Third District Court of Appeal State of Florida
Opinion filed December 13, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-2065 Lower Tribunal No. 21-3654 ________________
Donna D. Gnaegy, Appellant,
vs.
Debra D. Morris, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Reiner & Reiner, P.A., and David P. Reiner, II, for appellant.
Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Jessica L. Gross and Nina N. Batista, for appellee.
Before EMAS, LINDSEY and LOBREE, JJ.
EMAS, J. INTRODUCTION
Appellant, Donna D. Gnaegy, appeals from an order that 1) granted
summary judgment in favor of Appellee, Debra D. Morris on various claims
filed against Appellant individually and as personal representative of the
decedent’s Estate and as trustee of his Revocable Trust, but reserved ruling
on, and did not determine the amount of, damages; 2) found Appellee
entitled to attorney’s fees and costs, but reserved ruling on, and did not
determine the amount of, fees and costs; and 3) removed Appellant as
personal representative of the Estate and as trustee of the related Trust.
We find the trial court did not abuse its discretion in removing Appellant
as personal representative of the Estate and as trustee of the Trust and
affirm that portion of the trial court’s order. 1 However, we dismiss the
remainder of the appeal as taken from a nonfinal, nonappealable order.
BACKGROUND AND PROCEDURAL HISTORY
Donna D. Gnaegy (Appellant) and Debra D. Morris (Appellee) are
sisters. In 2019, their father, Donald D. Forsht (the Decedent), died testate,
1 We review an order removing a personal representative for abuse of discretion. Boyles v. Jimenez, 330 So. 3d 953, 959 (Fla. 4th DCA 2021) (citing Henderson v. Ewell, 149 So. 372, 372 (1933)). We likewise review for abuse of discretion a trial court's decision “whether to remove a trustee.” Giller v. Grossman, 327 So. 3d 391, 393-94 (Fla. 3d DCA 2021) (citing Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So. 3d 207, 210 (Fla. 3d DCA 2020)).
2 with a Will and a Revocable Trust Agreement governing the disposition of
his assets upon death. Such assets included Wells Fargo Bank accounts;
homestead property; a Morgan Stanley Traditional IRA; an “Avocado farm”
comprised of more than six acres; shares of stock in Green Forest Grove,
Inc., a company in which Appellant and her husband shared an interest and
served as directors; a loan receivable from Green Forest Grove, Inc.; and
tangible personal property.
The Decedent named Appellant personal representative of the Estate
and trustee of the Revocable Trust. As such, she hired an attorney and an
accountant to administer the Estate and Trust. More than a year after the
Decedent’s death, Appellant filed a petition for administration of the estate,
and executed an oath of personal representative. Two weeks later, letters of
administration were issued and an order admitting will to probate was
entered, requiring Appellant to take numerous actions, including: submit an
inventory of Estate assets; close the Estate within 12 months; place liquid
assets in a court-designated depository; and, if real estate was sold, place
the net sales proceeds in the depository. The order also prohibited Appellant
from selling, encumbering, borrowing, or gifting any Estate assets without a
separate order from the court.
3 It is largely undisputed that Appellant failed to comply with the letters
of administration and order directing her to take the aforementioned actions.
Instead, Appellant took the position below and on appeal that she relied on
advice of counsel and thus cannot be found liable for any resulting damage
suffered by the Estate.
Upon Appellant’s failure to comply with the order, Appellee filed an
adversary proceeding, alleging her sister breached her fiduciary duty,
individually, as personal representative of the Estate, and as trustee of the
Revocable Trust; committed a breach of trust individually and as trustee; and
engaged in maladministration of Trust assets. Appellee maintained that
Appellant’s continuous failure to carry out her obligations as personal
representative and trustee (e.g., file an inventory of Estate assets, distribute
Trust income, etc.) resulted in substantial monetary damage to Appellee as
beneficiary of the Estate. Based on these allegations, Appellee sought a
trust accounting, removal of Appellant as personal representative and
trustee, as well as compensatory, consequential, special and punitive
damages.
Appellee later filed the underlying motion for summary judgment on all
counts, with attachments in support of the motion (e.g., the decedent’s will
and trust, the letters of administration, federal tax returns, bank statements).
4 Appellant responded, inter alia, that: (1) summary judgment should be
denied because discovery is ongoing; and (2) because she relied on her
attorney and accountant to administer the Estate, the Trust and the finances,
“there is no circumstance where she could be found to have intentionally or
negligently breach[ed] a fiduciary duty.” Appellee attested to the fact that she
hired her father’s attorneys for assistance and “did everything they asked me
to do with respect to the administration of my father’s assets, estate and
trusts.”
