author: SCHWARTZ, Senior Judge. SHEPHERD, J.,

text:
    Jose DE LEON, Appellant, v. GREAT AMERICAN ASSURANCE COMPANY, Appellee.
    No. 3D09-646.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Mark J. Feldman, for appellant.
    Hinshaw & Culbertson, Maureen G. Pe-arcy and Luis A. Diz, Miami, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from an order denying attorney’s fees under section 627.428 Florida Statutes (2008), in an action for property loss benefits provided by an automobile insurance policy. The ruling, which was entered even though the insurer settled the case for the full amount claimed, was based on the notion that the action had been premature and unnecessary and was thus not effective in securing the favorable result. See JPG Enterprises, Inc. v. Viterito, 841 So.2d 528, 530 (Fla. 4th DCA 2003) (“A prevailing party is entitled to recover only fees which are ‘reasonably expended.’ Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985).”); State Farm Florida Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007) (“Courts generally do not apply the confession-of-judgment doctrine, which supports awarding attorney fees under statute governing award of fees to insureds in insurance coverage actions, where the insureds were not forced to sue to receive benefits; applying the doctrine would encourage unnecessary litigation by rewarding a race to the courthouse for attorney fees even where the insurer was complying with its obligations under the policy.”); Garcia v. Lumbermens Mut. Ins. Co., 246 So.2d 574, 574 (Fla. 3d DCA 1971) (“[I]nterest and attorneys’ fees will not be awarded where there is no necessity to institute suit to confirm or collect an arbitration award under an uninsured motorist provision in an automobile liability policy.”). This conclusion was in turn based on the finding that the insured had improperly refused to submit to and complete an appropriate and contractually required pre-suit examination under oath. See Lorenzo, 969 So.2d 393 (finding fees improper where insured sued without complying with policy conditions). We disagree with the result below and the premise upon which it was based and therefore reverse.

The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American’s payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of an insured who had the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American’s lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction, and the person with whom the claimant was then living.

With complete justification, De Leon de-dined to answer most of these questions, even though Diz specifically warned him that he was jeopardizing his insurance coverage and invited him to withdraw his claim in lieu of responding. In fact De Leon told Diz that if he continued on that track, he would leave, get an attorney, and see him in court. Diz did not desist. He persisted. True to his word, De Leon got a lawyer and filed suit.

The appellee’s position is based on the argument that

De Leon’s refusal to complete the examination and provide the requested documents prevented Great American from exercising its contractual right to fully investigate his claim.

This is completely wrong; because De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case — to discourage the games insurance companies play. See Beverly v. State Farm Florida Ins. Co., 50 So.3d 628, 633 (Fla. 2d DCA 2010) (“[A]n insurer’s post-suit payment of additional policy proceeds entitles the insured to section 627.428 attorney’s fees where the insurer ‘wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.’ See Clifton [v. United Cas. Ins. Co. of Am., 31 So.3d 826, 829 (Fla. 2d DCA 2010)] (citing First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007)); see also Hill, [v. State Farm Florida Insurance Co., 35 So.3d 956, 960-61 (Fla. 2d DCA 2010)]; Goff, [v. State Farm, Florida Insurance Co., 999 So.2d 684, 688 (Fla. 2d DCA 2008) ].”); see also Pepper’s Steel & Alloys, Inc. v. U.S., 850 So.2d 462, 465 (Fla.2003) (“[t]he statute’s [section 627.428] purpose ‘is to discourage insurance companies from contesting valid claims, and to reimburse insureds for their attorney’s fees incurred when they must enforce in court their contract with the insurance company.’ Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 n. 10 (Fla.1999).”); New York Life Ins. Co. v. Leeks, 122 Fla. 127, 165 So. 50, 54 (1935); Underwood Anderson & Associates, Inc. v. Lillo’s Italian Restaurant, Inc. 36 So.3d 885, 888 (Fla. 1st DCA 2010) (“[T]he courts have often stated to be the purpose of the attorney’s fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies.”).

We cannot permit Great American to escape the consequences of what it tried to get away with in this case. Because the rule that any success in an action on an insurance policy, let alone the full payment of the asserted claim, requires an award of fees, see Pineda v. State Farm Fla. Ins. Co., 47 So.3d 890, 892 (Fla. 3d DCA 2010) (“An insured is entitled to attorney’s fees under 627.428, Florida Statutes, where it was reasonably necessary for the insured to litigate in court .... ”), applies in spades in this case, the order under review is reversed and the cause is remanded with directions to make an appropriate award of attorney’s fees.

Reversed and remanded.

SHEPHERD, J.,

concurring.

This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So.3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added). This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freight-liner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO). The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert — as the insurer does in this case — that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F.Supp. 883, 905 (S.D.N.Y.1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first— badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that— although it should have been — the insured’s claim in this case was not resolvable absent judicial intervention.

With these additional observations, I fully join in the well-reasoned opinion of the court.

      . In happy contrast to such cases as Corey v. Corey, 29 So.3d 315, 321 (Fla. 3d DCA 2009) and cases cited at n. 4 (Schwartz, J. dissenting), in which the tone of the author’s dissenting opinions was caused by their having been originally prepared for the court, this one was originally a dissent which, unusually enough, persuaded the previous majority.

