FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D22-1114

 LT Case No. 2021-CA-12890

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JENNIFER ROLLER, ANDREA

SOULE, and KATHLEEN DOUD, 

as beneficiaries of the 

James G. Collins Trust u/a/d 

August 30, 1990, 

Appellants, 

v. 

JUDITH R. COLLINS and CYPRESS

TRUST COMPANY, as successor 

trustee of the James G. 

Collins Trust u/a/d August 

30, 1990, 

Appellees. 

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On appeal from the Circuit Court for Brevard County. 

Michelle L. Naberhaus, Judge. 

Stanley A. Bunner, Jr., of Law Office of Stanley A. Bunner, Jr., 

PLLC, Naples, for Appellants. 

Scott A. Weiss and R. Daniel Sirois, of Scott A. Weiss, P.A., 

Fort Lauderdale, for Appellees. 

October 20, 2023

BOATWRIGHT, J.
2

Appellants, Jennifer Roller, Andrea Soule, and Kathleen 

Doud, appeal the trial court’s order dismissing Count I of their 

amended complaint for statutory reimbursement from Appellee, 

Judith R. Collins, as beneficiaries of the James G. Collins Trust 

(the “Trust”). In particular, Appellants argue that the trial court 

erred in dismissing Count I because the Trust is an 

accommodation party pursuant to section 673.4191, Florida 

Statutes (2021), and because, as beneficiaries of the Trust, they 

have standing to sue for statutory reimbursement. We agree that 

the trial court properly dismissed Count I of the amended 

complaint and affirm. 

I. 

In 2013, James G. Collins (“Grantor”), as Grantor/Trustee, 

executed the Trust, which was a revocable living trust. In 2018, 

James G. Collins, individually and as trustee of the Trust, and 

Judith Collins (“Collins”), individually, took out a loan from 

Northern Trust Company (“Northern Trust”). In doing so, they 

executed an amended promissory note with respect to a loan 

obligation in the amount of $1,288,000.00 (the “Note”). That same 

day, Grantor, individually and as trustee of the Trust, executed a

separate agreement pledging certain securities accounts held in 

the Trust as collateral on the Note (the “Pledge Agreement”). 

According to Appellants’ amended complaint, the proceeds of the 

Note were used for the personal benefit of Grantor and Collins, 

with the bulk, if not all, of the proceeds being used for the 

betterment and maintenance of their home, located in Melbourne 

Beach, Florida. Collins now holds sole legal title to the home, 

which is not a Trust asset. 

In 2019, Grantor died, rendering the Trust irrevocable, and 

Cypress Trust Company (“Cypress Trust”) became the successor 

trustee under the terms of the Trust. Subsequently, Northern 

Trust declared the Note to be in default for failure to make the 

required monthly payments and demanded the total outstanding 

balance of $980,340.78, plus interest. Cypress Trust, acting in its 

capacity as the successor trustee, then liquidated the securities 

pledged in two of the Trust’s accounts to satisfy the outstanding 

amounts owed on the Note in the amount of $988,867.82. No funds 

from Grantor’s estate were applied to satisfy the Note, nor were 

any of Collins’ individual funds used to satisfy the amounts owed. 

In addition, Cypress Trust did not seek any funds from Collins. 

The Trust satisfied the Note in full. 
3

As a result of these events, Appellants sought 

reimbursement from Collins. Initially, Appellants filed a 

complaint that was dismissed without prejudice. Subsequently, 

Appellants filed an amended complaint against Collins and 

Cypress Trust, with Count I being a claim for statutory 

reimbursement pursuant to section 673.4191 and Count II being 

an action entitled “judicial instruction.” 

Thereafter, Collins filed a motion to dismiss the amended 

complaint, in which she argued that Count I of the amended 

complaint should be dismissed for failure to state a cause of action 

for statutory reimbursement on two bases. First, she asserted that 

section 673.4191 applies only to natural persons and, therefore, is 

inapplicable to entities or trusts. Second, she contended that 

Appellants lacked standing to bring this action, as they were 

merely contingent beneficiaries under the Trust, and they had not 

otherwise alleged that they were parties to the contract or 

transaction, which would confer standing to sue on behalf of the 

Trust. In regards to standing, Collins further asserted that even if 

a cause of action under section 673.4191 were available to the 

Trust, Cypress Trust, as the successor trustee, would be the only 

proper party to bring an action for damages resulting from the 

transaction, not the contingent beneficiaries of the Trust. 

After a hearing on Collins’ motion to dismiss, the trial court 

dismissed Count I with prejudice and Count II without prejudice. 