The probate court held a hearing on the motion, after which it granted
the motion for summary judgment, removed Appellant as personal
representative, and appointed Appellee in her place.
The trial court rendered an order, consistent with its oral
pronouncement, finding that Appellant “committed multiple violations of her
fiduciary duties as Personal Representative, each and all of which are
causes for removal under Fla. Stat. § 733.504,” and that, because she
breached “various duties [she] owes to the beneficiaries of the Trust” her
removal as Trustee “best serves the interests of the beneficiaries.” §
733.504, Fla. Stat. (2022) (“A personal representative may be removed and
the letters revoked for any of the following causes: . . . (3) Failure to comply
with any order of the court. . . . (5) Wasting or maladministration of the estate.
5 . . . (9) Holding or acquiring conflicting or adverse interests against the estate
that will or may interfere with the administration of the estate as a whole.”);
see also § 736.0706(2)(c), Fla. Stat. (2022) (“(2) The court may remove a
trustee if: . . . (c) Due to the unfitness, unwillingness, or persistent failure of
the trustee to administer the trust effectively, the court determines that
removal of the trustee best serves the interests of the beneficiaries”)
(emphasis added).
Although granting summary judgment, the trial court reserved ruling
on, and did not determine the amount of, damages. This appeal followed.
ANALYSIS AND DISCUSSION
Appellee contends this appeal is premature, and that we lack
jurisdiction because the order is nonfinal and nonappealable. Appellee is
partially correct. This court has jurisdiction to review the order on appeal,
but only that portion of the order removing Appellant as personal
representative of the Estate and as trustee of the Revocable Trust.
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Third District Court of Appeal State of Florida
Opinion filed December 13, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-2065 Lower Tribunal No. 21-3654 ________________
Donna D. Gnaegy, Appellant,
vs.
Debra D. Morris, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Reiner & Reiner, P.A., and David P. Reiner, II, for appellant.
Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Jessica L. Gross and Nina N. Batista, for appellee.
Before EMAS, LINDSEY and LOBREE, JJ.
EMAS, J. INTRODUCTION
Appellant, Donna D. Gnaegy, appeals from an order that 1) granted
summary judgment in favor of Appellee, Debra D. Morris on various claims
filed against Appellant individually and as personal representative of the
decedent’s Estate and as trustee of his Revocable Trust, but reserved ruling
on, and did not determine the amount of, damages; 2) found Appellee
entitled to attorney’s fees and costs, but reserved ruling on, and did not
determine the amount of, fees and costs; and 3) removed Appellant as
personal representative of the Estate and as trustee of the related Trust.
We find the trial court did not abuse its discretion in removing Appellant
as personal representative of the Estate and as trustee of the Trust and
affirm that portion of the trial court’s order. 1 However, we dismiss the
remainder of the appeal as taken from a nonfinal, nonappealable order.
BACKGROUND AND PROCEDURAL HISTORY
Donna D. Gnaegy (Appellant) and Debra D. Morris (Appellee) are
sisters. In 2019, their father, Donald D. Forsht (the Decedent), died testate,
1 We review an order removing a personal representative for abuse of discretion. Boyles v. Jimenez, 330 So. 3d 953, 959 (Fla. 4th DCA 2021) (citing Henderson v. Ewell, 149 So. 372, 372 (1933)). We likewise review for abuse of discretion a trial court's decision “whether to remove a trustee.” Giller v. Grossman, 327 So. 3d 391, 393-94 (Fla. 3d DCA 2021) (citing Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So. 3d 207, 210 (Fla. 3d DCA 2020)).
2 with a Will and a Revocable Trust Agreement governing the disposition of
his assets upon death. Such assets included Wells Fargo Bank accounts;
homestead property; a Morgan Stanley Traditional IRA; an “Avocado farm”
comprised of more than six acres; shares of stock in Green Forest Grove,
Inc., a company in which Appellant and her husband shared an interest and
served as directors; a loan receivable from Green Forest Grove, Inc.; and
tangible personal property.
The Decedent named Appellant personal representative of the Estate
and trustee of the Revocable Trust. As such, she hired an attorney and an
accountant to administer the Estate and Trust. More than a year after the
Decedent’s death, Appellant filed a petition for administration of the estate,
and executed an oath of personal representative. Two weeks later, letters of
administration were issued and an order admitting will to probate was
entered, requiring Appellant to take numerous actions, including: submit an
inventory of Estate assets; close the Estate within 12 months; place liquid
assets in a court-designated depository; and, if real estate was sold, place
the net sales proceeds in the depository. The order also prohibited Appellant
from selling, encumbering, borrowing, or gifting any Estate assets without a
separate order from the court.
