JULIAN BIVINS, as the ancillary personal representative of the Estate of Oliver Wilson Bivins, Appellant,
GUARDIANSHIP OF OLIVER BIVINS, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Martin H. Colin, Judge; L.T. Case No.
(Mack) McCormick Jr. and J. Ronald Denman of The Bleakley
Bavol Law Firm, Tampa, for appellant.
Crispin Ackal, Brian M. O'Connell, and Joielle A.
Foglietta of Ciklin Lubitz & O'Connell, West Palm
Beach, for appellee.
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
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
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.
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 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.
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
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
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
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).
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 ...