In its order, the trial court concluded that the Trust was not an 

accommodation party under section 673.4191. It also noted that 

even if section 673.4191 did apply, it would be Cypress Trust, 

acting as successor trustee on behalf of the Trust, that would have 

standing to seek reimbursement from Collins, and not Appellants. 

Appellants then voluntarily dismissed Count II of the amended 

complaint. The instant appeal follows. 

II.

“Appellate courts review an order granting a motion to 

dismiss de novo.” Dziegielewski v. Scalero, 352 So. 3d 931, 932 (Fla. 

5th DCA 2022) (citing Mlinar v. United Parcel Serv., Inc., 186 So. 

3d 997, 1004 (Fla. 2016)). “When considering a motion to dismiss, 

courts must confine their review to the four corners of the 

complaint.” Thomas v. St. Vincent’s Med. Ctr., Inc., 48 Fla. L. 

Weekly D1602 (Fla. 5th DCA Aug. 11, 2023); see also K.C. Quality 
4

Care, LLC v. Direct Ins. Co., 357 So. 3d 181, 181 (Fla. 5th DCA 

2022) (“It is well-established that when considering a motion to 

dismiss a complaint, trial courts are confined to the allegations 

contained within the four corners of the complaint . . . .” (citing 

Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81, 84 (Fla. 5th DCA 

2012))). “The allegations set forth in the complaint must be 

assumed to be true and all reasonable inferences arising therefrom 

are taken in favor of the plaintiff.” Dziegielewski, 352 So. 3d at 933 

(citing Mlinar, 186 So. 3d at 1004). 

A.

First, Appellants contend that the trial court erred when it 

found that the Trust could not constitute an accommodation party 

subject to the provisions of section 673.4191. Appellants’ 

arguments involve the interpretation of section 673.4191. 

When interpreting a statute, Florida courts adhere to the 

“supremacy-of-text principle,” meaning that “[t]he words of a 

governing text are of paramount concern, and what they convey, 

in their context, is what the text means.” Ham v. Portfolio Recovery 

Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (quoting Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 56 (2012)); see also Richman v. Calzaretta, 338 So. 3d 

1081, 1082 (Fla. 5th DCA 2022) (“As our supreme court recently 

explained, when interpreting a statute, Florida’s courts ‘follow the 

“supremacy-of-text principle” . . . .’” (quoting Ham, 308 So. 3d at 

946)). In applying the supremacy-of-text principle, each word in 

the text “is to be expounded in its plain, obvious, and common 

sense, unless the context furnishes some ground to control, qualify, 

or enlarge it.” State v. McKenzie, 331 So. 3d 666, 670 (Fla. 2021)

(quoting Joseph Story, Commentaries on the Constitution of the 

United States 157–58 (1833), quoted in Scalia & Gardner, Reading 

Law at 69). 

Section 673.4191 is entitled “Instruments signed for 

accommodation.” Pursuant to subsection 673.4191(1), an 

“accommodation party” is a party to an instrument who “signs the 

instrument for the purpose of incurring liability on the instrument 

without being a direct beneficiary of the value given for the 

instrument.” The party who receives the benefit is the 

“accommodated party.” § 673.4191(1), Fla. Stat. (2021). Thus, 

“accommodation parties remain directly accountable to the holder 

of the instrument and legally responsible, in contribution, to their 
5

co-accommodation makers.” Palma v. S. Fla. Pulmonary & Critical 

Care, LLC, 307 So. 3d 860, 865 (Fla. 3d DCA 2020) (citing Dobrow 

v. Bryant, 427 So. 2d 809, 810 (Fla. 5th DCA 1983)). Subsection

673.4191(5) provides that “an accommodation party who pays the

instrument is entitled to reimbursement from the accommodated

party and is entitled to enforce the instrument against the

accommodated party.”

Neither chapter 673 nor section 673.4191 defines the term 

“person” or “a party” as a trust. However, section 671.201, Florida 

Statutes (2021), contains general definitions that apply to chapter 

673. See § 671.101(2). Section 671.201(29) defines a “party” as “a 

person who has engaged in a transaction or made an agreement 

subject to this code.” § 671.201(29), Fla. Stat. (2021) (emphasis 

added). Under section 671.201(30), a “person” is defined as “an 

individual; corporation; business trust; estate; trust; partnership; 

limited liability company; association; joint venture; government; 

governmental subdivision, agency or instrumentality; public 

corporation; or any other legal or commercial entity.” § 

671.201(30), Fla. Stat. (2021) (emphasis added). Thus, a “trust” is 

a person or party for the purposes of section 673.4191. 

