       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 04, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D16-2457
                           Lower Tribunal No. 12-33200
                               ________________

                             Rodney Petithomme,
                                       Appellant,

                                          vs.

      Monise Petithomme, Modeline Petithomme, and Wilkins
                         Petithomme,
                                       Appellees.

      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

      Faudlin Pierre, for appellant.

      Vera + Skiscim PL, and Michael J. Skiscim and Michael A. Vera, for
appellees.


Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

      ROTHENBERG, C.J.

      The plaintiff below, Rodney Petithomme (“Rodney”), appeals a final

summary judgment entered in favor of three of the four defendants below, Monise
Petithomme (“Monise”), Modeline Petithomme (“Modeline”), and Wilkins

Petithomme (“Wilkins”) (collectively, “the appellees”).1 As genuine issues of

material fact exist, we conclude that the trial court erred as a matter of law by

entering summary judgment in favor of these three defendants. Therefore, we

reverse the order under review and remand for further proceedings.

        This appeal stems from a dispute between family members relating to real

property purchased in early 2004 in the name of Pharamon Petithomme

(“Pharamon”), who passed away in October 2010. In August 2012, Rodney filed a

complaint against the Estate of Pharamon Petithomme (“the Estate”); his sister,

Monise; Pharamon’s daughter, Modeline; and Pharamon’s son, Wilkins

(collectively, “the Defendants”), alleging as follows.

        In early 2004, he (Rodney) and Pharamon entered into an oral agreement

whereby Pharamon agreed to take title to the subject real property in trust for

Rodney, and in exchange, Rodney agreed to “furnish the money to pay the

property.”

Following the oral agreement, Pharamon obtained a loan to purchase the property,

and after the property closed in Pharamon’s name, Rodney, not Pharamon, moved

into the property.     Thereafter, Rodney began to pay the property taxes and

mortgage, and he made improvements and repairs to the property.


1   Certain claims filed against the Estate of Pharamon Petithomme remain pending.

                                          2
        On December 8, 2004, while Pharamon was critically ill, Monise, without

Rodney’s knowledge, “fraudulently induced and forged” Pharamon’s signature on

a quitclaim deed in which Pharamon conveyed the property to himself and Monise

as joint tenants with right of survivorship. At some point thereafter, Rodney

permitted Monise and her husband to move into the property in exchange for rent.

Rodney instructed Monise to make the rent checks payable to Jean Petithomme,2

and instructed Jean to remit Monise’s payments to the note holder. Rodney would

then pay the balance of the monthly mortgage payment with his own funds.

        A few months after Jean passed away in August 2008, Monise stopped

making the rent payments, and therefore, Rodney asked Monise to move out of the

property. After Monise refused to move out, disputes ensued between Rodney and

Monise, and thereafter, Monise ousted Rodney from the property.

        Based on these allegations, Rodney asserted the following counts: Count

I—quiet title against all Defendants; Count II—purchase money resulting trust

against the Estate; Count III—ejectment against Monise; and Count IV—unjust

enrichment against Monise based on her failure to pay rent. In response, Monise

and Modeline filed an answer and affirmative defenses, denying material

allegations. The Estate filed an answer denying all allegations in the complaint

and asserted as an affirmative defense that Pharamon’s interest in the property


2   Jean Petithomme is Rodney’s, Pharamon’s, Monise’s, and Modeline’s brother.

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“was ‘with right-of-survivorship’ and therefore negates the necessity to probate his

estate as there are no assets and/or real property.” Wilkins did not file an answer,

and the trial court entered a default against him.

      Following discovery, Rodney filed a motion for partial summary judgment

as to his claims to quiet title (Count I), for a purchase money resulting trust (Count

II), and for ejectment (Count III), attaching numerous exhibits, affidavits, and

depositions, including a $500 check remitted by Rodney for the initial purchase

deposit and two cashier’s check totaling over $12,057.82 utilized to purchase the

property.   In response, the appellees filed an opposition, attaching additional

exhibits.3 On May 14, 2015, the trial court denied Rodney’s motion for partial

summary judgment finding that there were material issues of fact in dispute.

