Mills v. Barker, 94-04466
| Decision Date | 29 November 1995 |
| Docket Number | No. 94-04466,94-04466 |
| Parties | 20 Fla. L. Weekly D2643 Robert A. MILLS, as Trustee of the Witherill Unitrust Trust, Appellant, v. E. Tefft BARKER, Appellee. |
| Court | Florida District Court of Appeals |
Barry F. Spivey of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellant.
Richard E. Nelson and Robert C. Widman of Nelson, Hesse, Cyril, Smith, Widman, Herb, Causey & Dooley, Sarasota; and L. Norman Vaughan-Birch and Anita J. Hanna of Kirk Pinkerton, P.A., Sarasota, for Appellee.
The appellant, Robert A. Mills, as Trustee of the Witherill Unitrust Trust, challenges a trial court order dismissing a replevin action seeking possession of certain trust property under the control of the appellee, E. Tefft Barker. We agree with Mr. Mills' contention that the trial court erred by granting Mr. Barker's motion for involuntary dismissal and, accordingly, reverse.
During the month of August 1991, Huntington B.C. Witherill established an irrevocable charitable remainder unitrust with assets valued at more than seven million dollars. Mr. Witherill and Tracy Morrison, now Tracy Morrison Witherill, were named the income beneficiaries of the trust and a charity known as the "Center for Photographic Art" was designated the remainder beneficiary. All of the beneficiaries of the trust are residents of the state of California and the trust agreement provides, subject to United States tax considerations, that the agreement and all rights and obligations under it are to be determined in accordance with the law of the state of California. Mr. Barker was appointed trustee of the trust, and Mr. Mills was named alternate trustee.
In May 1994, an agreement entitled "Modification of Witherill Unitrust Trust" was executed by the three beneficiaries. The modification agreement recited that the original agreement was being modified pursuant to section 15404 of the Probate Code of the state of California for the purpose of changing the identity of the trustee. Mr. Mills was named as trustee to replace Mr. Barker. The modification agreement indicates that it was signed by Mr. and Mrs. Witherill and by Mr. T.J. Orland, the president of the Center for Photographic Art. The parties' signatures were each acknowledged by a California notary public whose seal was affixed to the agreement. In the case of the Witherills, the notary's certificate provided that they appeared before the notary and that they were either personally known to the notary or proved to him that they were the persons whose names were subscribed to the instrument and that they acknowledged that they executed the instrument. In the case of the charity, the certificate also provided that the president of the charity acknowledged executing the instrument in his authorized capacity and on behalf of that entity.
A copy of the executed agreement was furnished to Mr. Barker, but he refused a demand that he turn over the assets of the trust to Mr. Mills who subsequently filed a replevin action in Sarasota County, Florida. The amended complaint alleged that Mr. Mills was entitled to the possession of the trust assets as successor trustee under the modification agreement.
The parties agreed that the matters in dispute were controlled by California law and consented to allow the court to take judicial notice of that portion of the California law which allows a trust to be modified without court approval if the settlor and all beneficiaries of the trust consent. Cal.Probate Code Sec. 15404 (West 1994).
At the final hearing, the parties stipulated that the original trust agreement could be admitted into evidence, but Mr. Barker objected to introduction of the modification agreement.
Mr. Mills' attorney attempted to have the modification agreement introduced into evidence by the testimony of Mr. Mills. Mr. Mills testified that he prepared the agreement and that he knew that the signatures of Mr. and Mrs. Witherill were genuine. He, however, had never met Mr. Orland and could not testify to the genuineness of his signature. On the basis of this testimony, the court refused to allow the modification agreement to be introduced for the purpose of establishing consent of the charity. The court also did not accept Mr. Mills' argument that the agreement was properly authenticated and should be admitted into evidence because all of the signatures were notarized by California notaries public.
Without the agreement as evidence of proper consent to the modification, Mr. Mills could not establish a prima facie case showing his entitlement to possession of the trust assets. The court, accordingly, granted Mr. Barker's motion for an involuntary dismissal made at the close of Mr. Mills' case. See Fla.R.Civ.P. 1.420(b). Mr. Mills filed a timely notice of appeal from the order dismissing the replevin action.
If the court was correct in refusing to allow the modification agreement into evidence, it was also correct in granting Mr. Barker's motion for an involuntary dismissal. If the court erred by refusing to admit the agreement into evidence, and if we consider it, then Mr. Mills presented some competent evidence on each element of his cause of action, and the matter should not have been dismissed. Since we find that the agreement was properly authenticated and should have been admitted into evidence, we find the court erred by dismissing the action and, accordingly, reverse and remand for further proceedings. See Department of Health & Rehabilitative Servs. v. Thibodeaux, 547 So.2d 1243 (Fla. 2d DCA 1989).
Authentication or identification of evidence is required as a condition precedent to its admissibility. Sec. 90.901, Fla.Stat. (1993). In this case, Mr. Mills had the option of authenticating the modification agreement by either using extrinsic evidence sufficient to support a finding that the agreement met the requirements of section 90.901 or by showing that the agreement met the self-authenticating requirements of section 90.902, Florida Statutes (1993). Section 90.902(9) provides that extrinsic evidence of authenticity is not required for any document declared by the legislature to be presumptively or prima facie genuine or authentic.
Mr. Mills contends that his testimony was sufficient to authenticate the modification agreement and alternatively that it was self-authenticated pursuant to section 90.902(9). 1
We disagree with Mr. Mills' contention that his testimony was sufficient extrinsic evidence to authenticate the document. Although he testified to the...
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