5D06-1230 Hernandez v. Hernandez

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1230

Case Date: 01/15/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

ANGEL RUBEN LOPEZ HERNANDEZ, Appellant, v. ANGEL RAUL LOPEZ HERNANDEZ, ET AL., Appellee. ________________________________/ Opinion filed January 19, 2007. Appeal from the Circuit Court for Osceola County, Jeffords D. Miller, Judge. Angel Ruben Lopez Hernandez, Dublin, Ohio, pro se. Elizabeth H. Pastrana, San Juan, Puerto Rico, pro se. No appearance for Angel Raul Lopez Hernandez. Case No. 5D06-1230

THOMPSON, J. Angel Ruben Lopez Hernandez ("Ruben") appeals the trial court's order refusing to appoint him as personal representative of his father's estate, although he was named in his father's will. Instead of appointing Ruben, the trial court appointed an unrelated attorney as personal representative. The only basis for the trial court's ruling was that there was animosity between Ruben and his brother, Angel Raul Lopez Hernandez

("Raul"), who also applied to be appointed personal representative. We treat Ruben's petition for writ of certiorari as a timely notice of appeal and reverse, concluding the trial court abused its discretion. Angel Lopez Maldonado ("Maldonado") died in January 2005. His will named Ruben as personal representative or, if Ruben did not survive Maldonado, Raul. The two brothers each claimed he should be appointed the personal representative of their father's estate. Appellee 1 Elizabeth Hernandez Pastrana ("Elizabeth") is their mother and the ex-wife of their father, Maldonado. She intervened in the case because of litigation in Puerto Rico concerning a dispute over jointly-owned property. Ruben and Elizabeth argue that the trial court abused its discretion by refusing to appoint Ruben as personal representative of Maldonado's estate. The record suggests that Ruben and Raul have quarreled since their father's death and shows both petitioned to be named personal representative. In refusing to appoint Ruben as the personal representative, the trial court entered an order that stated: This cause came for hearing ... for appointment of personal representati ve for the estate of [Maldonado] .... [Ruben] was named executor in the will. ... [Raul] filed a separate petition to be declared personal representative. ... [Ruben] possessed the will ... and surrendered it to ... [Elizabeth] .... Neither of the brothers can agree on who will be personal representative of the estate. Wherefore, this court appointed [unrelated] attorney ..., and upon his agreement to serve as PR on March 2, 2006.

Technically an appellee, Elizabeth submitted a pro se brief agreeing that Ruben should have been appointed the personal representative. Ruben's position on appeal is unopposed. -2-

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Thereby [sic] relieving the family of the problem that had arisen between the respective PR's.

We review the trial court's order to determine if there was an abuse of discretion when it denied Ruben's request to be named personal representative of Maldonado's estate. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000). In Schleider, the Fourth District wrote: The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator's selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent's will. Schleider, 770 So. 2d at 1253 (citations omitted); see also

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