       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

 DORIS RICH CORYA, as Trustee of the Sanders Trust, DORIS RICH
CORYA and PAUL J. RICH SANDERS as Trustee of the Eleanor M. Rich
Trust, DORIS RICH CORYA as Trustee of the John P. Corya Irrevocable
   Trust, and DORIS RICH CORYA as Trustee of the John P. Corya
                        Revocable Trust,
                          Appellants,

                                     v.

                             ROY SANDERS,
                               Appellee.

                     Nos. 4D12-3067 and 4D12-3926

                           [November 5, 2014]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Diana Lewis, Judge; L.T. Case No.
502008CP000957XXXXMB.

  Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm
Beach Gardens, for appellants.

    Susan B. Yoffee of Haile, Shaw & Pfaffenberger, P.A., North Palm Beach,
for appellee.

CONNER, J.

    In this case, ongoing disputes as to four family trusts make a second
appearance before us. In the first appeal, we reversed the trial court’s
summary judgment granting trust accountings for all four trusts. Corya
v. Sanders, 76 So. 3d 31 (Fla. 4th DCA 2011). We concluded the trial court
erred in granting summary judgment in part because appellee Sanders did
not sufficiently negate the defenses of laches, waiver, and estoppel. Id. at
34. As to two of the trusts, we also concluded that the record did not
establish, for purposes of summary judgment, that the contesting
beneficiary was entitled to accountings prior to 2007. Id. Upon remand,
a nonjury trial was conducted.
   In this appeal, appellants, Doris Corya and Paul J. Rich Sanders
(collectively, “Corya”),1 as trustees, raise several arguments of trial court
error. Roy Sanders (“Sanders”), the appellee and contesting beneficiary, is
Doris’s son and Paul’s brother. We agree with Corya that the trial court
erred by (1) determining that the affirmative defense of statutory laches
did not limit the years to which Sanders is entitled to an annual
accounting for each trust; (2) incorrectly interpreting statutory provisions
in deciding the starting date for each accounting; and (3) incorrectly
applying case law in deciding the starting date for each accounting. For
those reasons, we reverse and remand for further proceedings. Because
we reverse on significant issues affecting entitlement to attorney’s fees, we
also reverse and remand the trial court rulings on attorney’s fees for
further consideration.

              Factual Background and Trial Court Proceedings

   The disputes revolve around four irrevocable family trusts. The trusts
will be referred to separately as “the Sanders Trust,” “the Rich Trust,” “the
John Corya Revocable Trust” (which later became irrevocable) and “the
John Corya Irrevocable Trust.”

    The Sanders Trust was created in 1953 by Eleanor Rich. Eleanor was
Doris’s mother and Sanders’s grandmother. The trust directs that Doris
is to receive ninety-four percent of the net income during her lifetime, and
each of Doris’s three children is to receive two percent of the net income.
Upon Doris’s death, the principal of the trust is to be distributed in equal
shares to Doris’s three children. Doris has been the sole trustee from
inception of the trust.

   The Rich Trust is a testamentary trust created upon the death of
Eleanor in 1974. The trust provides that during Doris’s lifetime, the net
income is to be distributed to her, and the principal can be invaded for her
benefit. The principal of the trust can also be invaded for the benefit of
her three children. Upon Doris’s death, the remaining principal is to be
divided into shares for each of her three children, and the trust for each
child is to continue until the child has attained the age of thirty.2 From
inception, Doris has been a co-trustee of the Rich Trust.




1 Doris is the sole trustee for three of the trusts and a co-trustee for the fourth
trust. Paul, her son, is a co-trustee of the fourth trust.
2 All three of Doris’s children are over thirty years old.


                                        2
    Doris married John Corya. In 1993, John created two trusts, one
revocable, the other irrevocable. As to both, John and Doris were the
initial co-trustees, and upon John’s death, Doris has been the sole trustee.

    The John Corya Revocable Trust began with John as the sole
beneficiary during his life. Upon his death in 1996, the trust continued
as an irrevocable trust for the benefit of Doris, her three children, and two
grandchildren. During Doris’s lifetime, the net income is to be distributed
to her, and the principal can be invaded for her benefit. Under certain
circumstances, the principal of the trust can also be invaded for the benefit
of each of her three children. Upon Doris’s death, the remaining principal
is to be divided between her three children and two grandchildren.

