                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

SAMUEL M. DEPRIEST and               NOT FINAL UNTIL TIME EXPIRES TO
DOROTHY DEPRIEST,                    FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellants,
                                     CASE NO. 1D16-0807
v.

RICHARD      GREESON,       as
Personal Representative of the
ESTATE OF CHRISTIAN W.
SCHNITZSPAHN,

      Appellee.

_____________________________/

Opinion filed February 21, 2017.

An appeal from the Circuit Court for Walton County.
Thomas R. Santurri, Judge.

Erin Pogue Newell and Roy D. Wasson of Wasson & Associates, Chartered,
Miami; Henry Lawrence Perry and H. Les McFatter of Perry & Young, P.A,
Panama City, for Appellants.

Michael W. Kehoe of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for
Appellee.


KELSEY, J.

      In the gap between a decedent’s death and the appointment of a personal

representative, does Florida’s dangerous instrumentality doctrine make the estate

vicariously liable for damages that the decedent’s child allegedly caused while
driving the decedent’s car? On the specific facts presented here, which are

undisputed, the trial court concluded that the estate is not liable, and granted

summary judgment in favor of the personal representative. On these facts, but on

reasoning different from that articulated in the final judgment, we affirm.

                              Use of Decedent’s Car

      Decedent and his wife lived with Decedent’s adult daughter in Milton,

Florida. His car and its keys were kept at his daughter’s house, and she

occasionally drove his car with his permission. There is no evidence that Decedent

ever gave his daughter permission to continue to use the car in the event of his

death. Decedent’s will made no specific bequest of the car, and named his daughter

and stepson as equal co-beneficiaries under the residuary clause. About a month

after he died, his daughter was driving his car and came upon the scene of a recent

accident in which Appellants, Samuel Depriest and his grandmother, were in a car

that had collided head-on with an oncoming vehicle, killing the other driver. *

Decedent’s daughter collided with Mr. Depriest’s disabled car, allegedly causing

damages to Appellants in addition to what they suffered in the original collision.




*
  Mr. Depriest was charged with vehicular homicide as a result of the head-on
collision that occurred when he was driving the wrong way in the oncoming lane
after midnight. The charges were dismissed for lack of the requisite recklessness,
but reinstated on appeal. State v. Depriest, 180 So. 3d 1099 (Fla. 1st DCA 2015).
He was later tried and acquitted.
                                         2
      Appellants initially sued Decedent as owner of the car, before realizing he

had died. They amended their complaint, suing Decedent’s estate in addition to

Decedent’s daughter (later dropping her from the case). They alleged the estate

was vicariously liable for damages caused by the daughter’s use of Decedent’s car

because the estate had legal title to the car. They also alleged that the personal

representative had prior knowledge of the daughter’s use of the car and implied

control over the car, and had impliedly consented to the daughter’s use of the car

by failing to take any affirmative action to prevent her from using it. Although the

complaints did not articulate a specific species of vicarious liability, ultimately

Appellants relied on the dangerous instrumentality doctrine, which they argue on

appeal.

      The personal representative nominated in Decedent’s will was Decedent’s

stepson, who lived in South Carolina. Through discovery, the evidence established

that when the stepson was in Florida for Decedent’s funeral, he took the car title to

a local Florida probate attorney along with other papers needed to open a probate

case. He did not take possession of the car or its keys. There is no evidence that

there was any communication between Decedent’s stepson and Decedent’s

daughter about her use of Decedent’s car, nor any evidence that the stepson knew

the daughter intended to use Decedent’s car or knew that she did use it. Directly to

the contrary, he testified that he did not instruct her not to use the car, because he

                                          3
did not know she had ever used it and would not have thought Decedent would

have ever given her permission to use it. He knew she had her own car and

assumed she would not drive Decedent’s car. Therefore he did not think he had any

reason to take the keys or the car itself, or to prohibit her from using the car.

Appellants did not adduce any evidence disputing these facts.

      Decedent’s daughter called the stepson and reported the accident the day

after it occurred. A probate case for Decedent’s estate was filed four days after the

accident, and letters of administration issued twenty days after the accident,

appointing Decedent’s stepson as the personal representative. The car was insured,

and the insurer totaled it, paying the proceeds of the policy into the estate, where

the money was later listed as an asset.