      . The record shows that the following, which is quoted as a never-to-be-emulated model of its kind, occurred:
      Q So from 1994 to 2003, you lived in Homestead?
      A No. From 1994 to 2000 — I don’t remember when I went to Kentucky and I was in Kentucky until 2003.
      Q How long were you in Kentucky, more or less?
      A From 1995 until 2003.
      Q Okay. Maybe I’m a little confused. The way I understood your testimony was that you Iived-you’ve lived at your current address for approximately three years, four years. You started living there in 2003; is that correct?
      A From 2003 until now.
      Q Prior to that you lived in Kentucky?
      A I lived in Kentucky.
      Q From 1995 to 2003 more or less?
      A Correct.
      Q And that’s — you were continually a resident of Kentucky during those eight years?
      A Correct.
      Q Do you remember the address in Kentucky you resided?
      A I don’t remember the address.
      Q Do you remember the city?
      A I was in Lexington and Manchester.
      Q Any other cities?
      A No.
      Q Who did you live with when you resided in Kentucky?
      A With Barbara, the mother of my son.
      Q Just you and Barbara?
      A Yes.
      Q You mentioned Homestead. Did you have a house in Homestead?
      A Yes.
      Q When was that?
      A In 1994.
      Q How long did you live at the house in Homestead?
      A. One year
      Q So you had it from 1994 to 1995 more or less?
      A Correct.
      Q Do you remember where you lived before that?
      A In the southwest. In Shenandoah.
      Q How long did you live in Shenandoah?
      A In 1989 until 1994. '94 that I bought in Homestead.
      Q Okay. You mentioned Barbara and the fact that she resided with you in Kentucky. Did anybody else live with you while you were in Kentucky either in Manchester or Lexington?
      A Yes. There were more than 2,000 people in the prison. I lived in a facility.
      Q What’s the name of the facility?
      A Federal Correction. Lexington Federal Correction or something like that.
      Q You were serving time for a Federal offense?
      A Correct.
      Q Were you convicted of a crime?
      A Correct.
      Q What crime?
      A Fraud. Cellular phone fraud. Conspiracy for a cellular phone thing, nothing to do, nothing that I did. You see what I’m telling you? What does that have to do with what has to be done. Absolutely nothing.
      Q What was the facility called, the one that you were residing in in Kentucky?
      A I don't remember. I told you I don’t know. Lexington, Kentucky, Lexington Medical Center or something like that. Something like that.
      Q When you were convicted of the cellular fraud, did you stand trial?
      A Correct.
      Q Where was the courthouse located, do you remember?
      A Downtown.
      Q Lexington?
      A Miami.
      Q You stood trial in Miami?
      A Miami.
      Q Did you have a lawyer?
      A Correct.
      Q What’s the lawyer’s name?
      A Juan Gonzalez.
      Q Do you know if Mr. Gonzalez is still practicing law in the State of Florida?
      A I don’t know. I have no idea.
      Q When was the last time you spoke to Mr. Gonzalez?
      A ’94, '95, something like that.
      Q Do you remember the specific allegations that were made against you when you stood trial for cellular fraud?
      A That was complicated. Because the police came into my house looking for drugs, you understand? And that is something I would not like to talk about it. They came into my house by mistake looking for drugs and when they knocked on the door they even cut my wife, Barbara's, forehead and then they left and they didn’t get anything. And they saw that I have never — -I don't have anything to do — I’ve never had anything to do with drugs. I’ve not used drugs, I have not been a drug addict or anything.
      So — but they had some recordings but they could prove there was a telephone and that was all. So they called the Secret Service and those are the ones that came. But look, we go back to the same. Look where we are and we have not talked anything about what I’m here for.
      Q What department came to your home?
      A The police.
      Q Was it Miami-Dade?

        A I don't know. I didn’t ask them. They were tons of them. You know, if it's a Federal case, you know, the Miami place is not Federal. It’s Secret Service, U.S. Customs, and then they called the Secret Service of the United States.
      Q Sir, the reason I’m asking you these questions is in case I want to get the records regarding an arrest I need to know specifically where to go.
      A The public records. You’re an attorney, you know where they are. I know where to go look for a book.
      Q Do you have any copies of any documents?
      A Yes. I have copy of everything but I cannot give you anything because I have them to defend myself because I was in jail for eight years. And that I’m making a claim and I won my case and I have everything. And I have everything, as you can see here, to defend me. But I can’t. What I wanted is finish this now. If you're not going to do it, then okay. I’m going to look for an attorney to make a claim on this and I don't have any problem.
      Q What do you mean by you won the case?
      A That I won the case.
      Q What case?
      A The case against the government when they took me into jail.
      Q Did you file a civil suit against, the government?
      A I’m trying to do a civil lawsuit. I reached the Supreme Court.
      Q Have you engaged an attorney in that regard?
      A No. I don’t have him yet.
      Q Would you have any objection if, in the course of our investigation, we request that you sign an authorization directed to Attorney Gonzalez for all records regarding the fraud case, would you be inclined to sign that authorization?
      A Not at all.
      Q No objection?
      A I don’t know where he is. I don’t know about him.
      Q My question is not if you know where the attorney’s at. I can get that information.
      A My answer is no.
      Q You have no objection?
      A No. My answer is no.

      . This passage was as follows:
      Q Okay. Is Barbara your wife?
      A I refuse to respond.
      Q Does Barbara currently reside with you?
      A No.
      Q Do you have her current address?
      A No.
      Q Who do you live with at the current address?
      A With my wife.
      Q What's your wife’s name?
      A Barbara Castellan.

        Q Is that the Barbara you’ve been referring to during this deposition?
      A No.
      Q What’s the other Barbara’s last name?
      A Del Castillo.
      Q Do you know if she is in Miami?
      A No.
      Q She’s not or you don’t know?
      A She’s not in Miami.
      Q Where is she?
      A I don’t know. I don’t know.
      Q How long have you been married to Barbara Castellan?
      A I’m not married. We just live together.
      Q How long have you been living together?
      A Around 2003.
      Q Does anybody live with you at that address other than Barbara Castellan?
      A I’m not married. We just live together.
      Q How long have you been living together?
      A Around 2003.
      Q Does anybody live with you at that address other than Barbara Castellan?
      A Her two children.
      Q What 'are their names and ages, please?
      A They have not authorized me to give them to you.
      Q Are you denying answering that question?
      A Correct.
      Q Do you have any kids of your own?
      A Yes.
      Q What are their names and ages, please?
      A Jose De Leon.
      Q How old is Jose?

