Third District Court of Appeal State of Florida
Opinion filed February 19, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1265 Lower Tribunal No. 18-19439 ________________
Maria Eugenia Correa, etc., Appellant,
vs.
Marcela Tovar-Restrepo, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.
Sodhi Spoont PLLC, and Eric M. Sodhi, Joshua L. Spoont, and Nathaniel M. Edenfield, for appellant.
Nelson Mullins Riley & Scarborough LLP, and Francisco Armada and Mark F. Raymond; Nelson Mullins Riley & Scarborough LLP, and Beverly A. Pohl (Boca Raton), for appellees.
Before LOGUE, C.J., and LOBREE and GOODEN, JJ. LOGUE, C.J.
Maria Eugenia Correa, individually and as Trustee of the Colspak
Revocable Trust, appeals the trial court’s final summary judgment in favor of
Marcela Tovar-Restrepo, Ana Maria Tovar-Restrepo, and Kvinner LLC. Ms.
Correa was substituted as plaintiff in the underlying action after the death of
the original plaintiff, Jose Pablo Tovar Parra (“Mr. Tovar”). The trial court,
however, dismissed the case holding that Mr. Tovar lacked standing from the
outset to commence the underlying action. For the reasons explained below,
we conclude Mr. Tovar did have standing when he commenced the
underlying action. As Mr. Tovar’s successor trustee and beneficiary of the
Colspak Revocable Trust upon his death, Ms. Correa, in turn, had standing
to continue the action.
Background
The underlying action concerned a dispute among family members
over substantial assets held in three trusts. Mr. Tovar created three
revocable trusts in 2015 (the “2015 Trusts”). In 2016, he made them
irrevocable which divested him of control of the trust assets. In 2018, he sued
his daughters, Marcela and Ana Maria, and an entity allegedly controlled by
Marcela, Kvinner LLC (hereinafter jointly “the Daughters”), to invalidate his
actions that made the 2015 Trusts irrevocable.
2 The complaint was brought by Mr. Tovar individually and as
settlor/trustee of the 2015 Trusts and alleged seven causes of action: (1)
statutory termination of the trust amendments due to undue influence; (2)
statutory termination of the trust amendments due to fraud; (3) statutory
reformation of the trust amendments based on mistake; (4) injunctive relief
to freeze the trust assets absent court order; (5) civil theft based on
exploitation of an elderly person; (6) declaratory relief adjudicating Mr.
Tovar’s status as trustee of the three trusts at issue; and (7) breach of
fiduciary duty.
The Daughters contested the claims, which were not resolved on the
merits because Mr. Tovar passed away in late 2020. Following Mr. Tovar’s
passing, the underlying litigation shifted to whether Ms. Correa could
proceed with the case in Mr. Tovar’s stead.
In early 2021, Ms. Correa moved to be substituted as plaintiff. Her
motion relied upon a previously undisclosed trust created by Mr. Tovar
(hereinafter “the Colspak Revocable Trust”) to which Mr. Tovar had assigned
his causes of action against his daughters. Ms. Correa asserted she
appeared “individually and as Trustee of the Colspak Revocable Trust” and
as grounds for the substitution alleged, in pertinent part, the following:
[I]n June of 2018, Mr. Tovar, as settlor and grantor, created the Colspak Revocable Trust, which was
3 initially funded with the assets at issue in this litigation. At the time the Colspak Trust was created, Mr. Tovar himself was the sole Trustee. Pursuant to Article IV, section A, of the Colspak Trust, Movant bec[a]me the sole Trustee of the Colspak Trust upon the death of Mr. Tovar. Moreover, Mr. Tovar also assigned from himself individually, and to himself, as the Sole Trustee of the Colspak Revocable Trust, “any and all of my rights and interest in any and all claims that can be, may be, or will be brought or pursued against my daughters, MARCELA TOVAR RESTREPO and ANA MARIA TOVAR RESTREPO, individually.”
Although the litigation had been ongoing for several years, the Daughters
averred this was the first time they learned of the existence of the Colspak
Revocable Trust.
Ms. Correa was eventually substituted as Plaintiff, “both individually
and as Trustee of the Colspak Revocable Trust.” That order, however,
preserved the Daughters’ rights to challenge Mr. Tovar and Ms. Correa’s
standing.