   The John Corya Irrevocable Trust provides that the income is payable
solely to John while he is alive and then solely to Doris while she is alive.
The Irrevocable Trust allows for invasion of the principal for the benefit of
John and Doris, and upon the death of both, the remaining principal is to
be distributed to Doris’s three children and two grandchildren.

   Only the two John Corya trusts contain provisions regarding the
trustee’s duty to account to the beneficiaries.

   As summarized in the first appeal:

      Roy [Sanders] filed a second amended complaint seeking to
      compel an annual accounting of the four trusts. Doris
      answered, denying most material allegations and alleging
      various affirmative defenses, including statute of limitations,
      and an allegation of waiver[, laches,] and estoppel alleging that
      the trusts have been in existence thirty years, and by his
      conduct Roy should be estopped from demanding any
      accounting prior to 2008. After some discovery, Roy moved
      for summary judgment. The trial court granted the motion
      finding that Doris had the duty to provide Roy with periodic
      written accountings on all the trusts, which she failed to do.
      The court ordered her to provide accountings for all trusts and
      granted Roy’s motion for attorney’s fees, which she was not
      permitted to use trust funds to pay.

Corya, 76 So. 3d at 33. After the nonjury trial on remand, as to all four
trusts, the trial court ordered Corya to prepare accountings from the date
she assumed duties as trustee, which was the inception of each trust. In
so ruling, the trial court determined that Corya’s affirmative defense of
statutory laches did not apply. The trial court also apparently interpreted
statutory provisions and case law to determine the starting date for each

                                     3
accounting. In addition, the trial court awarded Sanders attorney’s fees,
both for trial and the prior appeal. The trial court again ordered that Corya
was not permitted to use trust funds to pay Sanders’s attorney’s fees, thus
making her personally liable for the fees. Lastly, the trial court required
Corya to reimburse the trusts for trust funds used to pay her attorney’s
fees.

                                Legal Analysis

   After a nonjury trial, review of trial court decisions based on legal
questions are reviewed de novo and those based on findings of fact from
disputed evidence are reviewed for competent, substantial evidence.
Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA
2008); In re Estate of Sterile, 902 So. 2d 915, 922 (Fla. 2d DCA 2005).

    In order to explain the errors of the trial court, it is appropriate to first
discuss the statutory duty imposed on trustees of irrevocable trusts to
account to the beneficiaries, next discuss the application of statutory
laches to the duty to account, and conclude by discussing the errors of the
trial court in determining the starting dates for the accountings.

The Statutory Duty to Account Applicable to this Case

    As described above, all four trusts are irrevocable and have been in
effect for decades before suit was filed. It is undisputed that before suit
was filed, Corya had not prepared accountings for any of the trusts. At
trial and on appeal, Corya agreed she was required to provide annual
accountings to the beneficiaries as of July 1, 2007, the effective date of
section 736.0813(1)(d), Florida Statutes (2007), which provides:

      Duty to inform and account.--The trustee shall keep the
      qualified beneficiaries of the trust reasonably informed of the
      trust and its administration.

      (1) The trustee’s duty to inform and account includes, but is
      not limited to, the following:

       ....

      (d) A trustee of an irrevocable trust shall provide a trust
      accounting, as set forth in s. 736.08135, to each qualified
      beneficiary annually and on termination of the trust or on
      change of the trustee.




                                       4
Corya disputed that she had a duty to give accountings to Sanders for the
years preceding 2007, contending there was no statutory duty to provide
accountings for the prior years.

    Prior to July 1, 2007, the statute controlling the duty of a trustee of an
irrevocable trust to account to beneficiaries was section 737.303, Florida
Statutes (2006), repealed the same year that section 736.0813 was passed.
Comparing section 736.0813 with section 737.303, it is obvious that the
duty of a trustee to account for an irrevocable trust from 1974 (the year in
which section 737.303 was enacted) to June 30, 2007, was virtually
identical to the duty to account starting July 1, 2007. Former section
737.303, Florida Statutes (2006), imposed the following duty to account:

      Duty to inform and account to beneficiaries.--The trustee
      shall keep the beneficiaries of the trust reasonably informed
      of the trust and its administration. In addition:

       ....

