IN RE ESTATE OF SAMUEL DONNER, DECEASED. PAUL B. ANTON, APPELLANT,
v.
WILLIAM I. DONNER, APPELLEE
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A personal representative of an estate sued co-representatives for an accounting of profits derived from business interests, alleging breach of fiduciary duty and misuse of estate funds. The trial court dismissed the complaint on res judicata grounds, but the appellate court reversed, holding that an accounting action is a separate equitable claim entitled to independent treatment from probate proceedings.
The court held that an accounting action is a legitimate claim in equity entitled to separate treatment apart from probate proceedings, that res judicata is an affirmative defense not properly raised by motion to dismiss, and that the trial court had subject matter jurisdiction over the complaint notwithstanding concurrent administration of the estate in probate court.
[1] A personal representative of an estate is entitled to an accounting of profits derived in part from the use of estate assets.
[2] A claim for an accounting of estate profits is a legitimate action in equity that may be pursued separately from probate proceedings.
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Join FLexlaw to unlock all legal intelligence“We consider the appellant's request for an accounting to be a legitimate action in equity and entitled to separate treatment apart from the probate aspects of the case.”
Establishes that accounting claims are equitable actions separate from probate proceedings
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Join FLexlaw to unlock all legal intelligencePaul B. Anton, as personal representative of Samuel Donner's estate, filed suit against William I. Donner and Charles Donner, who controlled business …
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KEHOE, Judge.
This is an appeal from an order dismissing the appellant’s complaint with prejudice. We reverse and remand with directions to reinstate the complaint.
The pertinent facts follow: Paul B. Anton, acting as personal representative of the Estate of Samuel Donner, filed suit against the estate’s remaining personal representatives, William I. Donner and Charles Donner,1 for an accounting of certain profits derived by business interests controlled by the Donners. Anton alleged that these profits were earned in part by loans from another Donner enterprise in which the decedent had a substantial interest. The complaint alleged that as a result of these loans, the assets of the estate have been depleted accordingly, and the Donners have failed to repay the estate for its shares of the loans made, compelling Anton to borrow money at high rates of interest to meet the pressing cash needs of the estate. The complaint further alleged that the Donners breached their fiduciary duty to the estate, acted in a manner detrimental to its interests in order to serve their own personal interests, and wrongfully divested and used funds that were rightfully estate property. The appellant requested that the trial court require the Donners to account for the profits derived, at least in part, by the use of funds belonging to the estate and to enter judgment for all such sums due and owing.
The appellee moved to dismiss the complaint for failure to state a cause of action upon which relief can be granted. Without specifying the grounds for its ruling, the trial court granted the motion to dismiss and dismissed the complaint with prejudice and without leave to amend.
Although the trial court did not state its reasons for dismissing the appellant’s complaint with prejudice, we conclude that it erred on whatever ground it premised its ruling since the appellant had a right to an accounting under the circumstances of this case.
It appears from our review of the record that the trial court dismissed the complaint on the sole ground that it was a collateral attack on a prior order issued by the same judge sitting in the probate division on the proceeding involving the administration of the Donner Estate and the subsequent will contest among the several claimants of the estate assets. [Donner v. Anton, 364 So. 2d 753 (Fla.3d DCA 1978) (“Donner II”). That earlier order was a denial of the appellant’s petition to remove the appellee, William I. Donner, as personal representative of the estate. The appellee contended that the denial of the earlier petition was res judicata as to the issues raised in this case. We disagree.
We consider the appellant’s request for an accounting to be a legitimate action in equity and entitled to separate treatment apart from the probate aspects of the case. We find nothing in the probate proceedings which would preclude a separate suit requesting an accounting.
The appellee’s reliance upon our decision in Security Trust Company v. Cannon, 165 So. 2d 834 (Fla.3d DCA 1964) is misplaced. Since the reorganization of the judicial system was implemented in 1973, all probate proceedings are under the jurisdiction of the Circuit Courts. The court below had subject matter jurisdiction over the appellant’s complaint notwithstanding the concurrent administration of the Donner Estate in the probate division.
In any event, the trial court cannot dismiss the complaint on the ground of res judicata. It is clear that res judicata is an affirmative defense which is not properly raised by a motion to dismiss but should be pled as part of the answer. Florida Rules of Civil Procedure 1.110(d); Hough v. Menses, 95 So. 2d 410 (Fla.1957); and United States Rubber Company v. Lucky Nine, Inc., 159 So. 2d 874 (Fla.3d DCA 1964). The appellant is entitled to seek an accounting of the profits allegedly derived in part out of the corpus of the estate.
Reversed and remanded with directions to reinstate the complaint.
. Charles Donner was later permitted to withdraw as personal representative and is not a party to this appeal.
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In re Est. of Samuel Donner v. Anton, 364 So. 2d 742 (Fla. 3d DCA 1978)…s designed to facilitate their resolution. For convenience of reference, the appeals have been designated as follows: DONNER I 76-1919 364 So. 2d 742 76-2233 DONNER II 76-2091 76-2092 76-2106 364 So. 2d 753 76-2232 DONNER III 76-1902 76-2196 364 So. 2d 757 DONNER IV 76-1078 364 So. 2d 758 DONNER V 77-75 364 So. 2d 761 DONNER VI 78-60 364 So. 2d 763 Reference will be made throughout these opinions to “Donner I,” “Donner II,” etc. . The estate, through its Executors, also filed an appeal from the f…
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…the counterclaim, is not an appropriate vehicle for dismissal based on affirmative defenses such as res judicata, see Hough v. Menses, 95 So. 2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So. 2d [*706] 1350 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So. 2d 757 (Fla. 3d DCA 1978); Chambers v. Chambers, 102 So. 2d 171 (Fla. 1st DCA 1958), unless, which is not the case here, the facts supporting the affirmative defense appear on the face of the counterclaim, see Cohen v. Cohen, 70 So. 2d 362 (Fla.1954); Barr…
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Diaz v. Bravo, 603 So. 2d 106 (Fla. 3d DCA 1992)…ing the motion to dismiss. Res judicata, estoppel and laches are affirmative defenses which are not properly raised by a motion to dismiss, but should be pled as part of the answer. See Rule 1.110(d), Fla.R.Civ.P.; see also In re Estate of Donner, 364 So. 2d 757 (Fla.3d DCA 1978); United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874 (Fla.3d DCA 1964). Therefore, if the motion to dismiss was granted on either of those grounds, the trial court erred. If the motion to dismiss was granted based on the p…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Sec. Tr. Co. v. The Honorable Pat Cannon, 165 So. 2d 834 (Fla. 3d DCA 1964)
- United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874 (Fla. 3d DCA 1963)
- In re Est. of Samuel Donner v. Anton, 364 So. 2d 753 (Fla. 3d DCA 1978)