Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass'n, Inc.

Decision Date27 December 2002
Docket NumberNo. 2D02-683.,2D02-683.
Citation832 So.2d 948
PartiesMERRILL LYNCH TRUST COMPANY, Appellant, v. ALZHEIMER'S LIFELINERS ASSOCIATION, INC.; The Arthritis Foundation, Florida Chapter, Southwest Branch; The Salvation Army, a Georgia corporation; The American Lung Association of Gulf Coast Florida, South Bay Region, Appellee.
CourtFlorida District Court of Appeals

Barry F. Spivey of Ruden, McClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellant.

Dianne D. Hagan and Henry P. Trawick, Jr., Sarasota, for Appellees Alzheimer's Lifeliners Association, Inc., and The Arthritis Foundation, Florida Chapter, Southwest Branch.

John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for Appellee The Salvation Army.

Ira M. Seidler of Smith & Seidler, St. Petersburg, for Appellee The American Lung Association of Gulf Coast Florida, South Bay Region.

STRINGER, Judge.

Appellant, Merrill Lynch Trust Company ("Merrill Lynch"), seeks review of the trial court's order granting The American Lung Association's ("American Lung") motion for writ of execution and granting Alzheimer's Lifeliners Association, Inc.'s ("Alzheimer's"), The Arthritis Foundation's ("Arthritis"), and The Salvation Army's ("Salvation Army") motions for contempt. We reverse.

This case began with a dispute over the proper beneficiaries of the Ruth M. Trout Charitable Remainder Unitrust ("the Trust") after Trout's death in July 1997. In June 1999, Merrill Lynch, as trustee, and Alzheimer's and Arthritis, as charitable remainder beneficiaries, filed separate actions to determine beneficiaries under the Trust. Their separate actions were consolidated. On January 28, 2000, the trial court granted Alzheimer's motion for summary judgment, voiding an attempted amendment to the Trust which purportedly removed American Lung, Alzheimer's, Arthritis, and Salvation Army (together "the Beneficiaries") as beneficiaries, and named Greensburg Public Library in their place. The summary judgment ordered that "MERRILL LYNCH TRUST COMPANY is directed to make distribution to [the Beneficiaries] in accordance with the Trust."

The summary judgment was appealed, and the trial court denied Merrill Lynch's motion requesting a stay of the summary judgment pending the appeal. Merrill Lynch did not appeal the denial of its motion requesting the stay. We affirmed the trial court in Greensburg Public Library v. Alzheimer's Lifeliners Ass'n, 787 So.2d 947 (Fla. 2d DCA 2001), and mandate issued on July 9, 2001.

On August 10, 2001, Merrill Lynch furnished each of the Beneficiaries with an accounting of all receipts and disbursements of the Trust from its creation through July 31, 2001. Merrill Lynch also sent agreements for the Beneficiaries' signatures consenting to the accounting and releasing Merrill Lynch from fiduciary liability. Merrill Lynch indicated that it would make a prompt distribution of the Trust upon receipt of the releases. The releases were never executed.

In October 2001 the Beneficiaries filed motions for a writ of execution and for contempt against Merrill Lynch for its failure to distribute the Trust in accordance with the summary judgment. Merrill Lynch filed an independent action seeking judicial approval of the accounting and that action remains pending.

The trial court granted the motion for the writ of execution, finding that the summary judgment was a money judgment against Merrill Lynch individually, in the amount of $328,870.20, the value of the Trust on the date the judgment was entered. The court assessed interest from the date of the summary judgment. The court also found Merrill Lynch in contempt "because it intentionally failed to distribute the Trust to the beneficiaries in accordance with the judgment and it had the ability to do so."

On appeal, Merrill Lynch argues that the trial court erred in granting the motion for writ of execution because the January 28, 2000, summary judgment is not a "money judgment" subject to execution. Merrill Lynch also argues that the trial court erred in finding it in contempt because the summary judgment is not clear and definite enough to make Merrill Lynch aware that "immediate" distribution of the Trust was commanded. We find merit in both arguments.

Florida Rule of Civil Procedure 1.570 provides for the enforcement of final judgments. Subsection (a) provides that "[f]inal process to enforce a judgment solely for the payment of money shall be by execution, writ of garnishment, or other appropriate process or proceedings." We have found only one case addressing what constitutes a "money judgment" for purposes of rule 1.570(a). See Garcia v. Garcia, 743 So.2d 1225 (Fla. 4th DCA 1999)

.

The Garcia court held that an order to pay temporary attorney's fees and costs in a divorce modification proceeding was not a "judgment solely for the payment of money" under rule 1.570(a). Instead, the court held that the order was a judgment "for the performance of a specific act or contract" that was enforceable by contempt under rule 1.570(c).1

The order in this case is comparable to that in Garcia because it orders Merrill Lynch to distribute the Trust and not to pay a particular sum of money. Thus, the order is not a "judgment solely for the payment of money" enforceable by writ of execution under rule 1.570(a), but a judgment "for the performance of a specific act or contract" enforceable by contempt under rule 1.570(c).

