DR. MARC BIVINS, ET AL.,

v.

CHARLES W. DOUGLAS, ETC., ET AL.,

Third District Court of Appeal State of Florida

Opinion filed October 20, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0965 Lower Tribunal No. 18-5077 ________________

Dr. Marc Bivins, et al., Appellants,

vs.

Charles W. Douglas, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Rosa C. Figarola, Judge.

Law Offices of David Howard Goldberg, P.L. and David Howard Goldberg, for appellants Anabelle Bivins and Lorelei Bivins; Adrian Philip Thomas, P.A. and Adrian P. Thomas, and Paula Castaneda (Fort Lauderdale); Daniel McDermott, P.A., and Daniel L. McDermott (Fort Lauderdale), for appellants Dr. Marc Bivins, and Dr. Marc Bivins and Dr. Balkys Bivins, as Biological Parents and Natural Guardians of P.B., a Minor Child.

Cartolano & Alvero, P.A., and Joe Cartolano, for appellees Phyllis Johns, Sally Knowles, and Emily Moynihan; Dunwody White & Landon, P.A., and Jack A. Falk, Jr., for appellee The Dr. M. Lee Pearce Foundation, Inc.;

Before EMAS, SCALES, and HENDON, JJ.

HENDON, J.

INTRODUCTION

This is an appeal of a final order dismissing Appellants’ second amended complaint with prejudice. As the Appellants have failed to establish that they have standing to pursue the claims asserted in the second amended complaint, we affirm.

BACKGROUND

Dr. Marc Bivins (“Bivins”), Anabelle Bivins (“Anabelle”), Lorelei Bivins (“Lorelei”), and the natural guardians of P.B. (“P.B.”) (hereinafter “Appellants”) filed a declaratory action seeking to invalidate several trust instruments executed by the decedent, Dr. Milton Lee Pearce (“Pearce”). The appellees, defendants below, are Charles W. Douglas, as Trustee of the M. Lee Pearce Living Trust (“Trust”), as amended, and the Dr. M. Lee Pearce Foundation, Inc. Bivins alleges that he and/or his three biological daughters are the lineal descendants and sole intestate heirs of Pearce’s intestate estate. This is so, he contends, because Bivins was born out of wedlock and that his

1 It is important to note that, from 2000 until Pearce’s death, Appellants were never included as beneficiaries of Pearce’s Trust.

2 The first complaint challenged the Trust and sought the following relief: Count I – a declaration that a separate writing was invalid; Count II – a declaration that the 2017 Trust Restatement was invalid due to a lack of a beneficiary; and Count III – a declaration that the 2017 Trust Restatement was invalid due to a lack of sufficient mental capacity.

3 Although count IV was first pled in the second amended complaint, factual allegations as to Pearce’s racist motives were pled in both the first complaint and the amended complaint. Said allegations included the claim that Pearce disinherited Bivins on the account of his having married a woman “of African American descent.”

STANDARD OF REVIEW

“A trial court’s order granting a motion to dismiss is reviewed de novo.” Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011).

ANALYSIS

Appellants raise three issues, and several sub-issues. As a preliminary matter, Appellants argue that the trial court erred in considering exhibits attached to the second amended complaint when ruling on the motion to dismiss. The second amended complaint specifically refers to, and attaches, the 2017 Trust Restatement. Since Appellants’ standing is premised on the Trust’s contents, the trial court correctly considered the terms of the Trust in

I. Standing

This Court reviews orders of dismissal based on lack of standing de novo. Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 2013). “Standing is a threshold inquiry that must be addressed before considering the merits of a cause of action. To have standing, a would-be litigant must show ‘a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation.’” Cruz v. Cmty. Bank & Tr. of Fla., 277 So. 3d 1095, 1097 (Fla. 5th DCA 2019) (quoting Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012)) (internal citations omitted).

A. Intestate Heirs

Both Bivins and Bivins’s children claim they have standing to contest Pearce’s Trust because they are Pearce’s intestate heirs. Bivins Appellants argue that the mere statement that Bivins is Pearce’s biological son is sufficient to establish that Bivins is Pearce’s intestate heir. Appellants further argue that the statute of limitations as to paternity does not bar Bivins’s claims. Appellants also contend that the “delayed discovery doctrine” and the doctrine of equitable estoppel bar the application of the statute of limitations. None of these arguments have merit. a. Statute of limitations Bivins claims standing as an intestate heir because he is Pearce’s biological son, and points to paragraphs¹⁴ and 16 of the second amended complaint. However, the blanket statement that “Pearce was the biological

In another effort to circumvent the statute of limitations, Appellants assert that Bivins was born out of wedlock and that his biological mother and Pearce participated in a marriage ceremony after his birth. In Appellants’ view, Bivins is Pearce’s descendent. In support of this contention, Appellants

4 We disagree with Appellants’ contention that the trial court erred in considering the statute of limitations in ruling on the motion to dismiss because it required the court to consider matters outside the four corners of the complaint. The second amended complaint clearly showed the applicability of the defense given that it contains allegations as to Bivins’ paternity without reference to a declaration or other proof. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993).

5 As Appellees correctly noted, fraud must be pled with specificity, and Appellants failed to assert any cause of action for fraud as part of this suit in any of their complaints. See Strack v. Fred Rawn Constr., Inc., 908 So. 2d 563, 565 (Fla. 4th DCA 2005).

6 Appellants cite to section 95.031(2)(a) for the proposition that “in any event an action for fraud under s. 95.11(3) must be begun within¹² years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” However, as discussed above, Appellants never included a claim for fraud in any of the three versions of the complaint filed below.

Section 731.201(23), Florida Statutes, defines an “interested person” as: “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. . . .” Here, Appellants suggest that they will be affected by the outcome of the litigation because they are the intestate recipients of the Trust corpus once the assets pass through intestacy upon the invalidation of the Trust. In so doing, Appellants erroneously equate this case to Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988), the facts of which are easily distinguishable. Here, Appellants do not qualify as “interested persons” because they are not contingent beneficiaries under the Trust as they were never named beneficiaries in any of the numerous versions of the