DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GREGOR WOODWARD,

Appellant,

v.

ORATOR E. WOODWARD, individually, and as Trustee of the Mary T. 

Woodward Trust u/a/d January 14, 1972, as Trustee of the El Bravo 

Trust u/a/d May 31, 2002, and as Trustee of the Serena Mary Elizabeth 

Woodward Trust u/a/d May 31, 2002, LORENCE WOODWARD, 

MARCUS WOODWARD, SERENA WOODWARD, and MAUREEN 

WOODWARD,

Appellees.

No. 4D15-449

[May 4, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; John L. Phillips, Judge; L.T. Case No. 

502012CP004845XXXXNB.

Michele M. Thomas, Adrian P. Thomas, and Daniel A. McGowan of 

Adrian Philip Thomas, P.A., Fort Lauderdale, for appellant.

David L. Gorman of David L. Gorman, P.A., North Palm Beach, for 

appellee Orator E. Woodward.

LEVINE, J.

The trial court found that res judicata and laches barred the 

beneficiary’s claim against the trustee. As a result, the beneficiary appeals 

an order entering summary judgment in favor of the trustee and 

dismissing the beneficiary’s claim with prejudice. We find that res judicata 

does not apply because there is no identity of the cause of action. The 

2012 action arose from a new and different breach of fiduciary duty from

the 1996 action. Additionally, laches does not apply because the trustee 

did not serve an accounting until 2011, and the beneficiary timely filed 

suit within six months after receiving the accounting. For all these 

reasons, we reverse the trial court’s order. 

In 1972, Mary T. Woodward established a trust for her grandchildren 
2

(the “Mary T. Woodward Trust”). Mary named Orator Woodward, her son, 

as the trustee. In 1996, Gregor Woodward, a beneficiary of the trust, filed 

an amended complaint against Orator for breach of fiduciary duty. Gregor 

alleged that Orator failed to make an accounting since the trust’s 

inception, improperly mortgaged real property in the trust, and improperly 

used the trust to pay education expenses. Gregor sought removal of 

Orator as trustee. During the pendency of the action, on May 31, 2002,

Orator transferred the assets of the Mary T. Woodward Trust into two new 

trusts, the “El Bravo Trust” and the “Serena Woodward Trust,” thereby 

terminating the Mary T. Woodward Trust.

In January 2003, Orator moved to strike the amended complaint and 

moved to sanction Gregor and another beneficiary, alleging that they stole 

confidential attorney-client communications from Orator’s home. Within 

the motion, Orator mentioned that he had distributed the Mary T. 

Woodward Trust assets into two new trusts. The trial court granted the 

motion and dismissed the complaint with prejudice. This court affirmed 

without an opinion. Woodward v. Woodward, 872 So. 2d 913 (Fla. 4th 

DCA 2004).

On October 11, 2011, Orator served accountings for the Mary T. 

Woodward Trust, the El Bravo Trust, and the Serena Woodward Trust on 

Gregor and the other grandchildren. The Mary T. Woodward Trust 

accounting listed a starting value on January 2, 2002, of $944,038.89 and 

a closing value on May 31, 2002, of $0. In a footnote, the accounting 

stated:

On May 31, 2002 O.E. Woodward exercised his right of 

withdrawal and withdrew all assets from the O.E. Woodward 

Trust dated 01/14/1972. The real property interest was 

assigned to the El Bravo Trust dated 05/31/2002. All 

remaining assets of O.E. Woodward Trust dated 01/14/1972 

were assigned to the Serena Mary Elizabeth Woodward Trust 

dated 05/31/2002. 

In addition, all of the accountings contained a limitations notice that an 

action for breach of trust based on matters disclosed in the accountings 

may be barred unless the action was commenced within six months of 

receipt of the accounting.

On April 9, 2012, Gregor filed suit against Orator. Gregor alleged that 

Orator breached his fiduciary duties in terminating the Mary T. Woodward 

Trust and assigning the assets to two new trusts. Gregor sought removal 

of Orator as trustee; an accounting; restoration of assets; an order 
3

compelling Orator to pay money; and other relief as equitable, just, and 

proper. 

Orator filed an answer, raising res judicata and laches as affirmative 

defenses. In his renewed motion for summary judgment, Orator argued 

that res judicata barred the action because the claims in the 2012 action 

were presented to the court in the 1996 action. Orator further alleged that 

laches applied because Gregor was aware of the transfer of assets no later 

than January 2003, but Gregor did not bring his claims within the fouryear statute of limitations. Gregor submitted an affidavit in opposition to 

summary judgment. He claimed that until he received the accountings in 

2011, he had not known that the Mary T. Woodward Trust had been 

terminated and that he was not a beneficiary of the Serena Woodward 

Trust or the El Bravo Trust.

The trial court entered an order granting summary judgment, agreeing 

that res judicata and laches barred the action. The court found that 

Gregor had already litigated the matter unsuccessfully in the 1996 case 

and was prohibited from proceeding on the same claims. The trial court 

further agreed that laches barred the action. The trial court dismissed the 

action, and Gregor appealed. 

“Res judicata is a judicial doctrine used to bar parties from relitigating 

claims previously decided by a final adjudication on the merits.” W & W 

Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79, 

82-83 (Fla. 4th DCA 2010). 

Res judicata bars relitigation of a claim decided in a prior final 

adjudication if the subsequent claim satisfies the following 

four elements: “1) identity in the thing sued for; 2) identity of 

the cause of action; 3) identity of persons and parties of the 

action; and 4) identity of the quality in the person for or 

against whom the claim is made.” 

Id at 83. (citation omitted). Identity of the cause of action depends on 

“whether the facts or evidence necessary to maintain the suit are the same 

in both actions.” Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4th 

DCA 2005) (emphasis omitted) (citation omitted). 