        A Twelve years old.
      Q Where does he live?
      A With the mother.
      Q And what's the mother’s name?
      A Barbara del Castillo.
      Q Have you ever been married?
      A Yes. Once.
      Q With Barbara del Castillo?
      A No.
      Q Does Jose De Leon live in Miami?
      A No.
      Q Where does he live?
      A I don’t know.
      Q When was the last time you saw him?
      A I don’t remember.
      Q More than five years?
      A I don’t remember. Three years, something. I don’t remember.
      Q When you last saw him was it in Miami?
      A Correct.
      Q Where?
      A I refuse to respond. That has nothing do with this. We go back to the same thing. And to me — forgive me for taking this attitude. But I’m tired of this. I’m tired of all these problems. It's been too long and I’ve lost too much money with this problem. But I’m going to recuperate it for sure.

      . The colloquy follows:
      Q Were you convicted of a crime?
      A Correct.
      Q What crime?
      A Fraud. Cellular phone fraud. Conspiracy for a cellular phone thing, nothing to do, nothing that I did. You see what I'm telling you? What does that have to do with what has to be done. Absolutely nothing.
      Q Well, sir, its all relevant. Under Florida law, prior convictions are relevant. And that’s something that you have to disclose when you go through a deposition pursuant to Florida law.
      A I don't have to do anything. I know a lot about law. Unfortunately, I defended myself and I don't have to answer anything. My record is public. You can get it. I’m not applying to work with the government. I’m not making an application for anything. I’m making a claim. When the insurance company insured my truck, they did not make any investigation, took my check, cashed it and used it however he wanted. Unfortunately, a fatality happened, they stole my truck, there’s a camera there. I already told the police to look for the camera and ask for the camera to see who stole the truck. I have nothing to do.
      What do you want to do? You want to pay for my truck? Okay. If you don’t want to pay for my truck, at least, I’m not going to stay here.
      Q We’ll get to the incident and your understanding of what happened. I’m just trying to get some background information now.
      A But it has nothing do with for you to ask me that.
      Q Unfortunately, however you want to look at it, basically it’s something that you’re duty bound, based on the terms and conditions of the policy issued by Great American—
      A Obligated to? I'm not obligated. There’s other companies. At any time — at no time they told me I had an obligation to say anything. I simply went to get the insurance. I did not get insurance to rob you or to make a fraud or anything. The-my car is there. They broke into my car to steal from it. So what’s my need? What do I get out of this? I have my credit there. I have everything that I paid for my tires. Where are my tires?
      Q Sir, I can’t speak to other insurance policies, what they read or what they require from an insured. I know what Great American requires.
      A Correct. That's correct. But when they insured me they didn't say anything, they just took my money. I've always paid, I’ve never been late. I renewed the insurance and everything and I’ve never been late. I was very happy with them.
      Q Would you have any objection if, in the course of our investigation, we request that you sign an authorization directed to Attorney Gonzalez for all records regarding the fraud case, would you be inclined to sign that authorization?
      A Not at all.
      Q No objection?
      A I don’t know where he is. I don’t know about him.

        Q My question is not if you know where the attorney’s at. I can get that information.
      A My answer is no.
      Q You have no objection?
      A No. My answer is no.
      Q That you have no objection. You would sign an authorization, in other words?
      A No.
      Q You would not sign an authorization?
      A Not at all.
      Q Why not?
      A Because I don't. I won’t. I want to concentrate — I go back. If not on this — if I get tic and leave, that's it. I don't want anymore questions. I’m requesting the insurance to return all of the money I’ve given them from the moment to the policy to give me my money back and I leave as easy as that.
      Q Sir, I can’t tell you what to do or not do. I’m just here — it’s my job to ask you these questions.
      A I know. I know. Correct. But concentrate on what it is, not on what is not. I have the right to keep quiet and not respond to anything. That’s what I have. I have the right. I want to concentrate on what you’re going to ask. If not, I have my papers here. You have a copy of my papers, all my receipts, the bills, everything. If you don't want — if you're not going to talk to me about-about what it is, see you next time.
      Q Okay. Sir, I can’t tell you what to do but you're more than free to withdraw your claim. In fact, it’s your choice.
      A No, I’m not going to withdraw my claim, no. Please. I’m going to look for an attorney and I want to have the attorney talk to you.
      MR. DIAZ [sic]: Off the record for a second.
      (Discussion off the record.)
      MR. DIAZ [sic]: We’re back on.
      BY MR. DIAZ [sic]:
      Q Mr. De Leon, I want to tell you this right now so it's clear for everyone. There’s questions I’m going to ask and you may not think they’re relevant but they are to me. And I’m just doing my job. Okay? So, if you’re not inclined to answer any of my questions, I just want to let you know you may be jeopardizing coverage under the Great American Insurance policy that was issued.
      Now that that’s on the table and it’s clear to everybody here, I’m going to keep on asking questions. If you don’t want to answer, I understand that’s your personal choice but the caveat is you may be jeopardizing coverage.
      Going back to a question I asked previously that I don’t believe I got an answer to, can you tell me the specific allegations that were made by the U.S. Government in relation to the cellular fraud claim or cellular fraud charge that they made?
      A Absolutely no. Next page.
      Q Are you denying to answer the question; are you objecting to it; are you not going to answer it?
      A Correct.
      Q You said that Barbara was also with you when you were serving time in Kentucky; is that correct?
      A I said I’m not going to answer. Next page.
      Q Have you ever been convicted of any other crimes?
      A I don’t know. I deny responding.
      Q Are you saying you don’t remember or you’re making an objection-—
      A I deny — I’m not going to respond. I refuse to respond.
      Q Okay. Have you retained a lawyer regarding the claim that you've made to Great American Insurance Company?
      A I don't have it yet but I’m going to have one. There's money for those.
      Q Has anyone other than you and Barbara resided at the address you gave us earlier, your current address?
      A I don't know. I have no idea.
      Q During the time you lived there.
      A Those are things that have nothing to do with — those are private things. Are we not in a free country? That has nothing to do anything with this. Please.
      Q Are you denying answering the question?
      A For sure.
      Q Other than — strike that. You said you were married once; is that correct?
      A. Look, excuse me. I’m sorry that you came from so far away. But we’re not going to get anywhere so I'm leaving and we’ll see you in court. And I’ll tell you who my attorney is going to be and then we're going to talk. Because nothing is going to be resolved that way.
      Excuse me. I know it’s your job. And I want to continue because I want to do it and I’m going to go to court because it's my right and you have to pay.

