Third District Court of Appeal
State of Florida
Opinion filed November 24, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0536
Lower Tribunal No. 18-4172
________________
Barbara Namon, etc.,
Appellant,
vs.
Karen Namon Elder, et al.,
Appellees.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Rosa C. Figarola, Judge.
Michael Van Cleve, Law, and Michael Van Cleve; Muir Law, LLC, and
William Douglas Muir, for appellant.
Paul M. Cowan & Associates, P.A., and Paul M. Cowan, and Manuel
A. Celaya, for appellee Karen Namon Elder; Richard Namon, Jr., in proper
person.
Before FERNANDEZ, C.J., and LINDSEY, and MILLER, JJ.
MILLER, J.
In this appeal, Barbara Namon, the widow of Richard Namon (the
“decedent”), challenges the denial of a motion for a temporary injunction she
filed in her capacity as personal representative of her late husband’s estate. 1
By means of the injunction, Barbara sought to recover a Winslow Homer
painting, entitled “Portrait of Lucy Valentine,” from the possession of
Sotheby’s. The decedent’s children, Karen Namon Elder and Richard
Namon, Jr., claim ownership of the painting, alleging they received it from
the decedent by way of an inter vivos gift. Contending the painting is an
estate asset, Barbara asserts the children’s claim of ownership is barred by
the two-year statute of nonclaim codified in the Florida Probate Code.
Because the record before us does not extinguish the viability of the
children’s claim of ownership, we affirm the exercise of discretion by the trial
court.
BACKGROUND
During his lifetime, the decedent acquired the “Portrait of Lucy
Valentine,” a painting attributed to Winslow Homer, one of the foremost 19th-
century American painters. The painting is of considerable value, and, at the
1
Appellant further appeals the denial of her petition for recovery of an estate
asset. The issues raised in the petition necessitate further judicial labor,
rendering the challenged order nonfinal and nonappealable. See Fla. R.
App. P. 9.170.
2
time of the decedent’s passing, was, as it had been for decades, on loan at
the Portland Museum of Art in Portland, Maine.
Following the death of the decedent, Barbara filed a petition for
administration. Under the terms of the decedent’s last known will, which was
executed shortly before his death, Barbara was to receive the entire estate,
save a nominal sum which was to be divided in equal shares among the
decedent’s three biological children and stepdaughter. Karen contested the
will, contending it was the product of undue influence and the decedent
lacked testamentary capacity. 2
While litigation was pending, one of the Namon siblings was
approached by the Portland Museum of Art. Correspondence ensued, and
the museum requested that all three siblings3 authorize any removal of the
painting from the museum. All acquiesced and further directed the painting
be transported first to Sotheby’s, an art broker, for evaluation, and then to
Day & Meyer, Murray & Young Corp., a secure warehouse facility, for
storage.
2
Karen further alleged that her father died under suspicious circumstances,
and Barbara ordered his body to be immediately cremated to impede any
potential criminal investigation.
3
The third sibling, Jay Namon, died on January 1, 2015. Prior to his death,
he participated in the proceedings.
3
Upon learning of this series of events, Barbara alleged the painting
was an estate asset and obtained a temporary injunction from the probate
court directing Karen “to maintain the status quo of the painting [at Day &
Meyer] in New York.” Karen agreed to pay the associated costs of insurance
and storage, and the trial court ordered the parties to litigate their respective
claims to the painting through a separate adversarial action.
Karen’s objections to the contested will were eventually overruled, but
the ownership issues surrounding the “Portrait of Lucy Valentine” remained
unresolved. A succession of probate judges all determined a trial would be
necessary to adjudicate the fate of the painting.
While awaiting trial, Karen discovered the painting was no longer in
storage at Day & Meyer and was listed for auction in a Sotheby’s catalogue.
She therefore filed an emergency motion seeking an injunction to prevent
the sale and any further movement of the painting. 4 The trial court granted
the injunction.
Barbara then filed the emergency motion for injunction at issue in these
proceedings. In the motion, she alleged the painting was an estate asset
4
Robert Pardo was identified as the consignor. His relationship with the
painting is unclear, and he has been voluntarily dismissed from these
proceedings by Barbara. The removal of the painting from storage is the
subject of a separate lawsuit in New York.
4
and sought to relocate it to South Florida. The court denied relief and
ordered the painting remain in the custody of Sotheby’s. The instant appeal
followed.
STANDARD OF REVIEW
We review the denial of a temporary injunction for an abuse of
discretion. Banyan Lakes Home Owners Ass’n, Inc. v. Sch. Dist. of Palm
Beach Cnty., Fla.,
823 So. 2d 247, 248 (Fla. 4th DCA 2002). Because such
an injunction is properly entered only under extraordinary circumstances,
“[t]he party appealing the denial . . . carries a heavy burden to demonstrate
that the court’s ruling was clearly improper.” DiChristopher v. Bd. of Cnty.
