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Calderon v. Vazquez

Florida Court of Appeals, Third District

July 11, 2018

Luis Gerardo Vazquez Calderόn, a/k/a Luis Vazquez, Appellant,
v.
Juan Vazquez, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-22013, Antonio Marin, Judge.

          Warren Gammill & Associates, and Warren P. Gammill, for appellant.

          Pardo Jackson Gainsburg, and Nicole R. Rekant and Stevan J. Pardo, for appellee.

          Before SALTER, EMAS and LOGUE, JJ.

          SALTER, J.

         Luis Vazquez ("Luis") appeals a circuit court order dismissing his amended complaint with prejudice. The appellee here and defendant in the trial court is Luis's uncle, Juan Vazquez ("Juan"). The amended complaint alleges six counts relating to the proceeds of a $120, 000.00 life insurance policy on the life of Luis's father, René Vazquez ("René"; Juan's brother). We reverse the order dismissing the amended complaint with prejudice.

         We review a final order dismissing a complaint with prejudice under the de novo standard of review. In doing so, we assume all of the allegations in the complaint are true. We construe all reasonable inferences from the allegations in favor of Luis. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010). The recitation which follows consists of allegations by Luis in the amended complaint, which are subject to proof and to defenses that may be raised by Juan.

         In 2003, René was living in Michigan and working at a business owned by Juan. René's wife, Sulma Vazquez ("Sulma"), and Luis were in their home country, Bolivia, caring for Sulma's father, who was ill. During the time he was working in Michigan, René obtained a Fortis Benefits Insurance Company life insurance policy for $120, 000.00 on his life (the "Policy"). Although René designated his brother Juan as the beneficiary of the Policy, he made it clear to Juan that the proceeds of the Policy were to be held in trust by Juan for Sulma and Luis for their education and living expenses after René's death.

         René also left a Last Will and Testament signed in La Paz, Bolivia, in September 2003 (the "Bolivian Will"). A translation of the Bolivian Will by a court-certified interpreter included these provisions:

I [René] . . . in my role as husband and father, being of sound mind, without any defects in consent, prepare this will in favor of my wife [Sulma] . . . and of my son [Luis], so that they can benefit from all the assets I possess or may acquire in the future, furthermore I declare that I have obtained a Life Insurance in the United States of North America in the Company FORTIS BENEFITS INSURANCE COMPANY, for the amount of US$120, 000 (ONE HUNDRED TWENTY THOUSAND U.S. DOLLARS) being the only beneficiaries my wife and my son aforementioned for the purpose of assuring the Education Living Expenses of both of them . . . .

         The amended complaint further alleges that René passed away in late 2003, and Juan received the full proceeds of the Policy from Fortis Benefits in 2004. Juan and his wife placed approximately $46, 000.00 of those proceeds in an investment account at Banc One Securities Corporation; they named Luis as the sole beneficiary of the money in the account.

         As Luis grew up, Juan repeatedly acknowledged that the proceeds of the Policy were intended to be used for Luis's education. In 2012, at Luis's and Sulma's request, Juan sent $20, 000.00 of the Policy proceeds to Sulma in Bolivia. Half of the funds were used for Luis's education, and the other half was used to fix up his home.

         Sulma executed a written assignment to Luis of her rights in, and claims to, the Policy proceeds before the lawsuit was filed. In the fall of 2014, Sulma and Luis asked Juan to deliver the balance of the proceeds to Luis to pay for his college education. "Juan has repeatedly promised that he would remit the funds to Luis," but in 2015 Juan refused to pay the remaining proceeds to Luis. Juan claimed instead that the funds are his. ...


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