Swan v. Trost

100 So. 3d 1205, 2012 Fla. App. LEXIS 19550, 2012 WL 5458080
CourtDistrict Court of Appeal of Florida
DecidedNovember 9, 2012
DocketNo. 2D11-5826
StatusPublished
Cited by2 cases

This text of 100 So. 3d 1205 (Swan v. Trost) 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
Swan v. Trost, 100 So. 3d 1205, 2012 Fla. App. LEXIS 19550, 2012 WL 5458080 (Fla. Ct. App. 2012).

Opinion

LaROSE, Judge.

Tamara Swan is the niece and guardian of the ward, Erich Trost. She is also the trustee of the Erich Trost Trust. Ms. Swan seeks certiorari review of the trial court’s nonfinal order compelling production of corporate, Trust, and financial documents to Matthias Trost, the ward’s estranged son. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A). We grant the petition for writ of certiorari and quash the discovery order, in part.

Matthias Trost sued Ms. Swan, as trustee, for declaratory relief. He sought the production of various Trust documents. After conducting an in-camera inspection, the general magistrate concluded that Mr. Trost was not entitled to discovery of these documents because the trustee owed duties to inform and account only to the settlor, Erich Trost. See § 736.0603(1), Fla. Stat. (2009) (“While a trust is revocable, the duties of the trustee are owed exclusively to the settlor.”). Upon Erich Trost’s death,1 the trustee would owe a duty only to beneficiaries. Matthias Trost was not a Trust beneficiary. The general magistrate rendered these findings:

(1) The Trust is still revocable, as the Ward is still alive.
(2) Under Florida Law, the trustee’s duties to inform and account are owed exclusively to the settlor of the trust for as long as the trust is revocable.
(3) Once the Trust has become irrevocable, the trustee has 60 days to give notice of the existence of the Trust, and the right to request a copy of the Trust, to the qualified beneficiaries of the Trust.
(4) Trost is not a named beneficiary of the Trust.
(5) Ms. Swan should not be required to produce unredacted copies of the Trust to Trost.
(6) Ms. Swan should not be required to produce an accounting for the Trust to Trost.
(7) The Civil Action should be dismissed without prejudice.

Matthias Trost then filed a petition in a separate guardianship proceeding, alleging that Ms. Swan neglected and exploited her uncle’s income, assets, and property in violation of her fiduciary duty as guardian. See § 744.446, Fla. Stat. (2009).2 Count I [1208]*1208of the petition asked the trial court to appoint a monitor pursuant to section 744.107(1), which allows the court to appoint a monitor “upon inquiry from any interested person.” Count II sought appointment of a guardian ad litem to investigate potential elderly exploitation claims against Ms. Swan. In Count III, Matthias Trost asked to review annual guardianship accountings and reports and trust account-ings. Under section 744.3701(2), “[t]he court may direct disclosure and recording of parts of an initial, annual, or final report in connection with any real property transaction or for such other purpose as the court allows, in its discretion.”

Count IV of the petition requested review of Ms. Swan’s appointment as guardian and/or to remove her as guardian and trustee. Matthias Trost stated that her appointment as guardian was inoperative because he received no notice of the proceedings to determine incapacity and appoint a guardian as required by sections 744.344 and .3371, and no notice of business transactions involving the ward’s property, including the Trust. See Hughes v. Bunker, 76 So.2d 474, 477 (Fla.1954) (holding where next of kin not notified of proceedings, guardian appointment was inoperative). He also argued that the court should remove her as guardian pursuant to section 744.4743 for “fraud, abuse, waste, mismanagement and conflict/self-dealing transactions” and remove her as Trustee pursuant to section 736.0706, Florida Statutes (2009),4 for the same conduct. [1209]*1209Count V requested an injunction requiring Ms. Swan to comply with the guardianship statute, to provide notice and annual reports to him as next of kin, and to prohibit insider transactions to prevent mismanagement and waste. Count VI asked the court to void illegal transactions, levy a surcharge, disgorge improper takings, and/or for damages pursuant to section 744.446(4). See supra note 2. Count VII requested attorney’s fees and costs.

In discovery, Matthias Trost requested twenty-five items of confidential financial information. Ms. Swan objected, and Matthias Trost filed a motion to compel production. In an order that issued prior to the ward’s death, the trial court granted the motion, in part, and ordered Ms. Swan to produce fourteen of the requested items. Ms. Swan argues that the trial court improperly ordered production of nine items: (2) Citrus Park tax returns from 2000 to the present; (7) all documents reflecting assignment of Citrus Park stock owned by Erich Trost to the Trust; (8) all certificates showing current ownership interest in Citrus Park; (13) Trust tax returns from 2001 to the present, (14) Trust annual accountings from 2001 to the present; (15) initial and annual accountings, reports and plans for guardianship proceedings from 2004 to the present, plus the clerk’s audits of them; (17) all contracts for the purchase of real estate from Citrus park from 2003 to the present; (18) all Citrus Park and Swan Homes files related to construction of the Citrus Park Boulevard house; and (19) all Citrus Park and Swan Homes files related to construction of the new Citrus Park administration building.

Ms. Swan contends that the trial court departed from the essential requirements of the law in compelling production because Matthias Trost, who is not a Trust beneficiary, has not shown that he has a legally cognizable interest in the guardianship or Trust, or any statutory right, as a nonshareholder, to Citrus Park corporate information.

Trust Documents

Matthias Trost argues that the trial court had authority to allow Matthias Trost to review the Trust accounting reports under section 744.441 titled “Powers of guardian upon court approval”:

After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may:
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(2) Execute, exercise, or release any powers as trustee ... that the ward might have lawfully exercised, consummated, or executed if not incapacitated....
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(19) ... The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.

(Emphasis added). However, section 744.441 did not allow the trial court to force the trustee to disclose Trust documents to Matthias Trost on the basis that he was next of kin. See § 736.0603(1), Fla. Stat. (2009). When the trial court issued [1210]*1210the order on review, the ward was alive and Ms. Swan had no duty to Matthias Trost.

Citrus Park Corporate Documents

Similarly, section 607.1602, Florida Statutes (2009), provides for inspection of corporate documents only by shareholders.

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Cite This Page — Counsel Stack

Bluebook (online)
100 So. 3d 1205, 2012 Fla. App. LEXIS 19550, 2012 WL 5458080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swan-v-trost-fladistctapp-2012.