incompetent ward where the guardian retained some assets to pay guardianship expenses, contrary to the express language of the settlement agreement. The second issue is whether, upon the death of a ward, a guardian may retain part of a deceased ward's assets to pay for present and future guardianship expenses. As to the first issue, we conclude that Florida law favors the enforcement of settlement agreements, and the court erred in failing to enforce this agreement in accordance with its terms. As to the second issue, however, we hold that Florida law permits a guardian to retain some of a ward's assets, even after the death of the ward, to pay for the guardian's expenses.

         Oliver Bivins, the ward, was declared incompetent and had a professional guardian appointed on his behalf. What followed was years-long litigation between the ward's guardian and the ward's child, Julian Bivins. The ward died in 2015, and the guardian and Julian entered into a Global Settlement Agreement.

         The Global Settlement Agreement dealt with real property located in New York City. Pursuant to the Global Settlement Agreement, Julian could purchase the property for $5, 000, 000 under several stringent time constraints. Should Julian purchase the property, the Global Settlement Agreement specifically directed how the proceeds of the purchase should be divided. As part of the agreement, the law firm of Ciklin Lubitz & O'Connell, acting as escrow agent, would hold in trust $150, 000 for monies due to the law firm of Levine & Susaneck and $125, 000 for guardianship administration expenses. Furthermore, the Global Settlement Agreement stated that part of the proceeds were to pay the attorney's fees and costs of the law firm of Beys Stein Mobargha & Berland, LLP pursuant to a court order entered the previous year. The Global Settlement Agreement did not, however, specifically permit Beys Stein to hold any of the proceeds in escrow. The Global Settlement Agreement directed that the remainder of the proceeds be transferred to a trust located in Texas. Julian complied with the Global Settlement Agreement and purchased the New York property.

         Upon the ward's death, Julian became the temporary administrator of the ward's estate. Julian requested that the guardian file a final report. The guardian's final report indicated that, pursuant to the Global Settlement, Ciklin Lubitz & O'Connell held in trust $150, 000 for fees due to Levine & Susaneck[1] and $125, 000 for guardianship expenses. The law firm also held $400, 994.35 for the "[g]uardianship matter." Additionally, the guardian held $155, 383.51 of the ward's assets in a Wells Fargo checking account. The $155, 383.51 was not comprised of proceeds from the sale of the New York property. Subsequently, during a hearing on attorney's fees, Julian learned that Keith Stein, with the firm of Beys Stein Mobargha & Berland, LLP, who had served as a closing agent for the sale of the New York property, had also held back $72, 433.94 of the sale proceeds.

         Julian moved for release of all the ward's monies being "held back" and within control of the guardian and his attorneys. Julian argued that the Global Settlement Agreement mandated the transfer of both the $400, 994.35 and the $72, 433.94 as both sums were proceeds from the New York property sale. Julian also argued the other monies in possession of the guardian and his attorney should be transferred to the deceased ward's estate. The guardian argued that because Julian had filed various lawsuits against him and his attorneys after the ward had died, the monies were necessary to pay for the guardian's expenses and fees.

         The trial court ordered the guardian to release $400, 994.35. However, the court permitted the guardian to retain the $72, 433.94 held in escrow by Stein, the $185, 000 held in escrow by Ciklin Lubitz & O'Connell, and the $155, 383.51 held in the guardian's Wells Fargo account. Julian appealed.

         As to the first issue, Julian argues the trial court erred because the Global Settlement Agreement did not permit Stein to retain $72, 433.94 from the New York property sale proceeds. As this issue concerns the legal question of whether the trial court could act contrary to the Global Settlement, we review this issue de novo. See Sumner Grp. Inc. v. M.C. Distributec, Inc., 949 So.2d 1205, 1206 (Fla. 4th DCA 2007).

         "In Florida, settlement agreements are 'highly favored' 'and will be enforced when it is possible to do so.'" U.S. Bank Nat'l Ass'n v. Benoit, 190 So.3d 235, 237 (Fla. 4th DCA 2016) (quoting Treasure Coast, Inc. v. Ludlum Constr. Co., 760 So.2d 232, 234 (Fla. 4th DCA 2000)). "Where the contractual language is clear, courts may not indulge in construction or modification and the express terms of the settlement agreement control." Sec. Ins. Co. of Hartford v. Puig, 728 So.2d 292, 294 (Fla. 1999).

         In the present case, the Global Settlement Agreement is clear. Although the Global Settlement Agreement states proceeds from the sale of the New York property were to pay the law firm of Beys Stein Mobargha & Berland, LLP's prior legal fees, nothing in the Global Settlement Agreement provides that Stein could hold any of the proceeds ...


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