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Wolf v. Doll

Florida Court of Appeals, Fourth District

November 15, 2017

ROSALIE WOLF, Appellant,
v.
JO ANN DOLL, individually and as Successor Trustee of the Gretchen T. Reysman Revocable Living Trust Dated November 3, 2005, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 502015CA004849XXXXMB.

          Paul J. Kneski of the Law Offices of Paul J. Kneski, P.A., Plantation, for appellant.

          James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellee.

          KUNTZ, J.

         At the 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.

         The 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 reverse.

         Background Facts

         For 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.

         In 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.

         Later, 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.

         Doll 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.

         Wolf, 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.

         Following 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 ...


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