The Daughters subsequently moved for summary judgment. Focusing
on the assignment of the causes of action to the newly revealed Colspak
Revocable Trust, they argued that Mr. Tovar lacked standing when he
commenced the underlying action because he previously assigned the rights
to the litigation to the Colspak Revocable Trust. The Daughters further
argued that the substitution of Ms. Correa as Trustee of the Colspak
4 Revocable Trust, some four years after the lawsuit was filed, could not cure
the deficiency in standing that was present at the lawsuit’s inception because
the statute of limitations had since run.
The trial court granted the Daughters’ motion. The trial court
specifically concluded that Mr. Tovar lacked standing to initially commence
the lawsuit because he previously assigned all his rights to bring the lawsuit
to the Colspak Revocable Trust, leaving him with no interest to enforce. The
trial court further concluded that Ms. Correa, individually and as Trustee of
the Colspak Revocable Trust, could not cure the standing deficiency by being
substituted as plaintiff. Finally, the trial court concluded that the relation back
doctrine was not applicable because there was no identity of interest
between the original plaintiff and the substituted plaintiff.
Legal Analysis
“Standing is a legal concept that requires a would-be litigant to
demonstrate that he or she reasonably expects to be affected by the
outcome of the proceedings, either directly or indirectly.” Hayes v.
Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006). “In its broadest
sense, standing is no more than having, or representing one who has, ‘a
sufficient stake in an otherwise justiciable controversy to obtain judicial
resolution of that controversy.’” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d
5 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727,
731 (1972)).
Standing also requires “that the claim be brought by or on behalf of one
who is recognized in the law as a ‘real party in interest,’ that is, ‘the person
in whom rests, by substantive law, the claim sought to be enforced[.]’” Id. at
1183 (internal citation omitted). This is so that a defendant might be
protected “from facing a subsequent similar action brought by one not a party
to the present proceeding and to ensure that any action taken to judgment
will have its proper effect as res judicata . . . .” Id. (quoting Prevor-Mayorsohn
Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc., 620 F.2d 1, 4 (1st Cir.
1980)).
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Third District Court of Appeal State of Florida
Opinion filed February 19, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1265 Lower Tribunal No. 18-19439 ________________
Maria Eugenia Correa, etc., Appellant,
vs.
Marcela Tovar-Restrepo, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.
Sodhi Spoont PLLC, and Eric M. Sodhi, Joshua L. Spoont, and Nathaniel M. Edenfield, for appellant.
Nelson Mullins Riley & Scarborough LLP, and Francisco Armada and Mark F. Raymond; Nelson Mullins Riley & Scarborough LLP, and Beverly A. Pohl (Boca Raton), for appellees.
Before LOGUE, C.J., and LOBREE and GOODEN, JJ. LOGUE, C.J.
Maria Eugenia Correa, individually and as Trustee of the Colspak
Revocable Trust, appeals the trial court’s final summary judgment in favor of
Marcela Tovar-Restrepo, Ana Maria Tovar-Restrepo, and Kvinner LLC. Ms.
Correa was substituted as plaintiff in the underlying action after the death of
the original plaintiff, Jose Pablo Tovar Parra (“Mr. Tovar”). The trial court,
however, dismissed the case holding that Mr. Tovar lacked standing from the
outset to commence the underlying action. For the reasons explained below,
we conclude Mr. Tovar did have standing when he commenced the
underlying action. As Mr. Tovar’s successor trustee and beneficiary of the
Colspak Revocable Trust upon his death, Ms. Correa, in turn, had standing
to continue the action.
Background
The underlying action concerned a dispute among family members
over substantial assets held in three trusts. Mr. Tovar created three
revocable trusts in 2015 (the “2015 Trusts”). In 2016, he made them
irrevocable which divested him of control of the trust assets. In 2018, he sued
his daughters, Marcela and Ana Maria, and an entity allegedly controlled by
Marcela, Kvinner LLC (hereinafter jointly “the Daughters”), to invalidate his
actions that made the 2015 Trusts irrevocable.
2 The complaint was brought by Mr. Tovar individually and as
settlor/trustee of the 2015 Trusts and alleged seven causes of action: (1)
statutory termination of the trust amendments due to undue influence; (2)
statutory termination of the trust amendments due to fraud; (3) statutory
reformation of the trust amendments based on mistake; (4) injunctive relief
to freeze the trust assets absent court order; (5) civil theft based on
exploitation of an elderly person; (6) declaratory relief adjudicating Mr.
Tovar’s status as trustee of the three trusts at issue; and (7) breach of
fiduciary duty.
