DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VICTORIA CARTELLI,
Appellant,
v.
WALTER ALISTAIR GREEN,
Appellee.
No. 4D21-1743
[November 24, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Michael J. Linn, Judge; L.T. Case No.
312011CP000759.
Victoria Cartelli, Hempstead, New York, pro se.
James P. Covey, Vero Beach, for appellee.
PER CURIAM.
After a family’s matriarch passed away in 2011, one of her adult
children, a beneficiary of the estate, was appointed personal representative
in ancillary proceedings primarily involving a home in Florida. The will
directed that the estate’s real property be sold “as soon as practicable.”
The home was sold in 2013. The personal representative petitioned for
discharge. The appellant, who is the personal representative’s half-sibling
and was one of the beneficiaries of the estate, objected to the final
accounting and to discharge. The trial court overruled the bulk of the
objections. We affirm.
The appellant objected to the final accounting on multiple grounds: (1)
The personal representative was not diligent in listing the real property for
sale, and thus the estate incurred various expenses totaling almost
$30,000; (2) the estate lost potential rental income when the personal
representative collected nominal rent from his father, who resided in the
home for a period of time; and (3) the personal representative claimed that
the personal property in the home was worthless, yet he moved the
personal property to his home and offered the other beneficiaries $10,000
for the personal property.
During a hearing, the appellant and the personal representative
presented differing accounts of what transpired after the decedent’s death
and pending the sale of the decedent’s Florida home. According to the
appellant, the personal representative delayed selling the home so his
father could reside there and so he could use the property as a vacation
home. He moved valuable personal property from the home into his own
home and offered the other siblings/beneficiaries $10,000 for the personal
property.
According to the personal representative, the sale was delayed for two
reasons. First, the appellant, unlike his other siblings, did not consent to
his appointment as personal representative. Second, after his
appointment, he and the appellant engaged in a lengthy term of
negotiations over the sale of the home, as they each wanted to purchase
the property. The personal representative offered $10,000 for the personal
property as part of an offer to buy the home, not because the property was
worth that much. After it became clear he and the appellant could not
agree on which of them would buy the home, it was listed for sale, and he
moved the personal property into his home to prepare for closing. The
personal property was old, nothing of note, and the estate made less than
$200 on the items that the personal representative was able to consign.
He disposed of the remaining items not claimed by the beneficiaries. As
for use of the home pending its sale, the personal representative
acknowledged that he and the other siblings and their families gathered at
the home for a reunion. His father resided there for a time to serve as a
property manager and assist in preparing the home for sale, and the
personal representative charged him enough rent to cover the cost of
utilities.
Another sibling testified, confirming that the home’s contents lacked
value and that the appellant caused the delay in the sale of the home.
The trial court found the personal representative sold the home “as
soon as practicable,” consistent with the will’s directive, the personal
representative was not required to rent out the home to make a profit for
the estate, and his father resided in the home to help the personal
representative maintain the property. The court found no evidence that
the personal property was worth more than the minimal amount for which
it sold. The court also sustained the objection related to the value of the
personal property to the extent it was worth $199.
On appeal, the appellant’s arguments relate to the propriety of the trial
court’s factual findings and weighing of the evidence. For instance, the
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appellant seems to argue that the trial court should have rejected the
personal representative’s testimony because it was illogical and not
credible. But the appellant cherry picks testimony and ignores other
testimony. This court has elaborated on the differences between the trial
court’s role and the appellate court’s role:
[T]he function of the trial court is to evaluate and weigh the
testimony and evidence based upon its observation of the
bearing, demeanor and credibility of the witnesses appearing
in the cause. It is not the function of the appellate court to
substitute its judgment for that of the trial court through re-
evaluation of the testimony and evidence from the record on
appeal before it. The test . . . is whether the judgment of the
trial court is supported by competent evidence. Subject to the
appellate court’s right to reject ‘inherently incredible and
improbable testimony or evidence,’ it is not the prerogative of
an appellate court, upon a de novo consideration of the record,
to substitute its judgment for that of the trial court.
Shaw v. Shaw,
334 So. 2d 13, 16 (Fla. 1976) (internal footnote and
citations omitted). We find that the trial court did not err in accepting the
personal representative’s testimony. Additionally, there was competent,
substantial evidence supporting the trial court’s findings.
Affirmed.
CIKLIN, ARTAU, JJ., and HARPER, BRADLEY, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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