02-3096 NESTOR V. POSNER

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 02-3096 NESTOR V. POSNER

Case Date: 10/22/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003

BRENDA NESTOR, as Personal Representative of the Estate of Victor Posner, and SECURITY MANAGEMENT CORPORATION, Petitioners, vs. KELLY POSNER-GERSTENHABER, JARRETT POSNER, SEAN POSNER, and TROY POSNER, Respondents.

** ** ** ** ** ** ** ** CASE NOS. 3D02-3096 & 3D02-3094 02-1027

LOWER TRIBUNAL NO.

Opinion filed October 22, 2003. A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, D. Bruce Levy, Judge. Ferrell, Schultz, Carter, Zumpano & Fertel, and Joseph Beeler; and Kirkland & Ellis, and Andrew B. Clubok, and Stacey L. Bennett; and Rumberger, Kirk & Caldwell, and Joshua D. Lerner, and Gregory C. Harrell, and Eugene Lindsey, for petitioners. Eduardo Gonzalez, and Marty, Steinberg, Thomas R. Julin & Patricia Acosta; Hunton & Williams, for respondents.

ON MOTION FOR CLARIFICATION AND CORRECTION Before FLETCHER, RAMIREZ, and WELLS, JJ. PER CURIAM. We grant Brenda Nestor's motion for clarification and

correction. The opinion issued on August 13, 2003, is hereby withdrawn, and the following opinion is substituted in its place. In this consolidated petition, Security Management Corp. ("SMC") and Brenda Nestor, as personal representative of Victor Posner's estate, seek a writ of certiorari to quash an order of the trial court which declares a confidentiality agreement between Posner and Jeffrey Breen to be null and void. The petition is denied. Victor Posner died in 2002. death, Nestor had all Posner Several months prior to Posner's employees sign confidentiality

agreements which bar the disclosure of any information regarding Posner's "private life, plans, businesses, finances, assets,

liabilities, income, expenses and expenditures, legal matters, visitors, acquaintances, meetings, activities, state of mind, health or health care . . . except to the extent required by law." All applicable privileges belonged to Posner personally, even if the employee was employed by a related company and not Posner himself. The agreement also required employees to exert all

applicable privileges and, if requested to divulge confidential information, employees were to 2 immediately notify Posner or

Posner's attorney. Nestor is involved in a will contest with Posner's

grandchildren, the respondents to this petition. witness to the contested will.

Breen is a

The grandchildren contacted Breen

in order to ascertain Posner's testamentary capacity at the time he signed the will and to determine whether the will was the result of undue influence by Nestor. Nestor arranged for Breen to meet with SMC then

the grandchildren and had the meeting secretly taped.

brought suit against the grandchildren for tortious interference with Breen's confidentiality agreement. The grandchildren moved to have the confidentiality agreements nullified so they can conduct informal discovery interviews with Breen and other Posner employees. The trial court nullified the

agreement as to Breen to the extent that it bars appropriate witness interviews, but not as to any others. Although the trial court allowed SMC to intervene as a third party beneficiary, the confidentiality agreement does not protect SMC, only "Posner and key persons in his related companies

(including Melvin Colvin, Brenda Nestor, and Posner's medical personnel, accountants, attorneys, and private investigators)." SMC is therefore not a third-party beneficiary to the agreement between Posner and Breen and lacks standing to contest its

validity. Neither can Nestor, as personal representative, enforce the 3

agreement against Breen for disclosing information about Posner because Posner's privilege did not survive his death. rights are personal and die with the individual. Privacy

See Williams v.

City of Minneola, 575 So. 2d 683, 689 (Fla. 5th DCA 1991), citing to Restatement (Second) of Torts

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