THE FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

APPEAL CASE NO.: 5D18-1672

CIRCUIT CASE NO.: 2015-CA-007417-0

ROBERT MULLINS,

Appellant,

V.

KENNETH MULLINS and

CARLA MULLINS,

Appellees.

INITIAL BRIEF

OF

ROBERT MULLINS

Filed on Behalf of Appellant,ROBERT MULLINS By:

ERIC S. MASHBURN, ESQUIRELaw Office of Eric S. Mashbum, P. A.

Post Office Box 771268

Winter Garden, PL 34777-1268(407) 656-1576E-mail: info@wintergardenlaw.comService e-mail: lvnn@wintergardenlaw.comFlorida Bar Number 263036

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TABLE OF CONTENTS

Pagers)

I. Statement of the Case -1-

II. Statement of the Facts -6-

III. Standard of Review on Appeal -7-

IV. Issues Presented -8-

V. Summary of Argument -8-

VI. Argument -9-

Issue I -10-

Issue II -18-

Issue III -23-

Issue IV -28-

VII. Conclusion -29-

Certificate of Service -31-

Font Certification -32-

TABLE OF AUTHORITIES

Page(s)Cases

Anemaet v. Martin-Senour Co., 114 So. 2d 23, 25-26 (Fia. 2d DCA 1959) .. -15-

Aronson v. Aromon, 81 So.Sd 515 (Fla. S'** DCA 2012) -12-

Barden v. Pappas, 532 So. 2d 707 (Fla. 5"* DCA 1988) -25-

Barden v. Pappas, 532 So. 2d at 709 n. 2 -27-, -31-

Bartelt v. Bartelt, 579 So.2d 282, 283 (Fla. 3d DCA 1991) -12-

Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1352-53 (Fla. 1st DCA 1989) . -20-

Cavanaugh v. Cavanaugh., 542 So.2d 1345, 1352 (Fla. 1st DCA 1989) .... -12-,

Cavanaugh v. Cavanaugh, 542 So.2d 1345 (Fla. F' DCA 1989) -13—19-

Clifton V. Clifton, 553 So.2d 192, 194 n. 3 (Fla. 5th DCA 1989) -11-13-

Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla. 1991)-21-

375 So.2d 594 (Fla. 5th DCA 1979) -12-

Estate ofHamel, 821 So. 2d 1276, 1279 (Fla. 2d DCA 2002) -12-

Estate ofHamel, 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002) -13-

Estate ofMahaney, 903 So.2d 234 (Fla. 2"'' DCA 2005) -12-

Fuentes v. Shevin, 407 U.S. 67, 80,92 S.Ct. 1983,32 L.Ed.2d 556 (1972) .. -21-

Garcia-Tunon v. Garcia-Tunon, 472 So.2d 1378 (Fla. 2d DCA 1985) -25-

Hamel, supra -17-

i

In re Estate o/Hamel, 821 So. 2d 1276 (Fla. 2d DC A 2002) -11--13-

Keys Citizens For Responsible Gov't, Inc. v. Florida Keys Aqueduct Auth., 795 So.2d 940 (Fla. 2001) -20-

Keys Citizens For Responsible Gov't, Inc. v. Florida Keys Aqueduct Auth.., 795 So.2d at 948 -21-

Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)-21-

McKean v. Warburton, 919 So.2d 341 (Fla. 2005) -12-, -26-

McKean v. Warburton, 919 So. 2d 341, 344 (Fla. 2005) -14-

McKean, supra at 344 -15-

Mosgrove v. Mach, 182 So. 786 (Fla. 1938) -15-

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94L.Ed. 865(1950) -21-

Noble's Estate, 73 So.2d 873 (Fla. 1954) -13-

Noble's Estate, supra -18-

Raulerson v. Peeples, 77 Fla. 207, 81 So. 271 (1919) -13-

Rice V. Greenberg (In re Estate of Rice), 406 So.2d 469,473 (Fla. 3d DCA 1981)-12-

VMD Financail Services, Inc. v. CB Loan Purchase Associates, LLC, 68 So.3d 997(Fla. 4*^ DCA 2011) -20-

Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)-8-

Weedv. Knox, 27 So.2d 419 (Fla. 1946) -24-, -25-

fFee/t5,(sic)27So. 2dat898 -24-

ii

Wilson V. Fla. Nat'l Bank & Trust Co.^ 64 So.2d 309, 313 (Fia.1953) -12-

Rules

Fla. Prob. R. 5.405(a) -13-

Statutes

Fla. Stats {20\1) -23-

§732.101(2), Fla. Stat. (2000) -12-

§732.401, Fla. Stat. (2017) -14-

^Ti2.5\A,Fla.Stat.{20\l) -14-

§733.815 Fla. Stat. (2017) -20-

§733.607(1), Fla. Stat. (2000) -12-

Other Authority

1 Fla.Jur.2d Actions § 12; 50 C.J.S. Judgments § 908 -19-

22 Fla. Jur. 2d, Estates, Powers, and Restraints, ̂2 -15-

§523, Muniments of Title, Patton and Palomar on Land Titles -16-

Art. I, § 9, Fla. Const -21-

Rohan Kelley, Homestead Made Easy, Part I: Understanding the Basics, 65 Fla. B.J.17, 20 (Mar. 1991) -13-

§177.33 Am. Jur. 643 -24-

111

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

CASE NO. 5D18-1672

ROBERT MULLINS,

Appellant,

V.

KENNETH MULLINS and

CARLA MULLINS,

Appellees.

APPELLANTLS INITIAL BRIEF

Appellant, Robert Mullins, by and through his undersigned attorney, hereby

files his Initial Brief. Appellees, Kenneth Mullins and Carla Mullins, will be referred

to as "Appellees" or by their individual names. References to the Record on Appeal

will be designated as [R- ].

