Estate of Bacon v. Bacon

District Court of Appeal of Florida

Estate of Bacon v. Bacon

573 So. 2d 1035, 1991 Fla. App. LEXIS 838, 1991 WL 11718

CourtDistrict Court of Appeal of Florida

DecidedFebruary 5, 1991

DocketNos. 89-2375, 89-2594, 90-229 and 90-1061

StatusPublished

This text of 573 So. 2d 1035 (Estate of Bacon v. Bacon) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Estate of Bacon v. Bacon, 573 So. 2d 1035, 1991 Fla. App. LEXIS 838, 1991 WL 11718 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

The summary judgment against the estate was incorrectly entered because it was at that time represented only by a person whose interests were obviously adverse. See Edmonson v. Frank J. Rooney, Inc., 171 So.2d 566 (Fla. 3d DCA 1965) (adverse interest renders appointment of administrator ad litem jurisdictionally required even though not requested; judgment obtained in absence of such appointment void); § 733.308, Fla.Stat. (1989); see also In re Estate of Bell, 573 So.2d 57 (Fla. 1st DCA 1990).

On the merits, the judgments against both the estate and the beneficiaries were likewise erroneous because the plaintiff ■failed entirely, let alone conclusively, to establish her entitlement to judgment in the face of the affirmative defenses contained in the beneficiaries’ answer.¹ Holl v. Talcott, 191 So.2d 40 (Fla.1966); Russo v. Ross, 545 So.2d 460 (Fla. 3d DCA 1989); Hyde Shipping Corp. v. Concrete Asfaltico Nacional, 507 So.2d 776 (Fla. 3d DCA 1987); Puritan Ins. Co. v. Frank, 436 So.2d 1140 (Fla. 3d DCA 1983). For these [1036]*1036reasons,² the summary judgments are reversed and the cause remanded for trial on all issues.

This determination moots the pending appeal, no. 90-1061, from the denial of relief under Fla.R.Civ.P. 1.540(b). That order is accordingly vacated.

Case no. 90-229 is an appeal by the plaintiff from the denial of attorney’s fees claimed against the estate and the beneficiaries under § 57.105. In accordance with our previous determinations, that order is necessarily affirmed.

Reversed in part, vacated in part, affirmed in part and remanded with directions.

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PER CURIAM.

The summary judgment against the estate was incorrectly entered because it was at that time represented only by a person whose interests were obviously adverse. See Edmonson v. Frank J. Rooney, Inc., 171 So.2d 566 (Fla. 3d DCA 1965) (adverse interest renders appointment of administrator ad litem jurisdictionally required even though not requested; judgment obtained in absence of such appointment void); § 733.308, Fla.Stat. (1989); see also In re Estate of Bell, 573 So.2d 57 (Fla. 1st DCA 1990).

On the merits, the judgments against both the estate and the beneficiaries were likewise erroneous because the plaintiff ■failed entirely, let alone conclusively, to establish her entitlement to judgment in the face of the affirmative defenses contained in the beneficiaries’ answer.¹ Holl v. Talcott, 191 So.2d 40 (Fla.1966); Russo v. Ross, 545 So.2d 460 (Fla. 3d DCA 1989); Hyde Shipping Corp. v. Concrete Asfaltico Nacional, 507 So.2d 776 (Fla. 3d DCA 1987); Puritan Ins. Co. v. Frank, 436 So.2d 1140 (Fla. 3d DCA 1983). For these [1036]*1036reasons,² the summary judgments are reversed and the cause remanded for trial on all issues.

This determination moots the pending appeal, no. 90-1061, from the denial of relief under Fla.R.Civ.P. 1.540(b). That order is accordingly vacated.

Case no. 90-229 is an appeal by the plaintiff from the denial of attorney’s fees claimed against the estate and the beneficiaries under § 57.105. In accordance with our previous determinations, that order is necessarily affirmed.

Reversed in part, vacated in part, affirmed in part and remanded with directions.

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573 So. 2d 1035, 1991 Fla. App. LEXIS 838, 1991 WL 11718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-bacon-v-bacon-fladistctapp-1991.

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