IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
IN RE: TRUST OF ADEAN E. WINES
Case No. 5D22-1919 LT Case No. 2022-CA-000244-A
________________________________/
Opinion filed February 3, 2023
Nonfinal Appeal from the Circuit Court for Marion County, Gary L. Sanders, Judge.
Joseph T. Eagleton and Ceci C. Berman, of Brannock, Humphries, & Berman, Tampa, and Eugene A. Wiechens, of Landt, Wiechens, Lapeer & Ayres, LLP, Ocala, for Laurie A. Williams.
Jonathan S. Dean, of Dean and Dean, LLP, Ocala, for Bobbye L. Wines, As Trustee Of The Adean E. Wines Estate.
EDWARDS, J. Without serving process on any interested person, Appellee, Bobbye
Wines, successfully petitioned the trial court to appoint her as trustee of the
Robert L. Wines and Adean E. Wines Family Revocable Trust (hereinafter
"the Family Trust"). The order appointing Appellee as trustee was entered
without any hearing. We agree with Appellant, Laurie Williams, that the trial
court erred in initially entering the order of appointment and in subsequently
denying Appellant’s motion to set aside the order of appointment. We
reverse the order of appointment and the order denying Appellant’s motion
to set aside and remand for further proceedings.
Background
Robert Wines and Adean Wines created, funded, and were co-trustees
of the Family Trust. When Robert Wines passed away, Adean Wines
became the sole trustee. She thereafter executed a First Amendment to the
Family Trust so that on her death, the trust’s assets would go to her son,
Robert Wines, Jr., or to his trust, the Robert Wines, Jr., Trust, in which he
was initially the sole trustee and sole beneficiary. The First Amendment
provided that if Robert Wines, Jr., predeceased his mother, the Family
Trust’s assets were to be distributed equally to Adean’s granddaughters,
who were Robert Wines, Jr.’s daughters, Appellee and Mary Ann Wines.
2 In 2018, Adean Wines executed a Second Amendment to the Family
Trust which called for the Family Trust’s assets to be distributed, on Adean’s
death, only to the Robert Wines, Jr., Trust. The Second Amendment named
the trustee or successor trustee of the Robert Wines, Jr., Trust as the
beneficiary. 1 If that trust terminated before Adean’s death, then all of the
Family Trust’s assets would be distributed directly to Appellant. If Appellant
passed before the termination of the Robert Wines, Jr., Trust, then Mary
Anne Wines would receive all of the Family Trust’s assets. The final
contingency of the Second Amendment provided that if the other
contingencies occurred and Mary Anne Wines did not survive termination of
the Robert Wines, Jr., Trust, all assets from the Family Trust would go to
Appellee. Robert Wines, Jr., predeceased everybody else mentioned in this
paragraph, with all the others surviving. Adean Wines continued as the only
trustee of the Family Trust.
On February 9, 2022, Appellee filed a verified petition seeking to be
appointed as trustee of the Family Trust. In her petition, Appellee alleged
that Adean Wines was incapacitated and had not actually served as trustee
of the Family Trust for several years, during which Robert Wines, Jr., had
1 The parties acknowledge that it is unusual to name a trustee or successor trustee as the beneficiary. However, that matter is not before this Court at this time.
3 served as successor trustee until he passed away. The petition did not seek
removal of Adean Wines as trustee, nor did it attach any evidence to support
the allegation that Adean was incapacitated. No other parties were named,
no summonses were issued, and there was no service of process on
anybody, including Appellant. However, Appellee’s attorney did send a copy
of the petition, by regular first-class mail, to Appellant’s attorney as a copy
for his records with the suggestion that he not hesitate to contact Appellee’s
counsel with any questions. Nobody was served by certified or registered
mail nor by any express delivery service.
On March 16, 2022, the trial court, without holding a hearing, entered
an order granting the petition and appointing Appellee as trustee of the
Family Trust. Neither the court nor Appellee served a copy of the order on
Appellant or anybody other than Appellee’s counsel.
