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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

SUE VEAL CARLTON,

Plaintiff,

vs. CASE NO. 5:10cv203/RS-GRJ

JAMES DEWEY VEAL and

CHARLES DAVID VEAL,

Defendants.

_________________________________________/

ORDER

Before me is Defendants’ motion to dismiss (Doc. 5).

I. Standard of Review

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Granting a motion to dismiss is 

appropriate if it is clear that no relief could be granted under any set of facts that 

could be proven consistent with the allegations of the complaint. Hishon v. King & 

Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all 

allegations in the complaint as true and in the light most favorable to the plaintiff. 

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 
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1310 (11th Cir. 2000), citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 

1229 (11th Cir. 1999). 

II. Background

On June 2, 1993, grantors Lemuel David Veal and Helen Folds Veal created 

a trust called the “Veal Family Trust.” Lemuel and Helen Veal were also cotrustees and the sole beneficiaries of the trust. According to the terms of the trust, 

upon the death of both co-trustees Charles Veal, James Veal, and Mark Veal shall 

serve as successor trustees. In addition, the plain terms of the trust document 

provide that upon the death of both beneficiaries, the trust terminates and the trust

property should be divided as follows:

A. The property including household furnishings not otherwise disposed 

of, and all farm related items to the Co-Trustees named in this 

Declaration of Trust namely, Mark A. Veal, James D. Veal, and

Charles D. Veal.

IT IS THE WISHES OF THE GRANTORS THAT THIS REMAIN A 

FAMILY FARM.

B. All available cash, after funeral expenses and all bills are paid shall be 

equally divided between Richard Doyle Veal, Sue Veal Carlton, and 

Janet Gillespie. 

(Doc. 1-1).

There is no dispute between the parties that both beneficiaries of the trust, Lemuel

and Helen Veal, have died. However, prior to their deaths Lemuel Veal and Helen 

Veal removed Mark Veal as a Successor Trustee. (Doc. 1-4).
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After the death of the beneficiaries of the trust, Plaintiff Sue Veal Carlton 

and her siblings, Janet Veal Frederick and Richard Veal, filed suit in Bay County 

Circuit Court against James Veal and Charles Veal, as successor co-trustees of the 

Veal Family Trust, and Mark Veal. They sought to dissolve the Veal Family Trust 

and cause the real property in the trust to be vested in equal shares in the adult 

children of Lemuel and Helen Veal: Sue Veal Carlton, Janet Veal Frederick, 

Richard Veal, James Veal, Charles Veal, and Mark Veal. 

James Veal, Charles Veal, and Mark Veal filed a motion for summary 

judgment against Plaintiffs requesting the Court declare that the Veal Family Trust 

is a valid trust and that the property of the trust should be distributed pursuant to 

the terms of the trust: the real property to James Veal, Charles Veal, and Mark 

Veal, and the money to Sue Veal Carlton, Janet Veal Frederick, and Richard Veal. 

During the pendency of the litigation, Mark Veal died and his estate was 

substituted as a party defendant, represented by the personal representative of his 

estate Ginger Veal. On June 26, 2008, Bay County Circuit Judge Costello granted 

Defendants’ motion for summary judgment and entered judgment for Defendants 

James Veal, Charles Veal, and Ginger Veal, as personal representative of the estate 

of Mark Veal. (Doc. 1-8). 

On October 22, 2008, Ginger Veal, in her capacity as Personal 

Representative of the Estate of Mark Veal, gave a Personal Representative’s Deed 
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conveying the interest of the decedent, Mark Veal, in the trust real property to Sue 

Veal Carlton, the Plaintiff in this action. Plaintiff Carlton has now filed suit in this 

Court seeking partition of the trust real property and equal division among James 

Veal, Charles Veal, and Sue Veal Carlton as the successor in interest to Mark 

Veal’s interest in the trust property. Defendants James Veal and Charles Veal now 

seek dismissal of Plaintiff’s complaint.

III. Analysis

Defendants first argue the complaint should be dismissed because Mark 

Veal could not convey an interest in the property to Plaintiff. Defendants argue 

that when Mark Veal was removed as trustee, he also lost his interest in the trust 

property upon the death of the beneficiaries, and therefore he had no interest in the 

trust real property for his personal representative to convey to Plaintiff. Thus, 

Defendant argues, Plaintiff is limited to receiving only the money she is entitled to 

under the trust document, and has no interest in the real property of the trust. 

The trust instrument provides that upon the death of Lemuel and Helen 

Veal,“[t]he property including household furnishings not otherwise disposed of, 

and all farm related items [shall go] to the Co-Trustees named in this Declaration 

of Trust namely, Mark A. Veal, James D. Veal, and Charles D. Veal.” Although 

the amendment to the trust removed Mark Veal as a successor co-trustee, it makes 
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no mention of revoking his entitlement to a portion of the trust property upon the 

death of the beneficiaries. (Doc. 1-4). 

Furthermore, relitigation of Mark Veal’s entitlement to the real property of 

the trust is precluded under the doctrine of collateral estoppel. A party is precluded 

from litigating an issue if the identical issue has been actually litigated in a prior 

suit which could not have been decided without resolving the issue. See Williams 

v. Bennett, 689 F.2d 1370, 1381 (11th Cir. 1982). Here, Bay County Circuit Judge 

Costello previously determined that distribution of the trust property under the trust 

instrument included the distribution of a portion of the real property to Mark Veal. 

Therefore, Defendants cannot now argue in this suit that Mark Veal is not entitled 

to a portion of the trust real property. 

Defendants next argue that Plaintiff does not have an interest in the property 

because the trust property could only be conveyed by the trustees, and because 

Mark Veal was no longer a trustee neither he nor his estate could transfer any 

interest in the trust property to Plaintiff. However, at the time of Mark Veal’s 

death both of the beneficiaries of the trust had died, and therefore under the terms 

of the trust Mark Veal had a vested interest in a one-third portion of the real 

property. The property simply had not yet been divided according to the terms of 

the trust. Therefore, Mark Veal’s estate had the capacity to convey his interest to 

Plaintiff, and Defendant’s second argument for dismissal fails.
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Finally, Defendants argue that the personal representative’s deed was 

ineffective to transfer an interest to Plaintiff because of the spendthrift clause of the 

trust, which prohibits a beneficiary of the trust from transferring an interest in the 

trust property. This provision clearly applies only to the beneficiaries of the trust. 

Mark Veal was not a beneficiary of the trust but merely a designee to whom a 

portion of the real property would go in the termination and winding up of the trust 

upon the death of the only beneficiaries, Lemuel and Helen Veal. Therefore, the 

spendthrift provision does not apply to Mark Veal’s interest in the trust.

Defendants’ motion is denied.

ORDERED on October 14, 2010.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE