Saewitz v. Saewitz, — So.3d —-, 2012 WL 10854 (Fla. 3d DCA January 04, 2012)

Tortious interference with an expected inheritance is a relatively new cause of action that’s still evolving. So anytime one of these cases makes it into a Florida appellate opinion, it’s noteworthy. The last time was back in 2007, coincidentally also before the 3d DCA. See Schilling v. Herrera, — So.2d —-, 2007 WL 981627 (Fla. 3d DCA 2007). In that case the issue on appeal was when probate proceedings will effectively bar a tortious interference claim [click here]. This time around the issue is damages; or more specifically, how the lack of concrete damages evidence can get your case tossed out of court.

The five elements of this cause of action are generally described as follows:

  1. the existence of some sort of expectancy on the plaintiff’s part involving an inheritance;
  2. the defendant’s intentional interference with such expectancy;
  3. involvement of tortious conduct, such as fraud, duress, or undue influence, in the defendant’s interference;
  4. reasonable certainty that the plaintiff’s expectancy would have been realized if not for the defendant’s interference; and
  5. damages. 

No damages = No case:

In this case the decedent’s two daughters sued their stepmother for tortiously interfering with their expected inheritance. Both the trial court and the 3d DCA seem to concede that the first four elements of the plaintiffs’ case were proved. However, just because you have evidence of wrongdoing doesn’t mean you have a lawsuit. You also need to quantify – and prove – economic damages. I’m often contacted by potential plaintiffs with sad stories of some truly appalling conduct, but when you try to nail them down on how they’ve been hurt economically, they can’t tell you. Just because you’ve been wronged, doesn’t mean you have a lawsuit. You need to be able to quantify concrete economic damages. Here’s how the 3d DCA put it:

The daughters’ initial brief on this appeal persuasively chronicles the record evidence presented to the jury of manipulative activity taken by their stepmother during their father’s dying days and preceding months to contravene their father’s wishes with respect to the disposition of his estate. It is apodictic, however, that a plaintiff’s initial proof of a prima facie case of both conversion and tortious interference in her case-in-chief requires more than proof of liability. Prima facie proof of damages is required as well.

For trusts and estates litigators, the primary value of this case is the 3d DCA’s discussion of what kind of damages evidence you need to put on. First you need to define what expected inheritance the defendant defrauded you out of; then you need to prove with "reasonable certainty" the amount of economic damages you’ve suffered.

The substance of the evidence the daughters presented to the jury on the element of damages is found in the testimony of three witnesses: Jack Rosenberg, the decedent’s accountant; Ron Goldstein, a friend of the decedent; and Lynn Saewitz. Rosenberg provided general testimony that the value of the assets involved in the litigation was “over a million dollars” or “in the millions [of dollars].” Goldstein similarly testified the value of the allegedly misappropriated assets at “seven figures.” Although denying any wrongdoing, Lynn Saewitz similarly indicated the value of the assets in question was in the “millions of dollars.” However, none of the testimony was tied to a legally relevant time period. . . . This omission alone deprives this testimony of any probative value.

Additionally, this testimony is insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by the daughters. “Under the reasonable certainty rule, … recovery is denied where the fact of damages and the extent of damages cannot be established with a reasonable degree of certainty.” . . . The proof adduced must be sufficiently definite for a reviewing court to perform its review obligation. . . . In the case before us, the proof adduced by the daughters in their case-in-chief fails to meet this fundamental requirement. . . 

Improvise. Adapt. Overcome.

To say the decedent’s daughters must have been crushed by the outcome of this case is probably putting it mildly. Why? Because according to them they weren’t able to prove damages with reasonable certainty due to their stepmother’s failure to turn over accounting documents she was supposed to produce during pre-trial discovery. In a lesson for all of us, this complaint got them nowhere. According to the 3d DCA counsel for the daughters needed to, as we used to say in the Marine Corps when things didn’t go as planned: "improvise, adapt and overcome." In other words, if your opponent doesn’t hand you the facts needed to prove your case, you don’t just cry foul, you find some other way to get the job done: you improvise, you adapt, you overcome. Here’s how the 3d DCA made this same point in the milder vernacular of appellate-court speak:

The daughters argued below, and renew their argument before us, that they were prevented from proving their damages in this case by the failure of counsel for the stepmother to engage in discovery in good faith. The daughters specifically point to the fact, revealed during the testimony of Jack Rosenberg, that defense counsel failed to inquire of him or his accounting firm for documents relating to the value of the decedent’s assets in response to a request for production that indisputably included them. As trustee of the Max P. Saewitz Revocable Trust, [stepmother] had the legal obligation to make such an inquiry. . . . The testimony of Jack Rosenberg indicated his firm had responsive documentation. During the course of the argument on the motion for directed verdict, counsel for the daughters placed substantial reliance on this lapse by defense counsel to ask the trial court to either re-open the case to allow more evidence on the element of damages, or, alternatively, grant a new trial as a sanction against [the stepmother] and her counsel for abuse of discovery. The trial court denied relief.

* * * * *

[T]he precise identification of each asset at issue was known to counsel for the daughters well before trial. If a prima facie case of the value of these assets could have been proven through the records or testimony of the decedent’s accountants, it follows the assets also could have been valued by experts retained by the daughters. Unless knowingly waived or excused by the daughters themselves, counsel’s obligation to the daughters in this case included an independent obligation to be prepared to present a prima facie case on the value of the daughters’ damage claim at trial. The actions of defense counsel, even if a violation of a legal or ethical obligation existed, were not the “but for” cause of the daughters’ failure to present a prima facie case to the jury. 

Lesson learned? 

According to the 3d DCA, the "but for" cause of the plaintiffs’ loss in this case wasn’t their stepmother’s stonewalling, "even if a violation of a legal or ethical obligation existed," it was their own failure to retain their own independent expert to prove damages. Bottom line, when all is said and done it’s up to you to win your case. If your opponent doesn’t make this easy for you, don’t expect your judge to come to your rescue. Repeat after me, improvise, adapt and overcome . . . improvise, adapt and overcome . . . improvise, adapt and overcome . . . improvise, adapt and overcome . . .