       Third District Court of Appeal
                               State of Florida

                            Opinion filed April 3, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-2027
                           Lower Tribunal No. 12-732
                              ________________


                        Charles J. Sibley, Trustee,
                                    Appellant,

                                        vs.

                    In Re: Estate of Curtiss F. Sibley,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Maria M.
Korvick, Judge.

     Charles J. Sibley, in proper person.

      Law Offices of Louise T. Jeroslow, P.A., and Louise T. Jeroslow, for
appellee.


Before EMAS, C.J., and FERNANDEZ and HENDON, JJ.

     EMAS, C.J.
      Introduction

      Charles Sibley (brother of decedent, Curtiss Sibley, and Trustee of the

Curtiss F. Sibley Revocable Living Trust) appeals the trial court’s order1 which (1)

determined that the Curtiss F. Sibley Charitable Foundation (the Foundation) was

“not in existence” upon Curtiss’ death; and (2) based upon that determination and

pursuant to the Trust’s provisions, ordered Charles to distribute all assets and

monies in the trust estate to Fellowship House (Appellee) as the residual

beneficiary. Because there is competent substantial evidence to support the trial

court’s factual determinations, and because the trial court correctly applied the

relevant law, we affirm.

      Facts and Procedural Background

      Before his death, Curtiss executed both a will and a revocable living trust,

naming Charles the personal representative of the estate and Trustee. The Trust

provided, in pertinent part:

      Upon the Settlor’s death, the Trustee shall distribute the trust estate as
      follows:

      ...

      (B) Two hundred and fifty thousand dollars ($250,000.00) to the
      FELLOWSHIP HOUSE FOUNDATION of South Miami, Florida


1This nonfinal order is appealable pursuant to Florida Rule of Appellate Procedure
9.170(b)(15)(authorizing appeals in probate cases from orders that “make
distributions to any beneficiary”).

                                          2
      ...

      (D) All remaining trust estate to the Settlor’s charitable foundation,
      the CURTISS F. SIBLEY CHARITABLE FOUNDATION. If the
      [Foundation] is no longer in existence upon the Settlor’s death,
      then the Trustee shall distribute all of the remaining trust estate to the
      FELLOWSHIP HOUSE FOUNDATION of South Miami, Florida.

(Emphasis added).

      Upon Curtiss’ death, Charles was required as Trustee to distribute certain

bequests, including the above $250,000 bequest to Fellowship House. In 2017,

Fellowship House filed a Petition to Reopen for Subsequent Administration,

alleging that, upon Curtiss’ death, the Foundation was “no longer in existence” and

therefore, pursuant to the Trust provisions, the remaining trust estate must be

distributed to Fellowship House as the residual beneficiary.

      The trial court conducted an evidentiary hearing in September 2018. It was

established at the hearing that on September 23, 2011 (three months before

Curtiss’ death), the Foundation was administratively dissolved, and was not

reinstated until July 9, 2012 (seven months after Curtiss’ death). Charles testified

at the hearing and acknowledged he never funded the Foundation (even though he

was in control of the Trust funds), opened a bank account for the Foundation, or

filed any Foundation paperwork with the IRS.2 Instead, he explained that in 2018
2 Although Charles asserted that the Foundation was “in good standing” with the

IRS, he offered no documents or other evidence to corroborate this assertion, and
failed to provide any such documents in response to the Foundation’s discovery
requests seeking production of same.


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(seven years after his brother’s death), the Foundation was now “ready” to be

funded.

      Following the hearing, the court concluded that the Foundation “was not in

existence” when Curtiss died because it had been administratively dissolved three

months before his death and had not been reinstated until seven months after his

death. The court further concluded that the Foundation was a “non-functioning

option” and that Charles, as Trustee, “failed to fund the Foundation, open a bank

account for the Foundation or file the necessary Foundation filings with the IRS.”

