Beaubien v. Cambridge Consol., Ltd.

• Decision Date: 31 March 1995
• Docket Number: No. 93-1840,93-1840
• Citation: 652 So.2d 936
• Parties: 20 Fla. L. Weekly D800 Garrett Blake BEAUBIEN; Scott Carhart Beaubien; Taylor Stuart Beaubien; Kelly Lynn Casperone; and Kennedy Wilde Casperone, Appellants, v. CAMBRIDGE CONSOLIDATED, LTD. and Dwaine Carr, Appellees.
• Court: Florida District Court of Appeals

Page 936

652 So.2d 936

20 Fla. L. Weekly D800

Garrett Blake BEAUBIEN; Scott Carhart Beaubien; Taylor

Stuart Beaubien; Kelly Lynn Casperone; and Kennedy Wilde Casperone, Appellants, v. CAMBRIDGE CONSOLIDATED, LTD. and Dwaine Carr, Appellees.

No. 93-1840.

District Court of Appeal of Florida,

Fifth District.

March 31, 1995.

Susan E. Trench of Goldstein & Tanen, P.A., Miami, for appellants.

George E. Adams of Adams, Hill, Reis, Adams, Hall Schieffelin, Orlando, for appellees.

W. SHARP, Judge.

Garrett Blake Beaubien, Scott Carhart Beaubien, Taylor Stuart Beaubien, Kelly Lynn Casperone, and Kennedy Wilde Casperone, the alleged beneficiaries of a trust established by Joseph Casperone, appeal from an order granting both Cambridge Consolidated Limited's motion to dismiss for lack of personal jurisdiction over it, and Carr's motion to dismiss as to him for failure to state a cause of action. Cambridge is the trustee of the alleged trust and Carr was alleged to have acted as Cambridge's director and manager at all relevant times. We reverse.

Cambridge is a nonresident corporation, incorporated under the laws of the Isle of Mann. It is the trustee of a trust established in the Cayman Islands in 1984, which was commenced with a fund totalling $500,000.00. Derek Sambrook was the original trustee and in 1985, Sambrook appointed Cambridge as successor trustee. The complaint alleged that Sambrook, as a director of Cambridge, managed the trust and made all business decisions for it. The complaint further alleged that since 1989, Carr succeeded Sambrook as the director for Cambridge, and has overseen the management of the trust. Carr is a Florida attorney and is clearly subject to the jurisdiction of the Florida courts.

Count One of the complaint seeks an accounting from Cambridge for trust assets. Appellants allege the trustee has a duty under the trust documents to render an accounting to the trust beneficiaries, but it has failed to do so. Much of the trust fund was invested in Texas (a real estate mortgage which has been foreclosed), but the complaint alleged some $100,000.00 remains unaccounted for, and some of those trust assets were held in an account titled "Antoinette Limited," at the Barnett Bank in Orlando.

With regard to Carr the complaint alleged that in addition to the facts recited above, Carr breached his fiduciary duty to appellants by mismanaging the trust business and failing to account for the Antoinette bank account, which was zeroed out after the suit was filed, while Carr was in control of the account. They alleged:

Carr has acted with personal, conscious bad faith in failing to protect and administer the Trust assets, despite the fact that he accepted the responsibility for doing so, on behalf of Cambridge. Carr's conduct in administering or failing to administer the Trust assets falls below the standard of care required for one who is administering the assets of another. His actions and/or failure to act are the direct and proximate cause of any loss to the Trust assets.

I. Whether the Complaint States a Cause of Action Against Carr

Whether a complaint states a cause of action against a party, when challenged by a motion to dismiss, as in this case, must be addressed by looking solely at the complaint itself. Scavella v. School Board of Dade County, 363 So.2d 1095 (Fla.1978); Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981); DeWitt v. Zimmerman, 366 So.2d 46 (Fla. 4th DCA 1978); First Church of Christ Scientist v. City of St. Petersburg, 344 So.2d 1302 (Fla. 2d DCA 1977). Carr's motion to dismiss states simply that the complaint wholly fails to show any fiduciary duty on the part of Carr to the plaintiffs:

The complaint only alleges that Carr was U.S. Director for the Cambridge Corporation and does not show anything further as to Carr's relationship to the Plaintiffs or any duty owed to the Plaintiffs by Carr.

Carr stated in his motion to dismiss that his authority to act for Cambridge was as a nonexecutive director, solely with Sambrook's prior written consent. He also filed an affidavit in which he swore he acted solely in his capacity as a practicing attorney, representing the corporate entity, Cambridge. Carr's deposition of record reiterates this position.

