Anton v. Anton, 4D01-798.

• Decision Date: 08 May 2002
• Docket Number: No. 4D01-798.,4D01-798.
• Citation: 815 So.2d 768
• Parties: Mitchell ANTON, Appellant, v. Tracy ANTON, Appellee.
• Court: Florida District Court of Appeals

815 So.2d 768

Mitchell ANTON, Appellant, v. Tracy ANTON, Appellee.

No. 4D01-798.

District Court of Appeal of Florida, Fourth District.

May 8, 2002.

Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.

Michael I. Santucci of Michael I. Santucci, P.A., Fort Lauderdale, for appellee.

KLEIN, J.

Appellant was a co-trustee of a trust from which funds were stolen by another co-trustee. He asserts that, even though he was inattentive, the trial court should not have found him liable for the loss. We disagree and affirm.

The dishonest co-trustee, who was appellant's brother and a lawyer, converted money from the trust to his personal use by having appellant sign checks on the trust bank account in blank. There was evidence showing that the co-trustee was able to carry out this scheme over a period of time because the appellant did not review bank statements, cancelled checks, or the bills which his co-trustee was allegedly paying.

Appellant, as a trustee, was under a duty to administer the trust diligently for the benefit of the beneficiary. § 737.301, Florida Statutes (1995). Where there are several trustees, each is under a duty to participate fully in the administration of the trust. Brent v. Smathers, 547 So.2d 683 (Fla. 3d DCA 1989). One trustee who delegates to another the administration of a trust breaches the duties of a trustee. Id. Ball v. Mills, 376 So.2d 1174 (Fla. 1st DCA 1979)(co-trustees are required to "maintain an attitude of vigilant concern"). The fact that the co-trustee was a lawyer does not relieve appellant from his personal responsibility to the trust. Brent, 547 So.2d at 686 (citing In re Fidelity Union Title & Mortg. Guar. Co., 136 N.J.Eq. 294, 41 A.2d 392 (N.J.Ch. 1945)).

Appellant argues that not all of the stolen funds could be directly attributed to checks which he had signed in blank. That argument overlooks the fact that appellant paid no attention whatsoever to the manner in which the co-trustee administered the trust. Signing the blank checks was only one aspect of his failure to carry out his responsibilities as a trustee.

Appellant also argues that there will be an improper double recovery for the trust in this case because the dishonest co-trustee, as a result of criminal proceedings, is making monthly restitution payments. We agree, as did appellee at oral argument, that there should not be a double recovery; however, that is not a ground for...