Summary
affirming order granting personal representative's action to set aside fraudulent conveyances undertaken to avoid execution on amounts owed to estate
Summary of this case from Keul v. Estate of LamppOpinion
Case No. 96-3026
Opinion filed May 7, 1997. Rehearing Denied June 4, 1997.
A Writ of Prohibition to the Circuit Court for Dade County, Robert H. Newman, Judge.
Robert M. Brake, for petitioners.
Richard T. Kozek, Jr.; Paul M. Kade, Miami, for appellees.
Before SCHWARTZ, C.J., and NESBITT and SHEVIN, JJ.
Defendants Robert M. Brake and Eileen M. Brake appeal a final judgment setting aside a fraudulent two title transfers from Eileen M. Brake to Robert M. Brake. We reverse the judgment.
As a threshold issue, we are unpersuaded by the plaintiffs' argument that they were the proper parties to bring this action. Plaintiffs, heirs of the Estate of Eileen Murphy, brought the action to set aside fraudulent conveyances. Plaintiffs asserted that Eileen Brake effected the transfers to avoid execution on a surcharge order in the Estate's favor. The surcharge was imposed as a result of her mismanagement of Estate property during her service as the Estate's personal representative. The surcharge order inured to the Estate's benefit. As such, the personal representative is the proper party to bring an action on the Estate's behalf. § 733.607, Fla.Stat. (1995).
Additionally, we find that the court erred in declining to rule on the Brakes' resulting trust affirmative defense. The trial court had equity jurisdiction to decide the resulting trust issue, and equitable claim. § 26.012(2)(c), Fla.Stat. (1995); see Espino v. Anez, 665 So.2d 1080 (Fla. 3d DCA 1995). We express no opinion as to the merits of this defense.
Based on the foregoing, we reverse the final judgment and remand for a new trial on all issues including the resulting trust affirmative defense. The personal representative shall be substituted as the proper party plaintiff. See Casa Linda Tile Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So.2d 766 (Fla. 4th DCA 1994).
Reversed and remanded.