The trial court erred in finding that res judicata barred the 2012 action. 

Because the facts and events that gave rise to the 2012 action are different 

from the 1996 action, identity of the cause of action is not present, and 

res judicata does not apply. See id. In the 1996 action, Gregor alleged 

that Orator failed to make an accounting since the trust’s inception, 
4

improperly mortgaged real property in the trust, and improperly used the 

trust to pay education expenses. In contrast, in the 2012 action, Gregor 

alleged that Orator removed all of the assets from the Mary T. Woodward 

Trust and assigned the assets to the El Bravo Trust and the Serena 

Woodward Trust, of which he was not a beneficiary.

In addition, Gregor could not have raised his claim for breach of 

fiduciary duty for removing all of the assets from the Mary T. Woodward 

Trust in the 1996 action. The removal of the assets from the Mary T. 

Woodward Trust did not occur until 2002, years after Gregor filed his 

complaint in the 1996 action. “The doctrine of res judicata . . . is not 

applicable where the claims in the two cases concern different periods of 

time.” M.C.G. v. Hillsborough Cnty. Sch. Bd., 927 So. 2d 224, 227 (Fla. 2d 

DCA 2006). See also Parker v. State Bd. of Educ. ex rel. Fla. State Univ., 

865 So. 2d 559, 560 (Fla. 1st DCA 2003); Inter-Active Servs., Inc. v. 

Heathrow Master Ass’n, 809 So. 2d 900, 902-03 (Fla. 5th DCA 2002).

The trial court also erred in finding that laches barred the action. 

Section 95.11(6), Florida Statutes (2012), provides that “[l]aches shall bar 

any action unless it is commenced within the time provided for legal 

actions concerning the same subject matter . . . .” “[B]reach of fiduciary 

duty is an intentional tort subject to a four-year statute of limitations.” 

Patten v. Winderman, 965 So. 2d 1222, 1224 n.1 (Fla. 4th DCA 2007) 

(citing § 95.11(3)(o), Fla. Stat. (2006); Berg v. Wagner, 935 So. 2d 100, 102 

(Fla. 4th DCA 2006)). 

The four-year statute of limitations does not begin to run until a 

beneficiary receives an adequate trust disclosure document issued by the 

trustee. § 736.1008(1)(a), Fla. Stat. (2012). When a matter is adequately 

disclosed in a trust disclosure document, a beneficiary must bring an 

action against a trustee for breach of trust within six months after receipt. 

§ 736.1008(2), Fla. Stat. (2012). If a matter is not adequately disclosed, 

the statute of limitations begins to run on the date of receipt of the final 

trust accounting and notice of the availability of the trust records for 

examination. § 736.1008(1)(b), Fla. Stat. (2012). When a matter is not 

adequately disclosed, and a trustee has not issued a final trust accounting, 

a claim against the trustee for breach of trust does not begin to accrue 

until the beneficiary has actual knowledge of the “facts upon which the 

claim is based if such actual knowledge is established by clear and 

convincing evidence.” § 736.1008(3), Fla. Stat. (2012). 

In the instant case, Orator terminated the Mary T. Woodward Trust in 

2002 but did not provide an accounting to Gregor until October 11, 2011. 

Thus, pursuant to section 736.1008(1)(a), the statute of limitations did not 
5

begin to run until October 11, 2011. In addition, the limitations notice 

contained in the accounting advised Gregor that he had six months to 

bring a cause of action. Gregor timely commenced his action within this 

timeframe, in accordance with section 736.1008(2).

1 

Orator argues that it was undisputed that Gregor was aware of the 

transfer no later than early January 2003. In order to find that laches 

barred the action on this ground, the trial court would have needed to find 

“clear and convincing evidence” that Gregor knew more than four years 

before he filed the 2012 action that Orator had terminated the Mary T. 

Woodward Trust and had placed the assets into two new trusts of which 

Gregor was not a beneficiary. See § 736.1008(3), Fla. Stat. 

Notwithstanding the evidence that Gregor was aware of the transfer, 

determining whether evidence meets the clear and convincing standard 

“necessitates the weighing of facts and the credibility of witnesses, which 

is impermissible on summary judgment.” State, Dep’t of Highway Safety 

& Motor Vehicles v. Fraser, 673 So. 2d 570, 571 (Fla. 4th DCA 1996); see 

also Nayee v. Nayee, 705 So. 2d 961 (Fla. 5th DCA 1998). Moreover, there 

was no evidence that Gregor was aware that he was not a beneficiary of 

the two new trusts in 2003. In fact, Gregor’s affidavit in opposition to the 

motion for summary judgment stated that, until he received the 

accountings in 2011, he did not know he was not a beneficiary of the two 

new trusts. 

In sum, we find that neither res judicata nor laches barred the 2012 

action. As such, we reverse and remand for further proceedings. 

Reversed and remanded for further proceedings.

STEVENSON and GERBER, JJ., concur. 

* * *

1 We reject Orator’s argument that a prior version of the statute, codified in 

section 737.307, applies. We find section 736.1008 applies because the events 

giving rise to the instant action occurred when Orator served Gregor with 

accountings in 2011, which is after the July 1, 2007 effective date of the statute. 

See § 736.1008(7), Fla. Stat. (2012). Even applying the prior version of the 

statute, the result would be the same. Section 737.307, like section 736.1008, 

requires that a proceeding be brought within six months after receipt of the 

accounting document. In addition, section 737.307 provides that the four-year 

statute of limitations for breach of trust applies only if a trustee “has issued a 

final account or statement received by the beneficiary and has informed the 

beneficiary of the location and availability of records for his examination.” This 

did not occur in the instant case. 
6

Not final until disposition of timely filed motion for rehearing.