DocketNumber： 14-1819 & 14-0038
Citation Numbers： 221 So. 3d 1206, 2016 Fla. App. LEXIS 17684, 2016 WL 6992203
Judges： Shepherd, Rothenberg, Scales
Filed Date： 11/30/2016
Status： Precedential
Modified Date： 10/19/2024
Arthur S, Turkish (“Arthur”) and Shari Turkish (“Shari”) (collectively, “Co-Trustees”) appeal, and Carole Brody (“Carole”)
I. FACTS AND PROCEDURAL HISTORY
Mrs. Trask died on June 2, 2010. Later that month, the Estate was opened, and Arthur was named as the Estate’s personal representative. Mrs. Trask’s last will and testament named two of her adult children, Arthur and Carole, as equal beneficiaries and disinherited a third adult child.
A. Trust Number One and Trust Number Two
Prior to her death, Mrs. Trask created the Ada Turkish Trask 2005 Trust Number One (“Trust Number One”) and the Ada Turkish Trask 2005 Trust Number Two (“Trust Number Two”) on January 27, 2005, naming Arthur and his daughter, Shari, as co-trustees.
1. Trust Number One
Carole and Arthur were the beneficiaries of Trust Number One during Mrs. Trask’s lifetime, and upon Mrs. Trask’s death, the remaining principal was to be divided equally between Carole and Arthur. Trust Number One vests the Co-Trustees with “absolute discretion” during Mrs. Trask’s lifetime to make distributions from the trust’s principal to Arthur and/or Carole “in equal or unequal amounts and to either one of them to the exclusion of the other.” Trust Number One also permits Arthur, as trustee, to make distributions to himself for his “support, health, education and/or maintenance without the consent of any other Trustee then serving.” The primary asset transferred into Trust Number One was a 99% interest in the Ada Turkish Trask Family Limited Partnership (“FLP”), which was valued at $2,299,700 when transferred.
2. Trust Number Two
Mrs. Trask was the sole beneficiary during her lifetime of Trust Number Two. Upon Mrs. Trask’s death, the remaining principal was to be divided equally between Arthur and Carole.
B. The Settlement of Mrs. Trask’s Gift Tax Liability
The year after Trust Number One and Trust Number Two were created, Mrs. Trask, through counsel, voluntarily disclosed to the Internal Revenue Service (“IRS”) that she owed over $3 million in outstanding gift taxes for the years 1991 through 2004. In June 2008, Mrs. Trask and the IRS settled for $1,022,500.
C. Carole’s Objection to the IRS Transaction
In late July 2008, Carole’s counsel objected to the IRS transaction, asserting that the transaction was a breach of the Co-Trustees’ “responsibility” because the effect was to give over $1 million to Arthur from Trust Number One, which was intended to benefit both Arthur arid Carole.
D. Accountings for 2005 through 2007 for Trust Number One and Trust Number Two and the Resolution of Carole’s Objections to the IRS Transaction
On August 19, 2009, Carole received revised accountings for the time period covering January 27, 2005 through December 31, 2007, for Trust Number One and Trust Number Two (“2005 to 2007 accountings”), along with a Receipt and Release Agreement (“RRA”). These accountings included a statute of limitations notice consistent with section 736.1008(4), Florida Statutes (2009), which notified Carole that there is a six-month statute of limitations for any claim for breach of trust based on matters adequately disclosed in the accountings or any other written report of the trustees.
In September 2009, in response to Carole’s objections to the IRS transaction, the Co-Trustees and Carole executed a Supplemental Release Agreement (“SRA”), which provides that the SRA was supplementing the RRA for the 2005-2007 ac-countings. The SRA provides that the parties were settling all claims arising out of the IRS transaction. The SRA accurately reflects the IRS transaction and Carole’s objections to the IRS transaction. Specifically, the SRA provides that Arthur, individually, was willing to “assign the Note to Trust Number One in satisfaction of any and all claims against him by all beneficiaries of Trust Number One” arising out of the IRS transaction, and that “each interested party ... waives any right he or she has, might have or has had to object to any action or omission of Arthur Turkish and/or Shari Turkish, individually, or of Arthur Turkish and/or Shari Turkish, as Trustees of Trust Number One.” The SRA also provides that “the Trustees, Arthur Turkish and Shari Turkish, have described and provided the value (if known) of the assets of Trust Number One and Trust Number Two as of December 2007 in a Summary, of Assets being attached to this Supplemental Release Agreement.... ” The attached Summary of Assets provides that as of December 31, 2007, Trust Number One held, in part, a 99% interest in the FLP, and sets forth the value of the FLP. The Summary of Assets also reflects the value of Trust Number Two.
