PROBATE CORNER
Third Party Liability For Breach Of Trust
(continued)
DAVID M. GARTEN
In Kent v. Kent, 431 So. 2d 279 (Fla. 5th
DCA 1983), the trust beneficiaries sued the
trustee and the buyer of trust property for
civil conspiracy. The beneficiaries alleged
that the property was a major asset of the
trusts and that it had been transferred by
the trustee to the buyer for less than fair
consideration. They further alleged that
the trustee and buyer conspired to deplete
the trust assets and to convert those
assets to themselves, and that the trustee
leased and sold trust assets to the buyer
for consideration which they both knew
was inadequate in a scheme to defraud the
beneficiaries. The appellate court found
that these allegations, if proven, would
constitute conduct amounting to a civil
wrong.
In Blatt v. Green, Rose, Hahn & Piotrkowski,
456 So. 2d 949 (Fla. 3rd DCA 1984), the
residuary beneficiaries of the testator/
husband’s estate entered into an agreement
with the testator's surviving spouse
pursuant to which the beneficiaries
assigned to the surviving spouse a certain
percent of the residual estate in return for
the surviving spouse’s relinquishment
of any claims against the estate. The
surviving spouse subsequently died and
the personal representative of her estate
(“PR”) brought an action alleging in part
that the attorney for the beneficiaries
conspired with the beneficiaries/personal
representatives of the estate to deprive
the surviving spouse of the agreed upon
percentage of the residuary estate. The PR
further alleged that the attorney obtained
court orders and took other various steps
to have the assets of the estate distributed
without regard to the agreement, and that
the residuary beneficiaries distributed all
of the assets of the estate to themselves
without regard to the previously entered
agreement. The trial dismissed the
complaint. The appellate court reversed
and found that the complaint stated a
cause of action for a civil conspiracy based
upon an alleged violation of their fiduciary
duty imposed by §733.815, F.S., i.e., private
contracts among interested persons. Under
the allegations of the complaint, such an
agreement was executed and therefore, the
beneficiaries/personal representatives had
a duty imposed by statute to abide by the
terms of the agreement. The beneficiaries
and attorney allegedly breached their
duty in bad faith when they ignored the
agreement and improperly had all the
assets distributed to themselves. The court
held that if these allegations are ultimately
proved, the personal representatives would
be liable to the PR for the damages or loss
which resulted from the breach of this
fiduciary duty. for the acts of the others, as well as for his
own acts. The theory of the early common
law was that there was a mutual agency of
each to act for the others, which made all
liable for the tortious acts of anyone.
In Smyrna Developers, Inc. v. Bornstein,
177 So.2d 16 (Fla. 2d DCA 1965), the plaintiff
stated a cause of action for civil conspiracy
where the complaint alleged that the
defendants, attorneys who had been
retained by plaintiff corporation and who
were informed of the corporation's land
development plans, conspired together
and used this knowledge to deprive the
corporation of the property and obtain it for
themselves. By virtue of this relationship, the tortfeasor
becomes liable for the actions of those with
whom he acted in concert such that there
is a joint enterprise, and a mutual agency,
so that the act of one is the act of all, and
liability for all that is done is visited upon
each. See W. Keeton, Prosser & Keeton on
Torts § 52, at 346 (5th ed. 1984)).
C. Restatement (Second) of Torts §§875 &
876 (Acting In Concert)
Joint and several liability among multiple
tortfeasors exists when the tortfeasors,
acting in concert or through independent
acts, produce a single injury. This principle
is set forth in the Restatement (Second) of
Torts §§875 & 876 which provide as follows:
§ 875. Contributing Tortfeasors-General
Rule. “Each of two or more persons whose
tortious conduct is a legal cause of a single
and indivisible harm to the injured party is
subject to liability to the injured party for
the entire harm.”
§ 876. Persons Acting in Concert. “For
harm resulting to a third person from the
tortious conduct of another, one is subject
to liability if he (a) does a tortious act in
concert with the other or pursuant to a
common design with him, or (b) knows that
the other's conduct constitutes a breach of
duty and gives substantial assistance or
encouragement to the other so to conduct
himself, or (c) gives substantial assistance
to the other in accomplishing a tortious
result and his own conduct, separately
considered, constitutes a breach of duty to
the third person.”
In Acadia Partners, L.P. v. Tompkins, 759 So.
2d 732 (Fla. 5th DCA 2000), plaintiff, after
winning a breach of contract judgment
against a corporation, sought to pierce
the corporate veil and impose liability
upon corporate directors, together with
the corporation's accountant and counsel,
for fraudulently inducing plaintiff to loan
money to the corporation. In its complaint,
plaintiff alleged that the accountant and
the attorney in their capacity as board
members had made misrepresentations
and conspired to devise a plan to
fraudulently induce plaintiff to loan funds
to the corporation so that the chairman
and vice-chairman of the board of directors
and the CEO of the corporation could use
the funds for their personal use. The court
held that these allegations set forth a
viable basis for joint and several liability
under the terms described in Restatement
(Second) of Torts §876. See also Conley v.
Boyle Drug Company, 477 So. 2d 600 (Fla.
4th DCA 1985); Roos v. Morrison, 913 So. 2d
59 (Fla. 1st DCA 2005).
D. Aiding & Abetting
A cause of action for aiding and abetting a
breach of fiduciary duty requires a plaintiff
to establish: 1) a fiduciary duty on the part
of a primary wrongdoer; 2) a breach of that
fiduciary duty; 3) knowledge of the breach
by the alleged aider and abettor; and 4) the
aider and abettor's substantial assistance
Comment on Clause (a) reads: a. Parties or encouragement of the wrongdoing. See
are acting in concert when they act Fonseca v. Taverna Imps., Inc., 212 So. 3d
in accordance with an agreement to 431 (Fla. 3rd DCA 2017).
cooperate in a particular line of conduct
or to accomplish a particular result. The Refer to the following cases for stating a
agreement need not be expressed in words cause of action for aiding and abetting a
and may be implied and understood to fraud: Perlman v. Wells Fargo Bank, N.A. ,
exist from the conduct itself. Whenever 2014 U.S. App. LEXIS 8497 (11th Cir. 5/6/14)
two or more persons commit tortious acts and ZP No. 54 Ltd. P’ship v. Fid. & Deposit
in concert, each becomes subject to liability Co. of Md., 917 So. 2d 368, 372 (Fla. 5th DCA
2005).
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