                         Summary Judgment Standards

      A trial court’s order granting summary judgment is reviewed de novo.

Cantalupo v. Lewis, 47 So. 3d 896, 898 (Fla. 4th DCA 2010) (applying de novo

review to affirm summary judgment for defendant in negligent entrustment case);

Ruano v. Water Sports of Am., Inc., 578 So. 2d 385, 386 (Fla. 3d DCA 1991)

(affirming summary judgment where there was no negligent entrustment as a

matter of law). In this case the material facts are undisputed, leaving only their

legal effect in question, which we review de novo. Cantalupo, 47 So. 3d at 898.




                                          4
                              Ownership of the Car

      Before the trial court and again on appeal, the parties have disputed whether

the estate owned Decedent’s car after he died. The trial court concluded that the

estate was not the title holder or otherwise the owner when the accident occurred.

Although we agree with the trial court’s ultimate disposition of the case, we do not

agree that the estate had no legal ownership interest in Decedent’s car. When

Decedent died, “in the twinkling of a legal eye,” the car became an asset of his

estate. Sharps v. Sharps, 214 So. 2d 492, 495 (Fla. 3d DCA 1968) (holding that an

uncashed check payable to the decedent became an asset of his estate the instant he

died, and his widow would have to prove that it was a gift to her individually in

order to obtain the proceeds for herself). See also Mills v. Hamilton, 163 So. 857,

858 (Fla. 1935) (“It is well settled that at the death of the owner of any personal

property the title thereto vests in his personal representative and during the

administration the personal representative is entitled to the possession of the

same.”).

      Although Decedent’s car was an asset of the estate, it did not belong to

anyone individually. Decedent’s will did not bequeath the car to anyone, and his

daughter and stepson were co-equal beneficiaries under the residuary clause of the

will. Therefore, neither the daughter nor the stepson had any specific right to the

car, nor did either of them as individuals have a superior right against the other to

                                         5
prohibit use of the car. The car was an asset of the estate and subject to

administration. In re Vettese’s Estate, 421 So. 2d 737, 738 (Fla. 4th DCA 1982)

(holding that property improperly transferred directly to decedent’s daughters must

be returned to the estate for proper administration under the terms of the will and

governing law); see also § 731.201(14), Fla. Stat. (2013) (defining “estate” as “the

property of a decedent that is subject to administration”); Blechman v. Estate of

Blechman, 160 So. 3d 152, 157 (Fla. 4th DCA 2015) (“If the subject property will

pass either intestate or by way of a will, then it is part of the decedent's probate

estate.”). Ultimate ownership of the car would not be determined until after

resolution of claims, taxes, debts, expenses of administration, and other obligations

of the estate, if any. It might have ended up being sold to pay the estate’s

obligations, no longer belonging to the estate or any beneficiary.

                                Control of the Car

      Clearly, Decedent’s daughter had actual physical control of Decedent’s car.

Both the car and its keys were kept at her house, where her late father and

stepmother had lived with her. She claimed that Decedent had allowed her to use

his car on occasion and that she believed she had the right to use the car after his

death. These facts are undisputed. She did not claim or prove, however, that her

father had ever given her permission to use the car in the event of his death. He did

not give her the car in his will, which made no bequest of the car, naming his

                                          6
daughter and stepson as co-equal beneficiaries under the residuary clause. At the

time of the accident, therefore, the daughter had no ownership interest in the car or

express permission for post-death use of the car. She simply got the keys and drove

the car.

      The stepson’s legal status was different. Upon appointment by the court, the

stepson in his capacity as personal representative would have the right to control

the assets of the estate as authorized by Decedent’s will and the law. § 733.608,

Fla. Stat. (“All real and personal property of the decedent, except the protected

homestead, within this state and the rents, income, issues, and profits from it shall

be assets in the hands of the personal representative . . .” for payment of expenses

and obligations of the estate, for contribution, advancement, and distribution.). The

personal representative’s duties and powers commence upon appointment.

§ 733.601, Fla. Stat. Under the Probate Code, acts performed by the person

appointed, “occurring before appointment and beneficial to the estate,” have the

same effect as acts taken after appointment. Id. (emphasis added).

