Monday, July 3, 2017

" true facts were known to the omitter before or at the time the court entered its order," Same thing happened in the Estate of Simon Bernstein. True Facts are KNOWN by Ted Bernstein and by Attorney Alan Rose. They have Unclean Hands.


File No.

Division: IH

An incapacitated person


NOVEMBER 9, 20161

On February 27, 2017 and March 27, 2017 the parties presented for a full day of
evidentiary hearing on Courtnay Montgomery Verified Amended Motion to Invalidate and Set
Aside Settlement Agreement, DE. 296.

The parties presented their testimony and evidence and the Court carefully evaluated and
weighed the testimony presented, considering the intelligence, frankness, credibility, plausibility,
character, and competence of each witness, all the while being cognizant of the interests of the
parties in the outcome of the case. Based on the forgoing, giving the evidence and testimony the
weight it deserves, the Court has resolved any conflicts in the evidence. After evaluating the
witnesses? testimony, exhibits, and the applicable law, and being otherwise informed in the
premises, the Court makes the following Findings of fact and conclusions of law:


On March 28, 2016, Courtnay Montgomery (hereinafter ?Ms. Courtnay?), individually and
as Mrs. Montgomery's agent under 2015 advanced directives, signed a Settlement Agreement
resolving contested issues in the guardianship of Mrs. Montgomery. This included setting aside
the Fourth and Fifth Amendment to the Mary M. Montgomery Trust. The settlement agreement
in re Guardianship of Mary Montgomery.

Order Denying Courtnay Montgomery?s Verified Amended Motion to invalidate and Set Aside Settiement Agreement was also signed by Mr. Cramer (through his counsel) and by John R. Neason as proposed co-guardians; Carolyn Landon, Esq. and Theo Kypreos, Esq., as counsel for Mrs. Montgomery; and Hilda Santana, individually and as nominated Successor Co-Trustee of the Mary M. Montgomery Trust. The same day, Judge John Phillips entered the Order approving the
Settlement Agreement Judge Phillips entered Orders and Letters appointing co-
guardians of the person and property #s 80, 82, 83, and 84], ?nding no lesser restrictive
alternatives to guardianship and setting aside any existing durable powers of attorney.

On November 9, 2016, Ms. Courtnay ?led her Veri?ed Amended Motion to Invalidate and
Set Aside Settlement Agreement (hereinafter the ?Amended Motion?). In her Amended Motion,
Ms. Courtnay alleges that the Order approving the Settlement Agreement should be vacated
pursuant to Florida Rule of Civil Procedure 1.540 for the following reasons: (1) Mrs.
Montgomery was incapacitated at the time the. Settlement Agreement was signed, and no one had
the authority to sign on her behalf; (2) the Settlement Agreement is ineffective to revoke the
Fourth and Fifth Amendments to the Mary M. Montgomery Trust; (3) Mr. Cramer omitted
material facts on his Application for Appointment as Guardian (4) Mr. Cramer and
Hilda Santana made certain misrepresentations to Ms. Courtnay; and (S) the Settlement
Agreement is invalid for failure of consideration.

Mr. Cramer signed the settlement agreement as the proposed guardian. He was appointed by
a subsequent Court order. Accordingly, this Court will not address that argument.

A. Rule 1.540, in general

Rule 1.540, which governs relief from orders or decrees, provides relief only under a
limited set of circumstances, including but not limited to fraud, misrepresentation, or misconduct
of an adverse party, or circumstances where it is no longer equitable that the order apply. Fla. R.
Civ. P. 1.540(b) (2016). The decision to vacate a judgment or order under 1.540 is within the
trial court?s sound discretion. Travelers Commercial Ins. Co. v. Harrington, 187 So. 3d 879, 884
(Fla. DCA 2016).

Rule 1.540 is not a substitute for a timely appeal, and a litigant cannot avail herself of
Rule 1.540 when she has failed to timely challenge the original judgment or order. Baez v. Perez,
201 So. 3d 692, 694 (Fla. 4th DCA 2016) (citing Beal Bank, 8.8.3., Inc. v. Sherwin, 829 So. 2d
961, 962 (Fla. 4th DCA 2002)). Appealable judicial error is never a basis for setting aside an
order under Rule 1.540. See Baez, 201 So. 3d at 694 (holding that trial judge?s failure to grant a
motion to continue was not grounds under Rule 1.540 for overturning a ?nal judgment and
accompanying orders, because the issue could have been raised on appeal); annenbanrn v. Shea,
133 So. 3d 1056, 1060 (Fla. 4th DCA 2014) (citing Curbelo v. Ullman, 571 So. 2d 443, 444 (Fla.
1990)). A mistaken View of the facts or law is the type of ?judicial error? that may not be
corrected by a motion brought under Rule 1.540. Sehrank v. State Farm Mat. Auto. Ins. Co., 438
So. 2d 410, 412 (Fla. 4th DCA 1983).

