5D00-3088 McLane v. Musick

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-3088

Case Date: 08/27/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

HOWARD McLANE, Appellant, v. ANNA GERTRUDE MUSICK, et al., Appellees. ______________________________/ Opinion filed August 31, 2001 Appeal from the Circuit Court for Volusia County, Edwin P.B. Sanders, Judge. Richard R. Cook, DeLand, for Appellant. William N. DeVane, Jr., of Frigola, DeVane & Dorl, P.A., Marathon, for Appellees. SHARP, W., J. Howard McLane appeals from a final summary judgment which determined none of his claims filed against the estate of Loretta Monroe have any viability. McLane and Monroe had cohabited for a number of years, under the understanding, according to McLane, that they would eventually marry and that each would execute a will in favor of the other. Neither event came to pass before Monroe was diagnosed with terminal cancer in 1997, and died shortly thereafter. No will was probated. Monroe's parents were appointed co-personal representatives of her intestate estate. McLane sought reimbursement from the CASE NO. 5D00-3088

estate for his services and economic contributions to Monroe's welfare and property. We affirm in part, and reverse in part. McLane established the following factual basis for his claims for purposes of the summary judgment motion. McLane and Monroe began dating in 1990, and he moved into her home in the Florida Keys, where they lived together with Monroe's parents. They, together with McLane's parents, moved to Pierson, Florida in 1992, where Monroe had purchased ten acres of land and a mobile home, both titled in her name. McLane was just starting a business and had minimal insurance. McLane testified he considered their relationship to be like husband and wife "except for the vows." They had one checking account and all the bills were paid from this account or by cash. He believed the joint checking account was established with rights of survivorship. McLane acquired additional equipment and machinery after they moved to Pierson, including a bulldozer, a grade-all and a small garden tractor. He paid for the equipment out of the joint checking account and all of it was titled in his name. About two years prior to Monroe's death, McLane inherited $70,000.00. Most of those funds were placed in the joint checking account or spent as cash. Monroe rented her property in the Keys, and the rental funds were also placed into the joint account. She did not work outside the home after they moved to Pierson. McLane used his business equipment to improve the property Monroe owned in Pierson, such as grading and putting in a road. He also paid for taxes, insurance, and legal bills for another property belonging to Monroe. After she became ill, he paid for her medical bills and services since she had no insurance, and he provided personal care and services through the date of her death. Unfortunately for McLane, the parties had only a mutual understanding of their relationship, and agreement to dispose of their co-mingled assets and other properties, which effectively died with Monroe. 2

They executed no written agreements, contracts or wills. Florida does not recognize common law marriages or quasi-spouses.1 Thus, Florida residents who do not take formal steps to insure disposition of their assets after death or the welfare of persons they love during their lifetimes, may create unfair and unjust situations for their survivors, which the courts have no power to remedy. In count one, McLane sought $21,000.00 to compensate him for personal care rendered to Monroe during her terminal illness. He calculated this at $50.00 per day for transporting Monroe to doctors and the hospital, and for taking care of her at home. When asked whether he did these things because of an expectation of being paid, he replied he would have rendered the services even if he knew he would not be paid, because of his love and affection for Monroe. In count two, he also sought reimbursement for $21,169.00 in medical bills he paid for her out of their joint account. The trial court was correct in denying any recovery for McLane on these two counts. When a person provides services to another without a written agreement regarding compensation, a promise to pay for those services will generally be implied.2 However, this general rule is not applicable if the services are rendered by and for members of the same family or relatives who live together.3 In such cases, no presumption arises that one is to be paid for the services rendered. In the absence of an express contract

Benavides v. State, 679 So.2d 1195 (Fla. 3d DCA 1996); Compagnoni v. Compagnoni, 591 So.2d 1080 (Fla. 3d DCA 1991), rev. denied, 601 So.2d 551 (Fla. 1992);Walker v. Erpenbach, 553 So.2d 738 (Fla. 5th DCA 1989). In re Estate of Mundell, 459 So.2d 358, 361 (Fla. 5th DCA 1984), rev. denied, 467 So.2d 999 (Fla. 1985) (Cowart, J., dissenting); 11 Fla. Jur. 2d. Contracts

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