E.Accountings for 2008, 2009, and 2010
1. 2008 Accountings
On July 7, 2010, Carole received the accountings for Trust Number One and Trust Number Two for the time period stemming from January 1, 2008 to December 31, 2008 (“2008 accountings”), along with the RRA for those accountings. Along with the 2008 accountings and the RRA, the Co-Trustees submitted a Summary of Assets, which adequately disclosed the value of the assets in Trust Number One and Trust Number Two. The 2008 accountings contained the statute of limitations notice, notifying Carole of the applicable six-month statute of limitations for a breach of trust action based on matters
2. 2009 to- 2010 Accountings
On October 11, 2011, Carole received the accounting for Trust Number One and Trust Number Two for the period -stemming from January 1, 2009 to June 30, 2010 (“2009 to 2010 accountings”).
F. The Adversary Proceedings
1. The Trust Litigation Filed by Carole
On April 6, 2011, Carole sued Arthur and Shari individually' and as trustees. The operative complaint asserts, in part, claims for breach of fiduciary duty and unjust enrichment based on their actions as co-trustees of Trust Number One during three separate time periods—January 27, 2005 through December 31, 2007; January 1, 2008 through December 31, 2008; and January 1, 2009 through June 30, 2010—contesting the numerous distributions to Arthur from Trust Number One, including the distribution to Arthur in the amount of $1,022,500 for the IRS transaction in 2008.
The Co-TrusteeS answered the operative complaint, asserting several affirmative defenses, including that Carole’s claims are barred by the RRA and SRA. Both the Co-Trustees and Carole moved for summary judgment. In moving for summary judgment, the Co-Trustees argued that; (1) the distributions, including the distribution for the IRS transaction, were disclosed in the accountings, and therefore, Carole’s claims are barred by the applicable six-month statute of limitations, for claims brought by a beneficiary against a trustee for breach of trust; (2) the distributions made to Arthur were permitted under the broad terms of Trust Number One; and (3) Carole’s claim as to the IRS transaction.is barred by the SRA, which supplemented the RRA for the 2005 to 2007 accountings. The trial court denied the motions.
2. The Promissory Notes Litigation filed by Arthur, as Personal . Representative of the Estate
In October 1991, Carole and her late husband, Jeffrey Brody, executed two demand promissory notés ($20,000 and $45,000) in favor of Arthur, individually, and in March 1997, they executed a third demand promissory note ($45,000) in favor of Arthur, individually. Following Mrs, Trask’s death, Carole learned that each time she asked Arthur to loan her money, Arthur obtained the funds from Mrs. Trask,
In October 1991, Mrs. Trask handwrote the following letter:
October 8th, 1991
To Whom it may Concern:
My son, Arthur Turkish, informed me that my daughter Carole and her husband Jeffrey Brody, were in need of $65,000. As I understand, Arthur tried to get a loan from the banks, but that would have taken too long, as they need the money before the end of October 1991, therefore Arthur had no alternative but to ask me for the money (Carole told Arthur not to mention this to Mother (meaning me)[.]
Accordingly, I am giving Arthur a check today in the amount of $20,000.00 and when the funds are available to me, .1 will give Arthur the balance of the $65,000.00,
Please-be advised, that I will not demand or expect' repayment of these monies that I have given and will,give to Arthur, who in turn,, will give to Carole and Jeffrey Brody, until such monies are repaid in full by Carole and Jeffrey Bro-dy. /s/ Ada Turkish Trask
Further, in March 1997, Mrs. Trask penned the following letter:
March 24th, 1997
Dear Arthur,
*1211 I am going to give you $30,000 this week so you can give it to Carole and her husband, Jeffrey Brody for his business. I do not want you to tell them that I am giving them this money or that you told me about it....
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I will not demand or expect repayment of this money that I have given you until such money is repaid in full by Carole and Jeffrey.
I love you,
/s/Mother"'
(Ada Turkish Trask)
In July 2011, Arthur assigned the three promissory notes to himself as the personal representative of the Estate based on the theory that the money was never owed to Arthur, but to Mrs. Trask’s Estate. Thereafter, Arthur, as personal representative of the Estate, demanded payment of the three promissory notes plus accrued interest. After Carole failed to pay the amount demanded, Arthur, as personal representative of the Estate, filed suit against Carole to enforce the demand promissory notes. In response, Carole raised several affirmative defenses, including waiver by both Arthur and Mrs. Trask. The Estate moved for summary judgment, which Carole opposed.
