               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

BETTY L. DOWDY,                  )
                                 )
           Appellant,            )
                                 )
v.                               )               Case No. 2D14-5717
                                 )
MICHAEL DOWDY, INTERESTED        )
PERSON,                          )
                                 )
           Appellee.             )
________________________________ )

Opinion filed January 6, 2016.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Hillsborough
County; Martha J. Cook, Judge.

Joseph J. Registrato, Tampa, for
Appellant.

Craig M. Harris and Nancy S. Paikoff
of Macfarlane Ferguson & McMullen,
Tampa, for Appellee.


NORTHCUTT, Judge.

              The circuit court issued a temporary injunction directing Betty Dowdy to

deposit proceeds of a property sale into the court registry pending the disposition of her

stepson's petition for construction of a trust. We conclude that the stepson's petition

has no likelihood of success on the merits. Therefore, the action cannot support the

temporary injunction, and we reverse it.
              In 2006, Betty and her husband, Dennis, created the Dowdy Family Trust.1

The corpus of the trust comprised two parcels of real estate. Our limited record does

not reflect who owned either property prior to the trust's creation. At some point, Betty

and Dennis caused the trust to sell one of the properties.

              Dennis had three children, and Betty had two; the couple did not have any

children in common. The trust document identified Betty and Dennis as the settlors, the

initial trustees, and the initial primary beneficiaries. It made provision for revocation or

amendment of the trust; appointed children of both settlors as co-successor trustees;

provided for distributions to the settlors; and, following the settlors' deaths, provided for

liquidation and distribution to the settlors' children. The petitioner below, Michael Dowdy,

is one of Dennis's sons and was named as a co-successor trustee.

              Dennis died in 2008. In 2011 Betty amended the trust, removing Dennis’s

children as successor trustees and as beneficiaries. She subsequently sold the

remaining trust property. Michael learned of the sale and asked the title company to

disburse the sale proceeds to Betty and him jointly as cotrustees. But the title company

delivered the proceeds to Betty alone.

              Michael then filed a petition in circuit court for construction of the original

trust. He maintained that Betty's amendment was invalid because it was executed after

Dennis's death. The petition asserted that when Dennis died the revocable trust

became irrevocable and that Michael succeeded Dennis as cotrustee. Michael also

sought a temporary injunction to compel preservation of the proceeds of the property



              This trust was created prior to the July 1, 2007, effective date of chapter
              1

2006-217, Laws of Florida, and we have not considered the application of section
736.0602, Florida Statutes.
                                             -2-
sale, which the circuit court granted after a hearing. The order directed Betty to deposit

into the court registry $100,000 from the proceeds.

              In order to obtain a temporary injunction, the moving party must make four

showings. Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63, 64-65 (Fla. 2d DCA 2010).

The movant must demonstrate that he will suffer irreparable harm without an injunction,

that he has no adequate remedy at law, that he enjoys a substantial likelihood of

success on the merits, and that an injunction would be in furtherance of the public

interest. Id. When granting an injunction, the court must make factual findings to

support each element. Liberty Fin. Mortg. Corp. v. Clampitt, 667 So. 2d 880, 881 (Fla.

2d DCA 1996) (citing City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So. 2d

750, 753-54 (Fla. 1st DCA 1994) ("If it is to be subject to meaningful review, an order

granting a temporary injunction must contain more than conclusory legal aphorisms. . . .

Facts must be found."), approved, 659 So. 2d 1046 (Fla. 1995)); see also Fla. R. Civ. P.

1.610(c) (mandating that every injunction shall specify the reasons for entry).

              Here, the circuit court's order contained no factual findings or legal

analysis, and it is vulnerable to reversal for that reason alone. But we need not decide

the case on that basis, because it is clear that Michael was not entitled to the temporary

injunction in any event. The reason is that he cannot prevail in his underlying action.

