5th District Court of Appeal partially dismisses widow's case against possible creditors

By Charmaine Little | Jul 5, 2017

BREVARD COUNTY — The 5th District Court of Appeal partially dismissed and reversed lower court rulings in a case involving a Florida widow and her late husband's estate and possible creditors.

The issues between Janie Lerma-Fusco and Dennis Smith started after Franco Fusco died in 2014, according to court records. The trial court granted the request of Lerma-Fusco, his widow and only beneficiary of his will, to be named the personal representative pursuant to the legal document. She informed creditors and filed a notice of administration. Lerma-Fusco also submitted a proof of publication of the notice to creditors and gave a formal notice to a number of creditors, not including the Dennis and Tina Smith. The Smiths filed a statement of their own six months later, seeking to be considered creditors.

The Smiths claimed there was a default judgment against Fusco in Michigan from 1999, which was renewed in 2009. That claim originated from a wrongful death claim the Smiths filed after their son, Christian Smith, died. Christian Smith, who was 20 when he died, was at Fusco’s home in Michigan for a New Year’s Eve party on Dec. 31, 1996. He left the home noticeably drunk and was the driver in a fatal car crash. The initial default for the claim was $750,000 while the total amount for the Smiths’ claim was $1,452,057.95. 

Lerma-Fusco responded to the Smiths’ legal claim concerning Fusco’s creditors by requesting a motion to strike that the Smiths’ claim was “untimely,” according to court records. She said she did not need to send the Smiths a formal notice because they were not considered guaranteed creditors for Fusco’s estate. Lerma-Fusco said that the Smiths missed the 90-day timeframe for submitting a claim.  

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Lerma-Fusco and the Smiths went to a hearing under the probate court to evaluate Lerma-Fusco’s request to strike the Smiths’ claim. She said she was not aware the Smiths had filed a wrongful death suit against Fusco. The probate court ruled in favor of Lerma-Fusco and said the Smiths did not provide enough evidence that they were actual creditors.

The Smiths filed a motion four months later to set aside Lerma-Fusco's motion to strike. They alleged there was new proof that Lerma-Fusco knew about the wrongful death lawsuit, which would make the Smiths ascertainable creditors for Fusco’s estate if admissible. After a hearing, the probate court granted the Smiths’ motion as well as a request for a temporary injunction to freeze the assets of Fusco’s estate. Lerma-Fusco then filed an appeal. 

She said the information that could prove she was aware of the wrongful death lawsuit would be considered attorney-client privilege and would be inadmissible in court.

The probate court ultimately decided that an evidentiary hearing would be needed to assess Lerma-Fusco’s claim that the Smiths' alleged proof would not be allowed in court, as well as to decide whether the Smiths would be considered creditors for the decedent’s estate. 

The appeals court wrote that it nor the probate court could decide whether the Smiths’ evidence was inadmissible and it would be decided in the evidentiary hearing. It stated the Florida Rule of Appellate Producer 9.170(b)(17) as the reason it did not have the authority to make a decision on the probate court’s ruling, so it dismissed the appeal. 

The appeals court also wrote the Smiths erred in their motion to temporarily freeze the assets of Fusco’s estate and wrote that the Smiths did not abide by all of the regulations with the temporary injunction. Subsequently, the appeals court reversed the order.

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