G. Trial Court’s Orders
1. The December 6, 2013 Order
The trial court conducted an evidentiary hearing on the issues pertaining to the 2005 to 2007 accountings, the RRA for those accountings, and the SRA pertaining to the IRS transaction. The trial court found that prior to Carole’s execution of the SRA, Arthur failed to disclose to Carole that Mrs. Trask had very little money of her own and that the $1,000,000 condominium Mrs. Trask lived in was owned by a trust Mrs. Trask created in 1980 (“1980 Trust”), not by Mrs. Trask. The trial court ruled that Arthur’s failure to disclose this information “was a conflict of interest because Arthur Turkish was a Co-Trustee of Trust [Number] One,” and .therefore, “the SRA is not valid to bar Carole Bro-dy’s claims with respect to the [IRS] transaction covered in the SRA.” Based on these findings, the trial court ordered Arthur to repay $511,250. (one-half of the promissory note executed by Mrs. Trask for the funds loaned to her to satisfy her IRS debt) plus interest to Trust Number One.
At that same hearing, the trial court addressed the Estate’s motion for summary judgment filed in the Promissory Notes Litigation. Carole’s counsel argued that the Estate’s motion for summary judgment should be denied because genuine issues .of material fact exist as to Carole’s defenses, including waiver. The trial court.rejected this argument and granted summary judgment in favor of the Estate, finding that Carole owes the Estate $304,-525,90
2. Trial Court’s Final Order
The trial court addressed the remaining issues during several days of trial. The trial court entered a final order finding that Arthur, as trustee," owed Carole a fiduciary duty when making distributions to himself from Trust Number One for his health, maintenance, and support. The trial court noted that Arthur had been “historically” receiving $114,000 per year, and that as the funds in Trust Number One were being depleted, .he should have
Following the entry of the trial court’s final order, the trial court denied rehearing. These appeals and cross-appeal followed.
II. ISSUES
The parties have raised numerous issues in these appeals. As to the Trust Litigation, the Co-Trustees appeal: (1) the portion of the trial court’s final order determining that Arthur breached his fiduciary duty to Carole by making certain distributions to himself for his health, maintenance, and support from Trust Number One from January 2008 to the date of Mrs. Trask’s death on June 2, 2010, and ordering Arthur to return a portion of the distributions to Trust Number One; and (2) the portion of the December 6, 2013 order finding that the SRA executed by the parties is invalid and unenforceable because Arthur, as trustee of Trust Number One, breached his fiduciary duty to Carole, and therefore, ordering Arthur to return $511,250 to Trust Number One. Carole appeals from the portion of the trial court’s December 6, 2013 order granting summary judgment and subsequent final judgment in favor of the Estate' in the Promissory Notes Litigation, thereby enforcing the three demand promissory notes. For the reasons that follow, we reverse the trial court’s determination that Arthur breached his fiduciary duty relating to the distributions he made to himself from Trust Number One for his health, maintenance, and support; affirm the trial court’s order finding that the SRA is invalid and unenforceable; and reverse the trial court’s granting of summary judgment in favor of the Estate in the Promissory Notes Litigation and remand for further proceedings.
III. ANALYSIS
A. Distributions to Arthur from Trust Number One from January 2008 through June 2, 2010
Arthur contends that the trial court erred by finding that he breached his fiduciary duty to Carole by making certain distributions to himself from Trust Number One and ordering Arthur to return $253,000 to Trust Number One. Because the distributions Arthur made to himself from January 2008 through June 2010 were authorized by the express terms of Trust Number One, we agree.
The record before this Court reflects that, despite Arthur’s lack of significant outside employment for decades, he nonetheless maintained an extravagant lifestyle. His mother, Mrs. Trask, was aware of, participated in, and enjoyed Arthur’s lifestyle, and opted to finance his lifestyle through distributions from Trust Number One
B. Trial Court’s Ruling as to the IRS Transaction
1. The Validity of the SRA
Carole contends, and the trial court found, that the SRA, which is a supplement to the 2005 to 2007 RRA, is invalid because Arthur, as a co-trustee, failed to disclose to Carole, a beneficiary, material facts pertaining to the matter being settled in the SRA. Specifically, Arthur failed to
We acknowledge that generally a release between adversaries constitutes a complete bar to an action which is the subject of the release. See, e.g., Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 929 N.Y.S.2d 3, 952 N.E.2d 995, 1000 (2011) (“Generally, a valid release constitutes- a complete bar to an action on a claim which is the subject of the release.”) (internal citation and quotation marks omitted). However, the SRA was not merely a settlement between adversaries, but rather a supplement to the RRA entered into between the Co-Trustees and Carole, a beneficiary. Thus, under New York law, which the parties agree controls as to the SRA, Shari and Arthur, as co-trustees, owed a duty to fully disclose all pertinent facts to Carole, a beneficiary, even though the Co-Trustees and- Carole were adversaries at that point.
