final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No.
J. Kneski of the Law Offices of Paul J. Kneski, P.A.,
Plantation, for appellant.
S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman &
Cohen, North Palm Beach, for appellee.
heart of this case is an attempt by the decedent's friend
to recover damages from the decedent's neighbor, who she
asserts tortiously interfered with the inheritance her friend
had left to her. However, we need not tell that story at this
time. Our focus in this appeal is on the court's
conclusion that the friend was barred from raising her claims
due to an earlier probate proceeding.
court concluded the friend, Rosalie Wolf, knew about the
earlier probate proceeding, could have raised her claims in
that earlier proceeding and, as a result, was barred from
raising the claims in collateral litigation. Based upon those
conclusions, the court entered summary final judgment in
favor of the neighbor, Jo Ann Doll. Now, Wolf appeals,
arguing material issues of fact precluded the entry of
summary judgment. We agree. The controlling statute required
"formal notice" to all beneficiaries of the earlier
probate proceeding, a petition for summary administration.
However, the record does not indicate whether or not
"formal notice" was provided to Wolf. Therefore, we
purposes of this appeal, there are three relevant people
involved in this story: the decedent, whose money and assets
are at issue; Wolf, who testified that the decedent was best
friends with her mother, and that she and decedent saw each
other several times per month; and, Doll, who was the
property manager at the condominium complex where the
decedent lived. Doll testified that she helped the decedent
in various capacities including becoming a signatory on one
of her accounts three years prior to her death.
2005, the decedent executed a Deed to Trustee, giving the
decedent, as Trustee, the power and authority to manage or
dispose of her condominium unit. Five years later, the
decedent amended the trust. As amended, the trust distributed
title, ownership and possession of the condominium unit to
Wolf. The trust also distributed all personal property not
specifically transferred to Wolf.
the decedent fell and fractured her hip. While hospitalized,
she executed another amendment to the trust. This amendment
revoked the provisions of the prior amendment that was in
Wolf's favor, and provided that the condominium and
property would be transferred to her neighbor, Doll. The
decedent also executed a power of attorney, appointing Doll.
Two months later, the decedent passed away.
petitioned for summary administration of the decedent's
estate. The petition indicated that Wolf was a beneficiary of
the estate and the certificate of service indicated that Wolf
was served with a copy of the petition. However, the
certificate of service did not indicate the manner in which
Wolf was served. The probate court entered an order of
summary administration, transferring the decedent's
jewelry to Wolf and the remainder of the assets to the trust.
Later, pursuant to the amended terms of the decedent's
trust, the condominium unit was transferred to Doll.
who did not participate in the summary administration, filed
a civil action against Doll, alleging tortious inference with
expectancy, constructive trust, declaratory relief, and
conversion. After the parties participated in discovery, Doll
moved for summary judgment. Doll argued in her motion that
Wolf had actual knowledge of the probate proceeding and,
therefore, was prohibited from collaterally attacking the
order of summary administration. Wolf did not address this
issue in her lengthy response, however, the issue was
addressed at her deposition which had been filed with the
court. And, while the court held a hearing on the motion, the
issue of notice was not discussed at the hearing.
the hearing, the court granted Doll summary judgment, finding
Wolf's claims were procedurally barred. The court stated
that "although [Wolf] was aware of the probate
proceeding, she did not contest the ...