Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.

Filing 492

OPINION AND ORDER denying 358 Third Party Defendant, Bruce D. Berlinger's Motion for Summary Judgment; denying 360 Plaintiffs' Motion for Summary Judgment; granting 362 Third Party Defendant, Sue Casselberry's Motion for Summa ry Judgment; granting in part and denying in part 363 Third Party Plaintiff, Wells Fargo Bank N.A.'s Motion for Final Summary Judgment against Third Party Defendants Bruce D. Berlinger and Sue Casselberry; and granting in part and denying in p art 364 Defendant Wells Fargo Bank, N.A.'s Motion for Final Summary Judgment against Plaintiffs. See Opinion and Order for details. The Clerk shall defer the entry of final judgment pending the disposition of plaintiffs' remaining claims. The pretrial deadlines and trial term set forth in 464 the Court's August 25, 2015 Order will be discussed, and modified if necessary, at the October 19, 2015 Status Conference. Signed by Judge John E. Steele on 10/16/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, as
Beneficiaries to the Rosa B.
Schweiker Trust and all of
its
related
trusts
aka
Stacey Berlinger O’Connor,
BRIAN BRUCE BERLINGER aka
Stacey Berlinger O’Connor,
and HEATHER ANNE BERLINGER,
as Beneficiaries to the Rosa
B. Schweiker Trust and all
of its related trusts aka
Stacey Berlinger O’Connor,
Plaintiffs,
v.

Case No: 2:11-cv-459-FtM-29CM

WELLS
FARGO,
N.A.
AS
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee
to the Rosa B. Schweiker
Trust,
and
all
of
its
related trusts,
Defendant/Third
Party Plaintiff
v.
BRUCE D. BERLINGER and SUE
CASSELBERRY,
Third Party Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiffs’ Motion for
Summary Judgment (Doc. #360) and Defendant Wells Fargo Bank, N.A.’s
Motion for Final Summary Judgment against Plaintiffs (Doc. #364).

The parties have filed Responses, depositions, a supplement, and
other exhibits in support of their respective motions.

(Docs.

##359, 378, 379, 380, 381, 383, 384, 457, 477.)
Also

before

the

Court

are

additional

cross-motions

for

summary judgment: (1) Third Party Plaintiff, Wells Fargo Bank
N.A.’s Motion for Final Summary Judgment against Third Party
Defendants Bruce D. Berlinger and Sue Casselberry (Doc. #363); (2)
Third Party Defendant, Bruce D. Berlinger's Motion for Summary
Judgment

(Doc.

#358);

and

(3)

Third

Party

Defendant,

Sue

Casselberry’s Motion for Summary Judgment (Doc. #362). The parties
have filed Responses, affidavits, and other exhibits in support of
their respective motions.

(Docs. ##361, 365, 366, 376, 377, 380,

381, 382, 385.)
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient

2

disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)
(finding summary judgment “may be inappropriate where the parties
agree on the basic facts, but disagree about the factual inferences
that should be drawn from these facts”)).

“If a reasonable fact

finder evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine issue
of

material

judgment.”

fact,

then

the

court

should

not

grant

summary

Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th

Cir. 2007).
II.
Plaintiffs
Berlinger

Stacey

(Brian),

and

Sue

Berlinger

Heather

3

Anne

(Stacey),

Brian

Berlinger

Bruce

(Heather)

(collectively plaintiffs) are the children of Bruce D. Berlinger
(Bruce) and Sue Casselberry (Sue). (Doc. #366, ¶ 61.) The current
litigation involves three family trusts: the Rosa B. Schweiker
Family Trust, the Frederick W. Berlinger Family Trust, and the
Rose

S.

Trusts).

Berlinger

Family

Trust

(collectively

the

Berlinger

In their Second Amended Complaint (Doc. #93) plaintiffs

assert they are present beneficiaries of the Berlinger Trusts.
Plaintiffs assert claims of breach of trust (Count I), breach of
fiduciary duty (Count II), and civil theft (Count III) against
Wells Fargo N.A. (Wells Fargo) as the former corporate trustee of
the Berlinger Trusts.

The Court dismissed Count III in a previous

Order (Doc. #220) for lack of standing and failure to state a
claim.

Plaintiffs now move for summary judgment as to the portion

of Counts I and II relating to trust distributions for alimony.
(Doc. #360.)