Comm’rs,
908 So. 2d 492, 495 (Fla. 5th DCA 2005), decision clarified on
denial of reh’g (Aug. 12, 2005).
ANALYSIS
It is well-settled that a party seeking a temporary injunction must
demonstrate that: “(1) irreparable injury will result if the injunction is not
granted, (2) there is no adequate remedy at law, (3) the party has a clear
legal right to the requested relief, and (4) the public interest will be served by
the temporary injunction.” ASA Coll., Inc. v. Dezer Intracoastal Mall, LLC,
250 So. 3d 731, 733 (Fla. 3d DCA 2018) (footnote omitted) (quoting Bay N
Gulf, Inc. v. Anchor Seafood, Inc.,
971 So. 2d 842, 843 (Fla. 3d DCA 2007)).
5
While the law is clear that a substantial likelihood of success on the merits
is but one consideration in determining the propriety of an injunction, here,
Barbara contends the trial court was required to grant injunctive relief
because the painting constitutes an estate asset, and any claim to the
contrary is time-barred by section 733.710, Florida Statutes (2021). This
argument implicates certain jurisdictional concerns.
Under Florida law, the timing of probate claims is governed by two
separate statutory provisions. The first, codified in section 733.702, Florida
Statutes, bars any claim or demand against an estate that arose before the
death of the decedent which is not
filed in the probate proceeding on or before the later of the date
that is [three] months after the time of the first publication of the
notice to creditors or, as to any creditor required to be served
with a copy of the notice to creditors, [thirty] days after the date
of service on the creditor, even though the personal
representative has recognized the claim or demand by paying a
part of it or interest on it or otherwise.
§ 733.702(1), Fla. Stat.; see Fla. Prob. R. 5.490(e). Long construed as a
statute of limitations, this provision applies to all claims for personal property
in the possession of the personal representative. § 733.702(1), Fla. Stat.
The statutory time frame is, however, subject to extension and waiver. See
Fla. Prob. R. 5.042(b).
6
The second provision, codified in section 733.710, Florida Statutes,
reads, in relevant part:
(1) Notwithstanding any other provision of the code, [two] years
after the death of a person, neither the decedent’s estate, the
personal representative, if any, nor the beneficiaries shall be
liable for any claim or cause of action against the decedent,
whether or not letters of administration have been issued, except
as provided in this section.
(2) This section shall not apply to a creditor who has filed a claim
pursuant to s. 733.702 within [two] years after the person’s death,
and whose claim has not been paid or otherwise disposed of
pursuant to s. 733.705.
§ 733.710(1)–(2), Fla. Stat. This provision has been deemed a jurisdictional
statute of nonclaim, creating “an outer limit beyond which [claims] may not
be instituted.” Hess v. Philip Morris USA, Inc.,
175 So. 3d 687, 695 (Fla.
2015) (alteration in original) (quoting Kush v. Lloyd,
616 So. 2d 415, 421 (Fla.
1992)). In this regard, the statute creates “a self-executing, absolute
immunity to claims,” and it is not subject to extension or waiver. May v. Ill.
Nat’l Ins. Co.,
771 So. 2d 1143, 1156 (Fla. 2000).
In the instant case, it is axiomatic the children asserted ownership to
the painting within two years of their father’s death. Barbara, however,
contends they failed to formally file a claim, as required under section
733.702, Florida Statutes. The undeveloped record before us does not firmly
establish the genesis of the adversarial probate proceedings, but it is readily
7
apparent that a succession of judges determined the ownership issue worthy
of further litigation.
Further, the limitations contained within the Florida Probate Code
pertain only to claims or demands against an estate. In this regard, the
success of the motion for injunctive relief presupposes the children’s claim
of ownership is not viable. If the children’s assertions ultimately hold true,
however, the “Portrait of Lucy Valentine” was the subject of an inter vivos
gift, perfected years before the decedent’s death. Thus, the painting was
neither an asset of the estate nor in the possession of the personal
representative. Instead, it was gifted outside the estate, and the children
were vested with title long before their father died. Under this scenario,
Barbara is seeking to affirmatively claw back a lifetime gift and the statute of
nonclaim has no application.
As did the trial judge, we conclude the competing claims are incapable
of resolution at this stage in the proceedings because the conflicting
testimony of record cannot be harmonized. Accordingly, in deciding
ownership of the painting should only be adjudicated after all parties have
been afforded due process, we conclude the trial court sagaciously declined
to put “the cart before the horse.” Lastly, in considering the remaining
injunctive relief factors, the trial court carefully considered the evidence of
8
record, along with Sotheby’s storage capabilities and evidence of adequate
insurance, and concluded the status quo should be preserved pending a
resolution of the pending claims. Under these circumstances, we decline to
impute any abuse of discretion and, instead, affirm all aspects of the well-
reasoned order under review.
Affirmed.
9
