Vazquez Calderon v. Vazquez

Third District Court of Appeal
State of Florida
Opinion filed July 11, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2365
Lower Tribunal No. 16-22013
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Luis Gerardo Vazquez Calderόn, a/k/a Luis Vazquez,
Appellant,
vs.
Juan Vazquez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio
Marin, Judge.
Warren Gammill & Associates, and Warren P. Gammill, for appellant.
Pardo Jackson Gainsburg, and Nicole R. Rekant and Stevan J. Pardo,
for appellee.
Before SALTER, EMAS and LOGUE, JJ.
SALTER, J.
Luis Vazquez (“Luis”) appeals a circuit court order dismissing his
amended complaint with prejudice. The appellee here and defendant in the
trial court is Luis’s uncle, Juan Vazquez (“Juan”). The amended complaint
alleges six counts relating to the proceeds of a $120,000.00 life insurance
policy on the life of Luis’s father, René Vazquez (“René”; Juan’s brother).
We reverse the order dismissing the amended complaint with prejudice.
We review a final order dismissing a complaint with prejudice under
the de novo standard of review. In doing so, we assume all of the
allegations in the complaint are true. We construe all reasonable inferences
from the allegations in favor of Luis. United Auto. Ins. Co. v. Law Offices
of Michael I. Libman, 46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010). The
recitation which follows consists of allegations by Luis in the amended
complaint, which are subject to proof and to defenses that may be raised by
Juan.
In 2003, René was living in Michigan and working at a business
owned by Juan. René’s wife, Sulma Vazquez (“Sulma”), and Luis were in
their home country, Bolivia, caring for Sulma’s father, who was ill. During
the time he was working in Michigan, René obtained a Fortis Benefits
Insurance Company life insurance policy for $120,000.00 on his life (the
“Policy”). Although René designated his brother Juan as the beneficiary of
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the Policy, he made it clear to Juan that the proceeds of the Policy were to be
held in trust by Juan for Sulma and Luis for their education and living
expenses after René’s death.
René also left a Last Will and Testament signed in La Paz, Bolivia, in
September 2003 (the “Bolivian Will”). A translation of the Bolivian Will by
a court-certified interpreter included these provisions:
I [René] . . . in my role as husband and father, being of sound
mind, without any defects in consent, prepare this will in favor
of my wife [Sulma] . . . and of my son [Luis], so that they can
benefit from all the assets I possess or may acquire in the
future, furthermore I declare that I have obtained a Life
Insurance in the United States of North America in the
Company FORTIS BENEFITS INSURANCE COMPANY, for
the amount of US$120,000 (ONE HUNDRED TWENTY
THOUSAND US DOLLARS) being the only beneficiaries my
wife and my son aforementioned for the purpose of assuring the
Education Living Expenses of both of them . . . .
The amended complaint further alleges that René passed away in late
2003, and Juan received the full proceeds of the Policy from Fortis Benefits
in 2004. Juan and his wife placed approximately $46,000.00 of those
proceeds in an investment account at Banc One Securities Corporation; they
named Luis as the sole beneficiary of the money in the account.
As Luis grew up, Juan repeatedly acknowledged that the proceeds of
the Policy were intended to be used for Luis’s education. In 2012, at Luis’s
and Sulma’s request, Juan sent $20,000.00 of the Policy proceeds to Sulma
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in Bolivia. Half of the funds were used for Luis’s education, and the other
half was used to fix up his home.
Sulma executed a written assignment to Luis of her rights in, and
claims to, the Policy proceeds before the lawsuit was filed. In the fall of
2014, Sulma and Luis asked Juan to deliver the balance of the proceeds to
Luis to pay for his college education. “Juan has repeatedly promised that he
would remit the funds to Luis,” but in 2015 Juan refused to pay the
remaining proceeds to Luis. Juan claimed instead that the funds are his.
Luis filed the lawsuit in 2016, filing an amended complaint (as of right) a
week after the initial complaint.
Juan moved to dismiss the amended complaint, (a) alleging facts
outside the amended complaint (the payment of $70,000.00 in death benefits
from a second insurance policy on René’s life directly to Sulma, as the
designated beneficiary) and (b) contending that the one-page purported
Bolivian will was fatally inconsistent with the conceded designation by
René of Juan as his beneficiary under the Policy, such that further
amendment would be futile.
The trial court agreed, dismissing the amended complaint with
prejudice. This appeal followed.
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Cases cited by Juan’s counsel, particularly Brown v. Di Petta, 448 So.
2d 561, 562 (Fla. 3d DCA 1984), do indeed hold that under Florida law, “a
beneficiary under a life insurance policy may be changed only by strict
compliance with the conditions set forth in the policy,” and proof that an
insured merely intended to change the beneficiary is insufficient to
accomplish such a change.1 But that is not the issue presented here.
The issue presented here is whether Juan, whether by agreement or
operation of law, became a trustee with respect to the proceeds paid over to
him as designated beneficiary. The elements of such a trust or an equitable
lien—in a strikingly similar case—are detailed in In re Maurer, 267 B.R.
639, 651-53 (Bankr. M.D. Fla. 2001). In that case, as here, the owner of the
policy sought to provide for minor children. The owner designated an adult
relative as beneficiary to receive the policy proceeds for the benefit of the
children. Florida’s statutory Trust Code expressly allows the creation of
oral trusts, though the terms of such a trust must be established by “clear and
convincing evidence.” § 736.0407, Fla. Stat. (2017).
Parol evidence may establish a trust in personal property. In re Estate
of Pearce, 481 So. 2d 69 (Fla. 4th DCA 1986); Rosen v. Rosen, 167 So. 2d
1 But see § 732.703, Fla. Stat. (2017), originally enacted in 2012 to address
the effects of a dissolution of marriage upon certain pre-dissolution
designations of beneficiary by one of the former spouses in favor of the
other former spouse.
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70 (Fla. 3d DCA 1964) (trust imposed on life insurance proceeds for the
benefit of the insured’s minor children).
Nor is the purported Bolivian Will facially or fatally inconsistent with
the Policy’s beneficiary designation at the time of René’s death. That
document expresses an intention to benefit Sulma and Luis, not Juan. The
term “beneficiaries” may refer to the beneficiaries of his will or the oral trust
rather than the beneficiary to receive the proceeds from the insurer initially
upon René’s death.
It follows that Luis’s position is well taken, and the order of dismissal
with prejudice must be reversed and remanded for further proceedings. We
reiterate that the allegations in the amended complaint remain to be proven,
and Juan remains free to raise affirmative defenses to the causes of action
enumerated in the amended complaint.
Reversed and remanded for further proceedings.
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