ROSEMARY COONEY v. KEVAN BOYLES, as Personal Representative, JOSE IVAN JIMENEZ and CAROL ANN DYBDAL ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KEVAN BOYLES and ROSEMARY COONEY,
Appellants,
v.
JOSE IVAN JIMENEZ and CAROL ANN DYBDAL,
Appellees.
Nos. 4D20-1042, 4D20-1201
[December 8, 2021]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County, Renatha S. Francis and Bradley G. Harper,
Judges; L.T. Case Nos. 50-2017-CP-004460-XXXX-MB and 50-2018-CA-
000067-XXXX-MB.
Rosemary Cooney of Probate, Guardianship, & Trust, P.A., West Palm
Beach, for appellants.
Peter Ticktin, Jamie Alan Sasson and Michael J. McCormick, Jr., of The
Ticktin Law Group, Deerfield Beach, for appellees.
ON MOTION FOR REHEARING, MOTION FOR REHEARING
EN BANC, ALTERNATIVE MOTION FOR CERTIFICATION,
AND MOTION FOR CLARIFICATION
FORST, J.
We deny the appellants’ motions for rehearing, rehearing en banc,
certification, and clarification. We nonetheless withdraw our opinion
dated September 8, 2021, and issue the following opinion in its place.
Appellant Kevan Boyles appeals the trial court’s entry of final summary
judgment against him, removing him as trustee of the testatrix’s revocable
trust and as putative personal representative of her estate under the terms
of a 2015 will. Appellant Rosemary Cooney appeals from a related denial
of her petition for administration of the estate and her motion to be
substituted as successor party to Boyles in a challenge to the testatrix’s
2017 will. Upon consideration of the parties’ arguments and the record,
we affirm on all issues raised on appeal.
Background
On October 9, 2015, Margaret Ann Trevarthen (“the testatrix”) executed
a will (“the 2015 will”) and a revocable trust (“the 2015 trust”). Both
documents were prepared by Boyles, in his capacity as the testatrix’s
attorney. The 2015 will and the 2015 trust named Boyles as personal
representative and trustee, respectively, and his wife, Cooney (also an
attorney), as successor personal representative and successor trustee.
The terms of the 2015 trust gave the testatrix “the absolute right to amend
or revoke my trust, in whole or in part, at any time.” Moreover, in a section
titled “The Removal of a Trustee,” the 2015 trust provided that “[a]ny
trustee may be removed [after the testatrix’s death by] a majority of the
beneficiaries then eligible to receive mandatory or discretionary
distributions of net income under this Agreement . . . .”
Revocation of the 2015 Trust/Removal of the Trustees
Two days after signing and executing the trust documents, the testatrix
signed a letter stating she was “revoking all the trust documents signed
October 9, 2015.” The letter reflects that it was signed in the presence of
two witnesses and notarized before a notary public. Additionally, the
notary stated in an affidavit that the testatrix indicated that she was aware
of what she was signing and did so “at her own free will.”
In early April 2016, pursuant to the terms of the 2015 trust providing
that “[a]ny amendment or revocation must be delivered to my Trustee in
writing,” the testatrix sent Boyles the above-referenced letter stating, “I am
revoking all the trust documents signed October 9, 2015,” as well as a
document entitled “Replacement of Trustee,” which was executed on April
2, 2016. This second document informed Boyles and Cooney that they
were being replaced as “trustees of my trust,” with Appellee Ivan Jimenez
appointed as trustee. By separate letter, the testatrix also informed
Appellants that Jimenez was given power of attorney.
Boyles responded to this correspondence, acknowledging receipt and
requesting that the testatrix “contact our office to clarify the status of our
representation going forward.” At about the same time that Boyles was
referencing “our representation,” he was shuttering his legal practice due
to his suspension from the practice of law, effective April 23, 2016.
Revocation of the 2015 Will
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In March 2017, the testatrix executed a new will (“the 2017 will”) and a
new trust (“the 2017 trust”). The 2017 will expressly revoked all former
wills and codicils and named Ivan Jimenez as personal representative.