In confining ourselves to the four corners of the amended 

complaint and accepting the allegations of the amended complaint 

as true, Appellants sufficiently alleged that section 673.4191

applies to the Trust under the unique facts of this case. First, the 

parties did not dispute in the lower court proceedings that the Note 

constitutes a negotiable instrument under section 673.4191(1). See

Palma, 307 So. 3d at 864 (applying section 673.4191 to a 

promissory note because a promissory note is a negotiable 

instrument within the meaning of chapter 673). In addition, the 

amended complaint alleges the Note was issued for Collins’ 

benefit; and as such, Collins could be an accommodated party 

within the meaning of section 673.4191(1). 

Grantor, as the then-trustee of the Trust, signed the Note 

and the Pledge Agreement. In doing so, Grantor, as trustee, 

pledged Trust assets as collateral for the Note and, acting as 

trustee, obligated the Trust to repay the debt. Put differently, 

Northern Trust could have independently sought contribution 

from either the Trust, Grantor, or Collins, and it would have been 

Northern Trust’s right to enforce the Note against any of the three 

parties, which supports Appellants’ claim that the Trust was an 

accommodation party. See § 673.4191(2), Fla. Stat. Further, the 
6

amended complaint alleged that the Trust did not receive a benefit.

See § 673.4191(1), Fla. Stat.; see also Lyons v. Citizens Com. Bank 

of Tallahassee, 443 So. 2d 229, 231 (Fla. 1st DCA 1983) (“In 

determining whether such a person is to be afforded the status of 

an accommodation party, several factors are to be considered, 

including . . . whether the party received any benefit from the 

transaction . . . .” (internal citations omitted)). As a result, it 

appears that the Trust could qualify as an accommodation party 

under section 673.4191(1). Once the Trust paid the debt owed by 

Collins, it had the right to recover the funds from Collins pursuant 

to section 673.4191(5).1

However, in this action, it is not the successor trustee 

seeking reimbursement from Collins on behalf of the Trust. 

Rather, Appellants, as the contingent beneficiaries under the 

Trust, are suing Collins to require her to reimburse the Trust. 

Thus, we must decide whether Appellants have standing to bring 

this action against Collins. 

B.

“Generally, one has standing when he has a sufficient 

interest at stake in the controversy which will be affected by the 

outcome of the litigation.” Wheeler v. Powers, 972 So. 2d 285, 288 

(Fla. 5th DCA 2008) (quoting Gieger v. Sun First Nat’l Bank of 

Orlando, 427 So. 2d 815, 817 (Fla. 5th DCA 1983)). “However, 

standing encompasses not only this ‘sufficient stake’ definition, but 

the at least equally-important requirement that the claim be 

brought by or on behalf of one who is recognized in the law as a 

‘real party in interest,’ that is, ‘the person in whom rests, by 

substantive law, the claim sought to be enforced[.]’” Kumar Corp. 

1 We note that the trial court’s decision was based on the belief that 

both the Grantor and trustee of the Trust were one in the same 

under the terms of the revocable trust. As a result, the trial court’s 

primary basis for dismissal was that the same person could not 

both be an accommodated and accommodation party based on the 

unique nature of a revocable trust. We do not decide whether this 

analysis is correct because, even if it is, at the time the debt was 

paid, the trust had become irrevocable, and Collins, who was 

neither a grantor nor the trustee of the Trust, was an additional 

party to the transaction (as a comaker). This made section 

673.4191 applicable as to Collins and the Trust. 
7

v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985)

(citing Author’s Cmt. to Fla. R. Civ. P. 1.210, 30 Fla. Stat. Ann.

304, 306–07 (1967); 3A J. Moore, Moore’s Federal Practice, ¶ 17.02

(2d ed. 1984)).

As we will explain, Florida law has long recognized that it is 

generally the trustee, and not a beneficiary, who is the real party 

in interest with authority to bring an action on behalf of the trust.

See Buerki v. Lochner, 570 So. 2d 1061 (Fla. 2d DCA 1990) (holding 

that the trustee, the legal title holder to the trust property, would 

be the real party in interest to a suit brought to determine the 

trust’s assets); see also First Union Nat’l Bank v. Jones, 768 So. 2d 

1213, 1215 (Fla. 4th DCA 2000) (holding that a trustee “is merely 

the legal entity who is sued when an action is brought against” a 

trust). See generally Cady Huss & Elizabeth Hughes, The Real 

Party in Interest: Trustees, Actionline Vol. 20, no. 2 (Winter 2018–

2019) (a publication of the Florida Bar Real Property, Probate, and 

Trust Law Section discussing the legal principle that the trustee, 

rather than the beneficiary, is the real party in interest when 

bringing an action on behalf of the trust). Accordingly, Florida Rule 

of Civil Procedure 1.210(a) provides that “every action may be 

prosecuted in the name of the real party in interest,” and 

recognizes that the trustee of an express trust may bring a suit on 

behalf of the trust. 