      This authority, however, does not impose on the nominated personal

representative any statutory duty to act prior to appointment. Richard v. Richard,

193 So. 3d 964, 968-69 (Fla. 3d DCA 2016) (affirming that relation-back doctrine

codified in section 733.601 reflected intent to avoid imposing legal duties on

personal representative prior to appointment and assumption of statutory duties).

                                         7
These authorities establish that a nominated or putative personal representative has

the legal authority to act for the benefit of the estate prior to appointment, but is not

statutorily required to do so.

      In this case, Appellants argued that Decedent’s stepson as nominated but not

yet appointed personal representative had the right to control Decedent’s car, and

that such authority to control established both an identifiable property interest in

the car and implied consent to Decedent’s daughter’s use of the car because he

took the title to a probate lawyer shortly after Decedent died but failed to take the

keys or the car itself. Based on the authorities cited above, we disagree with the

trial court’s reasoning on the question of the stepson’s right to control the car. We

nevertheless affirm the entry of summary judgment in favor of the estate.

      The facts relevant to this issue are undisputed and do not demonstrate actual

knowledge or consent (nor do Appellants argue actual consent). We conclude that

because Decedent’s stepson had no legal duty to prevent Decedent’s daughter from

using Decedent’s car, Appellants cannot demonstrate implied consent, which is an

essential element of their claim under the dangerous instrumentality doctrine. See

Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)

(articulating the “tipsy coachman” doctrine that “if a trial court reaches the right

result, but for the wrong reasons, it will be upheld if there is any basis which would

support the judgment in the record”).

                                           8
                    The Dangerous Instrumentality Doctrine

      Florida’s dangerous instrumentality doctrine is a creature of common law

that “imposes . . . vicarious liability upon the owner of a motor vehicle who

voluntarily entrusts that motor vehicle to an individual whose negligent operation

causes damage to another.” Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)

(citing S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (On Petition for

Rehearing)). An owner voluntarily entrusts a vehicle to another when it gives that

person authority to operate the vehicle by “either express or implied consent.” Id.

(citing Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993)).

      The undisputed facts here do not demonstrate express consent, and

Appellants do not argue otherwise. Rather, they rely entirely on implied consent.

Most vehicle cases involving implied consent examine factors such as what a car

owner knows about the driver’s prior use of the vehicle, the location and

accessibility of the keys, the nature of any familial relationship between owner and

driver, and the conduct of the parties after an accident occurs. Ming v.

Intramerican Car Rental, Inc., 913 So. 2d 650, 656 (Fla. 5th DCA 2005). The

factors set forth in Ming, however, do not establish implied consent in this case. It

is undisputed that Decedent’s stepson did not even know Decedent’s daughter had

ever had permission to drive the car, did not think that Decedent would have

allowed her to use the car, and did not know that she had ever driven the car. The

                                         9
relationship between Decedent’s daughter and his stepson, and their locations with

one living in Florida and the other in South Carolina, in no way establish consent.

After the accident, the only evidence of interaction between the two of them was

Decedent’s daughter’s phone call to her stepbrother to inform him of the accident,

again demonstrating no knowledge or control by the stepson. The undisputed facts

of this case fail to establish the element of consent necessary to maintaining a

cause of action under Florida’s dangerous instrumentality doctrine. See, e.g.,

Dooley v. Harris, 714 So. 2d 1206 (Fla. 5th DCA 1998) (affirming summary

judgment upon finding no evidence of implied consent in undisputed facts).

      Rather than use the Ming factors to establish implied consent, Appellants

rely on Decedent’s stepson’s failure to act despite having authority to act—with his

knowledge of authority to act demonstrated by his taking the car title to a probate

lawyer. We reject this argument as a matter of law. To say that implied consent

arises from a nominated personal representative’s failure to act when authority to

act exists is to create a duty to act prior to appointment, directly contrary to the

Probate Code’s distinction between authority and duty. § 733.601, Fla. Stat.;

Richard, 193 So. 3d at 968-69. Appellants’ argument could subject nominated

personal representatives to liability from which the Legislature intended to shield

them in the period after a death and before issuance of letters of administration

formally appointing them as personal representatives. The law does not impose

                                        10
such a duty on facts such as those presented here. Accordingly, we affirm the trial

court’s entry of summary judgment in favor of the estate.

      AFFIRMED.

LEWIS and ROWE, JJ., CONCUR.




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