I. Statement of the Case

1. Appellees as Plaintiffs filed a verified Complaint against Appellant seeking

partition under Chapter 64 of a single-family residence of which Appellant and

Appellees were the owners. [R-12] The Complaint alleged that the parties

held equal one-third interests in the property. Appellant filed an Amended

Answer and Affirmative Defenses in which he asserts that he and Appellee

Kenneth Mullins held life estates in the property and Appellee Carla Mullins

held a remainder interest and therefore, partition was not permitted. [R-50]

2. Appellee's responded by filing an Amended Complaint to add a second count

claiming that if Robert and Kenneth did hold life estates that such life estates

should be terminated due alleged hostile acts by Appellant that prevented the

brothers from living together and the property partitioned. [R-123]

3. Subsequently, Appellees filed a Second Amended Complaint adding a third

count stating that the parties held title as tenants in common pursuant to an

Order Determining Homestead and therefore partition of the entire fee simple

interest was permitted. [R-197]

4. Appellant filed an Answer to the Second Amended Complaint asserting that

the parties derived title to the property pursuant to their mother's will admitted

to probate which granted life estates to Robert and Kenneth, with remainder

interests held by all of the children and therefore partition was not proper. [R-

218] The Answer also denied the allegations that Robert had committed any

hostile acts toward his brother or caused his brother to vacate the home. [R-

218] Appellant also demanded compensation for his life estate in the event a

partition sale was ordered by the Court. [R-218]

5. Early in the case. Appellant filed a Motion for Summary Judgment arguing on

the basis of the Will [R-74] under which all the siblings had derived title that

-2-

Robert and Kenneth held the equivalent of life estates in the property and all

three held remainder interests. [R-65] Appellant argued that since Carla only

held a remainder interest, partition was not permitted by or against her.

Appellant subsequently filed an Amended Motion for Summary Judgment

presenting the same argument. [R-98]

6. Appellee Kenneth Mullins filed a sworn Affidavit in Opposition in which he

stated he and his brother held life estates in the property. [R-129] He further

asserted that Appellant had committed hostile acts toward him that renedered

his occupancy of the property impossible. [R-129]

7. In response, Appellant filed a reply in which he cited many instances in the

record of factual statements contradicting Kenneth's statements that his brother

had created a hostile environment. [R-171]

8. While Appellant's Motion for Summary Judgment was pending. Appellees

filed their Motion for Summary Judgment, arguing that the Order Determining

Homestead [R-210] vested title in the parties as tenants in common and

therefore partition was proper. [R-215]

9. The Trial Court held a hearing on the respective Motions for Summary

Judgment on October 11,2016. [R-262] Although the Judge Jordan denied the

respective Motions for Summary Judgment, he made several significant

findings and rulings governing the further prosecution of the case. [R-263]

-3-

Even though it was not styled as such, Judge Jordan's Order was in effect a

partial summary judgment by its very terms.

10. The Court ruled that Appellant did in fact hold a life estate in the property, and

that his brother, Kenneth Mullins, also held a life estate, based upon the terms

of the Will of their mother which was the document by which all parties had

acquired their interests in the property. The Court further ruled that Plaintiff,

Carla Mullins, held a non-possessory remainder interest and that, therefore, she

was not entitled to seek partition. The Court further ruled that Appellee

Kenneth Mullins (as a co-possessory interest) had the right, as a matter of law,

to seek partition against Appellant, but that there existed disputed material

issues of fact as to whether, due to the actions of Appellant, the Court should

prematurely terminate the life estates to permit partition. [R 263]

11. Soon after the Judge Jordan entered his Order, Appellant's attorney withdrew

from his representation, leaving him unrepresented. [R-274] While Appellant

was unrepresented, Appellees filed an Amended Motion for Summary

Judgment which was nothing more than a restatement of their prior Motion for

Summary Judgment claiming that no party held a life estate in the property and

the parties held title as tenants in common based on the Order Determining

Homestead. [R-276]

12. The contentions and argument set forth in Appellee's Amended Motion for

-4-

Summary Judgment were in direct conflict with the existing binding rulings of

the Trial Court as set forth in its Order regarding the previously filed Motions

for Summary Judgment. [R-263]. The Court had already rejected these very

same arguments. No motion seeking reconsideration of the Court's prior order

was filed by Appellees and no grounds for reconsideration were set forth in the

Amended Motion. No notice of hearing on this Motion was ever filed.

13. On November 1, 2017, Appellee's attorney and Appellant pro se appeared

before the Court for a pre-trial conference, and the Court set a non-jury trial of

the matter for January 10, 2018. [R-293]

14. On November 8, 2017, Appellees' filed their Second Amended Motion for

Summary Judgment wherein the Appellees attached a title report on the subject

property. [R-295] No notice of hearing on Appellees' Second Amended

Motion for Summary Judgment was ever filed.