3 It is largely undisputed that Appellant failed to comply with the letters
of administration and order directing her to take the aforementioned actions.
Instead, Appellant took the position below and on appeal that she relied on
advice of counsel and thus cannot be found liable for any resulting damage
suffered by the Estate.
Upon Appellant’s failure to comply with the order, Appellee filed an
adversary proceeding, alleging her sister breached her fiduciary duty,
individually, as personal representative of the Estate, and as trustee of the
Revocable Trust; committed a breach of trust individually and as trustee; and
engaged in maladministration of Trust assets. Appellee maintained that
Appellant’s continuous failure to carry out her obligations as personal
representative and trustee (e.g., file an inventory of Estate assets, distribute
Trust income, etc.) resulted in substantial monetary damage to Appellee as
beneficiary of the Estate. Based on these allegations, Appellee sought a
trust accounting, removal of Appellant as personal representative and
trustee, as well as compensatory, consequential, special and punitive
damages.
Appellee later filed the underlying motion for summary judgment on all
counts, with attachments in support of the motion (e.g., the decedent’s will
and trust, the letters of administration, federal tax returns, bank statements).
4 Appellant responded, inter alia, that: (1) summary judgment should be
denied because discovery is ongoing; and (2) because she relied on her
attorney and accountant to administer the Estate, the Trust and the finances,
“there is no circumstance where she could be found to have intentionally or
negligently breach[ed] a fiduciary duty.” Appellee attested to the fact that she
hired her father’s attorneys for assistance and “did everything they asked me
to do with respect to the administration of my father’s assets, estate and
trusts.”
The probate court held a hearing on the motion, after which it granted
the motion for summary judgment, removed Appellant as personal
representative, and appointed Appellee in her place.
The trial court rendered an order, consistent with its oral
pronouncement, finding that Appellant “committed multiple violations of her
fiduciary duties as Personal Representative, each and all of which are
causes for removal under Fla. Stat. § 733.504,” and that, because she
breached “various duties [she] owes to the beneficiaries of the Trust” her
removal as Trustee “best serves the interests of the beneficiaries.” §
733.504, Fla. Stat. (2022) (“A personal representative may be removed and
the letters revoked for any of the following causes: . . . (3) Failure to comply
with any order of the court. . . . (5) Wasting or maladministration of the estate.
5 . . . (9) Holding or acquiring conflicting or adverse interests against the estate
that will or may interfere with the administration of the estate as a whole.”);
see also § 736.0706(2)(c), Fla. Stat. (2022) (“(2) The court may remove a
trustee if: . . . (c) Due to the unfitness, unwillingness, or persistent failure of
the trustee to administer the trust effectively, the court determines that
removal of the trustee best serves the interests of the beneficiaries”)
(emphasis added).
Although granting summary judgment, the trial court reserved ruling
on, and did not determine the amount of, damages. This appeal followed.
ANALYSIS AND DISCUSSION
Appellee contends this appeal is premature, and that we lack
jurisdiction because the order is nonfinal and nonappealable. Appellee is
partially correct. This court has jurisdiction to review the order on appeal,
but only that portion of the order removing Appellant as personal
representative of the Estate and as trustee of the Revocable Trust. That
aspect of the order is final and appealable pursuant to Florida Rule of
Appellate Procedure 9.170(b):
Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:
6 ... (6) remove or refuse to remove a fiduciary;
This portion of the order did “finally determine a right or obligation of
an interested person” by removing Appellant as a fiduciary. Cf. Jensen v.
Est. of Gambidilla, 896 So. 2d 917, 918 n. 1 (Fla. 4th DCA 2005) (“This court
is without jurisdiction to address any procedural irregularities that led up to
the order removing Jensen as the personal representative because she
failed to timely appeal that order, which was a final, appealable order.”)
(citing In re Odza's Estate, 432 So. 2d 740, 741 (Fla. 4th DCA 1983)
(classifying an order removing a personal representative as a final,
appealable order)); The Florida Bar, Removal of Personal Representative
and Surcharge, LPC FL-CLE 9-1 (2023) (“The probate court's decision on a
petition for removal is deemed a final order and may be appealed as a matter
of right to the appropriate district court of appeal, even before the estate
administration is complete.”)
