ROBERT M. BRAKE AND EILEEN M. BRAKE, APPELLANTS,
v.
EVE E. MURPHY AND RICHARD MURPHY, APPELLEES
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The court held that the heirs of an estate were not the proper parties to bring an action to set aside fraudulent conveyances, and the trial court erred in not ruling on the defendants' resulting trust affirmative defense.
Heirs of an estate brought an action to set aside title transfers made by the estate's personal representative, alleging they were fraudulent conveyan…
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PER CURIAM.
Defendants Robert M. Brake and Eileen M. Brake appeal a final judgment setting aside as fraudulent two title transfers from Eileen M. Brake to Robert M. Brake. We reverse the judgment.
As a threshold issue, we are unpersuaded by the plaintiffs’ argument that they were the proper parties to bring this action. Plaintiffs, heirs of the Estate of Eileen Murphy, brought the action to set aside fraudulent conveyances. Plaintiffs asserted that Eileen Brake effected the transfers to avoid execution on a surcharge order in the Estate’s favor. The surcharge was imposed as a result of her mismanagement of Estate property during her service as the Estate’s personal representative. The surcharge order inured to the Estate’s benefit. As such, the personal representative is the proper party to bring an action on the Estate’s behalf. § 738.607, Fla.Stat. (1995).
Additionally, we find that the court erred in declining to rule on the Brakes’ resulting trust affirmative defense. The trial court had equity jurisdiction to decide the resulting trust issue, an equitable claim. § 26.012(2)(c), Fla.Stat. (1995); see Espino v. Anez, 665 So. 2d 1080 (Fla. 3d DCA 1995). We express no opinion as to the merits of this defense.
Based on the foregoing, we reverse the final judgment and remand for a new trial on all issues including the resulting trust affirmative defense. The personal representative shall be substituted as the proper party plaintiff. See Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766 (Fla. 4th DCA 1994).
Reversed and remanded.
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THE Florida BAR v. Brake, 767 So. 2d 1163 (Fla. 2000)…v. Swan, 733 So. 2d 1051 (Fla. 3d DCA 1999); Brake v. Murphy, 688 So. 2d 403 (Fla. 3d DCA 1997); Brake v. Third District Court of Appeal, 666 So. 2d 142 (Fla.1995), cert. denied, 516 U.S. 1147, 116 S.Ct. 1019, 134 L.Ed.2d 99 (1996); Brake v. Murphy, 687 So. 2d 842 (Fla. 3d DCA 1996), review denied, 697 So. 2d 1217 (Fla.1997); Brake v. Estate of Murphy, 678 So. 2d 374 (Fla. 3d DCA 1996); Brake v. Murphy, 661 So. 2d 834 (Fla. 3d DCA 1995); Brake v. Murphy, 636 So. 2d 72 (Fla. 3d DCA 1994), vacated by Brake v. M…
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Brake v. Eve E. Murphy, 688 So. 2d 403 (Fla. 3d DCA 1997)…[*404] PER CURIAM. We dispose of the several orders now on appeal in this interminable litigation as follows: (1) The order awarding attorney’s fees for services performed in securing the judgment which has since been reversed in Brake v. Murphy, 687 So. 2d 842 (Fla. 3d DCA 1996), is necessarily likewise reversed. (2) The order denying Rule 1.640 relief is affirmed. (3) The attempted review of a non-appealable order denying a motion for a more definite statement is dismissed. (4) The sua sponte order purpo…
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Int'l Alliance OF Theatrical Stage Emps. & Moving Picture Technicians v. Int'l Alliance OF Theatrical Stage Emps. & Moving Picture Mach. Operators Holding Co., Inc., 902 So. 2d 959 (Fla. 4th DCA 2005)…question in the negative. We find no error in the verdict form submitted. AFFIRMED. WARNER and GROSS, JJ., concur. . We note that a resulting trust is an equitable remedy. See Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925); Brake v. Murphy, 687 So. 2d 842 (Fla. 3d DCA 1997). Here, legal and equitable issues were "intertwined” so there was no error in submitting such fact issues to the jury. See Billian v. Mobil Corp., 710 So. 2d 984 (Fla. 4th DCA 1998). Also, unlike Chabad House-Lubavitch of Palm Bea…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Metro. Dade Cnty. v. Cary Kogen, 665 So. 2d 1080 (Fla. 3d DCA 1995)
- Espino v. Oswaldo Anez, 665 So. 2d 1080 (Fla. 3d DCA 1995)
- CASA Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766 (Fla. 4th DCA 1994)
- Selig v. Sandler, 642 So. 2d 766 (Fla. 3d DCA 1994)