      Approximately a year after the trial court denied Rodney’s motion for partial

summary judgment, the appellees filed a motion for partial summary judgment.

As to Rodney’s claim for a resulting trust filed against the Estate (Count II),

Monise argued that, as the sole title owner of the subject property via the quitclaim

deed, she was the correct person to defend the claim. Monise further asserted that

there was no resulting trust because Rodney failed to pay the purchase price or

“bind himself by an absolute obligation to pay the purchase price at the time title

vested in Pharamon.” The appellees also sought summary judgment as to the

3 Although a default had been entered against Wilkins, he joined in the opposition
filed by Monise and Modeline.

                                           4
claims to quiet title (Count I), for ejectment (Count III), and unjust enrichment

(Count IV). Finally, the appellees asserted that the only remaining issues to be

decided at trial were: (1) whether the $500 contract deposit was a gift or a loan,

(2) whether the $12,057.82 down payment was provided by Rodney, and (3)

whether a resulting trust was created as to either the alleged deposit and/or the

alleged down payment.

      The appellees submitted evidence in support of their motion for partial

summary judgment, including Monise’s affidavit in which she averred that she is

the only person who paid the mortgage from the date the property was purchased

in early 2004; that in December 2004, she, Rodney, and others were present when

Pharamon executed the quitclaim deed; and that Pharamon appeared to be

competent when he executed the quitclaim deed.

      Following a hearing, the trial court entered summary judgment as to Count

II (resulting trust) in favor of the appellees and, as to Counts I (quiet title), III

(ejectment), and IV (unjust enrichment) in favor of the appellees. In addition, the

trial court ruled that the order has no effect as to the claim against the Estate for a

resulting trust relating to the $500 contract deposit or the two cashier’s checks

totaling $12,057.82, which issue remains pending for trial.         Rodney’s appeal

followed.

      Rodney contends that the trial court erred by entering summary judgment in



                                          5
favor of the appellees where genuine issues of material fact exist. Based on our de

novo review, we agree. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126, 130 (Fla. 2000) (noting that a final summary judgment is reviewed

de novo); Tropical Glass & Constr. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA

2009).

      “[S]ummary judgment is only appropriate when the ‘pleadings and summary

judgment evidence on file show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.’” Demir

v. Schollmeier, 199 So. 3d 442, 444-45 (Fla. 3d DCA 2016) (quoting Fla. R. Civ.

P. 1.510(c)); see also Volusia Cnty., 760 So. 2d at 130. Further, “[i]f the record

reflects even the possibility of a material issue of fact, or if different inferences can

be drawn reasonably from the facts, that doubt must be resolved against the

moving party and summary judgment must be denied.” Cox v. CSX Intermodal,

Inc., 732 So. 2d 1092, 1095 (Fla. 1st DCA 1999).

      In the instant case, Rodney asserted that he and Pharamon entered into an

oral agreement whereby Pharamon agreed to take title to the subject real property

in trust for Rodney, and in exchange, Rodney agreed to furnish the money to pay

for the property. In Florida, “[a] resulting trust arises where . . . a person furnishes

money to purchase property in the name of another, with both parties intending at

the time that the legal title be held by the named grantee for the benefit of the



                                           6
unnamed purchaser of the property.” Key v. Trattmann, 959 So. 2d 339, 342-43

(Fla. 1st DCA 2007) (internal quotation marks omitted); see also Womack v.

Madison Drug Co., 20 So. 2d 256, 257 (Fla. 1944) (“A resulting trust must arise, if

at all, at the instant the deed is taken and the legal title vests in the grantee. The

complaining party must have paid his share of the purchase price, or bound himself

to the grantor by an absolute obligation to pay it.”); F.J. Holmes Equip., Inc. v.

