FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Margaret W.
Stephanie Vollrath, of Vollrath Law P.A., Oviedo, for
Stephen McDonald and Stephanie L. Cook, of Shuffield, Lowman
& Wilson, P.A., Daytona Beach, for Appellees Shirley
Kimmons and Sandra A. Perkins.
Appearance for Appellee Space Coast Credit Union.
Prewitt ("Appellant"), a named beneficiary of a
trust established by her now deceased mother, Pauline Tyler,
filed a multi-count second amended complaint against Shirley
Kimmons (the successor trustee), Sandra Perkins, and Space
Coast Credit Union. The trial court granted summary final
judgment in favor of Kimmons and Perkins
("Appellees") on all the claims brought against
them. Because we conclude that disputed material issues of
fact precluded the entry of summary judgment on Counts 3, 5,
and 13, we reverse the trial court's order as to these
court's order granting summary judgment is reviewed de
novo. Doctor Rooter Supply & Serv. v. McVay, 226
So.3d 1068, 1072 (Fla. 5th DCA 2017). In reviewing a
court's decision to enter summary judgment, we must
consider all record evidence in a light most favorable to the
non-moving party. Id. If there are material disputed
issues of fact, summary judgment must be reversed.
Tyler was the mother of six children: Appellant, Appellees,
Kathy Henderson, Ronald Wilson, and Jacqueline Green. In
2000, Tyler executed an irrevocable trust naming herself as
the trustee. As trustee, Tyler was to distribute the net
proceeds of the trust to herself unless she directed
otherwise, but the trust became irrevocable upon her death.
In 2007, Tyler executed an amendment to the trust providing,
inter alia, for Kimmons to be successor
trustee. In 2012, at ninety-one years of age, Tyler
began to need assistance with daily activities. Later that
year, she began residing with Kimmons and Kimmons'
husband. Tyler died on September 29, 2013. Kimmons accepted
her role as successor trustee and distributed various assets
of the trust to named beneficiaries.
unnecessary to recite all the summary judgment
evidence presented to the trial court at the
summary judgment hearing. Instead, it is sufficient to note
the summary judgment evidence that should have precluded the
entry of summary judgment on Counts 3, 5, and 13.
record evidence was sufficient to permit Appellant to proceed
on Count 3, which alleged that Kimmons breached her fiduciary
duty to Appellant by, inter alia, (1) failing to distribute
funds as provided for by the trust documents, (2) failing to
seek return of $10, 000 of trust assets wrongly retained by
Perkins, and (3) failing to return monies that Kimmons had
misappropriated from the trust account prior to Tyler's
death. First, there was record evidence that Kimmons paid
approximately $14, 000 for lease payments on a motor vehicle
that was ultimately conveyed to beneficiary Wilson and that
said payments were not consistent with the terms of the
trust. Second, there was record evidence that Perkins had
received $10, 000 from Tyler solely for
"safekeeping" purposes, that these monies had never
been returned to the trust account, and that Kimmons had
taken no action to recover these monies. Third, there was
record evidence that in a time period when Tyler was in
deteriorating health and receiving morphine, Kimmons
improperly disbursed money from the trust account to herself
and her daughter. Therefore, questions of fact remain over
Appellant's breach of fiduciary duty claim. See
§ 736.0801, Fla. Stat. (2013) ("[T]he trustee shall
administer the trust in good faith, in accordance with its
terms . . . ."); id. § 736.0811 ("A
trustee shall take reasonable steps to enforce claims of the
trust . . . ."); id. § 736.0812 ("A
trustee shall take reasonable steps to compel a former
trustee or other person to deliver trust property to the
trustee . . . ."). Similarly, we conclude that this
summary judgment evidence was sufficient to preclude summary
judgment on Count 5 (conversion as to Perkins) and Count 13
(civil theft as to Perkins). We affirm, without discussion,
the remainder of the trial court's order.
in part; REVERSED, in part; and REMANDED.
C.J. and ...