      (3) A beneficiary is entitled to a statement of the accounts of
      the trust annually and on termination of the trust or change
      of beneficiary.

Although the current section 736.0813 limits the duty to account to
“qualified beneficiaries,” the definition of “qualified beneficiaries” is
virtually the same as the definition of “beneficiary” and “vested
beneficiary,” as interpreted by case law, in the repealed section 737.303.
See §§ 736.0103(14), Fla. Stat. (2007), 737.303(4)(b), Fla. Stat. (2002). 3




3Although section 737.303 was first enacted in 1974, the version of the statute
quoted was amended in 1977 to change the subsection number to (4) and to
provide:

      (4) A vested beneficiary is entitled to a statement of accounts of
      the trust annually and upon termination of the trust or upon a
      change of the trustee.

(emphasis added). In 2002, the statute was amended further to provide:

      (4)(a) A beneficiary is entitled to a trust accounting, as set forth
      in s. 737.3035, annually and upon termination of the trust or

                                        5
   We thus reject Corya’s arguments that there was no statutory duty to
provide Sanders with accountings prior to July 1, 2007.

Statutory Laches as a Bar to Trust Accountings Beyond Four Years

   As to all four trusts, Corya raised the affirmative defense of laches.
Regarding the Sanders Trust, the trial court explicitly ruled that “laches”
did not apply, after determining that Sanders’s testimony was credible
when he testified that he did not know he was entitled to an accounting
until he met with a Florida attorney in April 2007. As to the other three
trusts, the judgment does not explicitly state “laches” did not apply;
however, the trial court implicitly ruled such by granting accountings for
each trust from the inception of Corya’s duties as trustee.

    The trial court noted in the final judgment that the affirmative defense
of laches, pursuant to section 95.11(6), Florida Statutes (2008), was an
issue to be tried. We have previously held that section 95.11(6), referred
to as “statutory laches,”4 applies to an action for an accounting by a
trustee. Patten v. Winderman, 965 So. 2d 1222, 1225 (Fla. 4th DCA 2007).
Section 95.11(6), Florida Statutes (2008), states:

      (6) Laches.--Laches shall bar any action unless it is
      commenced within the time provided for legal actions
      concerning the same subject matter regardless of lack of
      knowledge by the person sought to be held liable that the
      person alleging liability would assert his or her rights and




      upon change of the trustee except as provided under paragraph (c)
      [describing the duty to account during the grantor’s lifetime].

      (b) For purposes of this section, the term “beneficiary” means:

      1. All current income or principal beneficiaries, whether
      discretionary or mandatory; and

      2. All reasonably ascertainable remainder beneficiaries who would
      take if all income interests immediately terminated.


4 In Corinthian Investments, Inc. v. Reeder, 555 So. 2d 871, 872 (Fla. 2d DCA
1989), the Second District referred to section 95.11(6) as “statutory laches.” See
also Nayee v. Nayee, 705 So. 2d 961, 963-64 (Fla. 5th DCA 1998) (discussing the
inapplicability of section 95.11 to actions against trustees until amended in 1974
to add section 95.11(6)).

                                        6
      whether the person sought to be held liable is injured or
      prejudiced by the delay. This subsection shall not affect
      application of laches at an earlier time in accordance with law.

    Prior to Sanders filing suit, Corya had not prepared accountings for any
of the trusts. Failure to prepare an accounting is a breach of trust by a
trustee. § 736.1001(1), Fla. Stat. (2008). The failure is also referred to as
a breach of fiduciary duty. McCormick v. Cox, 118 So. 3d 980, 986-87 (Fla.
3d DCA 2013) (holding that evidence that trustee filed no annual
accounting was competent substantial evidence of a breach of fiduciary
duty). A breach of trust or fiduciary duty is the equivalent of at least a
negligent tort, and, under certain facts, may be an intentional tort. The
breach may result in an award of damages against the trustee personally.
§§ 736.1002(1), 736.1013(2), Fla. Stat. (2008).5 Regardless of whether the
breach is deemed to be the result of negligence or an intentional act, the
statute of limitations for a legal action alleging breach of trust or fiduciary
duty is limited to four years.6 §§ 95.11(3)(a), (o), (p), Fla. Stat. (2008).
Because an action for accounting seeking to enforce a breach of trust or
fiduciary duty entitles a beneficiary to damages, the application of section
95.11(6) bars an action seeking an accounting from a trustee more than
four years before the action is filed.7