15. The parties appeared on January 10, 2018, before the Honorable Jose R.

Rodriguez, who had taken over the division to which the case had been

assigned on January 1,2018. The Court Minutes [R-309] reflect that the Court

did not take any evidence at that time, although the Trial Court did, without

objection from the parties, review certain documents filed in the Probate

proceedings, including the Consents to the Petition to Determine Homestead

Property signed by all the siblings. [R-369] In lieu of conducting a trial on the

-5-

issues identified in Judge Jordan's Order, Judge Rodriguez granted Appellees'

Second Amended Motion for Summary Judgment, although such Motion was

not set for hearing at that time. [R-309, 311]

16. The Court subsequently entered its Summary Final Judgment of Partition on

March 19, 2018, granting Appellee's Second Amended Motion for Summary

Judgment. [R-311] The Trial Court ruled the parties held title as tenants in

common, that no party held a life estate, that partition was proper, and ordered

the sale of the property. [R-311]

17. Appellant timely filed his Motion for Rehearing on April 2, 2018. [R-316].

The Court entered its Order denying the Motion on April 25, 2018. [R-328]

Appellant subsequently filed his Notice of Appeal on May 16, 2018. [R-331 ]

II. Statement of the Facts

18. Appellant and Appellees inherited the subject property, a single family

residence, from their mother in 2010. [R-65, 197, 263] The mother's Will,

which was admitted to probate, left the property to her three children in equal

shares "subject to" the right of her two sons to use the property as their

residence for as long as they wanted. [R-74] A Petition to Determine

Homestead along with consents from the three children were filed in the

probate proceeding. [R-65, 369] The probate Court entered an Order

Determining Homestead Property determining that the property was the

-6-

protected homestead of the decedent and further stating that it had been

properly devised under the Will to each of the three children in a "one-third

undivided interest." [R-263] Neither the Petition to Determine Homestead,

nor the Order, nor the Consents to said Petition made any mention whatsoever

of the special possessory rights (life estates) granted to the two sons under the

Will.

19. Subsequent to the probate proceeding, the two sons jointly occupied the

property. It was alleged by Appellees that at a point, the two brothers had

personal difficulties and that Appellant became hostile toward his brother in

an effort to force him out of the home. [R-197] At some point, Kenneth

vacated the home. [R-129] Appellant denied that he created a hostile

environment toward his brother, and that his brother voluntarily vacated the

home and could move back in at any time. [R-233]

20. The facts surrounding the occupancy and issues between the brothers were

clearly in dispute as reflected in the record, each brother asserting conflicting

versions. [R-263] Such facts were also clearly material to the claims set forth

by Appellees in their Second Amended Complaint and under Judge Jordan's

jpre-trial rulings.

III. Standard of Review on Appeal

The Final Order appealed is the granting of a Motion for Summary Judgment

-7-

in favor of the Appellees/Plaintiffs and, therefore, the standard of review on appeal

is de novo. Volusia County v. Aberdeen at OrmondBeach, L.P., 760 So. 2d 126 (Fla.

2000).

IV. Issues Presented

1. Did the Order Determining Homestead divest Appellant of the right of

possession (life estate) granted to him under the Will by failing to set forth said right?

2. Did Appellant consent to the extinguishment of his possessory rights

(life estate) by signing the Consent to the Petition and Order to Determine Homestead

Property?

3. If Appellant still retains a right of possession (life estate) granted to him

under the Will, does such right prohibit an action for partition by Appellees as a

matter of law?

4. Does there exist in the record disputed material issues of fact precluding

entry of summary judgment?

V. Summary of Argument

Judge Jordan's Order correctly decided the legal issues presented by this case.

The Will under which the parties derived title to the property clearly created

possessory life estates in the two sons and a non-possessory remainder interest in the

daughter, which rights vested at the time of death. The Order Determining

Homestead was not the instrument or judicial act which vested title in the parties, but

-8-

merely determinative of the status of the property as homestead at the time of the

death of the decedent. The language of the Order did not address and was not in

conflict the interests granted under the Will. The Consent to such Order signed by

Appellant did not waive his possessory rights (life estate) granted under the Will

because it did not say that was the intent and such Order was not inconsistent with his

rights. Appellee Carla Mullins, as a remainderman, is not entitled to seek partition

because she does not hold a current right to possession. Appellee Kenneth Mullins

has a right to seek partition of his concurrent life estate with Appellant as a matter of

law, but there exists disputed material facts in the record that preclude summary

judgment. The Summary Judgment should be reversed and the case remanded for

further proceedings limited to Kenneth Mullins' claim for partition.

VI. Argument

Appellant asserts that Judge Jordan's Order on the parties' respective Motions

for Summary Judgment is a correct application of law to the facts of this case. It

found that Appellant holds a life estate (or equivalent) in the subject property, and

that such possessory interest was not extinguished by the Order Determining

Homestead Property. The Court also found that one of the parties (Appellee Carla

Mullins) did not have a present possessory interest in the property and, therefore, had

no right to seek partition. He found, however, consistent with Florida law, that

partition was legally permissible between the two life tenants. The Court further

-9-

found that there existed disputed facts as to whether one or both of the life tenants

had forfeited their possessory interest (life estate) under the terms of the Will which

could render them all tenants in common subject to partition.

It appears that when the case was assigned to a new judge (Judge Rodriguez),

he was not aware of Judge Jordan's prior ruling as he makes no reference to it while

nonetheless overruling all of Judge Jordan's rulings, but without saying he was doing

so. This raises the question as to whether Judge Rodriguez would have made a

different decision if he were aware of his predecessor's rulings in the case.

Regardless, Appellant will address Judge Rodriguez's ruling on its merits.

Issue I.

1. In their Second Amended Motion for Summary Judgment, Appellees assert that

"title to the property vested in the two Plaintiffs and Defendant pursuant to the

Order Determining Homestead..." and that said Order "establishes the

ownership interest of each of the Plaintiffs and the Defendant in the property."

This contention is the foundation of Appellees' argument set forth in the

Second Amended Motion for Summary Judgment; yet. Appellees fail to cite

any authority to support this contention in their MSJ.

2. In the Summary Final Judgment, the Court accepts Appellees' argument as

valid and it becomes the foundation on which the Court bases the Judgment.

This contention - that the Order Determining Homestead Property (hereinafter

-10-

"Order") vested or created the title held by the parties - is clearly contrary to

the law in the State of Florida. Neither Appellees nor the Court cited any

authority for this proposition.'

3. The Court states in paragraph 3 of the Summary Final Judgment that the

subject real estate owned by the decedent was one of the "assets of the estate."

This is stated in apparent support of the Court's assumption that the deposition

of the decedent's property was decided and determined solely by the Order

Determining Homestead.

4. Protected homestead property of a decedent is not an asset of the estate for

administration or payment of claims or expenses purposes. It is only subject

to the administration of the estate for the purpose of determining its status as

protected homestead at the time of death and whether it was properly devised

under a will. In In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002)

the Court said the following:

Despite the change in the constitution, Florida courts have continued tohold that homestead does not become a part of the probate estate unlessa testamentary disposition is permitted and is made to someone otherthan an heir, i.e., a person to whom the benefit of homestead protectioncould not inure. See Clifton v. Clifton, 553 So.2d 192,194 n. 3 (Fla. 5thDCA 1989) (noting, "[hjomestead property, whether devised or not.

' It is interesting to note the contrast between Judge Jordan's Order and the SummaryFinal Judgment. Judge Jordan makes a thorough analysis of the facts and law withconsiderable citation of authority to support his conclusions. Judge Rodriguez reaches hisconclusions without a single cite to authority.

-11-

passes outside of the probate estate"); Cavanaugh v. Cavanaugh, 542So.2d 1345, 1352 (Fla. 1st DCA 1989) (holding transfer of probatejurisdiction to circuit court did not change law that homestead is notasset of probate estate). See also § 733.607(1), Fla. Stat. (2000)(requiring a personal representative to take control of all of thedecedent's property "except the protected homestead").

In re Estate ofHamel, 821 So. 2d 1276, 1279 (Fla. 2d DCA 2002).

See also Aronson v. Aronson, 81 So.3d 515 (Fla. 3''' DCA 2012); In reEstate o/Mahaney, 903 So.2d 234 (Fla. 2"" DCA 2005); McKean v.Warburton, 919 So.2d 341 (Fla. 2005).^

5. Critically, the interests and rights of beneficiaries or heirs are established in the

homestead property as of the time of death. Again, the Hamel case is

illuminating:

Generally, property rights passing by virtue of the death of a person vestat the time of death. See § 732.101(2), Fla. Stat. (2000) (involvingintestate estates); § 732.514, Fla. Stat. (2000) (involving devises); RiceV. Greenberg (In re Estate of Rice), 406 So.2d 469, 473 (Fla. 3d DCA1981) (involving remainder interests); Estate ofBroome, 375 So.2d 594(Fla. 5th DCA 1979) (involving dower). The same has been held true forhomestead. See Wilson v. Fla. Nat'l Bank & Trust Co., 64 So.2d 309,

313 (Fla. 1953) (holding that appropriate time to determine homesteadstatus is at death of the decedent, regardless of whether propertythereafter continues to be homestead). If the property is homestead onthe date of death, the homestead protection is impressed upon the landand the protection from creditors' claims inures to the benefit ofthe heirsto whom the property is devised. See Bartelt v. Bartelt, 579 So.2d 282,

^ In Warburton, the Supreme Court stated "In Clifton v. Clifton, 553 So.2d 192, 194n. 3 (Fla. 5th DCA 1989), the court held that "[hjomestead property, whether devised or not,passes outside of the probate estate. Personal representatives have no jurisdiction over nortitle to homestead, and it is not an asset of the testatory estate." See also Cavanaugh v.Cavanaugh, 542 So.2d 1345,1352 (Fla. 1st DCA 1989) (holding that the transfer of probatejurisdiction to the circuit court did not change the law that the homestead is not an asset ofthe probate estate)." McKean v. Warburton, 919 So. 2d 341, 346-47 (Fla. 2005).

-12-

283 (Fla. 3d DCA 1991) (noting, "[t]he test is not how title wasdevolved, but rather to whom it passed").

In re Estate ofHamel, 821 So. 2d 1276, 1279-80 (Fla. 2d DCA 2002).

6. Since rights in a decedent's homestead property are created by operation of law

at the time of death and homestead property is not subject to the administration

of the probate estate, it follows that an Order Determining Homestead Property

does not create or vest such rights, but merely declares the status of the

property at the time of death as the decedent's protected homestead and

whether is was properly devised or descended to heirs. Again, Hamel:

Moreover, homestead rights exist and continue even in the absence ofa court order confirming the exemption. See Raulerson v. Peeples, 77Fla. 207,81 So. 271 (1919); Clifton^ 553 So.2d at 194; Cavanaugh, 542So.2d at 1351. Thus proceedings to determine whether a property ishomestead are permissive, not required. See Fla. Prob. R. 5.405(a)(providing an interested person may file a petition to determinehomestead property); Clifton, 553 So.2d at 194. Generally, petitions todetermine homestead are initiated for the practical purposes of changingrecord title to the property or releasing the personal representative of anyobligation regarding the property. See Rohan Kelley, Homestead MadeEasy, Part I: Understanding the Basics, 65 Fla. B.J. 17, 20 (Mar. 1991).Such proceedings are similar to actions for declaratory relief thatexplain or clarify existing rights rather than determine new rights.(Emphasis added.)

In re Estate of Hamel, 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002). Seealso In re Noble's Estate, 73 So.2d 873 (Fla. 1954).^

^ In Noble, the Supreme Court stated that the County Court which at that time hadoriginal jurisdiction of probate matters had authority to determine the homestead status ofproperty even though the Circuit Court had exclusive jurisdiction of all actions involving titleto real property because a determination of homestead does not involve title to the property

-13-

7. Therefore, the Trial Court's assumption in the Summary Final Judgment that

the Order alone determined the ownership interests of the parties in the

homestead property is simply wrong. Such rights are created by operation of

law upon the property's determination as the decedent's homestead and by the

terms of a Will, admitted to probate as in the instant case or the statute

regarding the descent of homestead in other cases. §732.401, Fla. Stat. (2017).

