Berlin v. Pecora, — So.2d —-, 2007 WL 2710764 (Fla. 4th DCA Sep 19, 2007)

In 2003 Michael Pecora shot and killed his partner Jerome Berlin, then committed suicide.  They were the co-owners of Signature Gardens, a well-known banquet hall company in South Florida [click here for back story].

In the linked-to case the issue was whether Pecora’s share of the company was owned as tenants by the entireties (TBE) with his wife.  If it was, then his share of he company would not be subject to claims by creditors, including any wrongful death action Berlin’s estate might be pursuing.

I think this case is another example of "lateral thinking" [click here] in the probate litigation context.  Rather than defending against a wrongful death claim, Pecora’s estate simply argued the estate had no significant assets: the estate’s most valuable asset (a one-half stake in the business) went directly to Pecora’s surviving spouse as TBE property.  "Presto," no assets.

Road map for proving TBE ownership:

  • Step 1: Corporate documents are NOT conclusive evidence; trial testimony and other evidence may trump corporate documents when deciding TBE 

On appeal, Berlin argues that the trial court erred because it overlooked the corporate documents. Berlin cites to several documents as evidence that both corporations established stock ownership in Michael alone. These documents include the minutes of Deux Michel, Inc. showing that Michael owned 200 shares; a February 1984 resolution and stock certificate showing an additional hundred shares issued to Michael, individually; July 1993 minutes of Grand Partners, Inc. reflecting Michael owning 200 shares in the company; and K-1 tax schedules for Deux Michel, Inc. and Grand Partners, Inc. showing Michael as the shareholder.

“[C]orporate records provide a prima facie evidentiary basis for determining ownership of corporate stock.” Sackett v. Shahid, 722 So.2d 273, 275 (Fla. 1st DCA 1998). However,

[I]t is within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, or to constitute an abuse of discretion.

Jockey Club, Inc. v. Stern, 408 So.2d 854, 855 (Fla. 3d DCA 1982).

The above mentioned documents provide evidence that Michael was the only recognized name mentioned with stock ownership in the companies. Nevertheless, these documents are contradicted with testimony at trial that the stock was held jointly; evidence and testimony that Michael and Arlene made purchases through a joint account; and other documents admitted at trial indicating joint ownership, thereby providing competent and substantial evidence for the trial court’s ruling.

  • Step 2:  Business purchased with joint bank account funds may create TBE property

Bank accounts are afforded the same presumption of tenancy by the entireties as is real property. Beal Bank, 780 So.2d at 58. Property purchased with joint funds may create a tenancy by the entirety in that property so long as the unities are met. For example, in Winterton v. Kaufmann, 504 So.2d 439 (Fla. 3d DCA 1987), the court found that after the husband died, the wife owned bonds that were purchased with joint funds and kept in a joint safe deposit box. See also Estate of Fields v. Fields, 581 So.2d 1387, 1388 (Fla. 3d DCA 1991) (“The bearer bonds, purchased with joint funds and maintained in the couple’s joint safe deposit box, passed to the wife upon the husband’s death. The bearer bonds were held by the spouses as tenants by the entirety; ownership vested in the wife as the survivor.”). Once tenancy by the entirety property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Group Sec., Inc., 886 So.2d 295, 297 (Fla. 4th DCA 2004) (“Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession….”); Lerner v. Lerner, 113 So.2d 212 (Fla. 2d DCA 1959).

  • Step 3: Meet your burden of proof at trial

Under a tenancy by the entirety, “[u]pon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus … after death of one spouse the surviving spouse continues to hold the entire estate….” Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 821 So.2d 1251, 1254 (Fla. 4th DCA 2002). Property held as a tenancy by the entireties possesses six characteristics:

(1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 52 (Fla.2001) (footnote omitted).

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Here, the six characteristics needed to prove the tenancy by the entirety are largely based upon the assumption that joint funds were used in the inception of the companies, even though the proof of the use of joint funds is illustrated only by checks dated after the inception of the companies and witness testimony.

“[U]nless a tenancy by the entireties is clearly expressed in the instrument, the parties must prove they intended to create a tenancy by the entireties.” Hurlbert v. Shackleton, 560 So.2d 1276, 1279 (Fla. 1st DCA 1990); Morse v. Kohl, Metzger, Spotts, P.A., 725 So.2d 436, 438 (Fla. 4th DCA 1999). The trial court heard testimony from witnesses as well as the admission of several documents in which it found that the intention was to create a tenancy by the entirety. This is a factual question which the court ultimately determined by competent substantial evidence in favor of Arlene. See Sitomer v. Orlan, 660 So.2d 1111, 1115 (Fla. 4th DCA 1995) (“Whether the parties created a tenancy by the entireties in a bank account-whether they were each taking the whole of the account-is a question of fact.”).