Similarly, the 2017 trust expressly revoked all prior living trusts and
named Jimenez as trustee. Appellants have challenged the validity of both
2017 documents, claiming that Jimenez applied undue influence over a
mentally incompetent testatrix.
Under the 2015 will, there are two principal beneficiaries: Appellee
Carol Dybdal, the testatrix’s niece, who would receive nearly ninety-two
percent of the estate, and her brother, who would receive nearly eight
percent. A non-relative would receive $25,000. Under the 2017 will, five
of the testatrix’s caregivers would split $290,000, and Dybdal would
receive ninety-eight percent of the remaining assets, with her brother’s
share reduced to two percent. Both Dybdal and her brother support
administration of the 2017 will, even though it distributes an additional
$265,000 to non-relatives and diminishes the testatrix’s nephew’s share.
The Instant Action
The testatrix died in August 2017. The following month, Boyles filed a
petition for administration requesting the trial court to admit the 2015 will
and appoint him as personal representative. Boyles did not contact the
beneficiaries prior to filing the petition for administration. The trial court
subsequently issued letters of administration and appointed Boyles as
personal representative. Cooney, acting as Boyles’ counsel, subsequently
began mailing letters to financial institutions, representing Boyles as the
trustee.
Appellees Jimenez and Dybdal immediately filed an objection to Boyles’
appointment, filed a petition for administration of the 2017 will, and
sought appointment of Jimenez as personal representative. Additionally,
Appellees filed a petition to remove Boyles as trustee, referencing the
revocation of the 2015 trust.
Appellants challenged the validity of the 2017 will and 2017 trust,
claiming that both instruments were procured by undue influence over the
testatrix. During the ensuing will contest, Appellees moved for summary
judgment, arguing for the removal of Boyles on the grounds that even if
the 2015 will was operative, he was not qualified to serve as personal
representative based on his lack of moral character. Ultimately, the trial
court granted summary judgment on this ground, removed Boyles as
personal representative, and further made a finding that the testatrix had
revoked the 2015 trust.
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Following Boyles’ removal, Cooney filed a petition for administration of
the 2015 will and motion to substitute herself as the successor party to
challenge the validity of the 2017 will. At a hearing on these issues,
Cooney argued that a ruling as to her petition for administration would be
premature pending a resolution of the will contest. The trial court denied
Cooney’s petition, finding that she should not be appointed as the
successor personal representative. The order also denied Cooney’s motion
to be substituted as the successor party in the challenge of the 2017 will
and 2017 trust, determining that her involvement in the matter would
prolong litigation and administration of the estate. In the same order, the
trial court appointed an administrator ad litem to substitute as the
successor party in the ongoing will contest and ordered the administrator
ad litem to investigate and report as to the viability of going forward with
the will contest.
The trial court’s orders and subsequent denials of motions for rehearing
are the subject of two appeals that have been consolidated for review and
disposition.
Analysis
Removal of Boyles as Trustee
Appellants argue that the trial court erred in entering summary
judgment and finding that the testatrix had revoked the 2015 trust,
because genuine issues of material fact remained.
The standard of review for an order granting summary judgment is de
novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th
DCA 2010). Summary judgment is proper when there are no genuine
issues of material fact and the moving party is entitled to judgment as a
matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.
2d 126, 130 (Fla. 2000). 1 When reviewing a ruling on summary judgment,
1 After the trial court issued its final summary judgment that is the subject of the
instant appeal, the Florida Supreme Court amended Florida Rule of Civil
Procedure 1.510(c) to adopt a new summary judgment standard. See In re
Amends. to Fla. R. of Civ. Proc. 1.510, 309 So. 3d 192, 193–95 (Fla. 2020)
(adopting the federal summary judgment standard). The amendment, which
became effective on May 1, 2021, does not apply here as the final judgment
predates the amendment. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla.
2020) (stating that the amendment to rule 1.510(c) applies prospectively); Tank
Tech, Inc. v. Valley Tank Testing, L.L.C., 46 Fla. L. Weekly D1264, 2021 WL
2212092 at *1, n.1 (Fla. 2d DCA June 2, 2021).
