PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 | Page 22
PROBATE CORNER
DAVID M. GARTEN
What Is The Proper Procedure For Bringing An
Action Against A Trustee For Breach Of Trust
After Service Of A Trust Accounting
And Limitation Notice?
Sec.736.1008(2), F.S. reads in relevant part:
“Unless sooner barred by adjudication,
consent, or limitations, a beneficiary is
barred from bringing an action against a
trustee for breach of trust with respect to
a matter that was adequately disclosed
in a trust disclosure document unless
a proceeding to assert the claim is
commenced within 6 months after receipt
from the trustee of the trust disclosure
document or a limitation notice that applies
to that disclosure document, whichever is
received later.” [Emphasis added]
Sec. 736.1008(4)(c), F.S. defines a “Limitation
notice” as: “[A] written statement of the
trustee that an action by a beneficiary
against the trustee for breach of trust based
on any matter adequately disclosed in a
trust disclosure document may be barred
unless the action is commenced within 6
months after receipt of the trust disclosure
document or receipt of a limitation notice
that applies to that trust disclosure
document, whichever is later.” [Emphasis
added]
With regard to limitations of actions (Ch.95),
the terms “action” and “proceeding” are used
interchangeably. Refer to §95.011 which
reads in relevant part: “A civil action or
proceeding, called “action” in this chapter,…
shall be barred unless begun within the
time prescribed in this chapter or, if a
different time is prescribed elsewhere in
these statutes, within the time prescribed
elsewhere.”
ISSUE: What do you have to file to stop the
6 month statute of limitations from running
on your client’s breach of trust claim(s)?
litigation against the trustee, the
beneficiary should file an amended
complaint or supplemental pleading
with court approval setting forth the
breach of trust claim(s) which have
happened since the date of the pleading
sought to be supplemented. See Fla. R.
Civ. P. 1.190(a) and (d).
PLEADING v. OBJECTION: There is some
disagreement among attorneys as to whether
they are limited to the above procedure
on economic grounds given the fact that
there may be multiple subsequent claims
against the trustee for breach of trust in
subsequent accountings. The disagreement
lies in the conflicting definition of the term
“proceeding”. In contrast with Ch. 95, a
"proceeding" is defined by case law as: ●
• A particular step or series of steps
in the enforcement, adjudication, or
administration of rights, remedies,
laws, or regulations. ●
• Both the entire course of action at law
or suit in equity; or any of the possible
steps in an action. ●
• Anything that occurs within a case is a
proceeding. ●
• The steps within the case and to any
sub-action within the case that may
raise a disputed or litigated matter. See
Velde v. Velde , 867 So. 2d 501(Fla. 4th
DCA 2004); Raymond James Fin. Servs.
v. Phillips , 126 So. 3d 186 (Fla. 2013). As
a result, some attorneys merely file an
objection to the trust accounting to stop
the 6 month statute of limitations from
running on their client’s breach of trust
claim(s). Arguably, if the objection is
filed with court authorization, it could
be viewed as a supplemental pleading.
But see Garcia v. M & T Mortg. Corp. , 980
So. 2d 538 (Fla. 4th DCA 2008)(a motion
seeking additional damages must be
in the form of an amended complaint
or supplemental pleading). Regardless,
if the plaintiff wants to prohibit the
trustee from using trust assets to pay
his litigation fees/costs, he must file
his breach of trust claim in a “filed
pleading”. See §736.0802(10)(b), F.S.
Assuming that the drafters of the Trust
Code incorporated the terms “action” and
“proceeding” used in Ch. 95 into the Trust
Code, then there should be little confusion
as to the proper procedure for bringing an
action against a trustee for breach of trust:
●
• No Pending Litigation: If there is no
pending litigation against the trustee,
then it will be necessary to file a lawsuit
against the trustee for breach of trust.
§736.0201(1), F.S.
Given the risk of blowing the 6 month
statute of limitations, you should file an
• Pending Litigation: If there is pending amended complaint or supplemental
PBCBA BAR BULLETIN
22
pleading for breach of trust with court
approval and not merely file an objection
to the trust accounting to stop the 6 month
statute of limitations from running.
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