Appellant learned that Appellee had been appointed trustee only when
Appellee’s counsel mailed Appellant’s counsel a second pleading in which
Appellee sought to have the Second Amendment to the Family Trust
declared invalid, due to Adean’s alleged incapacity at the time it was
executed. If successful with the second petition, Appellee would have
eliminated Appellant as a contingent beneficiary, the status Appellant
enjoyed under the Second Amendment as she was: (1) the successor trustee
4 of the Robert Wines, Jr., Trust; (2) named by Robert Wines, Jr., as the sole
beneficiary of that trust; and (3) named as the contingent 100% beneficiary
of the Family Trust if she survived. Furthermore, Appellant was the personal
representative of Robert Wines, Jr.’s probate estate.
Within weeks of learning of the entry of the order appointing Appellee
as trustee of the Family Trust, Appellant filed and served a motion to set
aside that order. She argued in her motion that the lack of service of process
and lack of any noticed hearing leading up to the entry of the order of
appointment rendered the order void since it was done without affording her
due process of law, as she was clearly an interested and indispensable party
given her apparent standing as a contingent beneficiary. 2
The trial court denied her motion to set aside the order of appointment,
finding that Appellant had actual notice and therefore could have objected to
Appellee’s appointment. Appellant timely appealed.
Analysis
Section 736.0201(1), Florida Statutes (2022), provides that “judicial
proceedings concerning trusts shall be commenced by filing a complaint and
shall be governed by the Florida Rules of Civil Procedure.” Here, Appellee
2 See § 736.0103(4), Fla. Stat. (2022) (defining beneficiary as “a person who has a present or future beneficial interest in a trust, vested or contingent”).
5 filed a petition which, unlike a typical complaint, did not name any adverse
parties. Florida Rule of Civil Procedure 1.070(a) states that “[u]pon
commencement of the action, summons or other process authorized by law
shall be issued forthwith by the clerk or judge,” which shall be literally signed
and sealed for delivery. Other provisions of rule 1.070 set forth details
regarding service of process and filing proof that service was accomplished.
Despite this requirement, Appellee neither obtained nor served a summons
on anyone.
Section 731.201(23), Florida Statutes (2022), defines “interested
person” as “any person who may reasonably be expected to be affected by
the outcome of the particular proceeding involved.”3 In its order denying
Appellant’s motion to set aside the order of appointment, the trial court
explicitly recognized that Appellant was indeed an interested party. Appellee
has never contested Appellant’s status as an interested party. “Generally,
the only indispensable parties to a trust action . . . are the trustee, the settlor,
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
IN RE: TRUST OF ADEAN E. WINES
Case No. 5D22-1919 LT Case No. 2022-CA-000244-A
________________________________/
Opinion filed February 3, 2023
Nonfinal Appeal from the Circuit Court for Marion County, Gary L. Sanders, Judge.
Joseph T. Eagleton and Ceci C. Berman, of Brannock, Humphries, & Berman, Tampa, and Eugene A. Wiechens, of Landt, Wiechens, Lapeer & Ayres, LLP, Ocala, for Laurie A. Williams.
Jonathan S. Dean, of Dean and Dean, LLP, Ocala, for Bobbye L. Wines, As Trustee Of The Adean E. Wines Estate.
EDWARDS, J. Without serving process on any interested person, Appellee, Bobbye
Wines, successfully petitioned the trial court to appoint her as trustee of the
Robert L. Wines and Adean E. Wines Family Revocable Trust (hereinafter
"the Family Trust"). The order appointing Appellee as trustee was entered
without any hearing. We agree with Appellant, Laurie Williams, that the trial
court erred in initially entering the order of appointment and in subsequently
denying Appellant’s motion to set aside the order of appointment. We
reverse the order of appointment and the order denying Appellant’s motion
to set aside and remand for further proceedings.
Background
Robert Wines and Adean Wines created, funded, and were co-trustees
of the Family Trust. When Robert Wines passed away, Adean Wines
became the sole trustee. She thereafter executed a First Amendment to the
Family Trust so that on her death, the trust’s assets would go to her son,
Robert Wines, Jr., or to his trust, the Robert Wines, Jr., Trust, in which he
was initially the sole trustee and sole beneficiary. The First Amendment
provided that if Robert Wines, Jr., predeceased his mother, the Family
Trust’s assets were to be distributed equally to Adean’s granddaughters,
who were Robert Wines, Jr.’s daughters, Appellee and Mary Ann Wines.