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the appellate court must examine the record in the light most favorable to
the nonmoving party and determine whether the moving party has shown
conclusively the complete absence of any genuine issue of material fact.
Gorham v. Zachry Indus., Inc., 105 So. 3d 629, 632 (Fla. 4th DCA 2013).
In their motion for summary judgment, Appellees declared “[i]t is
undisputed that [the testatrix] executed documents revoking Mr. BOYLES
as her Trustee and Power of Attorney.” Indeed, Appellants do not dispute
the 2015 trust’s terms expressly and unambiguously provided the testatrix
with the absolute right to revoke the trust at any time, so long as the
revocation was delivered to the trustee in writing. Boyles, however,
questioned whether the revocation letter was properly delivered, and he
also maintained disputed issues of material fact existed as to the testatrix’s
capacity and intent and whether she was unduly influenced to revoke the
2015 trust a mere two days after executing it.
Notwithstanding Boyles’ arguments, there are no genuine issues of
material fact regarding the 2015 trust’s revocation. On October 11, 2015,
the testatrix executed a letter revoking the 2015 trust; the letter was signed
in the presence of two witnesses and was notarized by a notary public.
That notary executed an affidavit stating that the testatrix indicated that
she understood what she was signing and that she was doing so on her
own free will. Boyles had notice and receipt of the written revocation, as
reflected in his sending a response to the testatrix upon receiving notice of
“Replacement of Trustee.” Boyles’ response stated, “it would be greatly
appreciated if you would contact our office to clarify the status of our
representation going forward.” Neither the 2015 trust nor the law required
the testatrix to respond to Boyles’ entreaty.
To the extent that Boyles contends there is a genuine issue of material
fact as to whether the 2015 trust’s revocation was rendered void due to
undue influence and/or incompetency, we note that alternative grounds
existed for granting summary judgment. There is no dispute that the 2015
trust permits removal of a trustee by “a majority of the beneficiaries then
eligible to receive mandatory or discretionary distributions of net income
under this Agreement,” and Appellees established that two of the 2015
trust’s three beneficiaries supported Boyles’ removal (if the 2015 trust was
deemed to have not been revoked).
Accordingly, no genuine issue of material fact existed. The trial court
properly found, on summary judgment, that the testatrix revoked the 2015
trust two days after creating it or, alternatively, that a majority of the
trust’s beneficiaries would remove Boyles as trustee if the 2015 trust was
deemed to be the operative trust.
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The Administrator Ad Litem’s Substitution as Successor Party to Boyles and
Cooney in Litigating the Ongoing Will Contest
Cooney’s appeal primarily focuses on the trial court’s denial of her
motion to be substituted as the “proper party in the will/trust contest.”
Cooney asserts she “had standing, preference in appointment, and was
qualified to serve to replace [Boyles] in the will/trust contest.”
“We review orders of dismissal based on a lack of standing de novo.”
Agee v. Brown, 73 So. 3d 882, 885 (Fla. 4th DCA 2011); see also Wheeler
v. Powers, 972 So. 2d 285, 288 (Fla. 5th DCA 2008). However, appellate
review of a trial court’s denial of appointment as personal representative
is subject to abuse of discretion scrutiny. See Schleider v. Est. of Schleider,
770 So. 2d 1252, 1253 (Fla. 4th DCA 2000); Hernandez v. Hernandez, 946
So. 2d 124, 126 (Fla. 5th DCA 2007). Similarly, an appellate court will not
reverse an order removing a personal representative absent a trial court’s
abuse of discretion. Henderson v. Ewell, 149 So. 372, 372 (Fla. 1933); In
re Senz’ Estate, 417 So. 2d 325, 327 (Fla. 4th DCA 1982).
Cooney is correct that, per Wheeler, as the designated successor
personal representative under the “prior [2015] will,” she “fits the
definition of an ‘interested person’ as [s]he may reasonably be expected to
be affected by the outcome of the [will contest] and the non-probate of the
[2015] will.” Wheeler, 972 So. 2d at 288.
