03-2185 ZOLDAN V. ZOHLMAN

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d03-2185

Case Date: 11/30/2005

Plaintiff: 03-2185 ZOLDAN

Defendant: ZOHLMAN

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

BARBARA ZOLDAN, Appellant, vs.

** ** ** CASE NO. 3D03-2185

ROBERT ZOHLMAN and ARTHUR ZOHLMAN, as Co-Curators of the Estate of Charles Zohlman, Deceased, Appellees.

** ** **

LOWER TRIBUNAL CASE NO. 96-24764

Opinion filed November 30, 2005. An Appeal from the Circuit Court for Miami-Dade County, Herbert Stettin, Judge. D. Culver Smith III (West Palm Beach), for appellant. Tescher Gutter Chaves Josepher Rubin Ruffin & Forman and Peter J. Forman (Boca Raton), for appellees.

Before COPE, C.J., and FLETCHER and WELLS, JJ. FLETCHER, Judge. This is an appeal of a final judgment declaring a post nuptial agreement between a husband and wife to be invalid

because of undue influence. For the reasons which follow, we reverse in part and affirm in part. Charles stepdaughter, Zohlman 1 Barbara brought Zoldan, this action and against as his

individually

personal

representative of the estate of his late wife, Ida G. Zohlman, to revoke an agreement which he entered into with his wife on June 2, 1995. Charles also claimed a right to enforcement of

several promissory notes in his favor by Barbara, individually and on behalf of her wholly owned company, Texas Work'n Western Boots, Inc. 2 The claims were tried by the court without a jury resulting in the issuance of written findings of fact and conclusions of law on June 26, 2003. A summary of the trial court's findings Charles and Ida Zohlman

include the following pertinent facts. were married in 1978. them.

It was a second marriage for both of

Charles had three sons from a first marriage and Ida had

one daughter from her prior marriage. Charles was wealthy while Ida had limited assets. Throughout the marriage, Charles became close to Ida's daughter and her family. Beginning in the early

1990's and continuing through 1995, Barbara and her husband,

1

Charles died after filing the action and his sons, Robert and Arthur Zohlman, were substituted as plaintiffs.
2

Although Charles also included malpractice claims against the attorneys involved herein, these claims were severed and are not part of this appeal. 2

Alex,

experienced

severe

financial

difficulty.

To

avoid

foreclosure of their home, Charles loaned the couple $200,000 in late 1993 for which Barbara prepared and signed a promissory note in favor of Charles. Subsequently, Barbara, individually

and as president of her company, signed promissory notes for loans in the amount of $150,000, $25,000, and $80,000 made to her company. In July of 1993, Ida was diagnosed with cancer. Due to

this illness, by early 1995 Charles and Ida, then 90 and 78, moved from Florida to reside with Barbara and her family in Westchester County, New York. During a visit from a long-time

friend and financial advisor, the issue of the couple's estate plan arose. Upon being advised of Charles' intent to leave She and

Barbara only $50,000 upon his death, Ida became enraged. accused Charles of not doing right by her daughter

threatened divorce.

After talking further with his friend and

financial advisor, Charles concluded that including Barbara as a more substantial beneficiary in his estate was the right thing to do. Ida, however, was still distrustful of Charles and asked

Barbara and her husband to assist her in determining her rights in the event of a divorce. Barbara and her husband contacted Steven Frankel, a New York lawyer who had previously represented them in connection with the foreclosure of their home and other business matters.

3

Frankel met with Charles and Ida and thereafter, together with Florida attorneys, prepared a will and trust agreement and a post nuptial agreement for Charles and Ida. As signed, the post

nuptial agreement required Charles to name Barbara an heir equal to his three sons in his will. More importantly, the agreement

could not be amended or revoked without the consent of both parties. Charles claims this provision of the agreement was All documents were executed by Ida died on July 25, 1995, and

never fully explained to him. Charles and Ida on June 2, 1995.

Charles returned to Florida soon thereafter. In early 1996, Charles consulted a Florida attorney about his estate plan. He made some amendments to his estate

documents, none of which changed Barbara's status as his heir. Thereafter, Charles attempted to obtain payment on the

promissory notes executed by Barbara.

The Zoldans claimed the

debts had been forgiven by Charles in an April 17, 1995 letter which stated that the notes would be forgiven upon Ida's death. Charles subsequently filed the instant action against Barbara to rescind the post nuptial agreement on the ground that he did not fully understand the irrevocable effect of the agreement, and for repayment of the promissory notes signed in connection with the loans to Barbara and her company. Although stating that Barbara and Ida took unfair advantage of Charles during the period from late April through June 2,

4

1995 by improperly pressuring him through a combination of undue influence, by his reduced ability to properly think things

through, by his concerns over Ida's illness, and by his fears that he would be abandoned, the trial court's conclusions of law focus on problems with Frankel's representation of Charles.

According to the trial judge, Frankel failed to advise Charles of his prior representation of Barbara and Alex, he had a

conflict of interest in representing both Charles and Ida, and he included the non-modifiable provision in the post nuptial agreement without fully discussing it with Charles and while knowing that Charles intended to favor his own sons over Barbara in his estate. In contrast, Ida's apparent "improper conduct"

was her becoming upset with Charles upon learning of his initial testamentary intent as to Barbara, her threatening to divorce Charles, and her request that Barbara and Alex recommend an attorney conduct" she could was consult. their Barbara recommending and and Alex's setting "improper up the

simply

meetings with Frankel. The Florida Probate Code provides that a will is void, either wholly or in part, if its execution is procured by fraud, duress, (2003). mistake, The or undue influence. required

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