    Even if the trial court’s conclusion in the judgment “that the doctrine
of laches does not apply” was a reference to “common law laches,” the
conclusion, grounded on the finding that “[Sanders]’s testimony [was]
credible that he did not know he was entitled to an accounting until he
met with a Florida attorney in April, 2007,” was not a correct application
of the defense of common law laches. The elements of common law laches


5
  From the award of attorney’s fees granted by the trial court, it is clear that
Sanders is seeking monetary awards against Corya personally. Counsel for
Sanders conceded in oral argument that Sanders intends to pursue further
awards of damages against Corya personally for misconduct as trustee, as
established by the accountings, once all the accountings have been completed.
6 We recognize that section 736.1001, Florida Statutes, effective since 2006,

provides for a number of remedies other than damages for a breach of trust. We
do not contend that section 95.11(6) applies to such remedies. However, section
95.11(6) does apply to any action seeking monetary awards against the trustee.
7 Even though an action for an accounting is considered an equitable proceeding,

it has the features of a legal action. § 736.0106, Fla. Stat. (2008) (“The common
law of trusts and principles of equity supplement this code, except to the extent
modified by this code or another law of this state.”) (emphasis added). “An action
for an accounting was formerly cognizable both at law and in equity.” Nayee,
705 So. 2d at 963 (citing Campbell v. Knight, 92 Fla. 246, 109 So. 577 (1926)).

                                        7
are (1) “conduct on the part of the defendant . . . giving rise to the situation
of which complaint is made”; (2) “the plaintiff, having knowledge or notice
of the defendant’s conduct, and having been afforded the opportunity to
institute suit, is guilty of not asserting his rights by suit”; (3) “lack of
knowledge on the part of the defendant that plaintiff will assert the right
on which he bases his suit”; and (4) “injury or prejudice to the defendant
in event relief is accorded to the plaintiff, or in the event suit is held not to
be barred.” Van Meter v. Kelsey, 91 So. 2d 327, 330-31 (Fla. 1956).

    Sanders does not dispute that he had actual knowledge that he was a
beneficiary of all four trusts for many years before filing suit against Corya.
What he claimed at trial and on appeal is that he did not have actual
knowledge he was entitled to accountings for each trust until he consulted
with a Florida attorney in April 2007. He presented no evidence, and the
trial court made no finding, that Corya engaged in conduct that duped
Sanders into thinking he was not entitled to accountings or lulled him into
not taking legal action to seek accountings. As the trial court found, Corya
periodically showed Sanders statements for some of the trusts and
discussed the trusts with him, but he was not interested in viewing the
information. His failure to know the law or consult with an attorney is not
a lack of actual knowledge of the facts (no accountings given to him) upon
which the claim is based. See § 95.031, Fla. Stat. (2008) (stating a cause
of action accrues when the last element constituting the cause of action
occurs). Knowledge of the law is not an element to be proven to establish
entitlement to an accounting by a trustee. Sanders’s lack of knowledge of
the law had nothing to do with his knowledge that the accountings were
not being given to him each year. The law required the accountings and
gave Sanders the right and opportunity to file suit. Research has not
revealed a Florida case which holds that a lack of knowledge of the law is
grounds to extend the period for laches or toll the running of the statute
of limitations. The trust statutes afforded Sanders the right to file suit for
an accounting as early as 1974. §§ 737.303, 737.201(1), Fla. Stat. (1974).
There was no evidence that Sanders gave notice to Corya that he wanted
to assert his right to annual accountings until suit was filed in 2008. The
transcript of the final hearing and closing arguments reveal that the trial
court was very much concerned about the prejudice of requiring Corya to
construct accountings for trusts that were decades old at the time of trial.
Nonetheless, the trial court concluded laches did not apply because
Sanders was not aware of the law. This was error.

   We thus conclude, on the facts of this case, that statutory laches under
section 95.11(6) limits the right to an accounting, where no accounting
has been done, to no more than four years before filing an action for an


                                       8
accounting against the trustee of an irrevocable trust. Lastly, we address
the starting date for the accountings when no accountings had been done.