Babcock Bldg. Supply, Inc., 553 So. 2d 748, 749 (Fla. 5th DCA 1989) (“A

resulting trust may arise in favor of one who furnishes money used to purchase

property the legal title to which is taken in the name of another. The equities in

this direction are especially strong when the parties intended that the title was to be

held by the legal grantee for the use and benefit of the person supplying the

consideration for the purchase.”). Further, “[p]ayment of part of the consideration

carries with it a proportional interest in the property and the party taking title to the

whole becomes the trustee for the other party pro tanto.” Towerhouse Condo., Inc.

v. Millman, 475 So. 2d 674, 677 (Fla. 1985).

      Rodney’s claim for a resulting trust cannot be disposed of on summary

judgment because genuine issues of material fact relating to this issue exist.

Rodney presented evidence to support his claim that he and Pharamon entered into

an oral agreement whereby Pharamon agreed to take title to the subject real

property in trust for Rodney, and in exchange, Rodney agreed to furnish the funds



                                           7
to pay for the property. For example, the evidence showed that Rodney submitted

a $500 check as the initial deposit for the purchase of the subject property;

Rodney, not Pharamon, took immediate possession of the subject property

following the closing; Rodney paid the mortgage until he was ousted by Monise;

and in several forms filled out by Pharamon’s family members, including Monise,

seeking financial assistance for Pharamon, Monise and Pharamon’s family

members denied that Pharamon owned any real property. On the other hand, the

appellees presented evidence that Pharamon did not intend to purchase the

property in trust for Rodney, and Pharamon used his own funds to purchase the

property. Although it is clear that the $500 deposit was provided by Rodney, it is

unclear whether Rodney merely gifted the $500 to Pharamon, and it is also unclear

who provided the funds to obtain the cashier’s checks totaling $12,057.82, which

Rodney claims he paid towards the purchase price.4 Thus, Rodney’s claim for a

resulting trust cannot be disposed of by summary judgment.

         In Count I of the complaint, Rodney sought to quiet title to the subject

property, asserting that Monise fraudulently “induced and forged Pharamon’s

signature” while Pharamon was ill. Further, based on his claim that he was the

rightful owner of the property, Rodney also filed a claim to eject Monise (Count

III) and for unjust enrichment against Monise based on her failure to pay rent


4   These are only a few of the disputed issues of material fact.

                                            8
(Count IV). In moving for summary judgment, the appellees presented evidence

reflecting that on December 8, 2004, Pharamon executed the quitclaim deed in

front of others, including Rodney; Pharamon was not suffering from any sort of

mental deficiency when he executed the quitclaim deed; and Pharamon’s mental

deficiencies did not arise until 2010, years after he executed the quitclaim deed. In

contrast, Rodney presented evidence that the week after executing the quitclaim

deed, Pharamon was admitted to the hospital with a specific type of dementia and

an altered mental status, which conditions existed three weeks prior to the hospital

admission, and therefore, Pharamon’s mental deficits existed at the time he

executed the quitclaim deed. The conflicting evidence clearly demonstrates the

presence of material issues of fact, and therefore, the trial court erred by entering

summary judgment in favor of the appellees as to Rodney’s claims to quiet title

(Count I), for ejectment (Count III), and for unjust enrichment (Count IV).

      Accordingly, because there exist genuine issues of material fact, we

conclude that the trial court erred by entering final summary judgment in favor of

the appellees. We therefore reverse the order on review and remand for further

proceedings.5


5  As we are reversing the order under review and remanding for further
proceedings, we do not address Rodney’s assertion that the trial court granted
certain appellees relief that was not sought in the complaint. For example,
although Count IV for unjust enrichment was only asserted as to Monise, the trial
court granted relief as to the three appellees, including Wilkins, who had defaulted.

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Reversed and remanded.




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