JOSEPHINE BOTSIKAS, A/K/A JOSEPHINE YARMARK, APPELLANT,
v.
ROSE YARMARK, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ABRAHAM YARMARK, DECEASED, RONALD W. YARMARK, AND MURIEL S. KESSLER, APPELLEES
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A woman in a meretricious relationship with a deceased man sought to recover property by alleging either a partnership or constructive trust. The court held that while a legal partnership claim failed because the illegal relationship could not serve as consideration, a constructive trust claim stated a valid cause of action based on the confidential relationship between the parties.
The court held that the complaint failed to state a cause of action for legal partnership because mutual promises to live together in a meretricious relationship cannot constitute sufficient consideration for a partnership agreement. However, the complaint stated a valid cause of action for constructive trust based on the alleged confidential relationship, provided the appellant could prove that trust and confidence existed between the parties and that title was wrongfully placed in the decedent's name.
“[E]very instance in which a confidential or fiduciary relation in fact is shown to exist will be interpreted as such. The relation and duties involved need not be legal; they may be moral, social, domestic or personal.”
Establishes that confidential relationships supporting constructive trusts need not be formal legal relationships but may be personal in nature.
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Join FLexlaw to unlock all legal intelligenceAppellant lived with the decedent in a husband-and-wife relationship despite the decedent having a living undivorced wife. Appellant contributed capit…
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Plaintiff-appellant brought a bill inequity against the administratrix of decedent’s estate, his widow, and heirs at law, praying that the court declare (1) a partnership between appellant and decedent,, or (2) the imposition of an involuntary or constructive trust as to certain properties, and an accounting.
In substance, the amended complaint alleges, inter alia, that a confidential relationship existed between appellant and the decedent; that they lived together in the relationship of husband and wife although the deceased had a living undivorced wife; that they entered into a partnership for life to acquire property, etc.; that appellant contributed capital from her own resources and in addition operated, managed and supervised hotel properties acquired by the partnership, all in furtherance of the alleged partnership activity; that certain properties were purchased for the partnership but taken in the name of the deceased only or in the names of certain corporations; and that appellant is entitled to her interest in the properties and profits thereof either as a partner or upon the theory of a constructive trust. The defendant-appellees’ motions to dismiss for failure to state a cause of action were sustained, giving rise to this appeal.
Upon a review of the material allegations of the amended complaint, we conclude that they are sufficient to state a cause of action for recovery upon the theory of the existence of a constructive trust. We also conclude that the amended complaint fails to state sufficient facts, which if proven would warrant a court of equity in finding that a legal partnership existed between the appellant and the deceased. Mutual promises to live together *279in a meretricious or illegal relationship are not sufficient consideration to support an agreement of partnership. It is true the allegations of the amended complaint do not allege such relationship to be the consideration for the agreement; nevertheless no other consideration is alleged. When all the allegations are considered, the conclusion that the illegal relationship was the consideration for the partnership is not an unreasonable one.
The complaint alleges that a confidential relationship existed between appellant and deceased. “[E]very instance in which a confidential or fiduciary relation in fact is shown to exist will be interpreted as such. The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.” [Emphasis supplied.] Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421, 54 A.L.R. 1173. See also Smith v. Smith, Fla.1959, 108 So.2d 761.
Appellant has alleged that she contributed property and funds for the acquisition of properties allegedly obtained for the benefit of both the deceased and herself, but that title to these properties was in fact placed in the name of the deceased or in corporations. She has further alleged that these contributions were as the result of the confidence placed by her in the deceased, and failure to grant her interest therein would be an abuse of the confidential relationship and amount to unjust enrichment of decedent’s estate. The amended complaint requires an answer from appellees. The appellant’s proof is required to meet the test laid down in Smith v. Smith, supra. Compensation for services rendered by the appellant during the existence of the meretricious relationship of course would not be recoverable.
Accordingly, the order appealed is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
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Nat'l Bank OF Melbourne & Tr. Co. as Executors of the Ests. of Ralph E. Balch & Bess D. Balch v. Lael N. Batchelor, 266 So. 2d 185 (Fla. 4th DCA 1972)…ll be referred to hereinafter as defendant. . For a definition of confidential relationship, see Wilkins v. United Mut. Life Ins., 1939, 141 Fla. 188, 192 So. 791; Quinn v. Phipps, 1927, 93 Fla. 805, 113 So. 419; Botsikas v. Yarmark, Fla.App. 1965, 172 So. 2d 277; Whittle v. Ellis, Fla.App. 1960, 122 So. 2d 237. . Once a confidential or fiduciary relationship is shown between donor and donee, the burden of proof shifts to the donee to show the absence of undue influence. Adams v. Saunders, 1939, 139 Fla. 73…
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Evans v. Kathie Wall, 542 So. 2d 1055 (Fla. 3d DCA 1989)…Kathie was awarded $8,000 plus costs. Douglas appeals contending, first, that this is not a case where equity should intervene. As a matter of law, a constructive trust may be imposed to do equity between unmarried cohabitants. Botsikas v. Yarmark, 172 So. 2d 277 (Fla. 3d DCA), cert. dismissed, 179 So. 2d 211 (Fla.1965). A cause of action for a constructive trust is maintainable between parties cohabiting illicitly as long as it is clear that there was a [*1057] valid, lawful consideration separate and apart…1 / 2
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Dietrich v. Winters, 798 So. 2d 864 (Fla. 4th DCA 2001)…d to do equity between unmarried cohabitants. Id. at 1056. It also held that the award was supportable under an equitable lien theory. Id. at 1057 (citing Johnson v. Craig, 158 Fla. 254, 258, 28 So. 2d 696, 699 (1946)); see also Botsikas v. Yarmark, 172 So. 2d 277, 279 (Fla. 3d DCA 1965) (order dismissing complaint for interest in properties and profits thereof on theory of a constructive trust was reversed, where appellant alleged that she contributed property and funds for the acquisition of properties alle…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Porte F. Quinn v. Phipps, 113 So. 419 (Fla. 1927)
- Smith v. Smith, 108 So. 2d 761 (Fla. 1959)