Under New York law, the SRA, as a supplement to the RRA, is binding only if the Co-Trustees made a “full disclosure.”
An agreement to discharge the fiduciary and settle an account will be binding provided (1) all interested parties who would be necessary parties in a judicial proceeding settling the account sign the agreement; (2) the fiduciary has made full disclosure-... in an account circulated to all signatories to the agreement; and (3) all signatories to the agreement are competent adults. Failure to make full disclosure will nullify the release.
In re LeoGrande, 13 Misc.3d 1070, 821 N.Y.S.2d 862, 867 (N.Y.Surr.2006) (internal citations and quotation marks omitted; emphasis added); see also Matter of Birnbaum, 117 A.D.2d 409, 416, 503 N.Y.S.2d 451 (N.Y.App.Div.1986) (noting that a “Release and Discharge” obtained by fiduciary from a beneficiary is “voidable” by the beneficiary “if the fiduciary fails to disclose material facts which he knew or should have known, if he used the influence of his position to induce the consent or if the transaction was not in all respects fair and reasonable”).
In the instant case, although the facts recited in the SRA were accurate, the Co-Trustees failed to make a “full disclosure” to,Carole, a beneficiary—that the promissory note Arthur agreed to “contribute” to Trust Number One in exchange for. Carole’s release was virtually worthless because Mrs. Trask did not have the ability to repay the promissory note during her lifetime and there would be insufficient estate assets to pay the promissory note upon her death because the Bal Harbour condominium was not owned by Mrs. Trask. Therefore, we affirm the trial court’s ruling that the' SRA is invalid due to Arthur’s failure to disclose material facts.
2. Adequacy of the Trust Disclosure Documents
The Co-Trustees argue that even if the SRA was voidable based on Arthur’s failure to disclose material facts to Carole before she signed the SRA, Carole!s claims
Section 736.1008(2) of the Florida Statutes provides:
Unless sooner- barred by adjudication, consent, or limitations, a beneficiary is barred from bringing an action against a trustee for breach of trust with respect to a matter that was adequately disclosed in a trust disclosure document unless a proceeding to assert the claim is commenced within 6 months after receipt from the trustee of the trust disclosure document or a limitation notice that applies to that disclosure document, whichever is received later.
(emphasis added). Section 736.1008(4)(a), which addresses when “a matter” is adequately disclosed, provides as follows:. “A trust disclosure document adequately discloses a matter if the document provides sufficient information so that a beneficiary knows of a claim or reasonably should have inquired into the existence of a claim with respect to that matter.”
In the instant case, Carole’s claims against the Co-Trustees for breach of fiduciary duty was not based solely on the IRS transaction itself, but also on Arthur’s agreement to resolve Carole’s objections to the IRS transaction by “contributing” the promissory note executed by Mrs. Trask to Trust Number One without disclosing that he knew that the promissory note was virtually worthless. Therefore, we must determine whether the 2008 trust account-ings provided Carole with sufficient information such that she should have known of her claim or reasonably inquired into her claim.
The 2008 accounting for Trust Number One disclosed that Arthur received a $1,022,500 distribution on October 24, 2008, and that disclosure references Note 5 of the appendix attached to the 2008 accounting. Note 5-provides:
This amount was .-loaned by Arthur Turkish to Ada Turkish Trask to enable Ada Turkish Trask to settle a Federal tax assessment. Ada Turkish Trask gave, a promissory note, evidencing this indebtedness to Arthur Turkish in the amount of $1,022,500 plus annual interest at the rate of 3.45%. Arthur Turkish contributed the promissory note to this Trust on October 9, 2009 pursuant to an agreement by and among all of the qualified beneficiaries of this Trust.
Therefore, the 2008 accounting for Trust Number One discloses the IRS transaction itself, and that Arthur “contributed” the promissory note to Trust Number One as part of an agreement among the beneficiaries. The 2008 accounting, however, fails to disclose that the promissory note that Arthur contributed to Trust Number One was basically - worthless- due to Mrs. Trask’s lack of personal funds and due to the fact that the Bal Harbour condominium Mrs. Trask lived in would never-be part of the Estate because the condominium was owned by the 1980 Trust, not Mrs. Trask. • Further, the 2008 accounting for Trust Number One did not provide Carole with sufficient information that reasonably should have led her to inquire into her claim against the Co-Trustees. Therefore, the six-month statute of limitations set forth in section 736.1008(2) is not applicable because the matter was not “adequately disclosed in a trust disclosure document.” As such, Carole’s claims for breach of fiduciary duty against Arthur and Shari were not time barred.
