# Third District Court of Appeal

State of Florida

Opinion filed April 27, 2016.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15-376

Lower Tribunal Nos. 11-3672 & 08-1878

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### Ira D. Giller and Anita Grossman, etc.

,

Appellants,

vs.



### Brian J. Giller, et al.

, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Bernard S.

Shapiro

, Judge.

Harper Meyer Perez Hagen O’Connor Albert & Dribin LLP and Michael A.

Dribin and Michael V. Arroyave, for appellant Ira D. Giller; William C. Hearon,

for appellant Anita Grossman; Gordon & Rees LLP and David M. Gersten and

Christopher A. Noel, for appellants.

Lerman & Whitebook, P.A. and Carlos D. Lerman (Hollywood), for

appellee Brian J. Giller.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

LAGOA, J.

The appellants, Ira D. Giller and Anita Grossman, as co-personal

representatives of the Estate of Norman M. Giller (“Personal Representatives”),appeal from an order granting the appellee, Brian J. Giller’s (“Brian”), motion to

dismiss the first amended complaint with prejudice. Because the Personal

Representatives’ First Amended Complaint states a legally sufficient cause of

action under section 689.07(1), Florida Statutes (2011), we reverse and remand for

further proceedings.

I. FACTUAL HISTORY

The Personal Representatives and Brian 1 are the surviving children of

Norman M. Giller (“Norman”). Norman died on April 18, 2008, and his last will

and testament, executed on March 24, 2000, was admitted to probate on May 27,

2008. The Personal Representatives were subsequently appointed as co-personal

representatives of the Estate of Norman M. Giller (the “Estate”). The probate

proceeding is pending in the Eleventh Circuit's Probate Division, and is styled In

Re Estate of Norman M. Giller, Case No. 08-1878 CP 05.

The Personal Representatives filed a Complaint for declaratory relief on

September 28, 2011, which sought a declaration that, pursuant to section

689.07(1), Florida Statutes (2011), six 2 parcels of real property (the “properties”)

1 Brian’s children, Jason and Jamie Giller, are also named as respondents below as

interested parties by virtue of their beneficiary status in the Brian J. Giller Trust.

The Personal Representatives and Brian are equal beneficiaries under Norman’s

will. The Personal Representatives’ shares are devised outright to them, but

Brian’s share is devised in trust for the benefit of Brian and his issue with Anita

Grossman designated as trustee.

2 The Complaint originally sought declaratory relief for seven properties. On May

11, 2012, the Personal Representatives withdrew their claim related to the property

2titled in the name of “Norman Giller, Trustee” were actually owned in fee simple

by Norman as of the date of his death, and that the properties became the assets of

the Estate subject to probate administration as of the date of his death. Although

the deeds refer to “Norman Giller, Trustee,” they do not reference the name or date

of any trust, the beneficiary of any trust, or the nature or purpose of any trust. The

Personal Representatives alleged that in administering the Estate, they discovered

that these properties were being controlled and managed as rental properties by

Brian, and that Brian remained silent in response to their inquiries regarding any

trust instruments pertaining to the properties. The Personal Representatives further

alleged that they could not render a complete administration and distribution of

Norman’s Estate until it is determined whether the properties are assets of the

Estate.

Brian filed an Answer and Affirmative Defenses. As his Third Affirmative

Defense, Brian asserted that the Personal Representatives “lack standing to sue

under section 689.07(1) because they are not a subsequent purchaser of one of the

subject Properties[,] a mortgagee or lienholder[,] or creditor of the Estate, who are

the only classes of persons to which 689.07(1) is available.” He also raised failure

to state a cause of action as his Seventh Affirmative Defense, asserting that section

described in deed number 6 (“lot 6”), apparently because they became aware of the

fact that on June 13, 2005, Norman recorded in the public records of Brevard

County an Affidavit of Trust with respect to that property. The Affidavit of Trust

stated that Norman was the trustee under the Norman M. Giller Trust.

3689.07(1) “does not apply until after a subsequent conveyance of the property from

the grantee who ‘as Trustee’ takes title.”

At the June 25, 2012, hearing, Brian argued that he is the owner of the

properties in his capacity as successor trustee of the Norman M. Giller Trust.

Brian presented the probate court with an excerpt 3 of the Norman M. Giller Trust

agreement, which was dated “as of December 30, 1988.” The excerpt of the

Norman M. Giller Trust agreement contained no reference to the properties.

Indeed, it is apparently undisputed that none of the public records of the various

counties in which the properties are located contain a declaration of trust executed

by Norman declaring the purposes of the Norman M. Giller Trust or referencing

these properties.