However, not “every personal representative from every prior will should
be granted standing . . . . [T]he definition of ‘interested person’ is fluid and
‘must be determined according to the particular purpose of, and matter
involved in, any proceeding.” Id. (quoting Hayes v. Guardianship of
Thompson, 952 So. 2d 498, 507 (Fla. 2006)). We look to the law regarding
appointments and dismissals of personal representatives to determine if
the trial court abused its discretion in excluding both Boyles and Cooney
as parties to the underlying will contest.
“If the record supports the conclusion that a person lacks the necessary
qualities and characteristics, the court has discretion to refuse to appoint
even a person occupying a position of statutory preference who is not
specifically disqualified by [section 733.504, Florida Statutes (titled
“Removal of personal representative; causes for removal”)].” Schleider, 770
So. 2d at 1254; see also Padgett v. Est. of Gilbert, 676 So. 2d 440, 443 (Fla.
1st DCA 1996) (“Although the probate statutes do not expressly impose a
general requirement of ‘good moral character’ for persons seeking to
qualify as a personal representative, the [trial] court has the inherent
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authority to consider a person’s character, ability and experience to serve
as personal representative[.]”).
Moreover, the preferred personal representative “may be considered
unsuitable to administer the estate, if there is an adverse interest of some
kind [or] hostility to those immediately interested in the estate, or an
interest adverse to the estate itself.” Schleider, 770 So. 2d at 1254 (citing
In re Snyder’s Est., 333 So. 2d 519, 520 (Fla. 2d DCA 1976)).
A dispute between the beneficiaries of the estate standing
alone is not sufficient grounds to refuse to appoint the person
named as personal representative in the decedent’s will, if she
is otherwise qualified to serve. However, if a dispute which
will result in unnecessary litigation and impede the
administration of the estate is combined with other factors
. . . , the totality of the circumstances may rise to a level that
allows the trial court to exercise its discretion in refusing to
appoint the personal representative named in the will.
Id. (internal citation omitted).
The record here demonstrates that Boyles was suspended from the
practice of law in 2016 based on his conduct in filing numerous petitions
for administration and wrongful death actions in matters where he had no
contact with the beneficiaries, nor any permission from the beneficiaries
to do so. Additionally, Boyles similarly failed to contact the beneficiaries
prior to the filing of the instant petition for administration. The Florida
Bar cited this as a factor in opposing Boyles’ then-pending petition for
reinstatement to practice law. That petition was summarily denied by the
Florida Supreme Court.
The underlying record provides support for the trial court’s conclusion
that Boyles’ “character, ability [without a license to practice law] and
experience” rendered him unfit to serve as personal representative. Thus,
it was not an abuse of the trial court’s discretion to not permit Boyles to
be a party to the will contest.
With respect to Cooney, in deciding to appoint an administrator ad
litem “to succeed Mr. Boyles in the adversary action in this Estate” and “to
quickly resolve the battle of the wills,” the trial court focused on Cooney’s
fitness for appointment as personal representative of the estate, should
the 2015 will be determined to be the operative will. It also took notice of
the minimal differences between the 2015 and 2017 wills and the
declarations by the two principal beneficiaries under both wills that they
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supported the 2017 will superseding the 2015 will even though the
distribution of assets under the 2017 will was less beneficial to one if not
both principal beneficiaries.
As noted above, the designated personal representative (or successor)
“may be considered unsuitable to administer the estate, if there is an
adverse interest of some kind [or] hostility to those immediately interested
in the estate . . . .” Schleider, 770 So. 2d at 1254. The trial court found
that, having “carefully reviewed all of the materials presented by Ms.
Cooney, . . . it is apparent that if Ms. Cooney were to be appointed as a
personal representative, this Estate would be locked in endless and
unnecessary litigation” that would “impede the administration of this
Estate.” We find no abuse of discretion in the trial court’s conclusion that
“Ms. Cooney is not qualified to be the personal representative of this
Estate,” and its determination that “the matter of the will contest can move
forward without her.” “[I]t would . . . be absurd to force the appointing
court to wait until the estate or persons interested in the estate had
actually suffered the detriment that was reasonably demonstrated would
occur.” Id. (second alteration in original) (quoting Pontrello v. Estate of
Kepler, 528 So. 3d 441, 443 (Fla. 2d DCA 1988) (Campbell J., dissenting)).