      . One cannot help but sympathize with De Leon's eloquent statement about the disconnect between the simple facts of his claim and the subject of the interrogation Great American insisted on putting him through:
      I’m not making an application for anything. I'm making a claim. When the insurance company insured my truck, they did not make any investigation, took my check, cashed it and used it however he wanted. Unfortunately, a fatality happened, they stole my truck, there’s a camera there. I already told the police to look for the camera and ask for the camera to see who stole the truck. I have nothing to do.
      What do you want to do? You want to pay for my truck? Okay. If you don’t want to pay for my truck, at least, I’m not going to stay here.


source: Caselaw Access Project

author: POLEN, J. POLEN, J.

license: Public Domain

text:
    Richard S. LEHMAN and Richard S. Lehman, P.A., Appellants, v. Hilda Piza LUCOM, et al., Appellees.
    No. 4D09-1805.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Opinion on Denial of Rehearing Feb. 8, 2012.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellants.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Lawrence J. Miller of Miller & O’Neill, P.L., Boca Raton, for appellees.
   POLEN, J.

Appellant, Richard Lehman, appeals the trial court’s final judgment denying discharge, denying personal representative’s fee, granting surcharge, voiding transactions, and granting objections to the final accounting; and the order denying motion for rehearing and new trial and motion to alter or amend judgment and cancelling hearing. We affirm the trial court’s final judgment because there was competent, substantial evidence to support the trial court’s finding that Lehman misappropriated estate funds, breaching his fiduciary duty as executor of the estate.

Wilson Charles Lucom died in 2006 in the Republic of Panama, leaving an estate valued at somewhere between twenty-five and fifty million dollars. Lucom’s will named Hilda Piza Lucom (“Hilda”), Christopher Ruddy, and appellant, Richard Lehman, as co-albaceas, or co-executors. Lehman had paid expenses for Hilda and Lueom’s foundation from his professional association, Richard S. Lehman, P.A., pursuant to his appointment and agreement to take care of Lucom’s affairs. Lehman also used money from the Florida Lucom estate to fund the foundation located in Panama. Lehman testified that he tried to use the Panama estate money, but Hilda froze the accounts.

A July 5, 2006 order opened the Panama estate and declared Lehman the sole executor. On July 18, 2006, Hilda appealed the order that declared Lehman sole executor and the trial court stated that the appeal made the order “automatically and immediately null and void.” Lehman admitted during testimony that he was not properly appointed and that his status as albacea, or executor, was a nullity. The trial court found that Lehman was never properly installed as executor of the Panama estate.

Along with his Panamanian estate, Lu-com also had real property and a bank account in Florida that contained $665,241.25. Lehman petitioned the Palm Beach County Circuit Court for appointment as ancillary personal representative of the Florida estate as well. Upon his appointment, Lehman took control of the $665,241.25 in the Wachovia account. Lehman spent approximately $600,000 of the account to pay expenses and protect the estate because the Panama will was under attack.

When Lehman resigned as ancillary personal representative, he provided a final accounting. Lehman testified that the final accounting accurately depicted the liquidation of the $665,241.25, as well as the money he advanced from his law firm. The final accounting showed that $400,000 was placed in Lehman’s firm account, which he stated was to reimburse himself for expenses he paid on the estate’s behalf. Lehman admitted that there were money deposits and withdraws from the account that were not related to the estate, but, instead, related to his personal business. The trial court’s final judgment found that Lehman had no authority when the ancillary Florida estate was opened because his installation in Panama was void ab initio. Additionally, the trial court found that he acted recklessly and in bad faith.

“A trial court’s determination of foreign law is a question of law over which an appellate court exercises plenary review.” Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 990 (Fla. 3d DCA 2010).

Lehman argued that the linchpin of the trial court’s decision was the propriety of his installation as an executor of the Panamanian domiciliary estate. The court found that Lehman’s appointment was void, ab initio because of his lack of proper notice to the other executors of the estate. Florida Probate Rule 5.201 requires that formal notice is “served on all known persons qualified to act as personal representative.” Fla. Prob. R. 5.201; Cooper v. Ford & Sinclair, P.A., 888 So.2d 683, 687 (Fla. 4th DCA 2004). However, this court found in Cooper that failure to comply with this particular procedure rendered the appointment voidable. Cooper, 888 So.2d at 688 (quoting the Supreme Court of Florida in In re Williamson’s Estate and providing that “discovery of a will and the issuance of letters testamentary after the appointment of an administrator for an estate does not render the grant of letters of administration void. It is only voidable.” 95 So.2d 244, 246 (Fla.1957)); see also § 733.610, Fla. Stat. (2010) (explaining that any transfer to a personal representative “is voidable by any interested person.”).