Wells Fargo moves for summary judgment on Counts I

and II in their entirety.

(Doc. #364.)

Wells Fargo filed a Third Party Complaint (Doc. #60) against
Bruce and Sue, asserting a claim of contribution (Count I) and
unjust enrichment (Count II) against Bruce, and a claim of unjust
enrichment (Count III) against Sue.

Wells Fargo, Sue, and Bruce

each now move for summary judgment on the Third Party Complaint.
(Docs. #358, 362, 363.)

4

daughter [Rose] and her issue as my corporate trustee selects and
in such proportion as it determines without being required to
maintain equality among them . . . .”

(Id.)

The provision

continued that “my corporate trustee shall bear in mind, in
allocating income from time to time among my daughter and her
issues, that my daughter is the primary object of my bounty and
that it is my intention that it shall not be charged with an abuse
of its discretion should it pay all of the income to my daughter.”
(Id.)
The Rosa Trust further provided that upon Rose’s death the
corporate trustee was to pay the principal of the trust as Rose
directed by express reference in her will.

If there was no such

express provision in Rose’s will, the trustee was to hold all
principal in trust in accordance with certain instructions: During
the life of Bruce Berlinger (Rosa’s grandson and Rose’s son), the
trustee was to pay income from the principal “to such of my
grandson and his issue as my corporate trustee selects and in such
proportion as it determines without being required to maintain
equality among my grandson and his issue, . . . .”

(Id.)

The

provision continued, stating that “my corporate trustee shall bear
in mind, in allocating income from time to time among my grandson
and his issues, that after the death of my daughter my grandson
will be the primary object of my bounty and that it is my intention

6

that it shall not be charged with an abuse of its discretion should
it pay all of the income to my grandson.”

(Id.)

Among other powers, the Rosa Trust allowed the corporate
trustee to invade the principal:

“To apply for the benefit of a

beneficiary,

my

in

such

manner

as

corporate

fiduciary

deems

appropriate, as much of the principal, the income of which it has
authority to pay to the beneficiary or to the income of which the
beneficiary is entitled, as, without considering the beneficiary’s
individual property, it determines is required for his comfortable
maintenance . . . .”

(Id. at § 6(f).)

During Rose’s lifetime

this invasion of principal was restricted as follows:

“[T]he

principal shall not be invaded for the benefit of a beneficiary
other than my daughter unless my daughter is incapable in my
corporate fiduciary’s judgment of managing her own affairs and
then only for the purpose of enabling such other beneficiary to
meet an emergency, such as illness, for the meeting of which funds
of his own of a substantial nature are not reasonably available.”
(Id.)
death:

The invasion of principal was also restricted after Rose’s
“My corporate trustee shall be similarly guided as to

invasion of principal after the death of my daughter and during
the life of my grandson should a question then arise as to invasion
of principal for the benefit of a beneficiary other than my
grandson.”

(Id.) 

7

As to investments, the Rosa Trust provided that the Trustee
had the additional power “to retain any property and to purchase
such real or personal property as they select without being
confined to investments legal for trustees and without being under
any obligation to diversity investments, to minimize risk, or to
produce income . . . .”
The

Rosa

Trust

(Id. at § 6(a).)
further

directed

“[t]hat

interests

of

beneficiaries shall not be subject to anticipation or to voluntary
or involuntary alienation, and the protection afforded by this
paragraph shall be effective both as to principal and income until
actual payment to the beneficiary.”

(Id. at § 4.)

Further, the

discretions conferred relating to the allocation of income among
beneficiaries, allocations of receipts and disbursements between
principal and income, and invasion of principal “shall not be
exercised by an individual fiduciary who can derive direct or
indict benefit from such exercise.”
B.

(Id. at § 6.) 1

Grandson Bruce’s Marriage
On

September

23,

1978,

Rosa’s

grandson

married Sue C. Casselberry in Orlando, Florida.

1

Bruce

Berlinger

Three children

While plaintiffs assert that the Rosa Trust precludes “a
fiduciary” from exercising discretion relating to allocation of
income
among
beneficiaries,
allocation
of
receipts
and
disbursements between principal and interest, and invasion of
principal (Doc. #360, pp. 4-5), the provision only applies to
individual fiduciaries, not corporate fiduciaries. (Doc. 93-1, §
6.)

8

were born of this marriage, being plaintiffs Stacey, Brian, and
Heather Berlinger.
C.

