Donner's Estate, In re, s. 76-1902

• Decision Date: 03 October 1978
• Docket Number: Nos. 76-1902,76-2196,s. 76-1902
• Citation: 364 So.2d 757
• Parties: In re ESTATE of Samuel DONNER, Deceased. Paul B. ANTON, Appellant, v. William I. DONNER, Appellee.
• Court: Florida District Court of Appeals

Page 757

364 So.2d 757

In re ESTATE of Samuel DONNER, Deceased.

Paul B. ANTON, Appellant, v. William I. DONNER, Appellee.

Nos. 76-1902, 76-2196.

District Court of Appeal of Florida, Third District.

Oct. 3, 1978.

Rehearing Denied Nov. 22, 1978.

Abrams, Anton, Robbins, Resnick, Schneider & Mager and David L. Kline, Hollywood, Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellant.

Amy Linda Steele, North Miami Beach, Colson & Hicks, Susan Goldman, Miami, for appellee.

Before HAVERFIELD, C. J., and HUBBART and KEHOE, JJ.

KEHOE, Judge.

This is an appeal from an order dismissing the appellant's complaint with prejudice. We reverse and remand with directions to reinstate the complaint.

The pertinent facts follow: Paul B. Anton, acting as personal representative of the Estate of Samuel Donner, filed suit against the estate's remaining personal representatives, William I. Donner and Charles Donner, ¹ for an accounting of certain profits derived by business interests controlled by the Donners. Anton alleged that these profits were earned in part by loans from another Donner enterprise in which the decedent had a substantial interest. The complaint alleged that as a result of these loans, the assets of the estate have been depleted accordingly, and the Donners have failed to repay the estate for its shares of the loans made, compelling Anton to borrow money at high rates of interest to meet the pressing cash needs of the estate. The complaint further alleged that the Donners breached their fiduciary duty to the estate, acted in a manner detrimental to its interests in order to serve their own personal interests, and wrongfully divested and used funds that were rightfully estate property. The appellant requested that the trial court require the Donners to account for the profits derived, at least in part, by the use of funds belonging to the estate and to enter judgment for all such sums due and owing.

The appellee moved to dismiss the complaint for failure to state a cause of action upon which relief can be granted. Without specifying the grounds for its ruling, the trial court granted the motion to dismiss and dismissed the complaint with prejudice and without leave to amend.

Although the trial court did not state its reasons for dismissing the appellant's complaint with prejudice, we conclude that it erred on whatever ground it premised its ruling since the appellant had a right to an accounting under the circumstances of this case.

It appears from our review of the record that the trial court dismissed the complaint on the sole ground that it was a collateral attack on a prior order issued by the same judge sitting in the probate division on the proceeding involving the administration of the Donner Estate and the subsequent will contest among the several claimants of the estate assets. (Donner v. Anton, ...