Contingent Refusal to Appoint/Removal of Boyles or Cooney as Personal
Representative
Appellees sought to remove Boyles as personal representative of the
estate and block Cooney’s appointment as successor personal
representative under the 2015 will’s terms, while simultaneously
contending that the 2017 will appointing Jimenez is the valid will.
Although both appellants argued that removal was premature, the trial
court’s orders removed Boyles and denied Cooney’s petition for
appointment as successor personal representative.
On appeal, appellants have cited cases for the proposition that the trial
court’s blocking the potential appointment of either appellant was
premature. Those cases, however, address situations where the trial court
appointed a personal representative before the will contest was settled.
See Rocca v. Boyansky, 80 So. 3d 377, 381 (Fla. 3d DCA 2012) (holding
that “will contests and the rights of caveators must be determined prior to
letters of administration being issued”); In re Est. of Hartman, 836 So. 2d
1038, 1039 (Fla. 2d DCA 2002) (“[T]he probate court was obliged to make
a determination on th[e] challenge to the will prior to appointing a personal
representative and admitting the will to probate.”); Grooms v. Royce, 638
So. 2d 1019, 1021 (Fla. 5th DCA 1994) (“The trial court is required to rule
on the challenge to the will before proceeding to probate or naming the
8
personal representative designated by the contested will, regardless of her
qualifications.”). Here, the trial court revoked the letters of administration
that were prematurely issued to Boyles and had not subsequently named
a personal representative, instead appointing an administrator ad litem.
Should the trial court determine that the 2017 will is the operative will,
appellants’ fitness to serve as personal representatives becomes a moot
issue and supports the common-sense principle that adjudicating a will’s
validity should precede an examination of a potential personal
representative’s fitness to serve.
In the instant case, however, a predecessor trial court had issued letters
of administration to Boyles before learning of the competing 2017 will.
Thus, the trial court was faced with a situation where it needed to revoke
the letters of administration that had prematurely been issued to Boyles
and determine the parties to the will contest. There was a Schleider
challenge lodged by the principal beneficiaries of both the 2015 and 2017
wills to the continued involvement in these matters by both Boyles and
Cooney. See Schleider, 770 So. 2d at 1254 (“If the record supports the
conclusion that the person lacks the necessary qualities and
characteristics, the court has discretion to refuse to appoint even a person
occupying a position of statutory preference who is not specifically
disqualified by [section 733.504].”). Thus, the trial court did not abuse its
discretion by simultaneously addressing the appellants’ fitness to (1) be
parties to the will contest and (2) be appointed as personal representative
if the 2015 will, not the 2017 will, is determined to be the operative will.
Conclusion
Without dispute, the testatrix intended that Appellee Carol Dybdal and
her brother be the sole beneficiaries of the trust set up by the testatrix and
that they be the primary beneficiaries under her will. Both primary
beneficiaries: (1) do not oppose administration of the 2017 will and the
inclusion of the caregivers as beneficiaries, and (2) challenge the
appointment of either Appellant Boyles or Appellant Cooney as either
trustee or personal representative of their aunt’s trust and estate.
We affirm the summary judgment finding that the 2015 trust was
revoked and replacing Boyles and Cooney as trustees. The 2017 trust’s
validity is not before us, and the trial court did not abuse its discretion in
excluding both appellants from challenging the 2017 trust.
As for the appellants’ appointments as personal representative and
successor representative per the 2015 will, we find no abuse of discretion
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in the removal of appellants as party representatives and the appointment
of an administrator ad litem “to quickly resolve the battle of the wills.” Nor
do we find an abuse of discretion in the trial court’s foreclosing the
appointment of either appellant as personal representative should the
2015 will be determined to be the operative will.
Affirmed.
WARNER and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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