PROBATE CORNER
DAVID M . GARTEN
Summary Judgments ( 2021 ) – Directed Verdict Standard Of Review ( Continued )
Case Law :
In Durden v . Citicorp Trust Bank , 2009 U . S . Dist . LEXIS 127347 ; 2009 WL 6499365 ( M . D . Fla . 8 / 21 / 09 ), the Plaintiff sued Citicorp for fraud in the inducement based on the trust officer ’ s lack of experience and Citicorp ’ s failure to inform the Plaintiff that they classified his investment objective as “ aggressive growth ” without need for current income . The court , in granting Citicorp ’ s motion for summary judgment , reasoned in part : “ Plaintiff ' s second alleged omission theory is that he never would have appointed Citicorp trustee had he been advised that his assigned trust officer had limited experience administering charitable remainder unit trusts …. Assuming Defendant otherwise would have had a duty to disclose to Plaintiff that the trust administrator assigned to his account had limited experience with his particular trust type , the Court determines as a matter of law that in this case such an omission was not " material " so as to sustain a claim of fraud …. Although Plaintiff declares in his affidavit that he " would not have appointed Citicorp to act as … trustee " had he been advised that Jenkins " had very limited experience administering charitable remainder unit trusts [,]" see Durden Affidavit at 2 , the Court finds that no reasonable jury could credit this statement so as to create a factual dispute for trial on the issue of materiality . In order to withstand summary judgment , Plaintiff must point to a genuine issue of material fact . Indeed , while the Court views evidence in a light most favorable to Plaintiff , this " does not mean that [ the Court is ] constrained to accept all [ Plaintiff ]' s factual characterizations and legal arguments . If no reasonable jury could return a verdict in favor of the nonmoving party , there is no genuine issue of material fact and summary judgment will be granted ." Beal v . Paramount Pictures Corp ., 20 F . 3d 454 , 458-59 ( 11th Cir . 1994 ); see also Scott v . Harris , 550 U . S . 372 , 380 , 127 S . Ct . 1769 , 167 L . Ed . 2d 686 ( 2007 ) (" Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party , there is no genuine issue for trial .")… Given Plaintiff ' s unequivocal testimony that his sole criterion in choosing a trustee was convenience and that any representations as to Defendant ' s general experience were of no importance " as far as I ' m concerned [,]" see Durden Deposition at 59-
65 , 130-32 , no reasonable jury could conclude that he would have acted differently had he known that an administrative employee with no role in placing the Trust assets had limited experience in dealing with charitable remainder unit trusts . Accordingly , the Court determines that Plaintiff ' s omission theory of fraud based on the nondisclosure of Jenkins ' s limited experience cannot withstand summary judgment . ●Plaintiff ' s final theory of fraud is that he was never informed that Citicorp classified his Trust ' s investment objective as " aggressive growth " without need for current income , and had he been so informed , he would have terminated Citicorp as trustee …. the Court determines that--in light of Plaintiff ' s acknowledgment that Defendant provided him regular account statements containing complete information of the actual Trust transactions and the investments of the Trust assets , no reasonable jury could conclude that Defendant ' s internal classification of the Trust assets and objectives as reflected in administrative paperwork was a material omission or that Defendant intended to induce Plaintiff to act by failing to disclose the same .”
In Ifergane v . Fratellini , 2020 U . S . Dist . LEXIS 7463 ; 2020 WL 248969 ( S . D . Fla . 1 / 16 / 20 ), plaintiff sued defendant , in part , for tortious interference by unduly influencing the decedent into changing the beneficiary of his life insurance policy . The court , in granting defendant ’ s motion for summary judgment , reasoned in part “ that the plaintiff relied on inconsequential facts , conclusory allegations , and various suspicions that lack any actual evidentiary grounding .”
In Metro . Life Ins . Co . v . Carter , 2005 U . S . Dist . LEXIS 25352 ; 2005 WL 2810699 ( M . D . Fla . 10 / 27 / 05 ), Plaintiff sued T for interference with an expectancy interest based on undue influence . Plaintiff asserted that T , through W , acting as T ' s agent , unduly influenced the decedent to eliminate Plaintiff and add T as a beneficiary of certain monthly annuity payments . T moves for summary judgment arguing , in part , that Plaintiff has not presented facts sufficient to create a triable issue on her undue influence claim . In her attempt to avoid summary judgment , Plaintiff submitted the following summary judgment evidence : ( 1 ) decedent did not write the printed portion of the beneficiary change request ; ( 2 ) decedent ’ s Last Will and Testament was drafted by W ’ s attorney , in W ’ s presence , and left most assets to W and his children ; ( 3 ) W used his position as a signatory on decedent ’ s bank account to write checks to himself and T just prior to and just after decedent ’ s death ; and ( 4 ) W was added to one or more of decedent ’ s CD accounts . In addition , Plaintiff ’ s counsel argued that W ’ s actions , viewed together , show a pattern of undue influence beginning with his name being placed on one of the decedent ’ s CD accounts and culminating in him or his children becoming the primary beneficiaries of decedent ’ s assets following her death in 2002 . The court found that Plaintiff ’ s summary judgment evidence did not create a triable issue of fact as to whether T and W actively procured decedent into signing the beneficiary change request .
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PBCBA BAR BULLETIN 25