2 In 2018, Adean Wines executed a Second Amendment to the Family
Trust which called for the Family Trust’s assets to be distributed, on Adean’s
death, only to the Robert Wines, Jr., Trust. The Second Amendment named
the trustee or successor trustee of the Robert Wines, Jr., Trust as the
beneficiary. 1 If that trust terminated before Adean’s death, then all of the
Family Trust’s assets would be distributed directly to Appellant. If Appellant
passed before the termination of the Robert Wines, Jr., Trust, then Mary
Anne Wines would receive all of the Family Trust’s assets. The final
contingency of the Second Amendment provided that if the other
contingencies occurred and Mary Anne Wines did not survive termination of
the Robert Wines, Jr., Trust, all assets from the Family Trust would go to
Appellee. Robert Wines, Jr., predeceased everybody else mentioned in this
paragraph, with all the others surviving. Adean Wines continued as the only
trustee of the Family Trust.
On February 9, 2022, Appellee filed a verified petition seeking to be
appointed as trustee of the Family Trust. In her petition, Appellee alleged
that Adean Wines was incapacitated and had not actually served as trustee
of the Family Trust for several years, during which Robert Wines, Jr., had
1 The parties acknowledge that it is unusual to name a trustee or successor trustee as the beneficiary. However, that matter is not before this Court at this time.
3 served as successor trustee until he passed away. The petition did not seek
removal of Adean Wines as trustee, nor did it attach any evidence to support
the allegation that Adean was incapacitated. No other parties were named,
no summonses were issued, and there was no service of process on
anybody, including Appellant. However, Appellee’s attorney did send a copy
of the petition, by regular first-class mail, to Appellant’s attorney as a copy
for his records with the suggestion that he not hesitate to contact Appellee’s
counsel with any questions. Nobody was served by certified or registered
mail nor by any express delivery service.
On March 16, 2022, the trial court, without holding a hearing, entered
an order granting the petition and appointing Appellee as trustee of the
Family Trust. Neither the court nor Appellee served a copy of the order on
Appellant or anybody other than Appellee’s counsel.
Appellant learned that Appellee had been appointed trustee only when
Appellee’s counsel mailed Appellant’s counsel a second pleading in which
Appellee sought to have the Second Amendment to the Family Trust
declared invalid, due to Adean’s alleged incapacity at the time it was
executed. If successful with the second petition, Appellee would have
eliminated Appellant as a contingent beneficiary, the status Appellant
enjoyed under the Second Amendment as she was: (1) the successor trustee
4 of the Robert Wines, Jr., Trust; (2) named by Robert Wines, Jr., as the sole
beneficiary of that trust; and (3) named as the contingent 100% beneficiary
of the Family Trust if she survived. Furthermore, Appellant was the personal
representative of Robert Wines, Jr.’s probate estate.
Within weeks of learning of the entry of the order appointing Appellee
as trustee of the Family Trust, Appellant filed and served a motion to set
aside that order. She argued in her motion that the lack of service of process
and lack of any noticed hearing leading up to the entry of the order of
appointment rendered the order void since it was done without affording her
due process of law, as she was clearly an interested and indispensable party
given her apparent standing as a contingent beneficiary. 2
The trial court denied her motion to set aside the order of appointment,
finding that Appellant had actual notice and therefore could have objected to
Appellee’s appointment. Appellant timely appealed.
Analysis
Section 736.0201(1), Florida Statutes (2022), provides that “judicial
proceedings concerning trusts shall be commenced by filing a complaint and
shall be governed by the Florida Rules of Civil Procedure.” Here, Appellee
2 See § 736.0103(4), Fla. Stat. (2022) (defining beneficiary as “a person who has a present or future beneficial interest in a trust, vested or contingent”).
5 filed a petition which, unlike a typical complaint, did not name any adverse
parties. Florida Rule of Civil Procedure 1.070(a) states that “[u]pon
commencement of the action, summons or other process authorized by law
shall be issued forthwith by the clerk or judge,” which shall be literally signed
and sealed for delivery. Other provisions of rule 1.070 set forth details
regarding service of process and filing proof that service was accomplished.
