Schilling v. Herrera, — So.2d —-, 2007 WL 981627 (Fla. 3d DCA Apr 04, 2007)
Anna Nicole Smith’s U.S. Supreme Court case revolved around whether federal courts have jurisdiction to adjudicate state-law tortious interference claims. Since she won (see here) the expectation has been that more tortious interference claims would be litigated in federal court (see here). With this background in mind, this 3d DCA opinion is especially timely because it explains when probate proceedings will effectively bar such claims in Florida.
In DeWitt v. Duce, 408 So.2d 216 (Fla.1981), the Florida Supreme Court articulated the governing rule in Florida as follows: a claim for intentional interference with an expectancy of inheritance is barred by F.S. 733.103(2) if the plaintiff had an adequate remedy in probate with a fair opportunity to pursue it. By implication, when the plaintiff did NOT have a fair opportunity to pursue his or her claim in probate, the claim is NOT precluded by the rule in DeWitt.
In the linked-to opinion the 3d DCA held that the plaintiff’s tortious interference claim was not precluded by DeWitt because the plaintiff was essentially prevented from pursuing his claims in probate. In other words, the claim was not barred because there were two frauds committed in the case. The first against the decedent, the second against the plaintiff. Here’s how the 3d DCA articulated its reasoning:
We find that DeWitt is factually distinguishable, and therefore inapplicable. A review of the amended complaint reflects that Mr. Schilling has alleged two separate frauds. The first alleged fraud stems from Ms. Herrera’s undue influence over the deceased in procuring the will, whereas the second alleged fraud stems from Ms. Herrera’s actions in preventing Mr. Schilling from contesting the will in probate court. We acknowledge that pursuant to DeWitt, if only the first type of fraud was involved, Mr. Schilling’s collateral attack of the will would be barred. However, language contained in DeWitt clearly indicates that a subsequent action for intentional interference with an expectancy of inheritance may be permitted where “the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.” Id. at 219.
Good lawyering pays off
When the client walks through the door, tells you the probate proceeding is complete, but asks what can you do for him, not many attorneys would have a good answer. In this case, Fort Lauderdale probate litigator Brandan J. Pratt figured out a winning strategy and successfully pursued it through to appeal. Very solid lawyering indeed.