DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LISA JOHNSON, individually and as beneficiary of the 

HAROLD MARCUS TRUST AGREEMENT, dated August 11, 2015,

as amended and restated on September 15, 2022,

Appellant,

v.

DAVID MARCUS, individually, and as successor co-trustee of the

HAROLD MARCUS TRUST AGREEMENT, dated August 11, 2015,

as amended and restated on September 15, 2022, and

THOMAS DACHELET, individually and as successor co-trustee of the

HAROLD MARCUS TRUST AGREEMENT, dated August 11, 2015,

as amended and restated on September 15, 2022,

Appellees.

No. 4D2023-3096

[May 8, 2024]

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

Beach County; Charles E. Burton, Judge; L.T. Case No. 

502023CP001468XXXXSB. 

Kelly D. Feig of The Law Office of Kelly D. Feig, P.A., Hallandale Beach, 

for appellant.

Robert J. Hauser of Sniffen & Spellman P.A., West Palm Beach, for 

appellees.

KLINGENSMITH, C.J.

We affirm without prejudice the probate court’s order summarily 

denying appellant’s emergency petition seeking temporary injunctive relief. 

Appellant improperly filed her emergency petition without initiating an 

action concerning the trust pursuant to Florida Statutes.

Appellant Lisa Johnson is the beneficiary of an inter vivos trust created 

by her deceased father. The father designated appellant’s brother and the 

father’s attorney as co-trustees and granted them absolute discretion over 

appellant’s trust funds. The father’s will has been admitted to probate, 

and the brother has been named personal representative.
2

Appellant filed the emergency petition at issue using the case number 

for the probate case. The emergency petition sought to compel the cotrustees to pay appellant’s health insurance and other expenses from the 

trust funds. The probate court summarily denied the emergency petition.

We agree with the co-trustees that appellant improperly sought relief 

concerning the trust in the probate case. Under the Florida Trust Code, 

any action concerning the trust must be commenced by filing a complaint. 

§ 736.0201(1), Fla. Stat. (2023) (“Except as provided in subsections (5), (6), 

and (7) and s. 736.0206, judicial proceedings concerning trusts shall be 

commenced by filing a complaint and shall be governed by the Florida Rules 

of Civil Procedure.” (emphasis added)). Appellant’s emergency petition 

does not fall within any of the statutory exceptions. See id. We agree with 

the co-trustees that they are entitled to be served with a complaint under 

the trust code before the probate court can exercise authority over them. 

See Beekhuis v. Morris, 89 So. 3d 1114, 1116 (Fla. 4th DCA 2012)

(concluding that probate court in guardianship case erred in asserting 

jurisdiction over trust property and trustee that were not before the court).

In her Reply Brief, appellant contends that she intended on filing the 

emergency petition in a new independent case. She explains that, after 

the trial court entered the order denying the petition in the probate case, 

the petition was set up and docketed in a new case number.1

This does not change the analysis, and appellant does not show any 

reversible error. She used the probate case number on her filing and 

labeled it an “adversary proceeding” under the probate rules. See Fla. 

Prob. R. 5.025. The court did not err in summarily denying emergency 

temporary relief in the probate case because appellant has failed to 

properly initiate an action concerning the trust. Any proceeding that 

appellant wishes to file concerning the trust must be commenced by filing 

a complaint under the Florida Trust Code. Once that occurs, appellant 

can address those issues raised in the emergency petition in the 

appropriate forum.

We do not reach the merits of any of the other arguments raised by the 

parties on appeal.

Affirmed.

1 Appellant filed a prior emergency petition that similarly used the probate case 

number, and that petition was docketed and remains pending in the probate 

case.
3

CIKLIN and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.