However, the status of Lehman’s position as executor of the domiciliary estate does not negate the fact that he improperly used funds of the ancillary estate to fund his litigation in Panama over the domiciliary estate and to clear his name from personal attacks. These are not proper expenditures of the ancillary estate. Section 734.102, Florida Statutes, governs ancillary administration. Under subsection (6) of 734.102, the Florida Statutes provide that payments of expenses and claims against the estate must be paid before property is transferred or distributed to beneficiaries of the estate. § 734.102(6), Fla. Stat. (2010).

Here, expenditures made by Lehman from the ancillary estate to fund the Panama litigation prevented the ancillary estate from paying Class 1, Class 3, and Class 8 payment obligations. See § 733.707, Fla. Stat. (2010). In other words, as appellees argued, the prevailing issue here is not the installation, but the way the funds from the Florida estate were used by Lehman upon his appointment as executor. If the funds were not available to pay expenses, but were commingled with Lehman’s law firm account and converted to avoid compliance with Panamanian court orders, the disbursement of the ancillary estate did not conform to the payment order of priority provided in the Florida Statutes.

The trial court stated in its final order that, regardless of proper installment or appointment, the crux of this case is whether Lehman breached his fiduciary duty as an executor and acted in bad faith with reckless indifference to the rights of the interested parties. It was Lehman’s responsibility as “ancillary administrator to procure funds with which to pay the costs and expenses incident to ancillary administration.” In re Wilson’s Estate, 143 Fla. 812, 197 So. 557, 562 (1940). When he applied the entire ancillary estate to improper payments and expenses and did not reserve any fund with which to pay the creditors’ expenses, he acted in bad faith to the interests of the estate and those interested parties. We find no error in the trial court’s conclusion that he breached his fiduciary duty and is liable to the estate for his conduct.

Thus, the propriety of Lehman’s installation was secondary to his misuse of estate funds and was, at the very least, voidable. As such, Lehman’s status is irrelevant in light of the competent, substantial evidence which existed to show misappropriation of Lucom’s funds in violation of Florida law. Accordingly, we affirm the trial court’s final judgment on the grounds that Lehman breached his fiduciary duties as albacea, or executor, of the estate.

Affirmed.

WARNER, J., and EHRLICH, MERRILEE, Associate Judge, concur.

On Motion for Rehearing

POLEN, J.

Appellant, Lehman, moved this court for a rehearing after this court affirmed the trial court’s final judgment denying discharge, denying personal representative’s fee, granting surcharge, voiding transactions, and granting objections to the final accounting; and the order denying motion for rehearing and new trial and motion to alter or amend judgment and cancelling hearing. We deny Lehman’s motion for rehearing, but correct a statement in our slip opinion issued on October 26, 2011.

In our slip opinion, we stated that “Lehman admitted during testimony that he was not properly appointed and that his status as albacea, or executor, was a nullity.” While the court found that Lehman’s appointment was a nullity, he did not admit the same. Therefore, we modify our slip opinion to correct this misstatement, but otherwise deny Lehman’s motion for rehearing.

Rehearing Denied; Opinion Modified.

WARNER, J., and EHRLICH, MERRILEE, Associate Judge, concur.


author: MORRIS, Judge.

text:
    ALTERRA HEALTHCARE CORPORATION, n/k/a Brookdale Senior Living Communities, Inc.; Eric Flock; and Fancie Cales, Appellants, v. Michelle CAMPBELL, Appellee.
    No. 2D10-4444.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2011.

      J. Robert McCormack of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellants.
    Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellee.
   MORRIS, Judge.

Alterra Healthcare Corporation, n/k/a Brookdale Senior Living Communities, Inc.; Eric Flock; and Fancie Cales (collectively Alterra) appeal a final judgment entered in favor of Michelle Campbell in her malicious prosecution action. We affirm and write only to address the issues of probable cause and legal cause as elements of a malicious prosecution action.

I. FACTS

In March of 2002, Campbell began working as a floor nurse at Alterra’s Clare Bridge assisted living facility. It was there that she met Cales, the health care coordinator and Campbell’s direct supervisor. The working relationship between Cales and Campbell was initially pleasant but soon became strained, and Campbell ultimately resigned due to workplace conflict with Cales. Campbell thereafter became employed with Maxim Healthcare, a temporary nursing agency.

In May 2004, Flock, who was residence director of Alterra’s Sterling House facility, contacted Maxim to request a temporary nurse for the 3:00 p.m. to 11:00 p.m. shift. Maxim assigned Campbell to work the shift. Upon Campbell’s arrival, Cales, who was then a nurse supervisor at Sterling House, approached Flock and asked him to send Campbell home. Cales told Flock that she had worked with Campbell at a prior facility and that she was “bad news.” Cales also told Flock that Campbell had been suspected of stealing narcotics from that facility. Flock responded that Campbell would work the shift unless Cales intended to fill in.

