03-1648 GODFREY-AURAND V. GODFREY

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State: Florida

Court: Florida Third District Court

Docket No: 03-1648 GODFREY-AURAND V. GODFREY

Case Date: 10/15/2003

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. 2003

GLORIA ANN GODFREY-AURAND, individually and as trustee of EWART CLYDE GODFREY TRUST created under Article Fourth of the Last Will and Testament of Clara Matilda Godfrey, etc. Appellant, vs. EWART CLYDE GODFREY, Appellee.

** ** ** ** ** ** ** ** CASE NO. 3D03-1648 LOWER TRIBUNAL NO. 03-333

Opinion filed October 15, 2003. An appeal from a non-final order of the Circuit Court for Miami-Dade County, Florida, Arthur L. Rothenberg, Judge. Ginsberg & Schwartz; Golden & Cowan and William H. Glascoe, for appellant. Holland & Knight and Daniel O. Mena and Christopher W. Boyett, for appellee. Before GODERICH and RAMIREZ, JJ., and NESBITT, Senior Judge. PER CURIAM. Aurand, the trustee of a trust that holds income producing

properties, appeals a temporary injunction appointing Iris June Slippy, the nominated successor, as interim trustee until further order of court, and enjoining Aurand from managing, interfering or having any other business dealings in connection with the income producing properties that are the assets of the trust. Clara Matilda Godfrey, the settlor of the trust, was the natural mother of Aurand. Aurand's father, Ewart Clyde Godfrey,

the plaintiff below, is the income beneficiary of the trust. The Motion for Removal chronicles that Aurand failed to take over the active management and supervision (characterized by the probate judge as abandonment) of the income producing properties, that those matters were always handled by Godfrey directly, and that, after this litigation commenced, she, through attorneys, was threatening the tenants by giving them notice of eviction. The claim here is that Aurand was denied procedural due process before and during her removal. She claims that she was

given only 3 days notice of the injunction hearing set by the probate judge and that during that interim there were side steps and deceit in preventing her from taking Godfrey's deposition. However, when the motion for the temporary injunction was called up, there was no motion presented for either a continuance or challenging sufficiency of the pleadings. When Aurand's counsel

objected to evidence offered by Godfrey outside that annexed to the motion in his affidavit the trial court sustained the objection and no testimony of Godfrey was admitted. 2 The emergency motion for

injunction was not filed until Aurand's attorneys sent eviction letters to tenants of the rented property. The trial judge wisely

considered the situation and realized that Aurand never assumed formal responsibility as trustee, that she was not injured by her inability to take Godfrey's deposition and that, by entering the injunction, no substantive rights of the parties had been settled in any manner. We agree because we believe the motion and the

affidavits attached would have been the basis for an ex parte injunction. We therefore find that the able probate judge acted

entirely within his discretion in proceeding without Godfrey's deposition having been taken. Affirmed.

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