The remaining aspects of the order—granting summary judgment in
favor of Appellee on her claims against Appellant, but reserving on the issue
of damages, as well as granting entitlement to attorney’s fees and costs while
reserving on amount—are nonfinal and nonappealable. See, e.g.,
7 Laptopplaza, Inc. v. Wells Fargo Bank, NA, 264 So. 3d 1049, 1052 (Fla. 3d
DCA 2019) (finding premature an order determining liability but reserving on
damages: “[A]n order determining liability in favor of Appellee, but reserving
the determination of the amounts of damages on the various causes of action
alleged in the complaint for future proceedings was a non-final, non-
appealable order under Florida Rule of Appellate Procedure 9.130(a)(3)”)
(quotation omitted). 2
As to the question of whether the trial court properly removed Donna
Gnaegy as personal representative and trustee, we conclude there is
competent, substantial evidence to support the trial court’s determination
and action. Boyles v. Jimenez, 330 So. 3d 953, 959 (Fla. 4th DCA 2021)
(“[A]n appellate court will not reverse an order removing a personal
representative absent a trial court's abuse of discretion.”); Giller v.
Grossman, 327 So. 3d 391, 394 (Fla. 3d DCA 2021) (“A trial court's decision
2 In addition, the order on appeal merely “grants” summary judgment, but does not actually enter judgment in favor of Appellee on her claims, nor does it contain the traditional words of finality. This independently renders that portion of the order nonfinal and nonappealable. See Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 149 (Fla. 3d DCA 2002) (noting “the law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review. An order granting only summary judgment merely establishes an entitlement to a judgment, but is not itself a judgment.”) (internal citations omitted).
8 whether to remove a trustee or to order a trustee to take certain actions is
reviewed by an appellate court for abuse of discretion.”) The trial court found
that Appellant “committed multiple violations of her fiduciary duties as
Personal Representative, each and all of which are causes for removal under
Fla. Stat. § 733.504(3).” In enumerating each cause for removal, the trial
court included specific examples of Appellant’s actions, including those listed
below:
• Failure to comply with the Letters of Administration and the Order
Appointing Personal Representative, e.g., she did not place the
Estate’s liquid assets in a court depository pursuant to Florida statute.
• Failure to produce and exhibit assets of the Estate, e.g., she did not
“collect or properly investigate the loan due from Green Forest Grove,
Inc. to the Decedent.”
• Wasting and maladministration of the Estate, e.g., she continued to
incur charges on the Decedent’s Wells Fargo credit card and failed to
file appropriate tax returns for the Decedent and the Estate from 2017
to 2021.
• Conflict of interest, e.g., Appellant and her husband are directors and
50% shareholders of Green Forest Grove, Inc., and therefore stand to
gain should the loan, made by the Decedent to Green Forest Grove,
9 not be repaid to the Estate and should the value of the Decedent’s 50%
ownership interest in Green Forest Grove not be determined.
In similar fashion, the trial court found that Appellant “is in breach of
trust due to her violations of various duties [she], as Trustee, owes to the
beneficiaries of the Trust,” and, because she “persistently failed to administer
the Trust effectively,” her removal as trustee “best serves the interests of the
beneficiaries.” See § 736.0706(2)(c), Fla. Stat. (2022). Reasons for her
removal as Trustee of the Revocable Trust include failure to: provide notice
of acceptance of the Trust at any time, in violation of section 736.0813(a),
Florida Statutes (2022); file any tax returns for the Trust, thereby subjecting
the Trust to potential penalties and interest; render any Trust accountings
whatsoever in violation of section 736.0813(d), Florida Statutes (2022);
provide the Trust's beneficiaries with relevant information about the assets
and liabilities of the Trust and the particulars relating to administration in
violation of section 736.0813(e), Florida Statutes (2022); distribute Trust
income or principal to the Trust's beneficiaries in violation of section
736.08147, Florida Statutes (2022); invest Trust assets pursuant to the
prudent investor rule set forth in section 518.11, Florida Statutes (2022);
administer the Trust in the interests of the beneficiaries and abide by the
10 express terms of the Trust in administering the Trust and distributing the
assets outright to the beneficiaries.
We find ample competent, substantial evidence in the record to support
the trial court’s determinations, and hold the trial court acted within its
discretion in removing Appellant as Personal Representative of the Estate
and as Trustee of the Trust.
CONCLUSION
We affirm that portion of the order on appeal that removed Appellant
as Personal Representative of the Estate and as Trustee of the Revocable
Trust. We dismiss the remainder of the appeal as taken from a nonfinal,
nonappealable order.
Affirmed in part, dismissed in part, and remanded for further
proceedings.