BLOG POST UPDATE: SUBSTITUTE OPINION PUBLISHED
Kravitz v. Levy, — So.2d —-, 2008 WL 441403 (Fla. 4th DCA Feb 20, 2008)
We deny appellees’ motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
A beneficiary of an estate appeals a final summary judgment in favor of the estate of the deceased personal representative of the estate, concluding that the beneficiary’s cause of action against the personal representative for breach of fiduciary duty was barred by the statute of limitations. Because we conclude that there is an issue of material fact as to whether the actions of the personal representative constituted a continuing tort, we reverse.
ORIGINAL BLOG POST:
Kravitz v. Levy, — So.2d —-, 2007 WL 2480538 (Fla. 4th DCA Sep 05, 2007)
Probate is often criticized as being too expensive and slow moving. Why the costs and delay? In large part because the probate code is full of protections against various forms of foul play, including fraud by the person who is primarily responsible for protecting the estate: the personal representative. But these safeguards are limited, and sometimes it can be years – maybe decades – before foul play involving an estate comes to light. Can the family do anything after all this time?
Continuing torts doctrine saves the day.
The linked-to case involves probate proceedings for Max Kravitz, a resident of Pennsylvania, who died in July 1958. Kravitz’s will was admitted to probate in Pennsylvania in 1959, and Morris Passon, Max’s brother-in-law and the family lawyer, was appointed executor of Kravitz’s estate. In 2000 – 41 years later! – Passon died in Florida. In the course of administering Passon’s estate it became clear he had improperly kept assets of Kravitz’s estate for himself. So 41 years after Passon was appointed executor, the heirs of Kravitz’s estate sued Passon’s estate in Florida for negligence, conversion, tortious interference with an inheritance, and breach of fiduciary duty. The trial court dismissed all claims, finding that they were time barred under F.S. 95.031(2)(a).
In the linked-to case the 4th DCA reversed the trial court’s dismissal of the breach of fiduciary duty claims based on the "continuing torts doctrine." The 4th DCA’s opinion is extremely useful because it provides a possible road map for attorneys/families pursuing claims that could be decades in the making, which is not unheard of in contested probate proceedings. Here’s how the 4th DCA applied the continuing tort doctrine to the breach of fiduciary duty claims in this case:
This case is most like Halkey-Roberts Corp. v. Mackal, 641 So.2d 445 (Fla. 2d DCA 1994). There, a corporation brought an action against its former president claiming that he had repeatedly used corporate funds for his own personal interests. The trial court granted summary judgment on the president’s statute of limitations defense, but the appellate court reversed on the claims of breach of fiduciary duty. It explained that the complaint alleged what constituted a continuing tort:
In regard to counts I and II, HRC contends that Mackal’s [the former corporate president] behavior constituted continuing torts, for which the limitations period runs from the date the tortious conduct ceases. The continuing torts doctrine is recognized under our state law. See Seaboard Air Line R.R. v. Holt, 92 So.2d 169 (Fla.1956). The question of whether Mackal’s actions constituted continuing torts precludes the granting of summary judgment as to counts I and II. To what extent, if any, the concept applies to this case is an issue for the trier of fact to decide.
Id. at 447. See also Carlton v. Germany Hammock Groves, 803 So.2d 852 (Fla. 4th DCA 2002) (whether continuing torts doctrine applies to facts of case is for trier of fact). . . . We conclude that material issues of fact remain as to whether Passon engaged in a continuing tort of breach of fiduciary duty until the date of his death. If so, the statute of limitations would not have begun to run until Passon’s death. These issues are for a jury to resolve.