PELLESCHI v. POCCI 2019 (2023)

Ana Maria Pelleschi and Brigitte Pelleschi, as the personal representatives of the estate of Renato Pelleschi (“the Estate”), appeal the trial court's final summary judgment in favor of Anna Pocci, also known as Anne Birnbaum, individually (“Birnbaum”) and as trustee of the Birnbaum Family Trust (“the Trust”).¹ The trial court concluded Birnbaum's residential condominium (“the Property”) was protected homestead property, and therefore not subject to the Estate's claims under Florida's Uniform Fraudulent Transfer Act (“FUFTA”). We affirm as to Birnbaum without further discussion. We find, however, that the trial court erred by granting homestead protections to the Trust, which did not own the Property at the time the trial court entered summary judgment. The trial court did not find that the Property was homestead at the time of the relevant transfers. We therefore reverse and remand for further proceedings against the Trust.

Luana Mannucci, Renato Pelleschi's wife, died in Italy. Birnbaum and her brother, Francesco Pocci, were Mannucci's cousins. Following Mannucci's death, the cousins submitted a will that devised Mannucci's entire estate to them. Pelleschi, as the surviving spouse, thereafter, petitioned an Italian court to declare him the sole heir of his deceased wife's estate. An Italian court concluded the will had been forged. It ordered Birnbaum and Pocci to return the property or its monetary equivalent.

After Renato Pelleschi died, Ana Maria Pelleschi and Brigitte Pelleschi became the personal representatives of his estate and the successors in interest to the Italian judgment. The Estate ultimately pursued two Florida actions to collect the judgment. First, it filed this action in Collier County, where the Property is located. Second, the Estate filed a successful petition to domesticate the Italian judgment in Miami-Dade County.

In this case, the Estate sued Birnbaum and the Trust for two separate FUFTA violations. See §§ 726.105, 726.106, Fla. Stat. (2019). Under both claims, the Estate alleged Birnbaum had fraudulently transferred the Property to the Trust in October 2019 to avoid paying the Italian judgment. After the Estate filed its complaint, the Trust transferred the Property back to Birnbaum in October 2020. Birnbaum and the Trust filed an answer and affirmative defenses, contending that the Property was Birnbaum's homestead and thus exempt from the Estate's claims. Birnbaum and the Trust later moved for summary judgment on the homestead defense, which the trial court granted as to both parties.

We review de novo the trial court's summary judgment. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The Florida Constitution protects a homestead from forced sale to pay creditors, except for payment of certain debts. Art. X, § 4(a), Fla. Const. Here, the Trust does not own the Property; indeed, Birnbaum adduced undisputed evidence that the Trust had deeded it back to her. Although the trial court found that the Property was Birnbaum's homestead in November 2020, it did not find that the Property was either party's homestead in October 2019 or October 2020. Accordingly, the trial court erred when it determined the Trust was entitled to a homestead defense. For these reasons, we reverse and remand for further proceedings against the Trust. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

I write separately to clarify the nature of homestead as a defense to a fraudulent transfer action. Under the Florida Uniform Fraudulent Transfer Act, a creditor is not limited to in rem relief. Section 726.108(1)(c)3., Florida Statutes, provides that “[i]n an action for relief against a transfer or obligation under [sections] 726.101-726.112, a creditor ․ may obtain ․ [a]ny other relief the circumstances may require.” Further, “to the extent a transfer is voidable in an action by a creditor under [section] 726.108(1)(a), the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3), or the amount necessary to satisfy the creditor's claim, whichever is less.” § 726.109(2), Fla. Stat.

Accordingly, while the Estate may be unable to reach the specific asset transferred because Mrs. Pocci eventually established it as her homestead, the Estate may still be entitled to in personam relief against the Trust if it is shown that the asset was not protected homestead at the time of the transfer. In such a case, the asset would have been available to satisfy the creditor's claim at the time of the transfer. Pasternack v. Klein, No. 8:16-CV-482-T-33CPT, 2019 WL 330593, at *5 (M.D. Fla. Jan. 25, 2019) (“Notwithstanding the ․ property's current homestead status, the property was not ․ homestead at the time of the transfer ․ and therefore, was property subject to payment of the debt due.”).

FOOTNOTES

1.   This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.

PER CURIAM.

TRAVER, C.J., and WHITE, J., concur. NARDELLA, J., concurs and concurs specially, with opinion.