Piloto v. Lauria

45 So. 3d 565, 2010 Fla. App. LEXIS 15815, 35 Fla. L. Weekly Fed. D 2312
CourtDistrict Court of Appeal of Florida
DecidedOctober 20, 2010
DocketNo. 4D09-3785
StatusPublished
Cited by2 cases

This text of 45 So. 3d 565 (Piloto v. Lauria) 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
Piloto v. Lauria, 45 So. 3d 565, 2010 Fla. App. LEXIS 15815, 35 Fla. L. Weekly Fed. D 2312 (Fla. Ct. App. 2010).

Opinion

GERBER, J.

The circuit court’s final summary judgment removed the appellant as the personal representative of the decedent’s ancillary estate and replaced her with the decedent’s wife. The court reasoned that the wife had preference to become the personal representative. We affirm.

The decedent was survived by his wife and four adult children from a prior marriage. He died intestate, that is, without a will. The probate of his estate occurred in his domicile of Venezuela. A Venezuelan court entered a judgment finding that his wife and children were the sole heirs of his estate. The face of the judgment, however, makes no further findings and does not appoint a personal representative for the estate.

A portion of the decedent’s estate included cash and real property in Florida. The children hired an attorney to file a petition for ancillary administration in the circuit court. The petition sought to appoint the children’s attorney as the ancillary personal representative. The circuit court issued letters of administration to that effect. The children’s attorney sent the wife a notice of administration of the ancillary estate.

The wife then filed a petition requesting the circuit court to revoke the letters of administration and to appoint her as the ancillary personal representative. The wife argued that the children’s attorney [567]*567did not serve her with formal notice of the petition for ancillary administration, and that, as the surviving spouse, she was entitled to a statutory preference of appointment as the ancillary personal representative.

The children’s attorney filed a response to the petition. The response primarily argued that the Venezuelan court effectively found the children to be the majority heirs of the decedent’s estate and, therefore, gave the children the right to appoint the ancillary personal representative. The response further argued that, because the wife did not appeal the Venezuelan judgment, the wife was collaterally estopped from asserting her claim as the ancillary personal representative. The response also argued that the wife was unfit to serve as the ancillary personal representative because she was hostile to the children as the estate’s majority heirs.

The wife later moved for summary judgment on her petition. The children’s attorney opposed the motion by relying on the affidavits of Venezuelan attorneys who provided their opinions on the effect of the Venezuelan judgment. The attorneys stated that, under Venezuelan law, the majority of the heirs decide whom to appoint as personal representative of any ancillary proceedings.

The circuit court granted the wife’s motion for summary judgment. The court found that, according to Florida law, the wife, as the surviving spouse, had preference to become the ancillary personal representative, and that the children’s attorney failed to serve the wife with formal notice of the petition for ancillary administration before being appointed as the personal representative. The court revoked the letters of administration appointing the children’s attorney as the ancillary personal representative, and issued letters of administration appointing the wife as the ancillary personal representative.

This appeal followed. The children’s attorney raises four arguments on appeal: (1) the Venezuelan judgment and its effect should govern the estate pursuant to the doctrine of comity; (2) if Florida law applies, it allows the children, as the majority heirs, to have preference in appointing the ancillary personal representative; (8) the wife did not present any evidence that she did not receive notice of the petition for ancillary administration; and (4) the wife’s fitness to serve as the ancillary personal representative presented a question of material fact.

The arguments of the children’s attorney require us to review both a summary judgment and the Florida statutes governing ancillary administration and the appointment of personal representatives. Therefore, our review is de novo. See Don King Prods., Inc. v. Walt Disney Co., 40 So.3d 40, 44 (Fla. 4th DCA 2010) (“Our review of an order granting summary judgment is de novo.”); J.A.B. v. State, 25 So.3d 554, 557 (Fla.2010) (“Questions of statutory interpretation are subject to de novo review.”).

The Doctrine of Comity

In support of the argument that the Venezuelan judgment and its effect should govern the estate pursuant to the doctrine of comity, the children’s attorney cites Nahar v. Nahar, 656 So.2d 225 (Fla. 3d DCA 1995), for two principles: (1) “[ajdministration of an estate is governed by the law of the decedent’s domicile”; and (2) “[wjhere a party has had notice and opportunity to be heard and the foreign court has satisfied Florida’s jurisdictional and due process requirements[,] their orders will be entitled to comity.” Id. at 229-30.

We agree with those principles. However, those principles are of limited [568]*568value here. Here, the Venezuelan judgment merely found that the decedent’s wife and children were the sole heirs of his estate. The Venezuelan judgment did not appoint a personal representative for the decedent’s estate or address the administration of the decedent’s ancillary estate. Although the children’s attorney presented affidavits of Venezuelan attorneys who provided their opinions on the effect of the Venezuelan judgment, we find that those opinions, unlike the judgment itself, are not entitled to comity. The opinions were conclusory in nature and do not cite to any Venezuelan statute, rule, or case law in support of the opinions. Given that review, we find that the circuit court had the discretion to administer the decedent’s ancillary estate according to Florida law.

The facts of Naltar support our conclusion. There, the decedent was a resident of Aruba, but had bank accounts and real estate in Miami. Just after the decedent’s death, his wife withdrew the balances from several of the bank accounts. The decedent’s children filed a petition in Aruba to have the decedent’s bank accounts, but not the real estate, administered in Aruba under controlling Dutch law. The Aruban court ordered the wife to deposit the money from the bank accounts with a neutral party pending settlement of the estate. The wife failed to comply with the order. The children then petitioned for ancillary administration in a Florida circuit court, seeking to have the money from the bank accounts transferred to Aruba pursuant to Dutch law. The circuit court ultimately entered a summary judgment ordering the wife to deliver the money to the decedent’s estate in Aruba to be disposed of in accordance with Dutch law. The wife appealed.

The third district affirmed the majority of the summary judgment ordering the delivery of money to Aruba. The third district reasoned that

[A]ny foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.

Nahar, 656 So.2d at 229. However, the third district found that the circuit court erred in failing to specifically address the real estate in the summary judgment. The third district reasoned that

While [the decedent’s] personal and intangible property may be governed by the judgment of the Aruba court, the Miami real estate

Free access — add to your briefcase to read the full text and ask questions with AI

Related

BOAZ LEVY v. SHOSANIT LEVY
District Court of Appeal of Florida, 2021

Cite This Page — Counsel Stack

Bluebook (online)
45 So. 3d 565, 2010 Fla. App. LEXIS 15815, 35 Fla. L. Weekly Fed. D 2312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piloto-v-lauria-fladistctapp-2010.