      Based upon this determination, and consistent with the express provision of

the Trust, the court entered an order requiring Charles (as Trustee) “to forward to

Fellowship House, as the Trust residual beneficiary . . . all assets and monies in the

Trust Estate . . . .” This appeal followed

      Analysis

      There is competent substantial evidence to support the trial court’s

determination that the Foundation was “no longer in existence” on December 27,

2011, the date Curtiss died. Charles concedes that, at the time of Curtiss’ death,

the Foundation had been administratively dissolved and was not reinstated until

July 9, 2012, seven months later. Nevertheless, Charles contends that the trial court

erred in equating the Foundation’s administrative dissolution with it being “no

longer in existence” as provided in the Trust.           Charles relies on section



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607.1421(3), Florida Statutes (2011), which provides in part that “a dissolved

corporation continues its corporate existence.” However, the statute reads in its

entirety:

      A corporation administratively dissolved continues its corporate
      existence but may not carry on any business except that necessary to
      wind up and liquidate its business and affairs under s. 607.1405 and
      notify claimants under s. 607.1406.

(Emphasis added).

      Given the fact that the Foundation had been administratively dissolved on

the date of Curtiss’ death (in addition to the other evidence regarding the

Foundation’s non-functioning status), the trial court properly determined the

Foundation was no longer in existence, and on the date of Curtiss’ death was

authorized only “to wind up and liquidate its business and affairs.”

      Additionally, Charles contends that because the Foundation was reinstated

ten months after it was administratively dissolved (and seven months after Curtiss’

death), the trial court erred in not relating back the reinstatement to the date of the

administrative dissolution, thereby treating the Foundation as if it had never been

administratively dissolved. Charles relies for this proposition on section 607.1422,

Florida Statutes (2011), which provides in pertinent part:

      (1) A corporation administratively dissolved under s. 607.1421 may
      apply to the Department of State for reinstatement at any time after
      the effective date of dissolution. The corporation must submit a
      reinstatement form prescribed and furnished by the Department of
      State or a current uniform business report signed by the registered


                                          5
      agent and an officer or director and all fees then owed by the
      corporation, computed at the rate provided by law at the time the
      corporation applies for reinstatement.

      (2) If the Department of State determines that the application contains
      the information required by subsection (1) and that the information is
      correct, it shall reinstate the corporation.

      (3) When the reinstatement is effective, it relates back to and takes
      effect as of the effective date of the administrative dissolution and the
      corporation resumes carrying on its business as if the administrative
      dissolution had never occurred.

(Emphasis added.)

      However, we hold that this statutory provision does not apply to the issue

presented here: a determination of whether, at a fixed point in time (the date of

Curtiss’ death), the Foundation “was no longer in existence” as instructed by the

Trust’s time-certain testamentary provision.

      Were we to apply the relation-back provision of section 607.1422 to the

instant circumstance, as urged by Charles, the administration of an estate might

never achieve finality, because an administratively dissolved beneficiary might (at

some unknown point in the future) be reinstated and seek application of the

relation-back provision to establish its nunc pro tunc existence. As Fellowship

House aptly noted in its brief: “To assume the ability to perpetually reinstate the

Foundation by [Charles] (or anyone else for that matter) after the death of Curtiss

renders meaningless the testamentary instruction, as the Foundation could, quite




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possibly, always be in existence as long [as] someone prospectively filed the

necessary annual reports and paid the delinquent fees.”

      We agree, and recognize that “a basic tenet in the construction of trusts is to

ascertain the intent of the settlor and to give effect to this intent.” Arellano v.

Bisson, 847 So. 2d 998, 1000 (Fla. 3d DCA 2003) (citing Bacardi v. White, 463

So. 2d 218, 221 (Fla. 1985)). The question presented here is not whether the

Foundation could, post-reinstatement, resume “carrying on its business as if the

administrative dissolution had never occurred.” § 607.1422(3), Fla. Stat. (emphasis

added). Instead, the very different question is whether, at a precise point in time,

the Foundation was “no longer in existence.” The affirmative answer to this

question triggered an expressed Trust directive, requiring the Trustee to “distribute

all of the remaining trust estate to the FELLOWSHIP HOUSE” rather than to the

Foundation.

      To apply the relation-back provision of section 607.1422 to this

determination would unquestionably frustrate Curtiss’ intent as set forth in the

Trust, rendering it incompatible with the paramount rule of testamentary

construction. See Sorrels v. McNally, 105 So. 106, 109 (Fla. 1925) (holding: “To

ascertain and give effect to the intent of the testator is the cardinal rule of

testamentary construction.”)

      Affirmed.



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