8. This is a critical point because the Trial Court, based on the assumption that

the Order vested ownership of the property, ruled that because the Order did

not recite Defendant's right to possession of the property (life estate) as set

forth in the Will, therefore, he is not entitled to such right. This conclusion is

in clear conflict with Florida law. As set forth above, the rights and interests

of beneficiaries in property granted under a Will or by intestacy vests as of the

date of death. See §732.514, Fla. Stat. (2017).^ A homestead proceeding does

not create title to property devised under a Will.

9. The decedent had the right in her Will to grant Defendant special possessory

rights in her homestead property. See McKean v. Warburton, 919 So. 2d 341,

as the vesting of title to the property is merely a consequence of its determination ashomestead.

* "The death of the testator is the event that vests the right to devises unless thetestator in the will has provided that some other event must happen before a devise vests."§732.514, Fla. Stat. (2017).

-14-

344 (Fla. 2005)/ In her Will, she stated the following:

"I specifically devise and bequeath my homestead... to my children whosurvive me in equal shares, subject to the following:

My sons, Robert F. Mullins and Kenneth D. Mullins shall beallowed to live in the property with the use of the furnishings aslong as either one of them desires to live there."

10. There is nothing contrary to law about this bequest. With regard to rights

granted under a Will, it is the intent of the testator that is the primary concern,

if such intent is not contrary to law or public policy. See Mosgrove v. Mach,

182 So. 786 (Fla. 1938). "Once the intent of the testator is ascertained, the

entire will should be considered and construed liberally to effectuate the

testator's intent." McKean, supra at 344.

11. The decedent's Will clearly granted joint equal ownership of the property to

the three children subject to the exclusive right to possession for a term up to

their lifetimes in Robert and Kenneth. See 22 Fla. Jur. 2d, Estates, Powers,

and Restraints, §2. This is the equivalent of a life estate. This is exactly what

Judge Jordan concluded and ruled where he said:

Accordingly, this Court finds that the Last Will and Testamentprovides each brother a life estate. ̂ QQAnemaetv. Martin-SenourCo., 114 So. 2d 23, 25-26 (Fla. 2d DCA 1959) (noting that there

^ "It is an elementary principle that a person can dispose of his or her property by willas he or she pleases so long as that person's intent is not contrary to any principle of law orpublic policy." McKean v. Warburton, 919 So. 2d 341,344 (Fla. 2005), as revised on denialof reh'g (Jan. 5, 2006).

-15-

is no "certain formula of words" required to generate a life estate;rather, all that is needed is language conveying the fee andreserving the right to use or occupancy during the subject life).[R-267]

12. The right to possession of the property granted to Defendant under the Will

vested in him at the moment of his mother's death by operation of law. No

judicial act or court order was necessary.

13. The Trial Court states in its Judgment that there was nothing of record setting

forth the possessory right granted to Defendant under the Will. This is not

correct. In the instant case, the decedent's Will granting the possessory right

was admitted to probate and recorded in the Public Records of Orange County

at O. R. Book 10066, Page 1000, Public Records of Orange County, Florida,

by the Clerk's office. [R-320] A Will is a muniment of title and serves to

convey or vest title from the decedent to those entitled to it under the Will as

of the moment of death. See §523, Muniments of Title, Patton and Palomar

on Land Titles.^

14. The Court's assumption that the Order had to set forth all interests in the

property or otherwise they are extinguished, is clearly unsupported by law or

®"A will of real property was in early times, and later under the Statute of Wills,regarded as a form of conveyance to take effect in the future. Unlike a legacy of personalty,a devise was treated as having the effect of passing title to real property directly to thedevisee at death of the testator without the intervention of an executor or.." §523, Munimentsof Title, Patton and Palomar on Land Titles.

-16-

customary practice. Orders Determining Homestead, as entered by the Court

of the State of Florida and reflected in the Florida Bar form, rarely if ever, set

forth the superior interests to which the decedent's ownership was subject to

at the time of death such as easements, mortgages, or restrictive covenants. [R-

233]

15. The simple reason is that a Petition to Determine Homestead is not the

equivalent of a quiet title action. There is no requirement under the Probate

Rules or Statutes that all interests in the property be presented in the Petition

and notice be given to all such parties, or otherwise their rights will be

extinguished. There is no foundation in the law for any such requirement and,

therefore, the failure to recite all the interests in the homestead property cannot

constitute a waiver or extinguishment of such interests.'

16. The Order simply declared the status of the property as homestead at the time

of death. Title to such homestead property at the time of death is vested (at the

time of death) as a consequence of the application of law to such status. The

Order does not create such rights. If it cannot create such rights, then it

follows that it cannot extinguish such rights. See In re Hamel, supra and In re

' Query - if an Order Determining Homestead Property fails to mention an accesseasement across the homestead property in favor of adjacent property owned by one of thehomestead heirs or beneficiaries, is the easement now extinguished because theheir^eneficiary consented to the Petition?

-17-

Noble's Estate^ supra.

Issue II.

17. In the Summary Final Judgment of Partition, the Trial Court stated at

paragraph 7 that Plaintiffs and Defendant filed Consents to the entry of the

Order Determining Homestead. The Court goes on to say in paragraph 8 that

any discrepancies between the Will and the Order Determining Homestead

regarding Appellant's rights in the property were "cured" by the Consents of

the three parties. It is obvious that the Consent signed by Appellant was a key

fact for the Trial Court's decision in this case.