(Doc. #359-1, §§ 1.1, 2.1.)

Frederick W. Berlinger Deed Of Trust
Frederick W. Berlinger (Frederick) was the husband of Rose

Berlinger and the father of Bruce Berlinger.

In December, 1988,

Frederick transferred certain property to a corporate trustee and
himself

as

trustees

to

hold

in

trust

according

to

certain

provisions which created three trusts (the Frederick Trust). (Doc.
#93-2.)

First, a Lifetime Trust was created for the benefit of

Frederick which was essentially under the complete control of
Frederick.

(Id. at § I.)

Second, a Family Trust was to be created

after Frederick’s death, when the corporate trustee was to set
aside $1 million in a separate trust.

(Id. at § II.)

Under this

Family Trust, if Frederick’s wife Rose survived Frederick, the
separate trust was for the primary benefit of Rose.
II.A.)

(Id. at §

The Family Trust provided that after the deaths of both

Rose and Frederick, “[a]s much of the net income and the principal
as my trustee, in my trustee’s sole discretion, may from time to
time think desirable shall be distributed to such one or more of
my descendants in such amounts or proportions as my trustee may
from time to time think appropriate . . . .”

(Id. at § II.B.1.)

The trustee was not required to treat the beneficiaries equally or
proportionally with regard to income distributions from the trust.
(Id. at § II.B.)

9

Third, after Frederick’s death a Marital Deduction Trust was
to be created from the balance of the principal.

(Id. at § III.)

If Rose survived Frederick, the net income from this Marital
Deduction Trust was to be paid to her in installments, along with
as much principal as the trustee determined was desirable for
Rose’s “health, support or maintenance.”

(Id. at § III.A.)

After

Rose’s death, the principal was to be used to pay any increase in
death taxes or administration expenses in Rose’s estate caused by
an inclusion of a portion of the Marital Deduction Trust.

(Id.)

The balance of the principal would be paid to one or more of
Frederick’s descendants on terms Rose appointed by a will, or in
the absence of such a valid will provision, was to be held by the
trustee subject to certain instructions.
relevant instructions were as follows:

(Id. at § III.B.)

The

After the deaths of both

Rose and Frederick, the net income of the Marital Deduction Trust
was

to

be

distributed

per

Frederick’s

descendants

then

stirpes
living,

“from

time

and

“[a]s

to

time”

much

of

to
the

principal as my trustee, in my trustee’s sole discretion, may from
time to time think desirable for any person eligible to receive
income under subparagraph 1 shall be paid to him or her.”
§ III.C.)

(Id. at

The beneficiaries did not have to be treated in the

same manner by the trustee.

(Id.)

As to investment power, the

Frederick Trust authorized the trustee “[t]o retain and to invest
in all forms of real and personal property, without being confined

10

to investments authorized by a statutory list, without being
required to diversify and regardless of any principle of law
limiting delegation of investment responsibility by trustees . .
. .”

(Id. at § XV.A.)
The Deed of Trust also contained a provision that prohibited

a beneficiary from transferring his or her interest in income or
principal, and prevents creditors of a beneficiary from reaching
the trust interest “before actual payment to the beneficiary.”
(Id. at § XIV.) The trustee was given expansive powers in addition
to those granted by law.
D.

(Id. at §§ XV.A-XV.K.)

Rose S. Berlinger Revocable Deed Of Trust
On October 17, 1991, Rose S. Berlinger established a Revocable

Deed

of

Trust,

which

was

restated

on

September

19,

2002,

subsequently amended, and finally restated in its entirety on
October 18, 2002.

(Doc. #93-3.)

The Deed of Trust created a

Living Trust in which the income was distributed to Rose during
her lifetime.

Upon Rose’s death, the trustee was to pay the

expenses of the last illness, funeral expenses, Rose’s debts, and
death taxes from the trust principal.

The balance of the trust

estate was to be held by the trustee as the Rose S. Berlinger
Family Trust (the Rose Trust).

This trust provided a lifetime

benefit of $200 per week to one of Rose’s employees.

The balance

of the net income was to be distributed to Bruce, his children and
his more remote descendants, in equal or unequal proportions, at

11

such times as the trustee deems to be in the best interest of such
beneficiaries

after

considering

their

needs,

other

income,

resources, means of support and any other pertinent circumstances
and factors.

