King v. King

• Decision Date: 26 August 2022
• Docket Number: 20-14565
• Citation: 46 F.4th 1259
• Parties: Elkin KING, Plaintiff-Appellant, v. Forrest KING, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

46 F.4th 1259

Elkin KING, Plaintiff-Appellant,
v.
Forrest KING, Jr., Defendant-Appellee.

No. 20-14565

United States Court of Appeals, Eleventh Circuit.

Filed August 26, 2022

Donald R. Andersen, Skinner Law Group, Atlanta, GA, for Plaintiff-Appellant.

Michael T. Fackler, John C.W. Cherneski, Milam Howard Nicandri & Gillam, PA, Jacksonville, FL, for Defendant-Appellee.

Before Wilson, Branch, and Tjoflat, Circuit Judges.

Per Curiam:

46 F.4th 1262

Elkin King ("Elkin") contends that his former stepfather, Forrest King ("Forrest"), owed him a fiduciary duty to disclose the existence of certain Settlement Funds arising from the wrongful death of Elkin's biological father. As this diversity action¹ turns on the precise parameters of Georgia's fiduciary duty to disclose and we are unable to locate any controlling precedent from a Georgia court, we respectfully certify three questions to the Supreme Court of Georgia.

I.

On September 6, 1985, Elkin's biological father, Elkin Simpson, Sr., was killed in a plane crash. Elkin, then named Elkin Simpson, Jr., was approximately seven years old. At the time of his death, Elkin Simpson, Sr., was in the process of divorcing Elkin's mother, Peggy,² but a final divorce decree had not yet been entered. See Simpson v. King , 259 Ga. 420, 383 S.E.2d 120, 121 (1989) (further describing Elkin Simpson, Sr.’s marital and relationship status at the time of his death). Accordingly, Peggy filed a wrongful death suit against the airline company as a surviving spouse on behalf of herself and Elkin. See O.C.G.A. § 51-4-2 (1991). In 1989, when Elkin was approximately eleven, Peggy and the airline company reached a settlement agreement from which at least $200,000 was set aside for Elkin's benefit ("the Settlement Funds"). Peggy's attorney, Glover McGhee, suggested that the Settlement Funds should be placed in an account in her then-husband Forrest's name. Peggy agreed, and so the Settlement Funds check was made out to both Peggy and Forrest on behalf of Elkin. Forrest then placed the Settlement Funds in a separate account entitled "Elkin's Account with Custodian of Forrest King" at Charles Schwab in Atlanta, Georgia. The parties dispute whether Peggy was also a party to the account. There is no evidence that a formal, written trust governing the use of these Settlement Funds ever existed.

Forrest and Peggy divorced in approximately February 1999, when Elkin was 20 years old. The parties dispute whether Forrest turned over control of the account to Peggy following the divorce, but it is undisputed that Forrest's name was on the account until at least the divorce. Apparently, the last of the Settlement Funds (approximately $50,000) was used by Peggy in around 2005 as a down payment for a condominium she purchased in Louisiana. Elkin testified in a deposition that he first learned about the Settlement Funds in 2017 from his maternal grandfather. Elkin also testified that he would have taken control of the Settlement Funds had he known about them when he was 18. Forrest, meanwhile, testified in a deposition that he informed Elkin about the existence of the Settlement Funds when Elkin was around 17 or 18 years old.

On November 30, 2018, Elkin sued Forrest in the Middle District of Florida. In his amended complaint, Elkin alleged that Forrest converted Elkin's Settlement Funds and that Forrest breached fiduciary

46 F.4th 1263

duties to Elkin under Georgia law because he (1) "failed to disclose and concealed the fact of the settlement"³ and (2) "failed and refused to account for [the Settlement Fund] proceeds or to pay the proceeds to [Elkin]." In his answer, Forrest responded by raising the statute of limitations as an affirmative defense. Following discovery, Forrest moved for summary judgment on October 14, 2019, on both his statute of limitations defense and on the merits. In turn, Elkin moved for partial summary judgment on his claims on March 30, 2020. On August 24, 2020, the District Court granted summary judgment for Forrest on the merits, holding (1) that a jury could find that Forrest and Elkin were in a confidential relationship under Georgia law and so the statute of limitations could be tolled; (2) that Forrest did not convert the Settlement Funds because he used them only for Elkin's benefit; and (3) that if Forrest did owe Elkin a fiduciary duty under Georgia law, it was only to "ensure the Settlement Funds were used to [Elkin]’s benefit," which Forrest did. Elkin then timely appealed.

II.

We review grants of summary judgment de novo . Brown v. Nexus Bus. Sols., LLC , 29 F.4th 1315, 1317 (11th Cir. 2022). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(a) ). On summary judgment review, we view all evidence in "the light most favorable to the nonmoving party" and draw "all justifiable inferences in that party's favor." Id. at 1317–18 (quotation and quotation marks omitted).

When deciding state law claims, we apply state law to substantive legal issues. See Ungaro–Benages v. Dresdner Bank AG , 379 F.3d 1227, 1232 (11th Cir. 2004) ; 28 U.S.C. § 1652. In determining the meaning of state law, we defer to the state supreme court's interpretation of its own law. LeFrere v. Quezada , 582 F.3d 1260, 1263–64 (11th Cir. 2009). If the state supreme court has not addressed the question, we defer to the state's intermediate appellate courts "absent some persuasive indication that the state's highest court would decide the issue otherwise." People's Gas Sys. v. Posen Constr., Inc. , 931 F.3d 1337, 1339 (11th Cir. 2019) (quotation omitted).

III.

The sole issue⁴ on which we certify questions to the Supreme Court of

46 F.4th 1264

Georgia is Elkin's claim that Forrest breached a fiduciary duty by not disclosing the existence of the Settlement Funds to Elkin when he turned 18.⁵ To...