Despite this requirement, Appellee neither obtained nor served a summons
on anyone.
Section 731.201(23), Florida Statutes (2022), defines “interested
person” as “any person who may reasonably be expected to be affected by
the outcome of the particular proceeding involved.”3 In its order denying
Appellant’s motion to set aside the order of appointment, the trial court
explicitly recognized that Appellant was indeed an interested party. Appellee
has never contested Appellant’s status as an interested party. “Generally,
the only indispensable parties to a trust action . . . are the trustee, the settlor,
and the beneficiaries.” Demircan v. Mikhaylov, 306 So. 3d 142, 146 (Fla. 3d
DCA 2020) (citing Sylvester v. Sylvester, 557 So. 2d 599, 600 (Fla. 4th DCA
1990) (noting trustee and contingent remainder beneficiaries can be
3 That statutory section is part of the Florida Probate Code; however, it has been applied to trusts as well. See Carvel v. Godley, 939 So. 2d 204, 209 (Fla. 4th DCA 2006).
6 indispensable parties to trust litigation)). Moreover, given that Appellee is
now attempting to have the Second Amendment declared invalid, which
could oust Appellant as a beneficiary, Appellant’s status as an indispensable
party is even clearer. See Crescenze v. Bothe, 4 So. 3d 31, 32 (Fla. 2d DCA
2009) (“Florida has long followed the rule that the beneficiaries of a trust are
indispensable parties to a suit having the termination of the beneficiaries’
interest as its ultimate goal.” (quoting Fulmer v. N. Cent. Bank, 386 So. 2d
856, 858 (Fla. 2d DCA 1980))). By definition, indispensable parties must be
joined and served with process as provided by law. Id. at 33.
The trial court recognized that Appellant was entitled to be notified that
Appellee had filed a petition seeking appointment as trustee. However, it
erred in finding that Appellant’s actual notice of the petition, having been
served on her counsel, was sufficient notice. Florida law does not recognize
actual knowledge of a suit as a substitute for proper service of process. See
Bedford Comput. Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla.
1986) (holding actual notice of lawsuit does not remedy invalid service of
process); Moss v. Est. of Hudson, 252 So. 3d 785, 787 (Fla. 5th DCA 2018)
(“Actual knowledge of a suit does not cure insufficient service of process.”
(citing McDaniel v. FirstBank P.R., 96 So. 3d 926, 929 (Fla. 2d DCA 2012)));
Shepheard v. Deutsche Bank Tr. Co. Ams., 922 So. 2d 340, 345 (Fla. 5th
7 DCA 2006) (“The judgment is voidable if the irregular or defective service
actually gives notice of the proceedings.”); see also Napoleon B. Broward
Drainage Dist. v. Certain Lands Upon Which Taxes Due, 33 So. 2d 716, 718
(Fla. 1948).
Furthermore, the order appointing Appellee as trustee of the Family
Trust was apparently entered without notice of or conducting a hearing. No
explanation has been given for why that was done; however, that
compounded the deprivation of due process already occasioned by the
failure of Appellee to join and serve Appellant. While we offer no opinion on
whether Appellee may ultimately be entitled to appointment as trustee if
proper procedure is followed, we note that Appellee’s and the trial court’s
bypassing of due process led to the entry of an order treating Adean as
though she were dead, when she is very much alive; appointing a successor
trustee without first removing the existing trustee, Adean; and doing so
without any evidentiary support for the bald allegation in the petition that
Adean was incapacitated.
We quash the order appointing Appellee as trustee of the Family Trust
and reverse the order denying Appellant’s motion to set aside that order of
appointment. We remand for further proceedings in accordance with this
opinion that shall be conducted with appropriate pleadings, joinder, service
8 of process, notice, and the opportunity for Appellant and all other
indispensable parties to meaningfully and timely participate.
Appellant’s motion for an award of appellate attorney’s fees, which is
based upon Florida Rules of Appellate Procedure 9.300(a) and 9.400(b), and
section 736.1005, Florida Statutes (2022), is granted, and we remand that
matter for the trial court to determine the amount of such reasonable fees.
ORDER QUASHED, REVERSED, AND REMANDED.
EVANDER and WALLIS, JJ., concur.