Baker v. Florida Nat. Bank, 89-1503
| Decision Date | 28 March 1990 |
| Docket Number | No. 89-1503,89-1503 |
| Citation | 559 So.2d 284 |
| Parties | 15 Fla. L. Weekly D804 J. Allen BAKER, M.D., Appellant/Cross Appellee, v. FLORIDA NATIONAL BANK, a national banking corporation, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
Freeman W. Barner, Jr., of Cromwell, Pfaffenberger, Dahlmeier, Barner & Griffin, North Palm Beach, and Alan Miller of Miller & Miller, P.A., West Palm Beach, for appellant/cross appellee.
Richard A. Kupfer of Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, P.A., West Palm Beach, for appellee/cross appellant.
This is an appeal of a Final Judgment of the trial court entered June 8, 1989. The appeal is based upon the propriety of the entry of summary judgment against the plaintiff/appellant on his claim for intentional infliction of emotional distress. Count Seven, upon which the summary judgment was granted, was one of eight counts filed against the bank by the appellant arising from the actions of the bank regarding a trust agreement wherein the bank held as trustee certain assets of the appellant. Count One of the complaint alleged breach of duty under the trust agreement and mismanagement of the trust by investing trust assets in tax free bonds in a rapidly declining market and in securities in which the bank allegedly had a financial interest. Count Two alleged negligence of the bank in its management of the trust assets. Count Three alleged breach of fiduciary duty arising from the same factual circumstances. Count Four alleged a breach of contract arising from the same factual circumstances. Count Five alleged wrongful conversion against the bank arising from the same set of facts. Count Six alleged a constructive trust theory against the bank arising from the same factual circumstances. Count Seven, which is the count involved in this appeal, alleged a cause of action for Dr. Baker the appellant's "emotional distress" caused by the doctor's discovery of the bank's investment of all his liquid assets in the fund that was declining in value, contrary to his desires, instructions, the investment plan the doctor prepared and the bank's proposal. Also the doctor believed the bank had taken advantage of the past relationship, abusing its confidential and fiduciary relationship for its own benefit, and in refusing to return his assets about which he was extremely sensitive. Summary judgment was granted. The doctor sought to recover from the bank intangible damages along with medical bills he incurred when he was hospitalized for a heart ailment. The case proceeded to trial on the other counts resulting in a verdict rendered in behalf of the appellant, Dr. Baker in the amount of $39,242.53 with prejudgment interest from and after May 8, 1987 through June 8, 1989 in the amount of $9,818.16 for total final judgment entered by the court below on June 8, 1989 of $49,060.69 with interest accruing thereafter. The plaintiff is a medical physician who at the time of the incidents in question was a sixty-five (65) year old retired medical doctor. He had been a director of the Florida National Bank, the appellee herein, for a period of eleven (11) years from which board he had retired due to illness primarily relating to an asthma condition and was on medical disability.
In November, 1986 the appellee, bank, prepared for him an investment management proposal recommending various types of investments to the doctor for his assets to be invested in the trust with the bank. On March 5, 1987 the doctor executed a "Flex-Trust Agreement" wherein he placed in trust with the bank approximately $780,000.00 that had in the previous January been placed into a managing agency account set up for him until the trust was completed. He was the sole beneficiary of the trust and the trust provided that any investments could only be made upon Dr. Baker, the appellant's, direction. The trust was a revocable trust, however it contained within its terms a provision that the bank on certain conditions could assume full responsibility for the management and investment of the trust property. One of these events was the trustee's determination in its sole discretion that Dr. Baker had become incapable of managing his business and personal affairs by reason of mental or physical disability. Should the bank do this under the trust the full responsibility would thereafter fall upon the trustee, bank, and the agreement became irrevocable and Dr. Baker, as grantor of the trust lost control of the entire trust assets. Upon the death of the beneficiary, Dr. Baker, the trust agreement provided it would be distributed according to a schedule in the "Flex-Trust Agreement" which designated that distribution would be made to the personal representative of Dr. Baker's estate. Dr. Baker alleges that the assets transferred to the "Flex-Trust" were essentially all of his liquid assets and that their safety and liquidity were required to be preserved and not risked in any way. The trust also contained a provision that verbal instructions from the doctor, beneficiary, could be accepted by the bank in making their decisions involving his investments.
On or about March 5, 1987 the bank's representative called the doctor and advised him that the funds should be invested in the bank's tax free money market fund which was then paying 7% interest and with no risk to the principal. The doctor maintains that at that point he questioned the availability of such investment with a yield that high and that he wished further information to be more fully informed about the investment. The doctor further maintained that he requested further written information about the investment which the bank representative promised to furnish. The next communication the doctor alleges that he received was a letter received by him on the evening of March 30, 1987, in which the letter, dated March 25, 1987, indicated that the doctor had verbally approved with another bank official, not the writer of the letter, an investment of the entire fund of his trust in the bank's tax-exempt fund. The letter requested the doctor to give his written approval of the transaction and that it would be consummated by means of a purchase on April 1, 1987 by the investment of $770,000.00 in the referenced fund. At this point the doctor, stating he was exceedingly upset about the bank making such an investment which he had not authorized telephoned the bank trust officer on March 31, 1987 and objected to the investment, advised the bank that he wished all of his investment transactions stopped and reiterated that he never approved of such investment.
The appellee and appellant disagree as to what occurred by the telephone conversations mentioned. The bank maintains that Dr. Baker orally approved the investment of his trust estate in the municipal bond fund (the bank's tax free money market account) when the doctor spoke to Bill Wade, the bank officer, about it sometime in mid March, 1987. A Mr. Jacobson, another vice-president of the bank, sent Dr. Baker a letter confirming the bank would purchase the tax-exempt fund on April 1, 1987 pursuant to the verbal approval which the bank stated they believed they received. Dr. Baker maintained that he called the bank on March 31, 1987 instructing them not to make the purchase on April 1, the following day, and the bank maintains that it did not receive that phone call from Dr. Baker until on or after April 1, by which time the investment had already been made. The bank officer informed Dr. Baker that as was stated in the original investment proposal to him this investment could not be redeemed until April 30, 1987.
After a personal meeting between Dr. Baker and officers of the bank, the bank wrote a letter to Dr. Baker that they would redeem the units on April 30 as he had instructed at the meeting. However, the bank was not willing, they say, to accede to Dr. Baker's request that he be reimbursed for whatever loss of principal value he might sustain during that month in the bond market nor to additionally pay him the interest he would have earned if the money had been left in the original money market fund. The principal value of the bond fund decreased during the month of April, 1987. The bank did in fact redeem Dr. Baker's units in the municipal bond fund...
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