The Daughters contested the claims, which were not resolved on the
merits because Mr. Tovar passed away in late 2020. Following Mr. Tovar’s
passing, the underlying litigation shifted to whether Ms. Correa could
proceed with the case in Mr. Tovar’s stead.
In early 2021, Ms. Correa moved to be substituted as plaintiff. Her
motion relied upon a previously undisclosed trust created by Mr. Tovar
(hereinafter “the Colspak Revocable Trust”) to which Mr. Tovar had assigned
his causes of action against his daughters. Ms. Correa asserted she
appeared “individually and as Trustee of the Colspak Revocable Trust” and
as grounds for the substitution alleged, in pertinent part, the following:
[I]n June of 2018, Mr. Tovar, as settlor and grantor, created the Colspak Revocable Trust, which was
3 initially funded with the assets at issue in this litigation. At the time the Colspak Trust was created, Mr. Tovar himself was the sole Trustee. Pursuant to Article IV, section A, of the Colspak Trust, Movant bec[a]me the sole Trustee of the Colspak Trust upon the death of Mr. Tovar. Moreover, Mr. Tovar also assigned from himself individually, and to himself, as the Sole Trustee of the Colspak Revocable Trust, “any and all of my rights and interest in any and all claims that can be, may be, or will be brought or pursued against my daughters, MARCELA TOVAR RESTREPO and ANA MARIA TOVAR RESTREPO, individually.”
Although the litigation had been ongoing for several years, the Daughters
averred this was the first time they learned of the existence of the Colspak
Revocable Trust.
Ms. Correa was eventually substituted as Plaintiff, “both individually
and as Trustee of the Colspak Revocable Trust.” That order, however,
preserved the Daughters’ rights to challenge Mr. Tovar and Ms. Correa’s
standing.
The Daughters subsequently moved for summary judgment. Focusing
on the assignment of the causes of action to the newly revealed Colspak
Revocable Trust, they argued that Mr. Tovar lacked standing when he
commenced the underlying action because he previously assigned the rights
to the litigation to the Colspak Revocable Trust. The Daughters further
argued that the substitution of Ms. Correa as Trustee of the Colspak
4 Revocable Trust, some four years after the lawsuit was filed, could not cure
the deficiency in standing that was present at the lawsuit’s inception because
the statute of limitations had since run.
The trial court granted the Daughters’ motion. The trial court
specifically concluded that Mr. Tovar lacked standing to initially commence
the lawsuit because he previously assigned all his rights to bring the lawsuit
to the Colspak Revocable Trust, leaving him with no interest to enforce. The
trial court further concluded that Ms. Correa, individually and as Trustee of
the Colspak Revocable Trust, could not cure the standing deficiency by being
substituted as plaintiff. Finally, the trial court concluded that the relation back
doctrine was not applicable because there was no identity of interest
between the original plaintiff and the substituted plaintiff.
Legal Analysis
“Standing is a legal concept that requires a would-be litigant to
demonstrate that he or she reasonably expects to be affected by the
outcome of the proceedings, either directly or indirectly.” Hayes v.
Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006). “In its broadest
sense, standing is no more than having, or representing one who has, ‘a
sufficient stake in an otherwise justiciable controversy to obtain judicial
resolution of that controversy.’” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d
5 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727,
731 (1972)).
Standing also requires “that the claim be brought by or on behalf of one
who is recognized in the law as a ‘real party in interest,’ that is, ‘the person
in whom rests, by substantive law, the claim sought to be enforced[.]’” Id. at
1183 (internal citation omitted). This is so that a defendant might be
protected “from facing a subsequent similar action brought by one not a party
to the present proceeding and to ensure that any action taken to judgment
will have its proper effect as res judicata . . . .” Id. (quoting Prevor-Mayorsohn
Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc., 620 F.2d 1, 4 (1st Cir.
1980)).
The Florida real party in interest rule, [Florida Rule of Civil Procedure] 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest. Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.
Id. (footnote and internal citations omitted). See also Fla. R. Civ. P. 1.210(a)
(“Every action may be prosecuted in the name of the real party in interest,
but a . . . trustee of an express trust . . . may sue in that person's own name
without joining the party for whose benefit the action is brought.”).
6 It was established here that the Colspak Revocable Trust held Mr.
Tovar’s “rights and interests in any and all claims that can be, may be, or will
be brought or pursued against [his] daughters, MARCELA TOVAR
RESTREPO and ANA MARIA TOVAR RESTREPO, individually.” It was also
established that Mr. Tovar was the sole grantor, trustee, and beneficiary of
the Colspak Revocable Trust during his lifetime. As the sole trustee,
therefore, he was permitted to bring the underlying action in his own name.