18. Prior to the January hearing, the Consents, were not part of the record. The

Consents are not attached to any pleading or Affidavit filed by any party in this

action. No party had argued that the Consents were of legal significance. It

appears that the Trial Court found the Consents on its own by viewing the

Court file in the probate matter via computer access on the day of the January

hearing. [R-369] No party, however, objected to the Court considering the

Consents at the hearing. [R-369]

19. The Trial Court put tremendous significance on the Consents to the Petition to

Determine Homestead Property signed by Appellant. Its thinking as stated in

the Summary Final Judgment is that the Consents override any difference

between the rights granted under the Will and the language of the Order in

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favor of the Order. In effect, the Trial Court treated the Consents as a kind of

agreement among beneficiaries to change the interests granted under the Will

to conform to what was stated in the Order.

20. Again, it is clear that the Trial Court is assuming that the Order Determining

Homestead Property is the operative legal act that vests title to the decedent's

property in the beneficiaries. As argued above, this is not correct. Therefore,

a consent to entry of an order which does not have the legal effect of divesting

a beneficiary of an interest in property granted to him under the Will is of no

legal consequence.

21. In a somewhat analogous case, in Cavanaugh v. Cavanaugh, 542 So.2d 1345

(Fla. OCA 1989), the remainder beneficiaries under a Will argued that

because the devisee of the homestead property did not file a Petition to

Determine Homestead in the probate proceeding that she waived such interest

and consented to the distribution of the property to the remainder beneficiaries

as part of the probate estate. The Court stated:

However, it does not follow that because a petition was not presentedthe court was fi*ee to resolve title to the homestead in favor of appelleeby devolution of the property through the will. There was no petitionpresented to set aside homestead, or complaint filed to quiet title or forthe partition of the property. "Jurisdiction over property within [thecourt's] authority is acquired by the court after due filing of a complaintwith exhibits having reference to the property that may be subjected tothe processes of the court." 1 Fla.Jur.2d Actions § 12; 50 C.J.S.Judgments § 908. Were we to hold that title to the homestead could bedivested merely by the beneficiary's failing to pursue the issue during

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probate despite there being no duty to do so, and absent any otherpleadings relating to the homestead, our decision would constitute amost grievous and blatant disregard of due process rights.

Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1352-53 (Fla. 1st DCA1989)

22. In the instant case, there was nothing stated in the Petition to Determine

Homestead that alerted Defendant that his possessory rights granted under the

Will were in question or at risk. His limited consent to the determination of the

subject property as the decedent's protected homestead cannot be reasonably

construed as anything more than that. The Consent does not remotely rise to

the level of an agreement among beneficiaries to alter the provisions of the

Will.®

23. It is fundamental principle of due process that a person be given adequate

notice and opportunity to be heard before rights and property interests are

taken away by judicial action. See VMD Financial Services, Inc. v. CB Loan

Purchase Associates, LLC, 68 So.3d 997 (Fla. 4"' DCA 2011). In Keys Citizens

For Responsible Gov't, Inc. v. Florida Keys Aqueduct Auth., 795 So. 2d 940

(Fla. 2001), the Supreme Court stated:

The basic due process guarantee of the Florida Constitution providesthat "[n]o person shall be deprived of life, liberty or property without

* Section 733.815 Fla. Stat. (2017) states that "...interested persons may agree amongthemselves to alter the interests, shars, or amounts to which they are entitled in a writtenagreement executed by them."

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due process of law." Art. I, § 9, Fla. Const. The Fifth Amendment to theUnited States Constitution guarantees the same. As this Court explainedin Department of Law Enforcement v. Real Property, 588 So.2d 957,960 (Fla. 1991), "[p]rocedural due process serves as a vehicle to ensurefair treatment through the proper administration of justice wheresubstantive rights are at issue." Procedural due process requires both fairnotice and a real opportunity to be heard. See id. As the United StatesSupreme Court explained, the notice must be "reasonably calculated,under all the circumstances, to apprise interested parties of the pendencyof the action and afford them an opportunity to present their objections.The notice must be of such nature as reasonably to convey the requiredinformation, and it must afford a reasonable time for those interested tomake their appearance." Mullane v. Central Hanover Bank & Trust Co.,339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citationsomitted). Further the opportunity to be heard must be "at a meaningfultime and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319,333,96 S.Ct. 893,47 L.Ed.2d 18 (1976); accord Fuentes v. Shevin, 407U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (stating thatprocedural due process under the Fourteenth Amendment of the UnitedStates Constitution guarantees notice and an opportunity to be heard ata meaningful time and in a meaningful manner).

Keys Citizens For Responsible Gov't, Inc. v. Florida Keys Aqueduct

Auth., 795 So. 2d at 948.

24. The Petition and Order are not inconsistent with the language of the Will, in

that they state that the Will devised the homestead to the three children in equal

shares. The Will, however, went on to grant to the Defendant a specific right

ofpossession to which the owners were "subject to." This superior possessory

interest in not in conflict with the children's underlying equal undivided

ownership.

25. Moreover, the Consent standing alone simply does constitute what the Trial

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Court assumes it is, to wit, a waiver of the Appellant's possessory rights

granted under the Will or consent to the extinguishment of such rights.

26. Consent is a basic concept. It means agreement with, approval of, or

permission for something. The concept of consent is meaningless without an

object to which the consent is directed. In the instance case, we have a written

consent. Therefore, the written document must state the object to which the

consent is given. Any question about the something thsX is being consented to

must be determined from the language of the written consent. This is basic

legal analysis.

27. The Consent in this case states that the Appellant "consents to the Petition to

Determine Homestead Property, consents to the entry of an Order Determining

Homestead Property, waives service of Notice of Hearing upon the

undersigned and consents to the entry of such Order ex-parte." [R-369]. The

Petition and Order were not intended in any way to adjudicate or define the

beneficiaries' entire interests in the property but rather to demonstrate that the

property qualified as protected homestead and was validity devised under the

Will of the decedent. Nothing further was intended or needed. The Order was

not intended or drafted to alter the ownership interests of the beneficiaries set

forth in the Will. See Affidavit of attorney who drafted the probate documents.

