PATRICIA POLLAK WEISS, APPELLANT,
v.
PHYLLIS POLLAK BERKETT, ET AL., APPELLEES
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Patricia Weiss appeals an order requiring her to provide a detailed trust accounting for 1989. The court quashes the order, finding that the beneficiary Berkett waived her right to an accounting by taking immediate possession of trust records in the 1989 settlement agreement, and that requiring Weiss to account would be redundant and impossible.
The court quashes the order requiring Weiss to provide an accounting because: (1) Berkett waived any right to an accounting in 1989 by choosing immediate possession of records rather than requiring Weiss to perform an accounting; (2) requiring Weiss to account would be redundant and superfluous since Berkett's accountant had already done so; and (3) Weiss cannot comply because she no longer possesses the records needed to perform an accounting.
[1] A party may waive the right to a trust accounting through an open-court settlement agreement.
[2] A settlement agreement requiring immediate transfer of all trust records can render a subsequent demand for an accounting impossible and thus waived.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Berkett waived any right to an accounting in 1989. See Fla. Stat. 737.303(4)(d). The transcript of the 1989 settlement hearing, signed by both parties, shows that Berkett chose to take immediate possession of the documents rather than have Weiss perform an accounting.”
Establishes the primary basis for the reversal—that the beneficiary waived accounting rights by the terms of the settlement agreement
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Join FLexlaw to unlock all legal intelligenceIn 1989, Berkett sued to discharge Weiss as trustee of several testamentary trusts. The parties settled with Weiss agreeing to transfer all trust reco…
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PER CURIAM.
Patricia Pollack Weiss, the defendant below, appeals from an order requiring her to provide a detailed trust accounting for the year 1989. For the following reasons, we quash the order under review.
After Berkett, the plaintiff below, filed suit for discharge of Weiss, the defendant below, as trustee of several testamentary trusts, Weiss and Berkett entered into a settlement agreement. Under this 1989 open-court settlement agreement, Berkett was to assume the trusteeship immediately. Weiss was to transfer all the trust records within her possession to Berkett within ten days and to send releases to any attorneys or accountants with trust records, putting them on notice that Weiss relinquished the right to access any documents. Weiss complied by transferring all the records to Berkett and sending the releases.
In 1991, Berkett filed suit against Weiss for, among other things, an accounting. After a trial, the court entered an order requiring Weiss to prepare a detailed accounting. This appeal follows.
We reverse because Berkett waived any right to an accounting in 1989. See Fla. Stat. 737.303(4)(d). The transcript of the 1989 settlement hearing, signed by both parties, shows that Berkett chose to take immediate possession of the documents rather than have Weiss perform an accounting.1 At that time, Berk-ett clearly did not expect Weiss to perform an accounting, as the agreement required Weiss to transfer every scrap of paper within 10 days (although Berkett said she wanted the records sooner), rendering it impossible for Weiss to perform an accounting.
Even if Berkett had not effectively waived any right to an accounting, the order must be quashed because Berkett has already had her own accountant perform an accounting for the year 1989. To require Weiss to perform an accounting is, therefore, redundant, superfluous, and futile. See, e.g., Plaza v. State, 699 So. 2d 289 (Fla. 3d DCA 1997). In addition, because Weiss does not have possession of the records which she would need to perform an accounting, the lower court erro neously ordered Weiss to perform an impossible act. See U-M Publishing, Inc. v. Home News Publishing Co., 279 So. 2d 379 (Fla. 3d DCA 1973)(holding that the trial court erred in ordering defendant to do an impossible act).
The order under review is quashed and the cause is remanded for further proceedings not inconsistent with this opinion.
. In 1989, the standards for a fiduciary accounting under the probate rules were suggested, not mandatory. See Fla. Prob. R. 5.346(b) (1989) ("The following standards are suggested but not mandatory.”).
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Citator
Cited By
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Weiss v. Berkett, 907 So. 2d 1181 (Fla. 3d DCA 2005)…la. 3d DCA 1992); Weiss v. Berkett, 600 So. 2d 1121 (Fla. 3d DCA 1992); Weiss v. Courshon, 618 So. 2d 255 (Fla. 3d DCA 1993); Weiss v. Courshon, 627 So. 2d 604 (Fla. 3d DCA 1993); Weiss v. Courshon, 768 So. 2d 2 (Fla. 3d DCA 2000); Weiss v. Berkett, 785 So. 2d 1248 (Fla. 3d DCA 2001); In re Pollak, 816 So. 2d 1142 (Fla. 3d DCA 2002); Weiss v. Berkett, 827 So. 2d 383 (Fla. 3d DCA 2002); Weiss v. Berkett, 835 So. 2d 283 (Fla. 3d DCA 2002), reh'g denied en banc (Jan. 31, 2003), rev. denied, 851 So. 2d 730 (Fla.20…
Authorities Cited
- U-M Publ'g, Inc. v. Home News Publ'g Co., Inc., 279 So. 2d 379 (Fla. 3d DCA 1973)
- Gerardo Plaza v. State, 699 So. 2d 289 (Fla. 3d DCA 1997)