B. Settlement agreements

Rule 1.540?s limited applicability should be read in light of the public policy favoring
settlement agreements. Settlement agreements are highly favored in the law and, once entered,
in re Guardianship of Mary Montgomery are binding upon both the parties and the courts. Dorson v. Dorson, 393 So. 2d 632, 632 (Fla. 4th DCA 1981). As such, settlement agreements are to be interpreted by the same principles governing the interpretation of contracts. Id. (citing Fla. Educ. Ass Inc. v. Atkinson, 481 F. 2d 662 (5th Cir. 1973).

C. Fraud, misrepresentation, and misconduct

Rule provides that an order may be vacated based upon fraud, misrepresentation,
or misconduct of an adverse party. Fla. R._Civ. P. Fraud, misrepresentation, and
misconduct appear to be overlapping categories and not separate, distinct entities. See e.g.
Schlapper v. Maurer, 687 So. 2d 982, 985 (Fla. 5th DCA 1997) (referring to ?fraudulent
misrepresentations?). Even though Ms. Courtnay does not explicitly plead fraud, she does plead
misconduct and misrepresentation (together with ?bad faith,? which is not an enumerated ground
under Rule 1.540).

1. Elements of fraud

Fraud is not an undefined concept; as the Fourth District Court of Appeal has noted,
many cases, the term ?fraud? is loosely used to label all conduct which has displeased an
opposing party.? Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994). The
elements required to establish an independent cause of action for fraud are equally applicable to
motions brought under Rule See Schlapper, 687 So. 2d at 985 (incorporating the
elements of fraud into a Rule 1.540 analysis). Therefore, to win a motion under Rule 1.540 on
the grounds of fraudulent misrepresentation or misconduct, the moving party must establish (1) a
misrepresentation of a material fact; (2) that the representor knew or should have known of the
statement?s falsity; (3) that the representor intended the misrepresentation to induce another to
rely and act on it; and (4) that the moving party justifiably relied on the misrepresentation.

Eagletech Comm, Inc. v. Mawr Inv. Grp., Inc, 79 So. 3d 855, 861 (Fla. 4th DCA 2012).

An omission of fact can constitute one of the elements of fraud when the true facts were known to the omitter before or at the time the court entered its order, and the omitted facts would have been material to the court?s determination. See Crowley v. Crowley, 678 So. 2d 435, 438 (Fla. 4th DCA 1996) (vacating ?nal judgment of divorce when former wife admitted to withholding material facts from trial court).

Failure to read a contract before signing it is not grounds for rescission. Allied Van Lines,
Inc. v. Bratton, 351 So. 2d 344, 347 (Fla. 1977) (holding that party to a written contract in
[Florida] can defend against its enforcement on the sole ground that he signed it without reading
see also Gri?in Bros. Co., Inc. v. Mohammed, 918 So. 2d 425, 430 (Fla. 4th DCA 2006)
(company of?cer could not rescind contract with insurance agency for fraud; even though
insurance agent told of?cer that company was ?covered in every single thing in liability,?
contract clearly listed exclusions, and there was no allegation that of?cer was prevented from
reading the policy).

2. Obvious falsities

If a misrepresentation is obviously false, the recipient cannot rely upon it. Schlapper, 687
So. 2d at 985 (citing Besen? v. Basnett, 389 So. 2d 995, 998 (Fla. 1980)); see Jacobs v. Jacobs,
868 So. 2d 568, 570 (Fla. 3d DCA 2004) (holding that former wife was not entitled to relief from
?nal judgment of divorce, which incorporated terms of marital settlement agreement on grounds
that former husband misrepresented his ?nancial position when former wife had access to correct
information regarding former husband?s ?nances); Winston v. Winston, 684 So. 2d 315, 319-320
(Fla. 4th DCA 1996). In Winston, two brothers, serving as their mother?s co-guardians, jointly
petitioned the court to have their mother?s assets transferred to 'a marital trust created under their
father's will. Winston, 684 So. 2d at 316.

