Third District Court of Appeal
State of Florida, January Term, A.D. 2007
Opinion filed April 4, 2007.
Not final until disposition of timely filed motion for rehearing.
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No. 3D06-1220
Lower Tribunal No. 05-19805
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Edward A. Schilling,
Appellant,
vs.
Maria Herrera,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Adrian P. Thomas and Brandan J. Pratt (Fort Lauderdale), for appellant.
Robert S. Glazier; Clark D. Mervis, for appellee.
Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
ROTHENBERG, Judge.
The plaintiff, Edward A. Schilling (“Mr. Schilling”), appeals from an order
granting the defendant Maria Herrera’s (“Ms. Herrera”) motion to dismiss the
amended complaint with prejudice based on the trial court’s finding that the
amended complaint fails to state a cause of action and that Mr. Schilling is barred
from filing to action because he failed to exhaust his probate, remedies. We
disagree as to both findings and, therefore, reverse and remand for further
proceedings.
PROCEDURAL HISTORY
Mr. Schilling, the decedent’s brother, sued Ms. Herrera, the decedent’s
caretaker, for intentional interference with an expectancy of inheritance. Ms.
Herrera moved to dismiss the complaint, arguing that Mr. Schilling failed to state a
cause of action and that he was barred from filing his claim because he failed to
exhaust his probate remedies. The trial court granted the motion to dismiss
without prejudice.
Thereafter, Mr. Schilling filed an amended complaint asserting the same
cause of action against Ms. Herrera. The amended complaint alleges that in
December 1996, Mignonne Helen Schilling (the decedent) executed her Last Will
and Testament, naming her brother and only heir-at-law, Mr. Schilling, as her
personal representative and sole beneficiary, and in May 1997, she executed a
Durable Power of Attorney, naming Mr. Schilling as her attorney-in-fact.
In December 1999, the decedent was diagnosed with renal disease, resulting
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in several hospitalizations. During this period, Mr. Schilling, who resides in New
Jersey, traveled to Florida to assist the decedent. In January 2000, the decedent
executed a Power of Attorney for Health Care, naming Mr. Schilling as her
attorney-in-fact for health care decisions.
On January 12, 2001, when the decedent was once again hospitalized, Mr.
Schilling traveled to Florida to make arrangements for the decedent’s care. After
being released from the hospital, the decedent was admitted to a rehabilitation
hospital, then to a health care center, and then to the Clairidge House for
rehabilitation. While at the Clairidge House, Ms. Herrera became involved in the
decedent’s care, and when the decedent was discharged from the Clairidge House
on December 16, 200l, Ms. Herrera notified Mr. Schilling.
After being discharged from the Clairidge House, the decedent returned to
her apartment, and Ms. Herrera began to care for her on an “occasional, as needed
basis.” In 2003, when the decedent’s condition worsened and she was in need of
additional care, Ms. Herrera converted her garage into a bedroom, and the decedent
moved in. The decedent paid Ms. Herrera rent and for her services as caregiver.
When Mr. Schilling spoke to Ms. Herrera over the phone, Ms. Herrera
complained that she was not getting paid enough to take care of the decedent, and
on April 10, 2003, Mr. Schilling sent Ms. Herrera money. While living in the
converted garage, the decedent became completely dependent on Ms. Herrera. In
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September 2003, without Mr. Schilling’s knowledge, Ms. Herrera convinced the
decedent to prepare and execute a new Power of Attorney, naming Ms. Herrera as
attorney-in-fact, and to execute a new Last Will and Testament naming Ms.
Herrera as personal representative and sole beneficiary of the decedent’s estate.
Mr. Schilling visited the decedent in March of 2004. On August 6, 2004, the
decedent died at Ms. Herrera’s home.
On August 24, 2004, Ms. Herrera filed her Petition for Administration. On
December 2, 2004, following the expiration of the creditor’s period, Ms. Herrera
petitioned for discharge of probate. On December 6, 2004, after the expiration of
the creditor’s period and after Ms. Herrera had petitioned the probate court
for discharge of probate, Ms. Herrera notified Mr. Schilling for the first time
that the decedent, his sister, had passed away on August 6, 2004. Shortly
thereafter, in late December 2004, the Final Order of Discharge was entered by the
probate court. Mr. Schilling alleges that prior to being notified of his sister’s death
on December 6, 2004, he attempted to contact the decedent through Ms. Herrera,
but Ms. Herrera did not return his calls until the conclusion of probate proceedings
and did not inform him of his sister’s death, thereby depriving him of both the
knowledge of the decedent’s death and the opportunity of contesting the probate
proceedings. Mr. Schilling further alleges that prior to the decedent’s death, Ms.
Herrera regularly did not immediately return his phone calls, and that Ms.
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Herrera’s “intentional silence was part of a calculated scheme to prevent [Mr.]
Schilling from contesting the Estate of Decedent, and was intended to induce [Mr.]
Schilling to refrain from acting in his interests to contest the probate proceedings in
a timely fashion, as [Mr.] Schilling was used to long delays in contact with [Ms.]
Herrera, and did not suspect that the delay was intended to fraudulently induce