Both rule 1.210(a) and Florida’s court decisions are in 

accordance with the longstanding principles governing the 

trustee’s authority to act on behalf of the trust. As a general rule, 

the trustee may exercise the power conferred upon it by the terms 

of the trust and all powers that an owner would have over the trust 

property. Jones v. First Nat’l Bank in Fort Lauderdale, 226 So. 2d 

834, 835 (Fla. 4th DCA 1969) (providing that the “duties, powers 

and liabilities of executors and trustees are ordinarily fixed by the 

terms of the . . . trust agreement” (internal citations omitted)). 

“From the trust, the trustee derives the rule of his conduct, the 

extent and limit of his authority, the measure of his obligation.” Id. 

(citing Valley Nat’l Bank of Phoenix v. Hartford Accident & Indem. 

Co., 136 P.2d 458 (Ariz. 1943)).

Likewise, except as otherwise provided in the terms of the 

trust, the Florida Trust Code grants the trustee broad duties and 

powers. § 736.0105, Fla. Stat. (2021). Under section 736.0815, 

Florida Statutes (2021), the trustee is accorded “any other powers 

appropriate to achieve the proper investment, management and 
8

distribution of the property,” as well as “any other powers 

conferred by the [Florida Trust Code].” § 736.0815(1), Fla. Stat. 

Specifically, section 736.0816, Florida Statutes (2021), entitled 

“Specific powers of trustee,” provides that a trustee may “prosecute 

or defend, including appeals, an action, claim, or judicial 

proceeding in any jurisdiction to protect trust property or the 

trustee in the performance of the trustee’s duties.” § 736.0816(23), 

Fla. Stat.; see also McMullin v. Beaver, 905 So. 2d 928, 929 (Fla. 

4th DCA 2005) (“By statute, a trustee has the power ‘to prosecute 

actions, claims or proceedings for the protection of trust assets and

of the trustee in the performance of his or her duties’ until final 

distribution of trust assets.” (internal citations omitted)). 

Finally, except to the extent modified by the Florida Trust 

Code or otherwise under Florida law, the common law of trusts 

still applies. See § 736.0106, Fla. Stat. (2021). Notably, the 

common law provides that the real party in interest in litigation 

involving a trust is the trustee. 90A C.J.S. Trusts § 575; 76 Am.

Jur. 2d, Trusts § 601 (stating that the “trustee . . . is the real party 

in interest in litigation involving trust property”); see also 76 Am.

Jur. 2d, Trusts § 602 (stating that “a trustee is a necessary party 

to assert or defend title to trust property, particularly in an 

adjudication of the rights of the beneficiaries in a trust”). 

This common law rule is premised on the fact that “the 

trustee has a title (generally legal title) to the trust property, 

usually has its possession and a right to continue in possession, 

and almost always has all the powers of management and control 

which are necessary to make the trust property productive and 

safe.” George G. Bogert & George T. Bogert, The Law of Trusts and 

Trustees § 869, Westlaw (database updated June 2023). Since “the 

trustees are the parties in whom the trust fund is vested and 

whose duty it is to maintain and defend it against wrongful attacks 

or injury tending to impair its safety or amount,” then, “it is the 

duty of the trustee to institute actions, intervene in actions 

pending, and, in any other way, in accordance with orderly 

procedure, protect the trust property.” 90A C.J.S. Trusts § 578. As 

a result, any interference with these interests of the normal 

trustee is thus considered a wrong to the trustee and “gives him a 

cause of action for redress or to prevent a continuance of the 

improper conduct.” Bogert § 869. Therefore, “although the 

beneficiary is adversely affected by such acts of a third person, no 

cause of action inures to him on that account,” and “the right to 
9

sue in the ordinary case vests in the trustee as a representative.” 

Id. 

For these reasons, the beneficiary generally is not eligible, 

in the absence of special circumstances, to bring or enforce a cause 

of action that runs to the trustee. Id. Ordinarily, then, a 

beneficiary may not sue a third party “to recover possession of the 

trust property,” either “for himself or the trustee,” and a 

beneficiary additionally may not sue a third person “for damages 

for conversion of or injury to the trust property, or for recovery of 

its income, or to compel an agent of the trustee to account, or to 

enjoin a threatened injury to trust property by a third person.” Id. 