[R-233]

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28. There is no express statement, nor can such meaning be reasonably interpreted

from the existing language, that the Consent was directed to the release,

extinguishment, or abandonment of Appellant's possessory rights in the

property granted under the Will. Moreover, the Petition to Determine

Homestead Property makes no mention of Appellant's possessory rights, nor

does the Order Determining Homestead. There is simply nothing in these three

documents on which it can be reasonably concluded that Appellant, by signing

the subject Consent, was consenting to the waiver, extinguishment, or

abandonment of his possessory rights under the Will. Therefore, the Trial

Court's conclusion that the Consent constitutes a voluntary consent by the

Appellant to the extinguishment of his possessory rights is unfounded in the

documents themselves.

Issue III.

29. If this Court rules that Appellant's right of possession granted him under the

Will was not extinguished in the probate proceedings, then a critical question

arises as to whether such interest precludes a partition action. Partition was

originally a common law action that was codified by Statute in Chapter 64,

Florida Statutes. The Statute states that partition will lie between "co-tenants,

joint-tenants, and coparceners." §64.031, Fla. Stats (2017)

30. It has been held that partition is not available to an owner who does not have

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immediate right to possession. Weed v. Knox, 27 So.2d 419 (Fla. 1946). As

Judge Jordan noted in his Order:

"Generally, "only those in possession, or having the right to immediatepossession, are entitled to partition, and that in the absence of statutoryauthorization by remaindermen, remaindermen are not entitled topartition among themselves during the existence of the particular estatein possession unless there is statutory authorization therefor."Weeks, 27 So. 2d at 898. Nor are remaindermen able to partitionagainst those with current possessory interests, such as life estates:

"A remainderman has no right of possession until theparticular estate is terminated. He has no right of action,which depends upon the right of possession, until he isentitled to the possession, either to recover the possessionor to obtain compensation for injuries to the possession.Hence, he cannot, before the termination of the life or otherparticular estate, maintain an action of ejectment, oftrespass, of trover, or for partition, except where there arespecial statutory provisions permitting him to do so."

Id. at 899 (quoting §177.33 Am. Jur. 643)." [R-268]

31. In the instant case, the Will unambiguously grants the property to the three

children subject, however, to what can only be reasonably construed as an

exclusive right of possession to two of the three children for a term up to their

remaining lifetimes. This arrangement only makes sense if the grant of

possession to the two children is exclusive, and that the third child not granted

such right did not have any right to possession until the possessory term of the

other two expired. Although the will does not use this terminology, the clear

concept behind the language used is to grant the equivalent of a life estate to

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the two children (along with their own remainder interests) and solely a

remainder interest to the third child. Regardless of what particular type of

estate was created under the Will, it is clear that only two of the children had

an immediate right of possession, and that the right of possession of the third

was successive to and followed after the expiration of the possessory rights of

the other two. Therefore, Appellee Carla Mullins has no right to seek partition.

32. Moreover, a life tenant cannot seek partition against a remainderman. Garcia-

Tunon v. Garcia-Tunon, All So.2d 1378 (Fla. 2d DCA 1985). This bar to

partition is not removed even if the life tenant shares the remainder interest.

Barden v. Pappas, 532 So. 2d 707 (Fla. 5'*' DCA 1988).

33. The Barden case involved a partition action wherein a surviving spouse held

a life estate in certain property, while her two adult children each held an

undivided one-half interest in the remainder. The surviving spouse then

initiated an action for partition against the two adult children. One of the

remaindermen argued that partition was not available to an owner of a life

estate against the owners of the remainder interest. In an apparent attempt to

avoid the narrow judicial construction of the partition statute by the Florida

Supreme Court in Weed, the surviving spouse conveyed a one-half interest in

her life estate to one of the adult children. The same adult child then conveyed

a one-half interest in his undivided remainder estate to the surviving spouse.

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This created a factual situation virtually identical to the instant case, wherein

the plaintiff held both a life estate and a partial remainder interest while one of

the defendants also held a life estate, and a partial remainder interest. In

Barden, the Fifth District Court of Appeal found this additional factual twist

to be of no legal consequence, upholding the long-standing rule that in the

absence of a positive statutory authorization, the holder of a life estate cannot

maintain an action for partition against the remaindermen. The Court further

explained that this rule is not affected by the fact that the party seeking

partition shares a remainder interest with life tenant.

34. Further, there is no way to implement the clear intent of the testator in the grant

of ownership of the property unless partition is precluded. It is clear from her

Will that she intended to grant exclusive rights of possession for personal use

to her two sons. If one or two of the three could force partition against the

other, then her whole intent would be thwarted. The only way to implement

her intent of creating a right of possession is to deny the partition.

35. The testator had a right to create whatever interest, subject to recognizable

conditions, that she chose in her property. McKean v. Warburton, supra.

Allowing partition would clearly deny the express rights she intended to grant

to her two sons.

36. Therefore, Appellee Carla Mullins has no right to seek partition against the life

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tenants (Robert and Kenneth) and neither of the life tenants have the right to

seek partition against any of the others as remaindermen.

37. Judge Jordan ruled that Appellee Kenneth Mullins, as concurrent life tenants,

did have the right as a matter of law to seek partition against his fellow life

tenant based upon dicta in footnote in Barden. See Barden v. Pappas, 532 So.

2d at 709 n. 2. The implementation of a partition action under Chapter 64

between life tenants where there is an outstanding remainder interest against

which partition does not lie seems highly problematic. The remedy under

Chapter 64 is the sale of indivisible property. How could a sale be

accomplished without the remainder interest? If the remainder is joined in,

then you in effect have partition against the remainder by the life tenants,

contrary to established law.