The petition asserted that the purpose of the transfer was to reduce the tax consequences for the estate, and the trial judge entered an order granting the petition. Id. Several years later, one brother moved to vacate the order under Rule 1.540, claiming that the other brother had concealed the true intent of the transfer, which was to prevent the ?rst brother from receiving his share of his mother?s assets outright. Id. at 317. Indeed, while the mother?s will left each son a ?fty percent outright share in her residual estate, the marital trust devised the complaining brother?s share to him in installments paid over an extended period. Id. In addressing the complaining brother?s public policy arguments, the court noted that the actual estate planning documents were ?led with the court and therefore accessible to all parties, and that there was no evidence that the complaining brother had been denied access to that information. Id.

3. Promises to perform a future act

Generally, for a false statement of fact to constitute fraud, it must be a statement regarding a
past or existing fact, not a promise to do something in the future. Wadlington v. Continental
Med. SVCS., Inc, 907 So. 2d 631, 632 (Fla. 4th DCA 2005) (citing Vance v. Indian Hammock
Hunt Riding Club, Ltd, 403 So. 2d 1367, 1371 (Fla. 4th DCA 1981)); see eg. Benton v.
Benton, 895 So. 2d 1101, 1103 (Fla. 1st DCA 2005) (holding that former husband?s refusal to
abide by unof?cial agreement he had with former wife regarding custody and child support was
not grounds to vacate the final consent judgment setting forth terms of divorce). The exception
to this rule is where there exists clear and convincing evidence that a promise to perform a
material matter in the future is made without any intention of actually performing, or made with
the positive intention not to perform; in other words, the maker must know at the time he makes
his promise that he does not intend to keep the promise. Id. (citing Bongard v. Winter, 516 So.

Montgomery Verified Amended Motion to In validate and Set Aside Settlement Agreement
2d 27, 27 (Fla. 3d DCA 1987)). Only then would there be fraud, assuming that the complaining
party establishes all four elements. See Eagletech Comm, Inc, 79 So. 3d at 861. A party also
may claim duress or coercion, but to vacate an order on those grounds under Rule 1.540, there
must be evidence of threat, fraud, or misconduct. Schez'nvold v. Hobie, 627 So. 2d 1203, 1205
(Fla. 4th DCA 1993) (citing Paris v. Paris, 412 So. 2d 952, 953 (Fla. DCA 1982)).

4. Lack of consideration

Courts will ordinarily not cancel or rescind contracts for failure of consideration when there
is no evidence of fraud. Cintas Corp. v. Schwalier, 901 So. 2d 307, 308 (Fla. 1st DCA 2005);
Royal v. Parado, 462 So. 2d 849, 855 (Fla. DCA 1985). Rather, an action at law is the
appropriate remedy. Id.

5. Unclean hands

A court may deny a Rule 1.540 motion if the court determines that the moving party has
unclean hands. Cf Hm v. Hitt, 535 So. 2d 631, 634 (Fla. 4th DCA 1988) (considering, but
ultimately denying, an unclean hands defense to a Rule 1.540 motion) (citing Cain v. Cain, 436
So. 2d 367, 369 (Fla. 4th DCA- 1983)). Unclean hands ?is a self-imposed ordinance that closes
the doors of a court of equity to one tainted with inequitableness or bad faith relative to the
matter in which he seeks relief.? Congress Park O?iee Condos LLC v. int?Citizens Bank
Trust Co., 105 So. 3d 602, 609 (Fla. 4th DCA 2013) (quoting Precision Instrument Mfg. Co. v.
Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945)). Courtnay?s Trio! Memorandum of Law
acknowledges and in fact argues that Rule 1.540 provides for equitable relief, citing Lacore v.

Giralda Bake Shop, Inc, 407 So. 2d 275, 276 (Fla. 3d DCA l981)1.