We are aware that many common law authorities recognize 

exceptions to the general rule that only “a trustee may maintain a 

proceeding against a third party on behalf of the trust and its 

beneficiaries.” Restatement (Third) of Trusts §107. For instance, if 

a conflict of interest arises between the trustee and a beneficiary, 

then that may confer standing on the beneficiary to sue a third 

party in a proceeding related to the trust or trust property. Id. at 

cmt. (c)(2) (commenting that if the trustee is unsuitable or unable

to protect the beneficiaries because of the trustee's conflicting 

interests, then that may justify an action by a beneficiary against 

a third party); see also Bogert § 869 (remarking that where the 

trustee has an adverse interest to that of a beneficiary then the 

beneficiary may bring an action against a third person). 

However, Appellants do not argue a common law exception 

on appeal. Rather they argue that they have standing because they 

are the “real party in interest,” by relying on our sister court’s

holding in St. Martin’s Episcopal Church v. Prudential-Bache 

Securities, Inc., 613 So. 2d 108 (Fla. 4th DCA 1993). But as we will 

explain, we think Appellants read that opinion too broadly. 

In St. Martin’s, a beneficiary of a trust brought an 

independent claim against a securities dealer and the trustee, 

where a conflict of interest arose with the trustee. Id. at 108–09.

In particular, the beneficiary alleged that the securities dealer and 

the trustee who was employed by the securities dealer, colluded to 

“churn” an investment account to make unnecessary stock trades 

and earn unwarranted commissions which dissipated trust assets. 

Id. at 109. The trial court dismissed the action, ruling that the 

beneficiary lacked standing. Id. 
10

In reversing the trial court, the district court held that the 

beneficiary had standing to bring an independent action against 

the securities dealer in regard to trust assets under the “particular 

facts” of the case. Id. In its reasoning, the court read rule 1.210(a)

as “one of enlargement, rather than limitation” and stated that 

even though the trustee can sue, “it is all but expressly assumed 

in this rule that a beneficiary of a trust may sue someone other 

than the trustee for something.” Id. As such, the court stated that 

under the facts of the case, the beneficiary had standing and could 

be considered the real party in interest. Id. 

Based on St. Martin’s, Appellants argue that a beneficiary is

actually the real party in interest to sue a third party on behalf of 

the trust. We disagree. Appellants’ position would contradict the 

longstanding common law rule that absent certain exceptions, the 

real party in interest is the trustee. 90A C.J.S. Trusts § 575. 

Instead, we read St. Martin’s as merely honoring a common law 

exception to the rule when the trustee has a conflict of interest. See 

Restatement (Third) of Trusts § 107; Bogert § 869; see also Kent v. 

Kent, 431 So. 2d 279 (Fla. 5th DCA 1983) (holding that 

beneficiaries of trust could maintain an independent action for a 

constructive trust regarding trust assets when there was a 

fraudulent conspiracy between the trustee and a third party to 

transfer real estate). 

While St. Martin’s, perhaps imprecisely, uses sweeping 

language, its holding is confined to the “particular facts” of the case 

as stated by the court. 613 So. 2d at 109. We disagree with 

Appellants’ position that St. Martin’s stands for the broad 

proposition that the beneficiary is actually the real party in 

interest to bring an action against a third party on behalf of the 

trust. Rather, we agree with the ruling in Buerki, that generally 

the trustee is the real party in interest to bring an action on behalf 

of the trust. Buerki, 570 So. 2d at 1061. Absent any argument that 

a common law exception applies, Appellants have not 

demonstrated that they have standing to bring an action against

Collins for statutory reimbursement. 

III. 

In sum, the Trust, as the accommodation party, is the only 

party that could bring an action to recover funds from Collins 

under section 673.4191. Since Cypress Trust, as successor trustee,

would be considered the real party in interest, it would have been 
11

the proper party to bring the action on behalf of the Trust. As 

Appellants have not raised on appeal any common law exception 

that would allow them to proceed against Collins on behalf of the 

Trust, we agree with the trial court’s ruling that Appellants did 

not establish standing to bring this suit. See City of Miami v. 

Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“It is an established rule 

that points covered by a decree of the trial court will not be 

considered by an appellate court unless they are properly raised 

and discussed in the briefs.”). Therefore, we affirm the order 

dismissing the amended complaint. 

AFFIRMED. 

WALLIS and EISNAUGLE, JJ., concur. 

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Not final until disposition of any timely and authorized 

motion under Fla. R. App. P. 9.330 or 9.331. 

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