At the start of the shift, Campbell and off-going nurse, Annette Prince, conducted a med count of the medications prescribed for Sterling House patients. Most of the residents’ medications were prepackaged in blister packs for ease of dispensation and control. The pharmacists would place each tablet into a blister on a card containing the residents’ name and prescription information; the pills would be secured in place with a foil seal on the back of the card. Tablets were dispensed from the card by pushing them through the foil seal. The individual pill compartments were numbered on the blister packs so that the nurse or medical technician (a nonnurse authorized to handle medications) could determine at a glance the number of remaining pills on the card by looking at the printed number next to the last unused pill. The blister packs were stored in a locked, removable box that itself was stored inside a locked medication cart. The medication cart was kept in the nursing station. The door to the nursing station would automatically lock whenever a nurse or medical technician left the room. Sterling House maintained three sets of keys to the nursing station, medicine cart, and medication lock box. One set was carried by the nurse or medical technician on duty, another set was kept in Flock’s office, and a third set was maintained by the pharmacist.

To begin the med count, Prince read aloud from a log book the number of pills that each card should contain while Campbell compared the printed number on the blister packs to the number read by Prince. Neither Campbell nor Prince looked at the pills or made any physical examination of the blister packs for evidence of tampering. The parties stipulated that simply counting the medications and not checking the blister packs for tampering was the written procedure which was routinely followed at Sterling House. After the med count was completed, Prince signed the log book, gave Campbell the keys, and left. Shortly thereafter, Campbell signed the log book.

Sometime between 4:30 and 5:00 p.m., Cales asked Campbell for the keys to the nursing station to access some charts. She returned the keys to Campbell about ten minutes later. Campbell also gave her keys to another employee several times during the course of her shift so that the employee could access necessary items from the nursing station and so that the employee could lock the facility. Flock also had his own set of keys to the nurses’ station, medication cart, and lock box, and he was in the building until 6:00 p.m.

At the end of her shift, Campbell performed the count procedure again with Maria Collazo, the incoming medical technician. Campbell read aloud from the log book, and Collazo matched the numbers. There is conflicting information in the record about what happened next. According to a Florida Department of Health (DOH) investigator, Collazo reported that she noticed that some of the blister packs appeared to have been opened and then taped back together. The investigator further relayed that Collazo refused to sign the log book but that Campbell signed it, turned her keys over to Collazo, and left.

Campbell, on the other hand, testified that she and Collazo discovered a medication error resulting from one patient’s receiving the wrong dosage of medication. Campbell testified she asked Collazo to call a supervisor to discuss incident reporting procedures; Collazo called Prince. Campbell then left a message for Cales on her voicemail. Campbell testified that after starting to complete an incident report, she and Collazo finished the med count “with no further problems.” Campbell then turned her keys over to Collazo, signed the log book, and left. Campbell testified she believed Collazo signed the log book at that time as well, though she acknowledged she did not actually see her do so. Campbell testified she did not learn that any drugs were missing until Maxim notified her two days later.

Prince told the DOH investigator that after Campbell left the facility, Collazo called Prince to inform her that there was a problem with some of the blister packs. Prince arrived at the facility around 11:20 p.m. and observed that two of the blister packs had tape on them. Cales called Flock that same evening to advise him of the problem with the med count. Flock then called Collazo and instructed her to place the blister packs back into the medicine cart so he could inspect them himself the next morning.

The next day, Flock brought the blister packs to the pharmacist, John Gattoline, and told him that the blister packs appeared to be “falling apart.” After studying the blister packs, Gattoline informed Flock that someone had tampered with the blister packs and replaced several of the oxycodone and hydrocodone pills with potassium and cardizem pills. Flock reported this to his supervisor Pam Cutsuries who then contacted their legal department. According to Cutsuries, Sterling House experienced an average of five drug thefts a month. Upon reporting the matter to their legal department, Cutsuries was told to contact law enforcement and to not let Campbell back into the facility. Cutsuries then instructed Flock to call the police and to instruct Maxim House that Campbell would not be permitted to work at Sterling House during the pendency of the investigation.

Flock did not talk with Campbell, request that any employees submit to drug screening, or otherwise conduct any investigation. Flock contacted the Hillsbor-ough County Sheriffs Office on May 7, 2004, to report the incident.

Deputy Stempowski met with Flock and Cales and was told that the theft was discovered at the end of Campbell’s shift. Cales advised that the nurses inspected the blister packs for tampering before signing the log book and that by doing so, the nurse was representing that there was nothing suspicious about the medications. Cales also advised that the tampering was obvious and would have been discovered during the medication count if it occurred before Campbell’s shift. Flock and Cales further advised that Campbell was the only person with access to the medications during her shift. Flock informed Deputy Stempowski that Cales told him at the beginning of Campbell’s shift that she was “bad news” and was suspected of stealing narcotics from her prior facility. Cales added that Campbell was “let go for unknown reasons” from the prior facility. Cales also told Deputy Stempowski, in Flock’s presence, that Sterling House had never had missing drugs before Campbell worked in the facility. Neither Flock nor Cales told Deputy Stempowski that they both were in the building during Campbell’s shift or that another employee was also in the building.

Deputy Stempowski then interviewed Prince who said that the blister packs were in order when she counted them at the end of her shift. Prince said that the blister packs did not have the tape on them and that she did not notice that different pills had been inserted. Although Prince told Deputy Stempowski that the blister packs did not look the same as they had when she ended her shift, she also later admitted to the DOH investigator that the tape on the blister packs was not obvious, could have been on the blister packs for days, and that the pills did not look as though they had been replaced. She acknowledged that “it was possible that the blister packs had been tampered with prior to Campbell’s shift.”

Based on the information provided to her, Deputy Stempowski documented that the theft occurred during Campbell’s shift and that the theft was therefore attributed to Campbell.

Two days later, Campbell’s supervisor at Maxim informed her that Sterling House had discovered that hydrocodone and oxy-codone pills had been switched out for other pills in some of the blister packs. In accordance with standard procedure, Campbell voluntarily submitted to a urine drug screen, which'was negative.