Carr's allegations in his motion to dismiss counter the allegations of the amended complaint, putting at issue the nature of Carr's relationship to the corporate trustee and the capacity in which he was acting. At this point in the case, the appellant-beneficiaries did not have to file counteraffidavits opposing Carr's affidavit and deposition testimony, since no motion for summary judgment had been made by Carr. See Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981); Hoppe v. Hoppe, 370 So.2d 374 (Fla. 4th DCA 1978), cert. denied, 379 So.2d 206 (Fla.1979).

But even if Carr had moved for summary judgment, the appellants had other proofs of record which put at issue the nature of Carr's activities on behalf of Cambridge. See Littman v. Commercial Bank and Trust Co., 425 So.2d 636 (Fla. 3d DCA 1983). For example, Carr did not deny he wrote a letter to the settlor of the trust dated Sept. 18, 1989, in which he declared Sambrook was no longer a director of Cambridge, that he was "the U.S. Director of the Company," and that all further mail regarding the trust should be addressed to him. Further, Margaret Casperone, the wife of the trust settlor, stated in her deposition which is filed in the record, that Carr told her he was the managing director of Cambridge and that he was the trust administrator and operator. And, according to the deposition of the attorney retained to foreclose the Texas real estate mortgage, Carr directed his actions and made business decisions for the trust.

At this point in the proceedings, the trial court should not have dismissed the amended complaint for failure to state a cause of action against Carr. It is well settled that an individual acting for a corporate trustee may be personally liable to third persons injured by his actions even if the individual was acting as agent for the corporation. ¹ Such corporate agents owe duties not only to the corporation, but also to the beneficiaries of a trust administered by the corporation. William Fratcher, IV Scott on Trusts, Sec. 326.3 (1989). In this case, the plaintiffs clearly alleged that Carr was acting as the corporate trustee's agent--manager--administrator--and that his actions or inactions caused them a loss. Under Florida law, such an individual may be held personally liable where a tort has been committed. See Shee-Con, Inc. v. Al Seim Appraisal Service, Inc., 427 So.2d 311 (Fla. 5th DCA 1983); Lee B. Stern & Co., Ltd. v. Green, 398 So.2d 918 (Fla. 3d DCA 1981); Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla. 3d DCA 1980); Dade Roofing and Insulation Corp. v. Torres, 369 So.2d 98 (Fla. 3d DCA 1979).

In re USACafes, L.P. Litigation, 600 A.2d 43 (Del.1991) is a case close in point. There, individuals who were directors of a general partnership, the alleged trustee, who knowingly participated in a breach of trust, were held personally liable to persons wronged by the partnership. The court declared the individuals also owed them a fiduciary duty:

The law of trust is the earliest expression of this duty, but it applies to corporate directors in control of property. The problem comes up in trust law because modern corporations may serve as trustees of express trusts.

Further, the allegations of the complaint were sufficient to require Carr to allege and prove he did not hold and dispose of trust property, which had been placed under his control (i.e., the funds in the bank account). ² No particular words are necessary to create a trust. Any statement that shows ownership or control of property is vested in one person for the benefit of another is sufficient. It is not necessary that the words "trust" or "trustee" be used. Voorhies v. Blood, 127 Fla. 337, 173 So. 705 (1937). Equity uses implied and constructive trusts to reach individuals who are in possession of trust funds or who have wrongfully disposed of them. ³ In this case, the allegations are at least sufficient to require Carr to account for the claimed trust funds in the bank held and disposed of while he was in control of the account. ⁴

II. Personal Jurisdiction Over Cambridge

To obtain jurisdiction over a nonresident defendant, the plaintiff must plead the basis for such jurisdiction as set out by the language of the statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). By itself, the filing of a motion to dismiss on the grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained. If the relevant facts set forth in the respective affidavits are in direct conflict, then the trial judge should hold a limited evidentiary hearing on the issue of jurisdiction. Doe v. Thompson, 620 So.2d 1004 (Fla.1993); Venetian Salami Company; Wartski v. Sencer, 615 So.2d 794 (Fla. 5th DCA 1993); World Metals, Inc. v. Townley Foundry and Machine Co., Inc., 585 So.2d 1185 (Fla. 5th DCA 1991).

The appellants contend that Florida has jurisdiction over Cambridge pursuant to section 48.193(1)(a), (b) or (g). This statute provides:

48.193. Acts subjecting person to jurisdiction of courts of state

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising...