Nayee v. Nayee

705 So. 2d 961, 1998 WL 20680
CourtDistrict Court of Appeal of Florida
DecidedJanuary 23, 1998
Docket97-192
StatusPublished
Cited by12 cases

This text of 705 So. 2d 961 (Nayee v. Nayee) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nayee v. Nayee, 705 So. 2d 961, 1998 WL 20680 (Fla. Ct. App. 1998).

Opinion

705 So.2d 961 (1998)

Ramabhai Sankabhai NAYEE, et al., Appellants,
v.
Jayantilal Sankabhai NAYEE, Appellee.

No. 97-192.

District Court of Appeal of Florida, Fifth District.

January 23, 1998.

Thomas R. Peppler, of Rubino, Peppler and Assoc., P.A., Maitland, for Appellants.

Raymond J. Rotella and Lawrence M. Kosto, of Kosto & Rotella, P.A., Orlando, for Appellee.

GRIFFIN, Chief Judge.

This is an appeal of a partial summary final judgment in favor of the defendant below based on the statute of limitations in an action for an accounting. Because we conclude that the claim was not time barred, we reverse.

This litigation involves a family trust which was established in 1979 for the purpose of operating a hotel in Brevard County, Florida. Title to the hotel had been taken in the name of Jayantilal S. Nayee ["Jay"], as sole trustee. In 1981, Jay sold the hotel for $563,079.77, payable under two promissory notes. The first note was for $50,000 and was payable in full within two years of December 17, 1981. The second note, in the amount of $513,079.77, was payable in monthly installments of $5,277.81 over a thirty-year period.

Plaintiffs below were three of the trust's beneficiaries. Plaintiff Ramabhai Sankabhai Nayee ["Ram"] is the defendant's brother. The two remaining plaintiffs—Bhupendra Ramabhai Nayee ["Bhupendra"] and Nareshkumar Hamabhai Nayee ["Naresh"]—are defendant's nephews. They brought the action below against Jay for an accounting on May *962 10, 1995, alleging that Jay had failed to pay them their share of the money due from the sale of the hotel as required by the trust instrument. Jay counterclaimed for an accounting of the monies due under his father's will.[1]

On September 19, 1996, Jay filed a motion for summary judgment on plaintiffs' claim for an accounting, asserting that the action was barred by the statute of limitations. In support of his motion, Jay submitted a copy of what purported to be "minutes" of a family meeting held on July 5, 1987.[2] The meeting was attended by the plaintiffs and Jay. The minutes reflect that during the meeting Ram had questioned Jay about the failure to pay them any money from the sale of the hotel. The minutes state:

Mr. Rambhai Nayee opened up the meeting and expressed concern that note payment frommotel [sic] was not being divided so that he may receive the benefits accrued to him.

The minutes further reflect that Jay had told them that there were numerous debts to be paid before distributions could begin. Among the debts Jay detailed were the following: (1) $188,000 plus interest payable to Jay as salary; (2) $40,000 in salary owed to Bhupendra; (3) more than $70,000 to be repaid Jay for loans; (4) various loans from Central Beauty (which were not detailed); and (5) an additional $25,000 "for Mr. Mangat's debt." These debts totaled in excess of $323,000. The minutes also stated that Jay had reassured them that the trust agreement would be honored after the payment of debts. The minutes represented:

After all the above debts are satisfied or provided for then some realistic figure of nett [sic] profits shall be arrived at, which shall be distributed according to the agreement made in 1978 mid year. Mr. Jayanti [sic] Nayee said that he is willing to honor the agreement even though it should be noted that capital structure from the above had changed and promises of family help did not fully materialize fully.

Jay asserted in his motion that these minutes show that, by July of 1987, plaintiffs were aware that they were not being paid in accordance with the trust and, accordingly, they knew or should have known of Jay's alleged breach of trust.

In an affidavit submitted in support of his motion, Jay also claimed that plaintiffs had "periodically" questioned him concerning profits from the sale beginning in 1981. He said that "I consistently told them each year as I have told them throughout this case, the sale did not result in a profit." The affidavit concluded:

Notwithstanding the fact that Plaintiffs had concerns in [sic] prior to, in 1987, and thereafter, the Plaintiffs did not initiate any action for an accounting until, April 1995, more than sixteen years after the establishment of the trust, more than thirteen years after Plaintiffs first expressed a concern about Affiant's handling of the trust, more than 14 years after the motel sold, and more than eight years after Plaintiffs held a formal meeting, at which time it was discussed, that the Plaintiffs thought that Affiant was mismanaging the trust and that the Plaintiffs wanted some sort of an accounting.

After a hearing, which was not reported, the court granted Jay's motion in part, finding that the statute of limitations did apply to "issues" within plaintiffs' cause of action. However, the court held that there were issues of fact concerning the date on which plaintiffs' cause of action accrued and reserved ruling on the precise statute of limitations to be applied.

On November 18, 1996, Jay renewed his motion for summary judgment. He once again contended, based on the minutes, that plaintiffs knew or should have known by July 1987 of any discrepancies in the accounts and that the action was therefore barred by the four-year statute of limitations applicable to "[a]ny action not specifically provided for in these statutes." § 95.11(3)(p), Fla. Stat. (1995). Jay also filed a new verified copy of the minutes of the 1987 meeting, to which *963 was attached some handwritten accounting statements for the period from 1983 to 1987, which had allegedly been supplied to plaintiffs along with the minutes of the 1987 meeting. The court held a hearing on Jay's renewed motion and ultimately granted the motion, stating:

2. Based upon the minutes of the meeting from 1987, there were monies used by Defendant for his own benefit.
3. Prior to and as of the minutes of the meeting in 1987, Plaintiffs' [sic] knew or should have known there were payments being made to Defendant from the sale of the motel for which they should have received an accounting, thereby starting the statute of limitations to run.
4. Upon the foregoing findings of fact the Plaintiffs shall take nothing by their action and the Defendant shall go hence without day.

Plaintiffs have appealed this partial final summary judgment. Appellants argue that the trial court improperly dismissed their action for an accounting based on the statute of limitations because the statute of limitations for an accounting on a trust does not begin to run until there has been repudiation of the trust by the trustee or adverse possession of the trust assets by the trustee and knowledge of that fact by the beneficiaries. Further, they argue that no repudiation has taken place under the facts of this case and while they apparently concede that there was adverse possession of trust assets by the trustee, they contend that the question when they knew or should have known of Jay's adverse possession is a question of fact not appropriate for resolution in an action for summary judgment. We agree.

Jay contends that the four-year statute of limitations[3] began to run no later than July 1987, when plaintiffs questioned Jay's distribution of proceeds from the sale of the hotel. He also contends that it was apparent by July 1987 that nothing would ever be distributed to plaintiffs since the monies claimed by Jay totaled $541,267. Jay reaches this figure by adding interest at the rate of twelve percent per annum.

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Cite This Page — Counsel Stack

Bluebook (online)
705 So. 2d 961, 1998 WL 20680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nayee-v-nayee-fladistctapp-1998.