C. Trial Court’s Ruling as to the Promissory Notes Litigation
Carole contends that the trial court erred by granting summary judgment in favor of the Estate in the Promissory
“Summary judgment is proper if there is no genuine issue of material fact if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citation omitted).
We have reviewed the letters written by Mrs. Trask in 1991 and 1997. The gist of those letters is that if Carole does not repay Arthur, Arthur does not have to repay his mother, Mrs. Trask. Therefore, as the three promissory notes have now been assigned to the Estate, which is not at issue in this appeal, it appears that repayment of those notes may have been waived because Arthur can no longer seek repayment from Carole, and Mrs. Trask specifically provided in her written “letters” that she (and thus now her Estate) would not seek repayment of the notes unless they were paid in full (to Arthur). Thus, there exists material issues in dispute as to whether Arthur waived his right to seek repayment of the notes by assigning them to the Estate, and whether the Estate may seek repayment of the notes where Mrs. Trask’s intent not to do so has been clearly stated and memorialized. Accordingly, we reverse the trial court’s ruling as to the promissory notes, and on remand, the trial court is to fully address this issue.
IY. CONCLUSION
Based on the above analysis, we reverse the portion of the order under review requiring Arthur to return $253,000 to Trust Number One; affirm the portion of the order finding that Arthur breached his fiduciary duty to Carole; and reverse the portion of the order enforcing the three demand promissory notes and remand for further proceedings to fully address Carole’s affirmative defense of waiver. All remaining issues raised by the parties are affirmed.
Affirmed in part; reversed in part and remanded for further proceedings.
SCALES, J., concurs.
. It is undisputed that Mrs. Trask made numerous and substantial gifts to Arthur, and therefore, the IRS settlement directly benefited Arthur because Arthur would have been responsible for a large portion of any gift tax liability as he was the one who received a large portion of the gifts.
. There is no indication in the record that the Summary of Assets attached to the SRA incor-reedy valued the assets in either Trust Number One or Trust Number Two.
. This amount was later increased as a result of additional accrued interest/'
. For example, during 2009, Arthur received $181,500 in distributions for his health, maintenance, and support. Therefore, for 2009, the trial court ordered Arthur to return $124,500 to Trust Number One. Although Arthur's distributions to himself may seem excessive, the record supports these distributions.
. The parties have raised other issues in these appeals. We find that issues not addressed in this opinion are without merit and do not warrant discussion.
.Carole also appealed the trial court's ruling that Carole’s claim relating to the distributions made to Arthur from Trust Number One from January 27, 2005 through December 31, 2007 was barred because these distributions were disclosed in the 2005 to 2007 account-ings, and thereafter, Carole executed the RRA in September 2009, approving these trust ac-countings and releasing the Co-Trustees of any liability in connection with the matters disclosed in these accountings. We conclude that Carole’s argument as to this ruling lacks merit and does not warrant discussion.
.The relevant provision provides:
1. During the Settlor’s lifetime, the Trustees shall invest and reinvest the principal of the trust and shall pay so much of the income therefrom and such sums out of the principal thereof (even to the extent of the whole thereof) to the Settlor's son, ARTHUR TURKISH, and/or the Settlor’s daughter[,] CAROLE BRODY, in equal or unequal amounts and to either one of them to the exclusion of the other, as the Trustees, in their absolute discretion, shall determine, accumulating any balance of the income at least annually and adding the same to principal....
In accordance with section 10-10.1 of the New York Estates Powers and Trust Law, and notwithstanding anything to the contrary herein, any Trustee who is a permissible beneficiary under this Article shall be entitled to make distributions to himself or herself for his or her support, health, education and/or maintenance without the consent of any other Trustee then serving.
. Prior to the creation of Trust Number One, Mrs. Trask chose to finance Arthur's lifestyle through distributions from other trusts. Mrs. Trask also made substantial and numerous monetary gifts to Arthur, which resulted in the gift tax liability to the IRS, which was settled in 2008.
. The parties do not dispute that based on the language in Trust Number One and Trust Number Two, New York law governs all issues relating to the Trust Litigation, except for the statute of limitations defenses raised by the Co-Trustees, which is governed by Florida law.
. Carole asserted other affirmative defenses. Carole’s arguments as to the remaining affirmative defenses lack merit and do not warrant discussion.
. Based on our reversal of the entry of final summary judgment as to the Promissory Notes Litigation, we reverse the portions of the order awarding fees and costs to the Estate and requiring a setoff.