Tobin v. Damian, 97-4199.
| Citation | 723 So.2d 396 |
| Decision Date | 13 January 1999 |
| Docket Number | No. 97-4199.,97-4199. |
| Parties | Benita TOBIN, Appellant, v. Vincent E. DAMIAN, Jr., Herbert A. Tobin, Mark Tobin and Jason Tobin, as co-Personal Representatives of the Estate of Ben Tobin and co-Trustees of the Ben Tobin Revocable Trust and the Ben Tobin Foundation, Appellees. |
| Court | Florida District Court of Appeals |
Ronald P. Weil and Daniel F. Blonsky of Aragon, Burlington, Weil & Crockett, P.A., Miami, for appellant.
John R. Hargrove and W. Kent Brown of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for appellees.
Benita Tobin appeals the trial court's dismissal of her second amended complaint against the Ben Tobin Revocable Trust ("the Trust") for failure to state a cause of action. She argues that the Trust was properly named as a defendant and that the dismissal of the Trust should not have been granted with prejudice. We affirm.
Appellant filed a complaint and an amended complaint against Vincent E. Damian, Jr., Herbert A. Tobin, Mark Tobin and Jason Tobin, as co-personal representatives of the estate of Ben Tobin and co-trustees of the Ben Tobin Revocable Trust, and against the Ben Tobin Foundation. The trial court granted the Trust's motion to dismiss the amended complaint without prejudice. Appellant filed her second amended complaint against the same parties with the following counts: Count I—sexual assault and battery for acts allegedly committed by Ben Tobin, the decedent, Count II—intentional infliction of emotional distress, Count III—trust accounting, and Count IV—failure to make trust distribution. The Trust moved to dismiss the second amended complaint, arguing that it cannot be alleged that the Trust was a tortfeasor and that the probate court, not the civil division of the seventeenth judicial circuit, has continuing jurisdiction over the trust assets of the decedent. The trial court granted the motion to dismiss with prejudice for failure to state a cause of action against the Trust.
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