King v. King, 20-14565

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: PER CURIAM.
• Parties: ELKIN KING, Plaintiff-Appellant, v. FORREST KING, JR., Defendant-Appellee.
• Docket Number: 20-14565
• Decision Date: 23 May 2023

1

ELKIN KING, Plaintiff-Appellant,
v.
FORREST KING, JR., Defendant-Appellee.

No. 20-14565

United States Court of Appeals, Eleventh Circuit

May 23, 2023

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cv-01427-BJD-MCR

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.

PER CURIAM.

2

Elkin King ("Elkin") brought a diversity suit^[1] against his former stepfather, Forrest King, Jr. ("Forrest"), alleging that Forrest owed him a fiduciary duty to disclose the existence of certain Settlement Funds arising from the wrongful death of Elkin's biological father. We previously certified three questions to the Supreme Court of Georgia regarding Elkin's breach of fiduciary duty for failure to disclose claim. With the benefit of their response, we now vacate the District Court's grant of summary judgment to Forrest on the failure to disclose claim and remand the matter for further proceedings.

I.

The facts of this case, as reproduced from our previous opinion certifying questions to the Supreme Court of Georgia, are as follows:

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, but a final divorce decree had not yet been entered. See Simpson v King, 383 S.E.2d 120, 121 (Ga. 1989) (further describing Elkin Simpson, Sr.'s marital and relationship status at the time of his

3

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

4

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 duties to Elkin under Georgia law because he (1) "failed to disclose and concealed the fact of the settlement" 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

5

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.

King v. King, Jr., 46 F.4th 1259, 1262-63 (11th Cir. 2022) (per curiam) (footnotes omitted).

Elkin filed a motion for reconsideration under Federal Rules of Civil Procedure 59(e)^[2] and 60(b).^[3] Elkin argued, primarily, that (1) the District Court had failed to consider the growth of the Settlement Funds while invested in the Charles Schwab account, and (2) that the Court failed to consider his failure to disclose argument. The District Court rejected both arguments and denied Elkin's motion. With respect to the second argument, the Court found that

6

Elkin had...