The trustee was to distribute so much or all of the

principal to Bruce if it was necessary for his support or health
in his accustomed manner of living after considering his other
income and resources.

Under no circumstances was there to be any

distribution of principal to Bruce for any purpose other than his
health

or

support

in

his

accustomed

manner

of

living.

The

determination of whether any distribution of principal should
occur was to be made exclusively by the trustee.

Additionally,

the trustee could distribute so much or all of the principal to or
for the benefit of Bruce’s children as the trustee in its sole and
absolute discretion deemed appropriate for the support, health,
education, and general welfare, in equal or unequal amounts after
considering their needs, other income, resources, means of support
and any other pertinent circumstances and factors.
was

to

make

no

distribution

to

the

children

The Rose Trust
or

more

remote

descendants of Bruce which would discharge any of Bruce’s support
obligation. As to investments, the trustee was given the authority
to “invest and reinvest” in “other real and personal property,
within or without the United States, as the Trustee deems proper
without regard to diversification or those investments which are
authorized by law for fiduciaries . . . .”

12

(Id., Art. XI.C.)

The

Rose Trust also contains a spendthrift clause that prevents the
beneficiaries from voluntary or involuntary transferring their
interest and protects the beneficiaries’ interest from creditor
claims.
E.

(Id. at Art. XII.B.)

Bruce’s Divorce Settlement
Bruce and Sue were divorced in 2007 pursuant to a final

judgment which incorporated a Marital Settlement Agreement (the
MSA) signed by each on September 15, 2007.
#366, ¶ 61.)

(Doc. #359-1; Doc.

The MSA was intended to resolve all issues between

the couple, and was irrevocable.

(Doc. #359-1, §§ 1.3, 1.7.)

provisions are relevant to this case.

Two

First, the MSA obligated

Bruce to pay Sue permanent alimony of $16,000 each month until Sue
remarried or either Sue or Bruce died.

The parties agreed that

this amount could not be modified (Id. at §§ 3.1-3.7.)

Second,

the property settlement provided Bruce would take all right, title
and interest in what was subsequently identified as 550 Banyan
Blvd., Naples, Florida (among other property) and was required to
make three payments totaling $2 million to Sue as her equitable
distribution of marital assets.

(Id. at §§ 4.1-4.8.)

Neither

plaintiffs nor Wells Fargo were parties to the MSA.
F.

Wells Fargo Becomes Corporate Trustee
The parties agree that Wachovia Bank, N.A. acted as the

corporate co-trustee for the three Berlinger Trusts in 2007, 2008,
2009, and part of 2010.

On March 20, 2010, Wachovia Bank merged

13

with and into Wells Fargo, and Wells Fargo served as corporate cotrustee for the three Berlinger Trusts for the remaining part of
2010 until March, 2011.
IV.
The Second Amended Complaint (Doc. #93) asserts a claim for
Breach of Trust (Count I) and an overlapping claim for Breach of
Fiduciary Duty (Count II).

Plaintiffs assert that Wells Fargo

violated its duties as corporate trustee in three areas:

(1)

making distributions of principal and/or income to Bruce from the
Berlinger Trusts which were used by Bruce to pay his alimony
obligations to Sue; (2) authorizing the Rosa Trust to purchase a
one-third interest in residential property located at 550 Banyan
Blvd for $2 million as a trust investment when the fair market
value was less than $700,000; and (3)

failing to diversify

Berlinger Trust assets and abusing its discretion in its investment
decision-making as to Berlinger Trusts assets.
Plaintiffs seek summary judgment as to the alimony portion of
these claims.

Plaintiffs assert that Wells Fargo had the duty to

refrain from making discretionary distributions to Bruce to pay
his alimony to Sue, and that Wells Fargo breached its fiduciary
duty under the Berlinger Trusts by making such distributions.
(Doc. #93, pp. 1-2, 7.)

Wells Fargo seeks summary judgment on all

components of the counts, asserting that as a matter of law its

14

conduct was appropriate and in accordance with the terms of the
Berlinger Trusts.
A.

(Doc. #364, pp. 4-5.)

Trustee’s General Legal Obligations
The Florida Trust Code provides that “[u]pon acceptance of a

trusteeship, the trustee shall administer the trust in good faith,
in accordance with its terms and purposes and the interests of the
beneficiaries, and in accordance with this code.”
736.0801.

Fla. Stat. §

“[A] violation by a trustee of a duty the trustee owes

to a beneficiary is a breach of trust.”