Starting Date for an Accounting When No Accounting Has Been Done

    As to each trust, the trial court ordered accountings from the inception
of the trust. It appears from the judgment that the trial court accepted
Sanders’s arguments that accountings from inception were appropriate
based on (1) an interpretation of sections 736.0813(1)(d) and
736.08135(1), Florida Statutes (2007), and (2) misconduct by Corya as
trustee, citing Mesler v. Holly, 318 So. 2d 530 (Fla. 2d DCA 1975). We
address each argument in turn.

Sections 736.0813(1)(d) and 736.08135(1)

    At the beginning of the judgment, the trial court listed the issues to be
tried. One of the issues listed was:

      Whether Florida Statute Section 736.0813, formerly Florida
      Statute Section 733.035, limits the accountings to a period
      beginning on or after January 1, 2003.[8]

Section 736.0813 incorporates by reference section 736.08135(1), Florida
Statutes (2007). In reference to the John Corya Irrevocable Trust, the trial
court ruled “the accounting should go back to when [Corya] became
accountable, which would be the inception of the trust,” citing section
736.08135(1), Florida Statutes (2007). It appears the trial court may have
implicitly reached the same conclusion as to the other three trusts.

    As discussed above, section 736.0813(1)(d) provides that a beneficiary
is entitled to a trust accounting “annually,” “as set forth in s. 736.08135.”
Section 736.08135(1), Florida Statutes, provides:

      (1) A trust accounting must be a reasonably understandable
      report from the date of the last accounting or, if none, from the
      date on which the trustee became accountable, that adequately
      discloses the information required in subsection (2).

(emphasis added). Because accountings had never been prepared for any
of the trusts, the trial court concluded Corya was statutorily required to



8 The correct statutory references are section 736.08135(1) and section
737.3035(1) (now repealed), respectively. Section 736.08135(1) was formerly
section 737.3035(1).

                                     9
start the accountings for each trust from the dates Corya became trustee,
which was the inception of each trust. However, the trial court erred
because, as discussed above, the trial court failed to properly apply the
laches defense, which limits the duty to account to no earlier than four
years prior to the date suit was filed, and because another subsection of
section 736.08135, subsection (3), does not require accountings prior to
January 1, 2003.9

    Section 736.08135(3), Florida Statutes (2007), states:

       This section applies to all trust accountings rendered for any
       accounting periods beginning on or after January 1, 2003.

(emphasis added). Because section 736.08135 became effective on July
1, 2007, we construe the combination of subsections (1) and (3) to be a
clear legislative statement that trustees of irrevocable trusts could not be
statutorily required to render accountings prior to January 1, 2003. In
other words, we construe section 736.08135(3) to be consistent with
statutory laches under section 95.11(6). Moreover, as to trusts existing
prior to January 1, 2003, we do not construe the language, “if none, from
the date on which the trustee became accountable,” as expressing a
legislative intent that if an accounting had never been done, the trustee’s
first accounting must go all the way back to the date the trustee assumed
fiduciary duties. Instead, we construe that language as limiting the
beginning period for the first accounting, in situations where an
accounting had never been done or was not prepared annually, to be no
earlier than January 1, 2003, as stated in section 736.08135(3), Florida
Statutes (2007).

   To construe the statutory language as the trial court did would result
in an impermissible statutory impairment on the obligations of contracts.
When Corya accepted the duties and responsibilities of trustee, she agreed
to be bound by the trust instrument either expressly, if she signed the
trust document as trustee, or impliedly. She was entitled to rely on
existing law and the statements in the trust documents, or lack thereof,
regarding any responsibility to render accountings. The Sanders and Rich



9
 Because it was not briefed, we do not address whether the annual accountings
should have been on a calendar-year basis (in which case the accounting for the
initial calendar year may be for less than a twelve-month period, depending on
what month suit was filed) or on a twelve-month basis. Section 736.0813(1)(d),
which creates the statutory duty to account, simply provides accountings must
be at least annually.

