SCHILLING V. HERRERA 952 So.2d 1231 (2007) CASE BRIEF

SCHILLING V. HERRERA

952 So.2d 1231 (2007)

NATURE OF THE CASE: Schilling (P) appealed from an order granting Herrera's (D) motion to dismiss an amended complaint as it failed to state a cause of action and P is barred from filing the action because he failed to exhaust his probate, remedies.

FACTS: P's sister was diagnosed with renal disease, resulting in several hospitalizations. P traveled to Florida to assist. In January 2000, the decedent executed a Power of Attorney for Health Care, naming P as her attorney-in-fact for health care decisions. The sister was once again hospitalized and P traveled to Florida to make arrangements for her care. She 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, D became involved in her care. After being discharged from the Clairidge House, the decedent returned to her apartment, and D 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, D converted her garage into a bedroom, and the decedent moved in. The decedent paid D rent and for her services as caregiver. D complained to P that she was not getting paid enough to take care of the decedent, and on April 10, 2003, P sent D money. The decedent became completely dependent on D. D convinced the decedent to prepare and execute a new Power of Attorney, naming D as attorney-in-fact, and to execute a new Last Will and Testament naming D as personal representative and sole beneficiary of the decedent's estate. P visited his sister. Six months later, the decedent died at D's home. D filed her Petition for Administration. D then petitioned for discharge of probate after the expiration of the creditor's period. D then for the first time notified P 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. P alleges that prior to being notified of his sister's death on December 6, 2004, he attempted to contact the decedent through D, but D 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. P, the decedent's brother sued D, the decedent's caretaker, for intentional interference with an expectancy of inheritance. D moved to dismiss the complaint, arguing P 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. P filed an amended complaint asserting the same cause of action against D. That complaint was dismissed with prejudice. P alleges that he expected to inherit the decedent's estate because he was the decedent's only heir-at-law and because he was named as the sole beneficiary in the 1996 will. P contends that D's fraudulent actions prevented him from receiving the decedent's estate, which he was entitled to; and but for D's action of procuring the will naming her as sole beneficiary, he would have received the benefit of the estate. The trial court granted the second motion to dismiss with prejudice, finding that D had no duty to notify P of the decedent's death as P did not hire D to care for the decedent, and therefore, there was 'no special relationship giving rise to a proactive responsibility to provide information ....' This appeal resulted.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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