939 So.2d 204 (Fla.App. 4 Dist. 2006), 4D05-203, Carvel v. Godley

Docket Nº:4D05-203.
Citation:939 So.2d 204, 31 Fla. L. Weekly D 2536
Opinion Judge:STONE, J.
Party Name:Pamela CARVEL, as voluntary limited guardian for Agnes Carvel, Appellant, v. Betty GODLEY, as Co-Trustee of The Agnes Carvel 1991 Trust, Lawrence Newman, as Co-Trustee of the Agnes Carvel 1991 Trust, Ethel G. Reddy, Bank of New York Trust Company of Florida, and the Thomas and Agnes Carvel Foundation, Appellees.
Attorney:Michael A. Dribin of Broad and Cassel, Miami, for appellant., Matthew Triggs and Stephanie Reed Traband of Proskauer Rose LLP, Boca Raton, and Hal Neier of Friedman Kaplan Seiler & Adelman LLP, New York, for Appellee-Betty Godley and Lawrence Newman., Juan C. Antunez of Stokes McMillan & Maracini...
Case Date:October 11, 2006
Court:Florida Court of Appeals, Fourth District
 
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Page 204

939 So.2d 204 (Fla.App. 4 Dist. 2006)

31 Fla. L. Weekly D 2536

Pamela CARVEL, as voluntary limited guardian for Agnes Carvel, Appellant,

v.

Betty GODLEY, as Co-Trustee of The Agnes Carvel 1991 Trust, Lawrence Newman, as Co-Trustee of the Agnes Carvel 1991 Trust, Ethel G. Reddy, Bank of New York Trust Company of Florida, and the Thomas and Agnes Carvel Foundation, Appellees.

No. 4D05-203.

Florida Court of Appeal, Fourth District

October 11, 2006

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gary Vonhof, Judge; L.T. Case No. 501995CP003258XXTRIY.

Page 205

Michael A. Dribin of Broad and Cassel, Miami, for appellant.

Matthew Triggs and Stephanie Reed Traband of Proskauer Rose LLP, Boca Raton, and Hal Neier of Friedman Kaplan Seiler & Adelman LLP, New York, for appellees Betty Godley and Lawrence Newman.

Juan C. Antunez of Stokes McMillan & Maracini, P.A., Miami, and Steven J. Fink of Orrick, Herrington & Sutcliffe, LLP, New York, for appellees The Thomas and Agnes Carvel Foundation.

Stone, J.

Pamela Carvel, personal representative of the estate of Agnes Carvel (interchangeably "Pamela" or "the estate"), appeals two orders: (1) an order granting defendants/counter plaintiffs' motion for summary judgment on their counterclaim seeking judicial approval of their accountings, and (2) an order compelling payment of initial out of pocket attorney's fees but

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denying payment for future submissions. The appellees, Betty Godley and Lawrence Newman, are the co-trustees of The Agnes Carvel 1991 Trust (trust). We reverse.

This appeal represents one small portion of a complex body of litigation between these and other parties, here and in New York. The issue before this court is one of first impression: whether a personal representative has standing to claim for a trust accounting as a beneficiary or just as a creditor, where the settlor and the estate are, essentially, the same party.

Timeline of instruments/conveyances, proceedings :

Ice cream magnate Thomas Carvel predeceased his wife Agnes in 1990. The couple was childless. Prior to his death, they executed mutual wills and a reciprocal agreement that restricted subsequent modifications and conveyances. The wills named the Tom and Agnes Carvel Foundation as residuary beneficiary. Thinking her first will was lost, Agnes executed a second will in 1990 with no changes. In 1991, Newman's office prepared the trust documents for the revocable trust at issue here, and Agnes transferred substantial assets to fund it. The first section of the trust stated:

The Trustees shall retain such property, IN TRUST, for the following purposes:

(a) To pay any part or all of the income and such sums from or any part or all of the principal of the trust as the Trustees, in their discretion, from time to time determine for any reason whatsoever to, for, or on behalf of the Grantor. Any income not so paid shall annually be added to principal.

(b) On the death of the Grantor, to pay her funeral expenses, debts and the expenses of administering her estate, and to dispose of the remaining income and principal of the trust, including any property received by the trust as a result of the Grantor's death pursuant to her will or otherwise, as...

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