Campbell was ultimately arrested and charged with repackaging an adulterated or misbranded drug, trafficking in oxyco-done, causing a drug to be a counterfeit, obtaining a controlled substance by subterfuge, and furnishing a false controlled substance form. The criminal report affidavit indicated that the theft occurred during Campbell’s shift and that Campbell had exclusive access to the drugs and that those factors supported a probable cause determination. The parties do not dispute that at Campbell’s first appearance, the judge ruled that there was insufficient probable cause for Campbell’s arrest and released her on her own recognizance. Once Campbell was released from jail, she attempted to go back to work at Maxim but was told she was fired.

The criminal case continued for nearly seven months until it was ultimately dropped in December 2004 by the State Attorney’s office with a letter of release. After the charges were finally dropped, Campbell again contacted Maxim to get her job back. She appealed all the way to Maxim’s general counsel in Maryland, but the company refused to rehire her. She then sought employment with other temporary nursing agencies but was required to disclose her arrest as part of the prospective employer’s criminal background procedures. None of the temporary agencies ever called her back. She also applied to the Taylor County Correctional Institute (TCCI) but was not hired. The director of nursing at TCCI testified that a felony arrest would have been investigated further and that a felony arrest, especially one dealing with the theft of narcotics, may result in an applicant’s not being hired.

In the interim, another drug theft occurred at Sterling House and in similar fashion, hydrocodone pills were replaced with potassium pills. Flock testified that he was instructed not to investigate this theft and not to require his employees to submit to drug screening. He did not notify Campbell or her attorneys or the State Attorney’s Office. He did, however, tell the detective assigned to Campbell’s case. Flock testified that the detective told him his services were no longer needed. About a month after the second tampering incident, another theft was discovered involving the prescription drug Endocet being replaced with Tylenol tablets. Flock had two employees screened for drugs. One of the employees’ drug screens was positive, and she was terminated. According to the log book, that same employee had worked two shifts before Campbell on the day in question and had worked in close proximity to discovery of the second and third thefts. Flock never told Campbell, her attorneys, the State Attorney’s office, or law enforcement about the incident with the other employee.

Campbell ultimately filed her malicious prosecution action against Alterra, and the jury returned a verdict in Campbell’s favor, finding that Cales and Flock maliciously instituted and continued a criminal proceeding against Campbell without probable cause. The jury awarded Campbell $864,537 for compensatory damages and $175,000 in aggregate punitive damages against the various defendants, for a total award of $589,657. The trial court denied Alterra’s motion to set aside verdict or in the alternative for judgment notwithstanding the verdict, and the trial court entered the final judgment against Alterra and Flock.

II. ANALYSIS

A. Standard of review

“The standard of review of a trial court’s ruling on a motion for judgment notwithstanding the verdict is de novo.” Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 306, 309 (Fla. 1st DCA 2011) (citing Hancock v. Schorr, 941 So.2d 409, 412 (Fla. 4th DCA 2006); McQueen v. Jersani, 909 So.2d 491, 492-93 (Fla. 5th DCA 2005)). “A [judgment notwithstanding the verdict] is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-movant [sic], A jury verdict must be sustained if it is supported by competent[,] substantial evidence.” Hancock, 941 So.2d at 412 (citation omitted).

B. Campbell met her burden to prove that there was an absence of probable cause for the original proceedings and that Alterra was the legal cause of the proceedings.

In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Burns v. GCC Beverages, Inc., 502 So.2d 1217 (Fla.1986); Adams v. Whitfield, 290 So.2d 49 (Fla.1974). The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution.

Alamo Rent-A-Car, Inc. v. Mancusi, 682 So.2d 1352, 1355 (Fla.1994). Here, we are concerned with two elements: probable cause and legal cause.

In addressing probable cause first, we note that “ ‘[w]hat facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court; the latter for the jury.’ ” Glass v. Parrish, 51 So.2d 717, 722 (Fla. 1951) (quoting Cleveland, C., C. & St. L. Ry. Co. v. Dixon, 51 Ind.App. 658, 96 N.E. 815, 816 (1911)); see also Cold v. Clark, 180 So.2d 347, 349 (Fla. 2d DCA 1965) (explaining that issue of probable cause is mixed question of law and fact). Where the facts are in dispute, the issue must be submitted to the jury. See Glass, 51 So.2d at 722; Cold, 180 So.2d at 349; Kilbum v. Davenport, 286 So.2d 241, 243 (Fla. 3d DCA 1973). But the legal effect of the facts, “when found or admitted to be true, is for the court to decide as a question of law.” Cold,, 180 So.2d at 349 (citing Anderson v. Bryson, 94 Fla. 1165, 115 So. 505, 506 (1927)).

To satisfy this element, the plaintiff must prove that “the criminal proceeding was initiated by the defendant without probable cause, i.e., without a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1219 (Fla. 1986). Indeed, “[a] lack of probable cause may be established by proof that a criminal proceeding was instituted on facts that could as well be explained innocently.” Harris v. Lewis State Bank, 482 So.2d 1378,1382 (Fla. 1st DCA 1986).

Because a malicious-prosecution defendant’s good faith is “an essential element to be considered on the question of probable cause,” Glass, 51 So.2d at 720, if it appears that further investigation is justified before instituting a proceeding, “liability may attach for failure to do so.” Harris, 482 So.2d at 1382.

In this case, there were facts presented which could suggest that Campbell was the person responsible for the tampering with and the theft of the drugs. But there was also evidence that she was not the only person who had access to the area where the drugs were stored on the night in question. Indeed, at least three other people — Cales, Flock, and another employee — had access to the storage area. And one of those people, Cales, had a known rancorous history with Campbell. Despite this, Flock failed to contact Campbell about the incident, conduct drug screens on the other employees, or otherwise conduct any other investigation.

