Mack v. Polsby

Mack v. Polsby, --- So.3d --- (Fla. 3d DCA 2014), 2014 WL 54895

The dispute in this case centered around a revocable trust created by an emergency temporary guardian.  The ward, and eventual decedent, had four children.  After he suffered from a stroke and went into a coma, his daughter filed a petition seeking to be appointed as her father's emergency temporary guardian.  The court granted her petition, and also granted a later petition allowing her to create and fund a revocable trust.  Following the court's order allowing her to create the trust, the daughter funded the trust with her father's property in Michigan.

When the father ultimately passed away, one of his sons was appointed personal representative of his estate in Michigan.  The son then filed a Complaint against his sister, which sought a declaration that the trust was invalid and that the sister breached her fiduciary duty as trustee and removal of the sister as trustee.  By the time his Complaint was filed, a new judge was presiding, so the sister moved for summary judgment, arguing that the trial court lacked jurisdiction to review a predecessor judge's order.  The new judge agreed with the sister.  The brother tried again and filed a motion for reconsideration, since another judge had taken over.  Again he was denied, since the court held it had no jurisdiction.

The Appellate Court reversed both trial judges, and held that the court did have jurisdiction over the brother's Complaint.  As to the issue of the validity of the trust, since the Complaint alleged that the sister failed to serve her petition to create the trust on her siblings, and that she committed fraud upon the court when she petition to create the trust, pursuant to Fla.R.Civ.P. 1.540(b), the trial court had jurisdiction since it could allow relief from a judgment procured by the opposing party's fraud or if the judgment itself was void.  As to the breach of fiduciary duty and removal of trustee counts, even the sister's counsel agreed that those counts were independent of and occurred subsequent to the creation of the trust, so the trial court clearly had jurisdiction over these counts.  The Court reversed and remanded for further proceedings.

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