    Third District Court of Appeal
                            State of Florida

                         Opinion filed July 11, 2018.
      Not final until disposition of timely filed motion for rehearing.

                            ________________

                            No. 3D17-2365
                      Lower Tribunal No. 16-22013
                          ________________


     Luis Gerardo Vazquez Calderόn, a/k/a Luis Vazquez,
                                 Appellant,

                                     vs.

                             Juan Vazquez,
                                 Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Antonio
Marin, Judge.

      Warren Gammill & Associates, and Warren P. Gammill, for appellant.

      Pardo Jackson Gainsburg, and Nicole R. Rekant and Stevan J. Pardo,
for appellee.


Before SALTER, EMAS and LOGUE, JJ.

      SALTER, J.
        Luis Vazquez (“Luis”) appeals a circuit court order dismissing his

amended complaint with prejudice. The appellee here and defendant in the

trial court is Luis’s uncle, Juan Vazquez (“Juan”). The amended complaint

alleges six counts relating to the proceeds of a $120,000.00 life insurance

policy on the life of Luis’s father, René Vazquez (“René”; Juan’s brother).

We reverse the order dismissing the amended complaint with prejudice.

        We review a final order dismissing a complaint with prejudice under

the de novo standard of review.       In doing so, we assume all of the

allegations in the complaint are true. We construe all reasonable inferences

from the allegations in favor of Luis. United Auto. Ins. Co. v. Law Offices

of Michael I. Libman, 46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010). The

recitation which follows consists of allegations by Luis in the amended

complaint, which are subject to proof and to defenses that may be raised by

Juan.

        In 2003, René was living in Michigan and working at a business

owned by Juan. René’s wife, Sulma Vazquez (“Sulma”), and Luis were in

their home country, Bolivia, caring for Sulma’s father, who was ill. During

the time he was working in Michigan, René obtained a Fortis Benefits

Insurance Company life insurance policy for $120,000.00 on his life (the

“Policy”). Although René designated his brother Juan as the beneficiary of



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the Policy, he made it clear to Juan that the proceeds of the Policy were to be

held in trust by Juan for Sulma and Luis for their education and living

expenses after René’s death.

      René also left a Last Will and Testament signed in La Paz, Bolivia, in

September 2003 (the “Bolivian Will”). A translation of the Bolivian Will by

a court-certified interpreter included these provisions:

      I [René] . . . in my role as husband and father, being of sound
      mind, without any defects in consent, prepare this will in favor
      of my wife [Sulma] . . . and of my son [Luis], so that they can
      benefit from all the assets I possess or may acquire in the
      future, furthermore I declare that I have obtained a Life
      Insurance in the United States of North America in the
      Company FORTIS BENEFITS INSURANCE COMPANY, for
      the amount of US$120,000 (ONE HUNDRED TWENTY
      THOUSAND US DOLLARS) being the only beneficiaries my
      wife and my son aforementioned for the purpose of assuring the
      Education Living Expenses of both of them . . . .

      The amended complaint further alleges that René passed away in late

2003, and Juan received the full proceeds of the Policy from Fortis Benefits

in 2004.   Juan and his wife placed approximately $46,000.00 of those

proceeds in an investment account at Banc One Securities Corporation; they

named Luis as the sole beneficiary of the money in the account.

      As Luis grew up, Juan repeatedly acknowledged that the proceeds of

the Policy were intended to be used for Luis’s education. In 2012, at Luis’s

and Sulma’s request, Juan sent $20,000.00 of the Policy proceeds to Sulma



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in Bolivia. Half of the funds were used for Luis’s education, and the other

half was used to fix up his home.

       Sulma executed a written assignment to Luis of her rights in, and

claims to, the Policy proceeds before the lawsuit was filed. In the fall of

2014, Sulma and Luis asked Juan to deliver the balance of the proceeds to

Luis to pay for his college education. “Juan has repeatedly promised that he

would remit the funds to Luis,” but in 2015 Juan refused to pay the

remaining proceeds to Luis. Juan claimed instead that the funds are his.

Luis filed the lawsuit in 2016, filing an amended complaint (as of right) a

week             after              the         initial          complaint.

       Juan moved to dismiss the amended complaint, (a) alleging facts

outside the amended complaint (the payment of $70,000.00 in death benefits

from a second insurance policy on René’s life directly to Sulma, as the

designated beneficiary) and (b) contending that the one-page purported

Bolivian will was fatally inconsistent with the conceded designation by

René of Juan as his beneficiary under the Policy, such that further

amendment would be futile.

       The trial court agreed, dismissing the amended complaint with

prejudice. This appeal followed.




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      Cases cited by Juan’s counsel, particularly Brown v. Di Petta, 448 So.

2d 561, 562 (Fla. 3d DCA 1984), do indeed hold that under Florida law, “a

beneficiary under a life insurance policy may be changed only by strict

compliance with the conditions set forth in the policy,” and proof that an

insured merely intended to change the beneficiary is insufficient to

accomplish such a change.1 But that is not the issue presented here.

      The issue presented here is whether Juan, whether by agreement or

operation of law, became a trustee with respect to the proceeds paid over to

him as designated beneficiary. The elements of such a trust or an equitable

lien—in a strikingly similar case—are detailed in In re Maurer, 267 B.R.

639, 651-53 (Bankr. M.D. Fla. 2001). In that case, as here, the owner of the

policy sought to provide for minor children. The owner designated an adult

relative as beneficiary to receive the policy proceeds for the benefit of the

children.    Florida’s statutory Trust Code expressly allows the creation of

oral trusts, though the terms of such a trust must be established by “clear and

convincing evidence.” § 736.0407, Fla. Stat. (2017).

      Parol evidence may establish a trust in personal property. In re Estate

of Pearce, 481 So. 2d 69 (Fla. 4th DCA 1986); Rosen v. Rosen, 167 So. 2d

1 But see § 732.703, Fla. Stat. (2017), originally enacted in 2012 to address
the effects of a dissolution of marriage upon certain pre-dissolution
designations of beneficiary by one of the former spouses in favor of the
other former spouse.

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70 (Fla. 3d DCA 1964) (trust imposed on life insurance proceeds for the

benefit of the insured’s minor children).

      Nor is the purported Bolivian Will facially or fatally inconsistent with

the Policy’s beneficiary designation at the time of René’s death.           That

document expresses an intention to benefit Sulma and Luis, not Juan. The

term “beneficiaries” may refer to the beneficiaries of his will or the oral trust

rather than the beneficiary to receive the proceeds from the insurer initially

upon René’s death.

      It follows that Luis’s position is well taken, and the order of dismissal

with prejudice must be reversed and remanded for further proceedings. We

reiterate that the allegations in the amended complaint remain to be proven,

and Juan remains free to raise affirmative defenses to the causes of action

enumerated in the amended complaint.

      Reversed and remanded for further proceedings.




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