Our holding is buttressed by the conclusion that the order would not be considered a "money judgment" under Florida Rule of Appellate Procedure 9.310(b)(1), which contains the same "money judgment" language. That rule provides that a party may obtain a stay of execution pending review "[i]f the order is a judgment solely for the payment of money." Courts construing rule 9.310(b)(1) have held that orders directing the disbursement of a specific fund are not money judgments under the rule. See, e.g., Wilson v. Woodward, 602 So.2d 545 (Fla. 2d DCA 1991)

(addressing order directing clerk to disburse funds from court registry); Dice v. Cameron, 424 So.2d 173 (Fla. 3d DCA 1983) (addressing order authorizing personal representative to distribute estate funds).

Merrill Lynch next argues that, under section 737.208, Florida Statutes (2002), the summary judgment did not require immediate distribution as found by the trial court, but distribution was required only after the proper beneficiaries were determined. Thus, Merrill Lynch argues that the trial court improperly determined that the date of valuation of the Trust was January 28, 2000, and improperly awarded the Beneficiaries interest from that date.

Section 737.208 provides, in pertinent part:

(1) Pending the outcome of a proceeding filed to determine the validity of all or part of a trust or the beneficiaries of all or part of a trust, the trustee shall proceed with the administration of the trust as if no proceeding had been commenced, except that no distribution may be made to a beneficiary in contravention of the rights of those persons that may be affected by the outcome of the proceeding.
(2) Upon motion of a party and after notice to interested persons, a court may, upon good cause shown, make an exception to the prohibition under subsection (1) and authorize the trustee to distribute trust assets to a beneficiary subject to any conditions the court, in its discretion, may impose, including the posting of bond by the beneficiary.

(Emphasis added.) Thus, under section 737.208, a trustee cannot be compelled to distribute a trust while an action to determine the beneficiaries is pending. In this case, the action to determine the beneficiaries was pending until this court's mandate issued on July 9, 2001. At that point, the summary judgment directing Merrill Lynch to make distribution to the Beneficiaries in accordance with the Trust was enforceable. Therefore, the trial court erred in determining that Merrill Lynch had a duty to distribute the Trust on January 28, 2000.

The Beneficiaries argue that section 737.208, which went into effect on January 1, 2001, does not apply in this case because it is a substantive provision that may not be applied retroactively. However, it is clear that section 737.208 is procedural in nature and, therefore, may be applied retroactively.

It is well-settled that statutory provisions that are substantive in nature may not be applied retroactively, while procedural provisions may be applied retroactively. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995)

. Substantive law prescribes rights and duties, while procedural law addresses the methods and means to enforce and apply those rights and duties. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). Section 737.208 addresses the time for distribution of a trust when litigation is pending regarding the validity of the trust or the proper beneficiaries. It does not infringe on a beneficiary's right to distribution, as argued by the Beneficiaries, but delays distribution to ensure the propriety of such.

Furthermore, the Florida Legislature itself has indicated that parts of chapter 737 may be procedural in nature. In enacting the statute as part of a substantial revision of the Florida Probate Code, the legislature provided with respect to the entire act that:

[t]he substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737, Florida Statutes, as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act.

Ch.2001-226, § 195, at 2090, Laws of Fla. (emphasis added). Thus, we conclude that section 737.208 is procedural and not substantive in nature, and it may therefore be applied in this case.

Because the trial court erred in determining that Merrill Lynch had a duty to distribute the...

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13 cases
  • Del Valle v. State
    • United States
    • Florida Supreme Court
    • December 15, 2011
    ...a civil judgment, that defendant may again contest the propriety of that order on appeal. Cf. Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass'n, Inc., 832 So. 2d 948, 951 (Fla. 4th DCA 2002) (concerning the appeal of a trial court's decision with regard to a petition to enforce a civi......
  • Del Valle v. State
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    • Florida Supreme Court
    • February 13, 2012
    ...defendant may again contest the propriety of that order on appeal. Cf. Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass'n, Inc., 832 So.2d 948, 951 (Fla. 2d DCA 2002) (concerning the appeal of a trial court's decision with regard to a petition to enforce a civil judgment under Florida ......
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    ...of a clear expression of legislative intent that the statute be given retroactive effect"); Merrill Lynch Tr. Co. v. Alzheimer's Lifeliners Ass'n, 832 So.2d 948, 952 (Fla. 2d DCA 2002) ("It is well-settled that statutory provisions that are substantive in nature may not be applied retroacti......
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    ...is the party's intent to violate the court order at issue.’ " (citation omitted) (quoting Merrill Lynch Tr. Co. v. Alzheimer's Lifeliners Ass'n, 832 So. 2d 948, 954 (Fla. 2d DCA 2002) )); see also Penzell v. M & M Constr. Grp. Corp., 915 So. 2d 194, 196 (Fla. 3d DCA 2005) ("When an injuncti......
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1 books & journal articles
  • Putting the brakes on litigation: stays pending review.
    • United States
    • Florida Bar Journal Vol. 77 No. 10, November 2003
    • November 1, 2003
    ...R. APP. P. 9.310(b)(1) by posting "a good and sufficient supsedeas bond"). (16) Merrill Lynch Trust Co. v. Alzheimer's Lifeliners Ass'n, 832 So. 2d 948 (Fla. 2d D.C.A. (17) Wilson v. Woodward, 602 So. 2d 545 (Fla. 2d D.C.A. 1991) (holding that orders directing the disbursement of funds are ......

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