Other evidence which suggests that probable cause was lacking is the fact that Campbell performed the med count in accordance with Sterling House’s written procedures which, at the time, did not require her to physically examine the blister packs for signs of tampering. And even Prince acknowledged that the tampering was not evident, that the tape could have been there for days, and that the tampering could have occurred prior to Campbell’s shift. Under these facts, the jury could — and apparently did — conclude that a further investigation was necessary because the criminal proceedings against Campbell were instituted on facts “that could as well be explained innocently.” Harris, 482 So.2d at 1382. Consequently, there was competent, substantial evidence that Alterra lacked probable cause to initiate the criminal proceedings.

Likewise, there was competent, substantial evidence that Alterra was the legal cause of the criminal proceedings. In a malicious prosecution action, the element of legal causation is established where a defendant gave information to authorities which he or she knew or should have known to be false which was “the determining factor in inducing the [arresting] officer’s decision.” Orr v. Belle Lindsey Stores, Inc., 462 So.2d 112, 114 (Fla. 5th DCA 1985); Buchanan v. Miami Herald Publ’g Co., 230 So.2d 9, 11 (Fla.1969) (noting that “[a]ctual knowledge is not required” and holding that a complaint which alleges a defendant knew or should have known that the charge was false and that no probable cause existed was sufficient to state a cause of action for malicious prosecution). A defendant may also be held liable where he or she withholds information which could have caused the cessation of criminal proceedings against the plaintiff. See Harris, 482 So.2d at 1381-82, 1382 n. 9, 1383 n. 16. This is because “there can be no intelligent exercise of the [arresting] officer’s discretion.” Id. at 1382 n. 9.

“[T]he question of whether or not the defendant instigated the prosecution upon which” an action is based is a jury issue. Kilbum, 286 So.2d at 243 (citing Zippy Mart, Inc. v. Mercer, 244 So.2d 522, 523 (Fla. 1st DCA 1970)). And where there is conflicting evidence, this court “must accept the evidence most favorable to the prevailing party.” Zippy Mart, Inc., 244 So.2d at 523.

Here, Flock and Cales gave sworn statements to Deputy Stempowski and participated in follow-up interviews with the arresting detective. Notably, during those interviews, Flock and Cales relayed that Campbell was “bad news,” that she had been suspected of stealing drugs from another facility, and that she was the only person with access to the drugs during her shift. Although the detective partially relied on Campbell’s behavior during her interview, the detective also made it clear that he relied on the information he received from the Sterling House employees to reach the conclusion that the case against Campbell was “clear.” We recognize that the detective testified that nothing the Sterling House employees told him influenced his investigation. Yet we also recognize that the detective admitted that the information he received about Campbell being “bad news” and being suspected of stealing drugs from another facility remained in the back of his mind during the investigation and tended to “point his compass” in Campbell’s direction. We believe that the jury could have found that the comments about Campbell’s being “bad news” and being suspected of stealing drugs at another facility were the determining factors in Deputy Stempowski’s decision to arrest Campbell.

And as we already noted, Campbell was not the only person with access to the drugs on the night in question. Further, the evidence at trial demonstrated that Clare Bridge did not have any missing drugs during the time Campbell worked there, which is inconsistent with Cales’ report that Campbell was suspected of stealing drugs from that facility. And contrary to the report by Flock and Cales that no other drug thefts had occurred prior to Campbell’s assignment, Sterling House had an average of five drug thefts a month. Under these facts, we believe that Alterra knew or should have known that the information which Flock and Cales provided to Deputy Stempowski and the arresting detective was false.

Even if Alterra could not have known the information was false at the time it instigated the proceedings, surely it should have known that the information might have been false once the drug thefts continued after Campbell was fired. Although Flock attempted to report one subsequent drug tampering'theft incident to the detective assigned to Campbell’s case, Flock never reported the incident involving the other employee whose drug screen was positive, despite the fact that that same employee worked shifts just prior to Campbell’s shift on the day in question. Flock also failed to report either incident to Campbell, her attorney, or the State Attorney’s office. Such information might have resulted in the State Attorney’s office dropping the charges at an earlier point in time. Accordingly, there was competent, substantial evidence to support the jury’s finding that Alterra was the legal cause of the criminal proceedings against Campbell.

III. CONCLUSION

Based on these facts, Alterra failed to prove it was entitled to a judgment notwithstanding the verdict, i.e., that “there was no evidence upon which a jury could rely in finding for” Campbell. Hancock, 941 So.2d at 412. We therefore affirm the final judgment.

NORTHCUTT and KELLY, JJ., Concur.

      . After Campbell’s arrest, the Florida Department of Health initiated its own investigation.

      . During the time Campbell worked at the Clare Bridge facility, there were no reports of missing drugs.

      . Cales filed for bankruptcy prior to trial; though the automatic stay in the bankruptcy proceeding was lifted so that Campbell could proceed with her cause of action, no judgment could be entered against Cales.

      . On appeal, Alterra also raises the issue of whether Campbell sufficiently proved that Al-terra acted with malice. We recognize that malice is not synonymous with "want of probable cause,’’ White v. Miami Home Milk Producers Assn, 143 Fla. 518, 197 So. 125, 126 (1940), but we also recognize that legal malice can be inferred where there is a lack of probable cause, Alamo Rent-A-Car, Inc., 632 So.2d at 1357; Miami-Dade Cnty. v. Asad, 34 Fla. L. Weekly D545 (Fla. 3d DCA 2009). Because we have determined that there was competent, substantial evidence to support the lack of probable cause element, we also find that legal malice could be inferred. See Asad, 34 Fla. L. Weekly D545.