In August, 2012

– after the hearing

– Brian recorded two documents, each

entitled “declaration of trust and trustee’s affidavit” (collectively, “Brian’s

declarations of trust”). In Brian’s declarations of trust, Brian attests that he is the

sole successor trustee of the Norman M. Giller Trust dated December 30, 1988,

and that he is familiar with the complete trust agreement; that at the time of the

acquisition of the properties Norman intended to and did take title to them as the

then current trustee of the Norman M. Giller Trust; and that Norman resigned as

3 The record on appeal does not contain a full and complete copy of the Norman

M. Giller Trust Agreement, nor is it clear that the document was presented to the

trial court.

4trustee as of December 31, 2005, and thereupon Brian accepted the responsibilities

of serving as the sole successor trustee.

The Personal Representatives subsequently filed a Motion for Summary

Judgment arguing that because the deeds, on their face and when read in

conformity with section 689.07(1), conveyed title to Norman in fee simple, the

properties were part of Norman’s estate at the time of his death. On March 13,

2013, the probate court entered an order denying the Personal Representatives’

Motion for Summary Judgment, concluding that the Personal Representatives lack

standing to bring the action. Relying upon Raborn v. Menotte

, 974 So. 2d 328

(Fla. 2008), Callava v. Feinberg

, 864 So. 2d 429 (Fla. 3d DCA 2003), and Adams

v. Adams

, 567 So. 2d 8 (Fla. 4th DCA 1990), the probate court held that “[t]he

Personal Representatives are not ‘subsequent parties’ dealing with the properties

which are the subject of the Action, and as a result are not entitled to the relief they

seek under § 689.07(1), Fla. Stat.”

Subsequently, the Personal Representatives filed a First Amended

Complaint, adding a count for quiet title (count II). 4 On November 7, 2013, Brian

filed a Motion to Dismiss the First Amended Complaint, which raised the same

argument he successfully raised in opposition to the Personal Representatives’

Motion for Summary Judgment i.e.

, the Personal Representatives failed to state a

4 The First Amended Complaint incorporated by reference the allegations

contained in the Complaint for declaratory relief as count I.

5cause of action for declaratory relief pursuant to section 689.07(1) because they are

not parties who relied on the public records in acquiring an interest in the

properties.

On February 5, 2014, the probate court entered an order dismissing count I

(declaratory relief) of the First Amended Complaint with prejudice, but denied the

motion as to count II (quiet title). The Personal Representatives subsequently

voluntarily dismissed count II of the First Amended Complaint without prejudice

on January 20, 2015. This appeal ensued.

II. STANDARD OF REVIEW

In reviewing an order granting a motion to dismiss, our standard of review is

de novo

. See Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP

, 137 So. 3d 1081

(Fla. 3d DCA 2014); see also Putnam Cnty. Envtl. Council, Inc. v. Board of Cnty.

Comm’rs of Putnam Cnty.

, 757 So. 2d 590, 594 (Fla. 5th DCA 2000) (“[W]e note

that the standard of review for the dismissal of a complaint for failure to allege

facts establishing the plaintiff’s standing is de novo review.”).

III. ANALYSIS

On appeal, the Personal Representatives argue that they are entitled to seek

relief under section 689.07(1) and that the trial court erred in granting Brian’s

Motion to Dismiss. We agree.

“The purpose of a motion to dismiss is to test the legal sufficiency of the

complaint.” Pac. Ins. Co. v. Botelho

, 891 So. 2d 587, 590 (Fla. 3d DCA 2004).

6When considering a motion to dismiss, the trial court must accept the well-pled

allegations of the complaint as true, and may not go beyond the four corners of the

complaint in considering the legal sufficiency of the allegations. See Minor v.

Brunetti

, 43 So. 3d 178 (Fla. 3d DCA 2010); Pac. Ins. Co.

, 891 So. 2d at 587;

Provence v. Palm Beach Taverns, Inc.

, 676 So. 2d 1022 (Fla. 4th DCA 1996).

Moreover, a motion to dismiss cannot be granted based on an affirmative defense

unless the defense appears on the face of a pleading. Pac. Ins. Co.

, 891 at 590. To

that end, and particularly relevant here, a motion to dismiss is not a substitute for a

motion for summary judgment. Perry v. Schlumbrecht

, 724 So. 2d 1239 (Fla. 2d

DCA 1999); accord Consuegra v. Lloyd's Underwriters at London

, 801 So. 2d 111,

112 (Fla. 2d DCA 2001) (“[A] motion to dismiss for failure to state a cause of

action is not a substitute for a motion for summary judgment, and in ruling on such

a motion, the trial court is confined to a consideration of the allegations found

within the four corners of the complaint.”).