See Fla. R. Civ. P. 1.210(a).
And he was not required to join the trust as a party. For example, in
Marshall-Shaw v. Ford, 755 So. 2d 162 (Fla. 4th DCA 2000), the plaintiff
brought an action relating to the alleged theft of numerous pieces of personal
jewelry. Id. at 163. In the complaint, the plaintiff alleged she was the owner
of the jewelry and did not plead the existence of a trust. Id. at 164. During
the course of the action, however, it came to light that the jewelry was
actually owned by a trust, of which the plaintiff was a co-trustee and the sole
beneficiary. Id. The defendants then argued that plaintiff was required to
bring suit in her capacity as co-trustee of the trust. Id.
The Fourth District, however, rejected this argument. Id. at 164-65.
Relying on Rule 1.210(a), which it described as “a rule of enlargement rather
than one of limitation of parties[,]” the Fourth District reasoned that the
7 plaintiff was authorized to maintain the suit in her individual capacity because
she had standing as the sole beneficiary of the trust. Id. Here, Mr. Tovar was
both the sole trustee and the sole beneficiary of the Colspak Revocable Trust
at the time he brought the underlying action. As such, he too had standing to
bring the action. Cf. Roller v. Collins, 373 So. 3d 35, 40 (Fla. 5th DCA 2023)
(“Florida law has long recognized that it is generally the trustee, and not a
beneficiary, who is the real party in interest with authority to bring an action
on behalf of the trust.”).
Furthermore, Mr. Tovar was not required to allege that he was suing in
his capacity as trustee of the Colspak Revocable Trust. Rule 1.120(a)
provides that “[i]t is not necessary to aver . . . the authority of a party to sue
or be sued in a representative capacity . . . except to the extent required to
show the jurisdiction of the court.” Instead, “[w]hen a party desires to raise
an issue as to . . . the authority of a party to sue or be sued in a representative
capacity, that party shall do so by specific negative averment which shall
include such supporting particulars as are peculiarly within the pleader’s
knowledge.” Id.
Here, the Daughters were permitted to amend their answer and
affirmative defenses to properly raise the issue of Mr. Tovar’s standing to
sue based on his failure to allege that he was bringing his action as trustee
8 of the Colspak Revocable Trust. They then moved for summary judgment on
the defense and Ms. Correa sufficiently established that Mr. Tovar had
standing to sue at the inception of the underlying action because he was
trustee of the Colspak Revocable Trust, as detailed above. Accordingly, the
fact that he did not aver his authority to sue in this representative capacity in
his initial and subsequent complaints, standing alone, did not deprive him of
The Daughters attempt to negate the foregoing by arguing that the fact
that Mr. Tovar assigned his rights to the Colspak Revocable Trust renders
the facts of this case somehow distinct. In support, they rely on case law
concerning parties that have assigned their rights to third parties. The
problem with that argument here is that Mr. Tovar did not assign his rights to
a wholly unrelated third party, but rather he assigned it to himself in a
different capacity. In this sense, the assignment was only a means to transfer
the legal title to himself in a different capacity. The fact remains that he, Mr.
Tovar, still held these rights, only now in his capacity as trustee of the
Colspak Revocable Trust. Accordingly, he still had standing to sue.
Furthermore, contrary to the Daughters’ arguments, there is no
prejudice to them. This is because, while Mr. Tovar’s standing may be based
on his capacity as trustee of the Colspak Revocable Trust because of the
9 assignment, the fact remains that the underlying claims are based on Mr.
Tovar’s individual rights. This is because what Mr. Tovar assigned to the
Colspak Revocable Trust were his individual “rights and interests in any and
all claims that can be, may be, or will be brought or pursued against [his]
daughters, MARCELA TOVAR RESTREPO and ANA MARIA TOVAR
RESTREPO, individually.” As such, the underlying claims and defenses
remain the same. This is true no matter to whom or how many times over
Mr. Tovar’s rights to recover against his daughters may be assigned.
Finally, having established that Mr. Tovar had standing to sue because
he was the trustee of the Colspak Revocable Trust, it follows that upon his
passing, Ms. Correa obtained standing to continue to prosecute the
underlying action as successor trustee of the Colspak Revocable Trust.
Accordingly, the trial court properly substituted Ms. Correa as plaintiff, but
erred in subsequently concluding that she lacked standing to continue to
pursue the action.
Reversed.