Giller v. Grossman
| Decision Date | 01 September 2021 |
| Docket Number | No. 3D19-2514,3D19-2514 |
| Citation | 327 So.3d 391 |
| Parties | Brian GILLER, Appellant, v. Anita GROSSMAN, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Law Offices of Andrew B. Peretz, P.A., and Andrew B. Peretz (Fort Lauderdale), for appellant.
Jason B. Giller, P.A., and Jason B. Giller and Hilary Schein, for appellees Jamie Giller and Jason Giller ; Berger Singerman LLP, and James D. Gassenheimer and Christina M. Perry, for appellee, Anita Grossman.
Before HENDON, GORDO, and BOKOR, JJ.
Brian Giller appeals from a December 2019 Final Judgment. We affirm.
This proceeding is the most recent in a long line of cases related to Brian Giller's ("Brian" or "Appellant") disputes with his siblings, Anita Grossman ("Anita" or "Appellee") and Ira Giller ("Ira"), over the administration of the estate of their father, Norman M. Giller. The subject litigation has been going on, in various forms, for the past seven years.1 While Norman Giller was alive, he created seven trust instruments to hold beneficial interest in various real estate holdings and other family assets. Pursuant to the trusts' terms, Brian, Anita, and Ira were each allocated one-third of the assets and accumulated income. Anita and Ira received their one-third allocations outright. Brian had financial difficulties and, after consulting with his father, Norman, Brian elected to place his one-third trust allocation into separate subtrusts attached to the seven primary trusts as a means of protecting his share of trust assets from creditors. These subtrusts continue to hold and manage Brian's one-third allocated share. Other than the subtrust to the Giller Family Trust, the subtrusts provide that Brian and his two now-adult children, Jamie Giller and Jason Giller ("issue"), are equal beneficiaries. In the Giller Family Trust,2 Brian is the primary beneficiary, and his children are remaindermen. Norman appointed Anita as Trustee of the seven trusts, with Brian's agreement. At some point, with Norman's approval, Brian borrowed money from one of the family businesses and agreed to repay the loan. As it became obvious over time that Brian would never repay the loan, family relationships deteriorated.
Brian began to request distributions from the subtrusts in 2005. Anita would always discuss Brian's requests with their father, Norman. After Anita made a needs assessment, she would then issue modest checks to Brian. In April 2008, Anita's husband became critically ill, and although she wrote approximately eight small checks as Trustee to Brian that year, she did so without conducting any needs assessments.
In 2009, and after Norman passed away, Brian requested all the accumulated income in the subtrusts. Anita conferred with the attorney who drafted the subtrust documents. He advised her that because Brian was not the sole beneficiary of six of the seven subtrusts, she would be in breach of her fiduciary duties as Trustee if she granted Brian's request and distributed all the principal to him. In late 2009, Brian demanded all of the income-generating assets of the subtrusts as well as the accumulated income. Anita refused his demand. Subsequently, the board of the Giller family company, from which Brian had borrowed money, sued him to recover the loan balance.
In March 2011, Brian filed a fifteen-count complaint to, among other things, remove Anita as Trustee, and for breach of trust, civil theft, etc. His third amended complaint was filed February 26, 2013. Counts I through VII sought declaratory judgment as to the meaning of the subtrusts' language. Brian disputed Anita's interpretation of certain trust language that includes his children as beneficiaries, claiming the language of the subtrusts shows it was intended to benefit him solely, not his children. The trial court concluded that the language in the subtrusts is not ambiguous and set the remaining issues for trial, leading to the trial court's final judgment which determined the remaining six counts in Brian's third amended complaint.3
In its final judgment, the court made findings of fact and conclusions of law regarding each of Brian's claims. The court found the trust document language unambiguous, found no conflict of interest, and no breach of trust by Anita as Trustee.
We review de novo a trial court's construction of trust provisions, as well as its interpretation or application of controlling statutes, common law rules, or other legal principles. Demircan v. Mikhaylov, 306 So. 3d 142, 145 (Fla. 3d DCA 2020) ; Brigham v. Brigham, 11 So. 3d 374, 381-82 (Fla. 3d DCA 2009) ().
A trial court's decision whether to remove a trustee or to order a trustee to take certain actions is reviewed by an appellate court for abuse of discretion. Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So. 3d 207, 210 (Fla. 3d DCA 2020) .
Appellate courts review an order of involuntary dismissal de novo, "viewing all of the evidence presented and all available inferences from that evidence in the light most favorable to the non-moving party." HSBC Bank USA v. Fla. Kalanit 770 LLC, 299 So. 3d 450, 452 (Fla. 3d DCA 2020).
Brian raises four issues on appeal. We address them in turn.
Brian's first two issues are related. He argues that the trial court should have ruled the subtrust language ambiguous and required introduction of extrinsic evidence regarding whether his children were intended beneficiaries. He argues that the trial court should have then reformed the language to conform to his own interpretation that subtrust property was to be allocated solely for his benefit, to the exclusion of his children. We disagree.
Six of the seven subtrusts contain the following identical and dispositive language, in pertinent part:
(emphasis added).
The subtrust language clearly sets forth Norman Giller's intent to include Brian's children. See Bryan v. Dethlefs, 959 So. 2d 314, 317 (Fla. 3d DCA 2007) () (citing Arellano v. Bisson, 847 So. 2d 998 (Fla. 3d DCA 2003) ; Phillips v. Estate of Holzmann, 740 So. 2d 1, 2 (Fla. 3d DCA 1998) ). Intent is ascertained from the four corners of the instrument by considering all the provisions in context, rather than from individual, select portions or forms of words. Id. at 317. The meaning applied to those provisions, words, or phrases cannot lead to absurd results. Roberts v. Sarros, 920 So. 2d 193, 196 (Fla. 2d DCA 2006). Construing the subtrusts in their entirety, the phrase "for the benefit of" does not render the subtrusts ambiguous as a matter of law with respect to the inclusion of Brian's children as beneficiaries.
Further, in order for the trial court to reform a trust instrument, there must be clear and convincing evidence that the trust, as written, does not reflect the settlor's intent. See Schroeder v. Gebhart, 825 So. 2d 442, 446 (Fla. 5th DCA 2002) ; Reid v. Est. of Sonder, 63 So. 3d 7, 10 (Fla. 3d DCA 2011). Here, the record reflects that Norman created the subtrusts to protect Brian's share from his creditors; reformation of the trust language to eliminate any mention of Brian's "issue" would go against...
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Brown v. Brown
...declare their rights, and even appoint trustees. Interested parties may sue to reform a trust instrument too. See Giller v. Grossman, 327 So.3d 391, 394-95 (Fla. Dist. Ct. App. 2021); Fla. Stat. § 736.0415. But Susan does not ask to reform the Trust itself. Instead, she wants to reform a se......