              When announcing her decision to grant the injunction, the circuit judge

focused on the 2011 amendment to the trust, which the judge considered to be

improper. Indeed, at the hearing below and in this appeal, Michael has relied on case

authorities that suggest that Betty did not enjoy an unbridled right to amend the trust

following the death of the other settlor. But vis-à-vis the proceeds of the property sale,



                                            -3-
this argument is for naught unless, but for the amendment, Michael was a cotrustee at

the time of the sale. This is because article IV of the original trust document provided

as follows:

              During the Settlors' lifetime, the Trustees, in the Trustees'
              sole discretion, may pay, invade, or apply the income or
              corpus, or so much as they may choose, to or for the benefit,
              support and maintenance of the initial primary beneficiaries,
              Dennis R. Dowdy and Betty L. Dowdy, or the survivor, and
              may add to principal any income not so expended. The
              judgment of the Trustees, as to propriety and amount of
              such payment, shall be conclusive.

Thus, if Betty was the only trustee following the death of her husband, she had sole and

unfettered authority to sell the trust property for her own benefit.

              Michael claims to be a successor cotrustee under article III of the original

trust:

                     A. Initial Trustee The Initial Trustees of this Trust
              are Dennis R. Dowdy and Betty L. Dowdy, or the survivor, to
              serve with all of the obligations, powers, and authority
              contained within this Trust Declaration.

                             B. Successor Trustee       In the event of the
              death of each of the Initial Trustees, Dennis R. Dowdy and
              Betty L. Dowdy, or if for any reason, such as by resignation
              or as a result of physical or mental incapacity, as determined
              by the certificate of two licensed medical doctors, the Initial
              Trustees cease to serve as Trustees hereunder, the Settlors
              nominate and appoint Settlors' son and stepson, Michael R.
              Dowdy [Dennis's son], and Settlors' daughter and
              stepdaughter, Deborah Ann Andrews [Betty's daughter], as
              Co-Successor Trustees, without the need for approval by
              any judicial authority.

(Emphasis supplied.)

              In Michael’s view, the phrase "death of each" meant the death of either

initial trustee. Therefore, he asserts that he became a cotrustee with Betty upon his



                                            -4-
father's death. Notably, however, the trust document also named Michael's stepsister,

Deborah Andrews, as a co-successor trustee, and it did not specify that one of them in

particular would succeed a particular deceased initial trustee. In other words, whereas

Michael claims to have become a cotrustee with Betty when his father died, under his

construction of article III he would have become one of three cotrustees along with Betty

and Deborah.

              On the other hand, the provision's failure to assign a specific successor to

a particular deceased initial trustee is consistent with our view that the succession of

trustees occurred only upon the death of both initial trustees. This view is confirmed by

the use of the same phraseology elsewhere in the original trust document. See Roberts

v. Sarros, 920 So. 2d 193, 195 (Fla. 2d DCA 2006) (noting that when determining the

settlors' intent, the instrument must be read as a whole rather than in isolated words and

phrases).

              Article V provides:

              After the death of each of the Settlors, the Co-Successor
              Trustees are directed to liquidate the Trust Estate and
              immediately pay and distribute the Trust Estate to the
              children and stepchildren of the Settlors, namely, Michael R.
              Dowdy, John D. Dowdy, Tracy L. Weston, William Edward
              Nasrallah, and Deborah Ann Andrews, in equal one-fifth
              shares, but if any of them shall predecease the Settlors, then
              such share shall be distributed to the lineal heirs of that
              individual, per stirpes.

(Emphasis supplied.) Clearly, in this instance the phrase "death of each" must mean

the death of both. Otherwise, the article's direction to liquidate the trust estate and

immediately distribute it to the settlors' children would nullify article IV's grant of

authority to invade the income or corpus of the trust for the benefit of the initial primary



                                              -5-
beneficiaries "or the survivor." Indeed, upon the death of one settlor it would altogether

nullify the survivor's status as beneficiary. This, of course, would be an absurd

interpretation in complete contravention of a central purpose of the trust.

              There is nothing in the original trust document to suggest that the phrase

"death of each" has a different meaning in article III. To the contrary, that article is

otherwise consistent with this interpretation. We conclude, then, that Michael did not

succeed Dennis as a trustee when Dennis died. At all times thereafter, Betty has been

the sole trustee and beneficiary of the trust, regardless of the validity vel non of the

2011 amendment. As such, she had sole authority and discretion to sell the remaining

trust property for her own benefit. Because Michael"s lawsuit cannot prevail as it relates

to the proceeds of that sale, the temporary injunction must fail.

              Reversed.




LaROSE and SALARIO, JJ., Concur.




                                             -6-
