David J. Landau, as Trustee of the Flois N. Landau Trust dated January 23, 2002, as Amended, Appellant,
Susan L. Landau, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal Nos. 16-231, 13-3811, Maria
M. Korvick, Judge.
Young & Moll Parrόn and Matthew Seth Sarelson, for
Carlton Fields Jorden Burt, PA., and Jose A. Loredo, Nancy C.
Ciampa and Heather M. Jonczak, for appellee.
SALTER, LOGUE and SCALES, JJ.
is an expedited appeal from an order freezing the assets of a
trust created by Flois Landau, the late wife of the appellant
and mother of the appellee. The appellant, David Landau,
became trustee of the trust (and personal representative of
his late wife's estate) when his wife passed away in
2013, and he is the lifetime net income beneficiary of the
trust. The appellee, Susan Landau, and two other children of
Flois Landau, are the three qualified remainder beneficiaries
entitled to equal shares of the remaining net trust assets
upon the death of David Landau.
terms of the trust allow David Landau to distribute to
himself (a) quarterly, the net trust income, and (b) amounts
of principal "not to exceed the greater of $5, 000.00 or
5% of the value of the principal of the trust" on the
first day of December each year, on a non-cumulative basis.
In addition, David Landau may pay additional amounts to
himself determined to be necessary for his "health,
support and maintenance, " in his "accustomed
manner of living, " subject to a limitation that any
determination that such a payment is "necessary"
must take into account all his income and assets.
Landau became increasingly concerned when David Landau failed
to effectuate the transfer of some $2, 000, 000.00 in estate
assets to the trust pursuant to an order entered in Flois
Landau's probate case. She requested information
regarding the assets and copies of the annual trust
accountings required by sections 736.0813 and 736.08135,
Florida Statutes (2016). When this information was not
forthcoming, in January 2016 Susan Landau filed a verified
complaint to compel trust accountings.
following month, David Landau filed an answer conceding that
he had not filed the required annual accountings. When David
Landau provided an unsigned trust accounting in March 2016
(for calendar year 2015), the document did not reflect an
asset valued at approximately $1, 000, 000.00 (despite the
probate court order authorizing transfer from Flois
Landau's estate to the trust). That unsigned accounting
also showed, without explanation, distributions far exceeding
the Trust's net income for the year.
Susan Landau moved to amend her verified complaint to add
counts for breach of trust, removal of trustee, and a
temporary injunction to freeze assets of the trust based on
David Landau's alleged breaches of his fiduciary duties.
She also moved for an order prohibiting David Landau from
paying attorney's fees or costs from the
trust. At a hearing in February 2017, Susan
Landau contended that David Landau had made excessive
distributions to himself, failed to file tax returns for the
trust, made excessive payments of attorney's fees, and
failed to supply proper 2015 and 2016 trust accountings.
trial court confirmed at the February hearing that David
Landau's counsel would advise him "appropriately as
to the importance of complying with all statutes including
trust accounting, the filing of taxes." Despite this
gracious deferral to permit David Landau to comply, when a
continued hearing was conducted in May 2017, David Landau
still had not filed or served a 2016 accounting, the
deficient 2015 trust accounting had not been corrected, and
tax returns for both 2015 and 2016 had not been filed.
Further, David Landau had not reopened the Flois Landau
estate to permit the conveyance of trust assets into the
trial court then ordered the trust assets frozen until David
Landau completed and filed the 2016 trust accounting. This
appeal followed. A day after he filed the notice of appeal of