38. A better way of construing the legal issues raised by the complaint is to

consider it a request to terminate the possessory rights granted to Robert and

Kenneth under the Will for failure to comply with the express or implied

conditions of the grant. Revocation of the special possessory rights granted to

Kenneth and Robert would have the effect of creating concurrent possessory

rights in all three owners and thereby allow partition. This appears to be what

Judge Jordan had in mind.

39. Judge Rodriguez never addressed this issue because he ruled that the

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possessory rights had already been lost and the parties were tenants in common

per the Order Determining Homestead. The facts regarding these claims,

however, were clearly in dispute in the record at the time the Summary Final

Judgment was entered as detailed in Judge Jordan's Order. [R-263]

40. Lastly, if the Court rules that partition is proper in spite of Appellant's right of

possession under the Will, then the Court's Final Judgment is improper as to

the division of the proceeds from the sale. The Final Judgment orders an equal

one-third division of the proceeds. This would not be proper if Appellant is

determined to own a possessory interest as that represents an interest in

addition to his one-third fee simple interest. His possessory interest is being

sold pursuant to the partition Judgment just as the underlying fee is. He is

entitled to a determination of compensation due him from the sale proceeds for

the sale of his possessory interest which would be above and beyond the mere

fee simple. In short, the three owners' interests are not equal. Therefore, the

matter should be remanded to the Trial Court for determination of his share of

the proceeds.^

Issue IV.

41. As Judge Jordan pointed out in his Order Denying Cross Motions for Summary

Judgment, there were contentions and affidavits submitted by both parties

Appellant made a claim for such compensation in his Amended Answer. [R-218]

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addressing whether the conditions of the grants of possession under the Will

had been violated and whether the two life tenants could live on the property

together. These facts were clearly in dispute and are highly relevant to whether

Robert and/or Kenneth have forfeited their rights of possession (life estates)

that would then permit partition. As Judge Jordan ruled, these facts are

relevant to the issue of whether Appellee Kenneth Mullins is entitled to

partition against his fellow life tenant, which is the only cause of action that the

Judge Jordan found to be supported by the law and facts in this case.

42. Therefore, if Appellant retained his right of possession in the property, there

clearly existed material disputed facts in the record that preclude summary

judgment.

VII. CONCLUSION

43. It is obvious that Judge Jordan correctly analyzed the law and facts of this case

in his Order Denying the Motions for Summary Judgment. Appellant doesn't

pretend to make any better analysis than Judge Jordan, but rather to bolster his

conclusions. Judge Jordan found that Appellant held the equivalent of a life

estate with its right of possession in the subject property based on the clear

terms of his mother's Will. Those vested rights were not extinguished by the

Order Determining Homestead because said Order does not say that, and its

determinations are not inconsistent with such right.

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44. Moreover, contrary to Judge Rodriguez' rulings, the Consent filed by

Appellant does not say and cannot be reasonably construed as a consent to the

extinguishment of his rights of possession granted under the Will. To construe

the Petition to Determine Homestead and Consent as a judicial determination

that extinguished Appellant's vested rights in the subject property would

constitute a violation of his fundamental due process rights as nothing

contained in the pleadings filed with the Court or signed by Appellant give him

any notice that the extinguishment of his rights were at issued. Therefore,

Judge Jordan was correct in ruling that Appellant held the equivalent of a life

estate in the property at the time the Complaint for partition was filed.

45. Judge Jordan was also correct in concluding that Appellee, Kenneth Mullins,

was also granted a life estate under his mother's Will, but that Appellee, Carla

Mullins, only held a remainder interest with no current right to possession at

the time the Complaint for partition was filed. The parties' respective rights

in the property are clearly set forth in the Will.

46. Since Carla did not possess a right to possession at the time of the filing of the

Complaint for partition, she was not entitled to seek partition. Judge Jordan

ruled, however, that based on dicta in Barden, the two parties holding co-equal

possessory rights (Robert and Kenneth) could be subject to an action for

partition as to their interests. Judge Jordan ruled that based on the disputed

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facts in the case, there existed an issue as to whether the possessory interest

granted the two brothers under the Will was subject to termination based upon

subsequent occurrences. If both life estates were terminated, then the parties

would presumably revert to tenants in common status under the provisions of

the Will, and partition would be permissible. This issue (termination ofthe life

estates) was not addressed or decided by the Trial Court as it ruled that no life

estates existed as a matter of law based on the Order Determining Homestead

and, therefore, partition was permitted.

47. In accordance with Judge Jordan's rulings, however, that decision should be

reversed and the case remanded to the Trial Court for further proceedings on

the issues identified in Judge Jordan's Order pertinent to Appellee Kenneth

Mullins' request for partition.

Respectfully submitted.

:ric s. mashburn, esquireAttorney for Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the foregoing has beenelectronically filed with the Court using eDCA, and furnished by electronic mail toMAXWELL P. WRIGHT, ESQUIRE, atmpwright@bellsouth.net. and CHARLES

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A.DEHLINGER^ESQ., at cadesq@hotmail.com and anniacadlaw@vahoo.com this2^'' day of September, 2018.

Font Certification

The undersigned hereby certifies that the Initial Brief complies with the fontrequirements of Fla. R. App. Pro. 9.210.

S. MASHB(fRN, ESQUIRELaw Office of Eric S. Mashburn, P. A.

Post Office Box 771268

Winter Garden, PL 34777-1268

(407) 656-1576Service e-mail: lvnn@wintergardenlaw.coinE-mail: inlb@wintergaidenlaw.com

Florida Bar Number 263036

Attorney for Appellant

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