                                      10
Trusts imposed no requirement for the trustee to account to the
beneficiaries. By imposing a statutory requirement to account annually
and limiting the dates of the applicability of the statute, the legislature
clearly recognized that without some limitations, the new statutory duty
could impermissibly impair the contractual duty (or lack of duty) to
account in existing trust documents. Art. I, 10, Fla. Const. (“No bill of
attainder, ex post facto law or law impairing the obligation of contracts
shall be passed.”); see also Castellano v. Cosgrove, 280 So. 2d 676 (Fla.
1973); Lawnwood Med. Ctr., Inc. v. Seeger, 959 So. 2d 1222, 1224 (Fla. 1st
DCA 2007) (explaining that an impairment occurs “when a contract is
made worse or is diminished in quantity, value, excellence or strength”).
Finally, if the trustee is required to account from the inception of the trust,
this would negate the laches defense.

The Mesler Case

   In Mesler, the appellants filed a declaratory action as to whether they
had the right, as remainder beneficiaries of a trust, to obtain an
accounting from the trustee, who was also the sole beneficiary of the trust
until her death. Mesler, 318 So. 2d at 532. The appellants also sought
removal of the trustee. Id. at 531-32. After the trial court dismissed the
complaint, the appellants appealed. Id. at 532. The Second District held:

      We hold, therefore, that allegations that a trustee is the sole
      lifetime beneficiary, that she has not furnished any accounts
      or reports of her administration to the remaindermen and that
      she is not confining her invasions of principal to reasonable
      limits, as may be set out in the complaint, give rise to an
      inference of abuse of discretion by the trustee and are
      sufficient to require the trustee to respond. Trustees are
      accountable to the courts and their performance may be
      controlled by the courts.

Id. at 533.

    The judgment in this case gave the trial court’s analysis for each trust
separately. In the analysis for each trust, the trial court cited Mesler.
There are clear indications in the judgment that the trial court cited Mesler
as authority for requiring an accounting, in addition to any statutory
requirement. However, it appears the trial court may also have cited to
Mesler as authority for requiring Corya to render an accounting for each
trust all the way back to the date she assumed duties as trustee. The case
is not authority for requiring an accounting “from [the trust’s] inception,”



                                      11
as ordered in this case. More importantly, however, there was no issue of
laches discussed by the court in Mesler.

   Our analysis that statutory laches under section 95.11(6), Florida
Statutes (2008), limits the right to an accounting when no accounting has
been done also applies to Sanders’s claims that Corya engaged in
misconduct as trustee. Clearly, Sanders had actual knowledge of the
actions by Corya as trustee more than four years before he filed suit. Thus,
we conclude it was error for the trial court to rely on Mesler as grounds for
requiring accountings beyond four years before suit and as grounds for
ordering accountings from the inception of each trust.

                                Conclusion

   Having determined the trial court erroneously denied the defense of
statutory laches, and incorrectly applied statutes and case law in
determining the starting dates for accountings for each trust, we reverse
and remand for further proceedings. Because we reverse on significant
issues affecting the entitlement to attorney’s fees, we also reverse and
remand the rulings on attorney’s fees for further consideration.

   Reversed and remanded.

FORST, J., concurs.
WARNER, J., concurring in part and dissenting in part.

       I concur in the majority opinion, except as to the two Corya trusts.
Each of those trusts had a provision that required annual accountings by
the trustee to be provided to “beneficiaries eligible within the period
covered thereby to receive benefits from the trust which is the subject of
said account.” In other words, if a beneficiary was not entitled to a
distribution during the accounting period, that beneficiary was not entitled
to receive or inspect the annual accounting. As to both trusts, Sanders
did not prove that he was eligible to receive any benefits from the trust
during any annual period. Since the trust had an express provision which
did not require an accounting to Sanders, the trustee was not compelled
to furnish an accounting until the enactment of section 736.0105(2)(s),
Florida Statutes, in 2007. That statute provided that a trust provision
could not prevail over the duty to account pursuant to section
736.0813(1)(c) and (d). As Sanders met the statutory definition of a
qualified beneficiary, he was entitled to an accounting, even though the
trust provided otherwise. Therefore, I would hold that the trustee had no
duty to provide accountings prior to the effective date of the statute.



                                     12
                      *        *        *

Not final until disposition of timely filed motion for rehearing.




                               13