Courtnay also cites to' Lacore for the proposition that Rule 1.540 is to be liberally construed;
however, Laoore concerned a default judgment, and the courts generally disfavor default
judgments. Paul v. Weds Fargo Bank, N.A., 68 So. 3d 979, 981 (Fla. 2d DCA 2011), see also


By Court Order dated March 28, 2016, this Court approved the Settlement Agreement
reached among the parties: Ms. Courtnay, individually and as Mrs. Montgomery's agent under
2015 advanced directives, Mr. John Crarner (through his counsel) and by John R. Neason as
proposed co-guardians; Carolyn Landon, Esq. and Theo Kypreos, Esq., as counsel for Mrs.
Montgomery; and Hilda Santana, individually and as nominated Successor Co-Trustee 0f the
Mary M. Montgomery Trust. The same day, Judge John Phillips entered an Order approving the
Settlement Agreement he entered Orders and Letters appointing co-guardians of the
person and property #s 80, 82, 83, and 84].

By Court Order dated April 5, 2016 in Case No. 502016CP000018, and in accordance
with the Settlement Agreement, this Court con?rmed that the Fourth and Fifth Amendments to
the Mary Montgomery Trust were withdrawn, revoked, and deemed ineffective.

It is undisputed that Ms. Courtney did not appeal either Court Order. Ms. Courtnay
did not appeal any orders on the appointment of the Guardians as well. These were judicial acts
of the Court that settled pending litigation. It is undisputed that Ms. Courtnay was represented.
The Court heard the testimony of Amy Beller, Esquire, who represented Ms. Courtnay. Ms.
Beller recalled the terms of the agreement being summarized for the Judge; Ms. Beller never
said Ms. Courtnay was not in agreement; Ms. Beller testi?ed the hearing was coordinated and
she had the opportunity to review the proposed orders. Ms. Courtnay does not allege her
attorney relied on another?s attorney?s misrepresentation to her detriment with regard to the

Roseublatt v. Rosenblatt, 528 So. 2d 74, 75 (Fla. 4th DCA 1988) (applying the concept of
liberality to a default judgment). Unlike default judgments, settlement agreements are highly
favored by the courts. Dorson, supra; Gogoleva v. Soffer, 187 So. 3d 268, 274 (Fla. 3d DCA

Settlement Agreement. The Motion does not allege that conduct of opposing counsel or the
opposing party prevented her from presenting her interests in this matter.

Ms. Courtnay raised arguments regarding a ?side agreement? with .R. Neason and John
Cramer. It is undisputed that the Order Appointing Limited Co-Guardians of the Person states as

Appointing Limited Co-Guardians of the Person clearly establishes as follows:

8-. 'Th?e (to-Guardians of the Person shall- act in concert with
each other, provided however, in the event of any deadlock among themi,
or the inability of tie?Guardian John Cranmer to secure John R. Neason?'ls-
-imediate input decision,- ?Joh'n crane: shall have the authority
to act unilaterally and?makelzdecieione alone. In the eVeht-that Johjn
Cramer shall act unilaterally or make a decision alone as describeid
vabOv'e, John R. Neason- .?shall not be liable, .in an individual capacity
or as a fiduciary, for. such act or decision by John Cramer..

9 . Any advance diI-rebtive executed pursuant- to Chapter 7653:,
Florida Statutes shall no longer be effective and-the 'Co--Giia'rdi'anls
of the". Person shall exercise all authority of any other health
care surrogate.


Once again, this was not appealed as well.

Ms. Courtnay testi?ed that she signed the agreement. She did not read the settlement. In
fact, Ms. Courtnay testi?ed even when she signed the document it was her intention to contest
the document. She studied law in Scotland and graduated in 2009; she has a law degree. Ms.
Courtnay admitted she was offered a check pursuant to the settlement agreement and she did not
take the check. The Court rejects any arguments with regard to failure for consideration. When
Ms. Courtnay signed the settlement agreement, it was her belief she was serving under the
advanced directive for Mary Montgomery. It is undisputed she also signed personally.
in re Guardianship of Mary Montgomery

Order Denying Courtnay Montgomery?s Verified Amended Motion to invoiiddte 
and Set Aside SettlementAgreement

There was no competent, substantial evidence demonstrating a misrepresentation relied
upon by Ms. Courtnay. Accordingly, Ms. Courtnay failed to prove misrepresentation or fraud.
Moreover, when giving all the evidence the appropriate weight, the Court ?nds no competent
substantial evidence to support any of Ms. Courtnay?s remaining arguments.

Accordingly, it is hereby ORDERED: Courtnay Montgomery?s Verified Amended
Motion to Invalidate and Set Aside Settlement Agreement, DE. 296, is DENIED.

DONE AND ORDERED in Palm Beach Gardens, Palm Beach County, Florida this 27th day

of April, 2017


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