We begin our analysis by noting that the Personal Representatives are duly

appointed legal representatives of the Estate, with the capacity to bring an action

on the Estate’s behalf and charged with the obligation to take possession of

Norman’s property for purposes of administration. See §§ 733.602; 733.607(1),

Fla. Stat. (2011); Tennyson v. ASCAP

, 477 F. App’x 608 (11th Cir. 2012);

Sullivan v. Sessions

, 80 So. 2d 706 (Fla. 1955); Brake v. Murphy

, 687 So. 2d 842

(Fla. 3d DCA 1996); cf. Disque v. Unger

, 955 So. 2d 1121 (Fla. 4th DCA 2007)

7(holding that trial court properly dismissed estate’s complaint for declaratory relief

where outcome would be of no financial benefit to estate). To that end, the

Personal Representatives sought a declaratory judgment from the trial court that

under the provisions of section 689.07(1), the properties are assets of the Estate

subject to probate administration. As such, the issue here is whether the Personal

Representatives stated a claim for a declaratory judgment sufficient to survive a

motion to dismiss. Section 689.07(1) states:

(1) Every deed or conveyance of real estate heretofore or

hereafter made or executed in which the words “trustee”

or “as trustee” are added to the name of the grantee, and

in which no beneficiaries are named, the nature and

purposes of the trust, if any, are not set forth, and the

trust is not identified by title or date, shall grant and is

hereby declared to have granted a fee simple estate with

full power and authority in and to the grantee in such

deed to sell, convey, and grant and encumber both the

legal and beneficial interest in the real estate conveyed,

unless a contrary intention shall appear in the deed or

conveyance; provided, that there shall not appear of

record among the public records of the county in which

the real property is situate at the time of recording of

such deed or conveyance, a declaration of trust by the

grantee so described declaring the purposes of such trust,

if any, declaring that the real estate is held other than for

the benefit of the grantee.

“Though inartfully drafted, section 689.07(1) is unambiguous.” Raborn

, 974

So. 2d at 331. The statute provides that every deed in which the words “trustee” or

“as trustee” are added to the name of the grantee “and in which no beneficiaries are

named, the nature and purposes of the trust, if any, are not set forth, and the trust is

8not identified by title or date,” is declared to have granted a fee simple estate to the

grantee, unless a contrary intention appears in the deed or a declaration of trust by

the grantee is of record at the time of the recording of the deed.

In the First Amended Complaint, the Personal Representatives allege that

there are six properties titled in the name of “Norman Giller, Trustee,” and that the

deeds do not contain the title and date of any trust, the names of any beneficiaries,

or the nature or purpose of any trust. They further allege that the public records do

not contain any separate recording of the trust or declaration of trust. As there is

no evidence on the face of the deeds indicating a contrary intent, the Personal

Representatives, pursuant to their fiduciary responsibilities, seek a declaration that,

pursuant to section 689.07(1), Norman held fee simple title to the properties on the

date of his death. These allegations are clearly sufficient under the plain language

of the statute. See Raborn

, 974 So. 2d at 328 (stating that under section 689.07(1),

a deed that simply refers to grantee as “trustee” conveys a fee simple estate, and

applying the statute to find that deed at issue fell under “contrary intention”

exception such that grantee held mere legal title as trustee); One Harbor Fin. Ltd.

v. Hynes Props., LLC

, 884 So. 2d 1039 (Fla. 5th DCA 2004) (holding that trial

court correctly applied section 689.07(1) to find that grantee who held title “as

trustee” owned property in fee simple absolute); Heiskell v. Morris

, 40 Fla. L.

Weekly D2809, D2811 (Fla. 5th DCA Dec. 18, 2015) (summarizing section

689.07(1) to stand for the proposition that “if the only hint in a deed that the

9underlying property might be held in trust is the addition of the words ‘trustee’ or

‘as trustee’ to the grantee’s name, the deed is deemed to have granted a fee simple

estate”). Significantly, section 689.07(1) does not state that its application is

limited to the benefit of “subsequent parties” or instances where a third-party has

relied on the deed in the public record, and it certainly does not preclude an action

by the personal representatives of the grantee’s estate to determine ownership of

properties to which the grantee purportedly took title as trustee.

Brian asserted in his Motion to Dismiss that section 689.07(1) has no

application to this case, and the Personal Representatives are not “entitled” to relief

under section 689.07(1), because they are not parties who relied on the public

records in acquiring an interest in the properties. In support of his argument, Brian

cites to language in various cases addressing the purpose of section 689.07(1). See

Raborn

, 974 So. 2d at 328 (explaining that the legislature enacted section

689.07(1) for the purpose of preventing secret trusts to protect those who might

subsequently rely upon the record in dealing with grantee); One Harbor

, 884 So. 2d

at 1043 (“The purpose of section 689.07 is to protect persons who rely upon the

public land records to ascertain title to real property when a beneficiary's interest is

not disclosed in the grantor/grantee index by either the deed transferring title or a

recorded declaration of trust.”); Callava

, 864 So. 2d at 431-32 (“The purpose of

Section 689.07 is ‘to prevent fraud being perpetrated upon persons who might

subsequently rely upon the record when dealing with the grantee.’” (quoting

10Meadows v. Citicorp Leasing, Inc.

, 511 So. 2d 622, 623 (Fla. 5th DCA 1987)));

Adams

, 567 So. 2d at 8 (“The purpose of the statute was to prevent fraud on

persons who might rely on the record title when dealing with the grantee.”).

Notably, none of these cases address the issue of standing or “entitlement” of the

personal representatives of a decedent-grantee to seek relief based on the operation

of section 689.07(1), and none limit the class of parties entitled to relief under

subsection (1) to “subsequent parties.”

Moreover, this Court’s precedent supports our conclusion that a grantee’s

personal representative may seek a determination regarding ownership under

section 689.07(1). In Turturro v. Schmier

, 374 So. 2d 71 (Fla. 3d DCA 1979), the

personal representative of the decedent’s estate claimed title to the property under

section 689.07 by virtue of a deed 5 conveying a remainder to the decedent, “Morris

Siegel, as Trustee,” and specifically alleged that the estate was the fee simple title

holder to which the property reverted upon the demise of the holder of the life

estate. This Court held that the trial court properly entered summary final

judgment in favor of the personal representative, reasoning that

[section] 689.07, Florida Statutes (1977) provides that if

the word “trustee” is added to the name of the grantee,

5 The deed at issue read:

To have and to hold all and singular the above described

premises, together with the appurtenances and every part

thereof, unto the said Marge M. Smith and her assigns for

and during her natural life, and upon her death, then unto

Morris Siegel, as Trustee.

11and there is no apparent trust purpose and no named

beneficiary of the trust, the grantor is deemed to have

granted a fee simple estate to the grantee. Clearly, when

the deed is read in conjunction with the statute, a fee

simple estate in favor of the appellees [the personal

representative of the estate of Morris Siegel] is evident.

Id. at 74. In reaching its conclusion, this Court noted that the purpose of the statute

is “to prevent a fraud from being perpetrated on a subsequent transferee who might

rely on the record and be unaware of a secret trust creating ownership in another.”

Id. The fact of whether a subsequent transferee did or did not rely on the deed,

however, did not contribute to this Court’s analysis

— the personal representative

was not required to be a “subsequent party” in order to seek relief under section

689.07(1).

Brian’s contention that the Personal Representatives cannot claim fee simple

title on behalf of the Estate because he invoked the “cure” provision contained in

section 689.07(4), Fla. Stat. (2011), 6 by filing his declarations of trust does not help

6 Section 689.07(4) states as follows:

(4) Nothing herein contained shall prevent any person

from causing any declaration of trust to be recorded

before or after the recordation of the instrument

evidencing title or ownership of property in a trustee; nor

shall this section be construed as preventing any

beneficiary under an unrecorded declaration of trust from

enforcing the terms thereof against the trustee; provided,

however, that any grantee, transferee, assignee, or

mortgagee, or person obtaining a release or satisfaction

of mortgage from such trustee for value prior to the

placing of record of such declaration of trust among the

12him. Brian did not raise the issue below in his Motion to Dismiss, and even if he

had, the issue could not have been considered by the trial court as Brian’s

declarations of trust were not attached to the Personal Representatives’ Complaint

or First Amended Complaint. See Pac. Ins. Co.

, 891 So. 2d at 590 (finding that

trial court erred by relying on copy of release which was not attached to complaint

when ruling on motion to dismiss). Moreover, under the facts of this case, the

legal import, if any, of Brian’s declarations of trust within the context of section

689.07 was not appropriate for determination on a motion to dismiss. Cf. Heiskell

,

40 Fla. L. Weekly at D2812 (applying subsection (4) to reverse summary judgment

entered in favor of trustee where “no legitimate dispute” that property was to be

held in trust; noting that the presumption as to property ownership created by

subsection (1) “can be overcome by a showing under subsection (4) that the

property is subject to an unrecorded trust agreement, one that can be recorded after

the subject deeds have been recorded”).

We, therefore, find that the trial court erred in dismissing the Personal

Representatives’ First Amended Complaint with prejudice as the Personal

public records of the county in which such real property

is situate, shall take such interest or hold such previously

mortgaged property free and clear of the claims of the

beneficiaries of such declaration of trust and of anyone

claiming by, through or under such beneficiaries, and

such person need not see to the application of funds

furnished to obtain such transfer of interest in property or

assignment or release or satisfaction of mortgage thereon.

13Representatives stated a legally sufficient cause of action under section 689.07(1).

Accordingly, we reverse the trial court’s order dismissing the Personal

Representatives’ claim and remand for further proceedings consistent with this

Court’s opinion.

Reversed and Remanded.

14