Id. § 736.1001(1).

The

elements of a claim for breach of trust or fiduciary duty under
Florida law are: “(1) the existence of a fiduciary duty; (2) the
breach of that duty; and (3) damage proximately caused by that
breach.”

Treco Int'l S.A. v. Kromka, 706 F. Supp. 2d 1283, 1288

(S.D. Fla. 2010).

See also Gracey v. Eaker, 837 So. 2d 348, 353

(Fla. 2002) (“[t]he elements of a claim for breach of fiduciary
duty are: the existence of a fiduciary duty, and the breach of
that duty such that it is the proximate cause of the plaintiff's
damages.”).

Thus, to the extent they are based on the same

conduct, plaintiffs' Count I claim for breach of fiduciary duty is
redundant of the Count II claim for breach of trust.

Figel v.

Wells Fargo Bank, N.A., No. 10-CV-60737, 2011 WL 860470, at *2
(S.D. Fla. Mar. 9, 2011); Durden v. Citicorp Trust Bank, FSB, No.
07-CV-974, 2009 WL 6499365, at *12 (M.D. Fla. Aug. 21, 2009).

15

The specific obligations of a trustee are found in the trust
documents.

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

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

Jones v. First Nat'l Bank, 226 So. 2d 834, 835 (Fla.

4th DCA 1969); see also Fla. Stat. § 737.401.

“[T]he trustee can

properly exercise such powers and only such powers as (a) are
conferred upon him in specific words by the terms of the trust, or
(b) are necessary or appropriate to carry out the purposes of the
trust

and

are

not

forbidden

by

the

terms

of

the

trust.”

Restatement (Second) of Trusts § 186 (1959); see also id. § 164;
In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007).

To

determine the extent of a trustee’s authority as defined by the
trust instruments, the court independently interprets the terms of
the trust documents.

See Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 112 (1989) (“As they do with contractual provisions,
courts construe terms in trust agreements without deferring to
either party's interpretation.”).
“A trustee has wide discretion in the exercise of his power
and a court will not interfere unless he abuses his discretion.”
State of Del. ex rel. Gebelein v. Belin, 456 So. 2d 1237, 1241
(Fla. 1st DCA 1984).

“A trustee who acts in reasonable reliance

on the terms of the trust as expressed in the trust instrument is
not liable to a beneficiary for a breach of trust to the extent
the breach resulted from the reliance.”

16

Fla. Stat. § 736.1009.

B.

Trust Distributions Used To Pay Alimony
The Second Amended Complaint alleges that Wells Fargo paid

and distributed principal and/or income from the Berlinger Trusts
to

Sue

for

alimony

owed

by

Bruce.2

(Doc.

#93,

¶¶

28-30.)

Plaintiffs now argue that distributions to Bruce to be used for
alimony payments violated the spend-thrift provisions of each
Berlinger

Trust

documents.

Wells

Fargo

responds

that

such

distributions were proper under the terms of the Berlinger Trust
documents.

The Court agrees with Wells Fargo.

At all relevant times, Bruce was the primary beneficiary of
the Berlinger Trusts, and made requests to Wells Fargo for the
distributions from the Berlinger Trusts at issue in this case.
Wells

Fargo

reviewed

and

approved

Bruce’s

requests

for

distributions based on budgets Bruce submitted to Wells Fargo.
Wells Fargo made distributions directly to Bruce, who used portions
to fulfill his MSA obligations.

The distributions to Bruce

apparently came from both the income and principal of all three
Berlinger Trusts.

At least some of the budgets indicated that

2

While the Second Amended Complaint asserts that the Berlinger
Trusts made monthly payments of $16,000 directly to Sue (Doc. #93,
¶¶ 28-30), there is no evidence which supports this assertion.
Rather, the undisputed evidence establishes that trust money was
paid directly to Bruce, who then used a portion to meet his $16,000
monthly obligation to Sue. Plaintiffs’ summary judgment motion
concedes that Wells Fargo made “discretionary distributions to
Bruce Berlinger to pay for his alimony to Sue Casselberry . . . .”
(Doc. #360, p. 1.)

17

Bruce’s expenses included $16,000 in monthly alimony payments to
Sue.

From March, 2008 through December, 2010 Bruce utilized

approximately $544,000 of the distributions authorized by the
Corporate Trustee to fulfill his alimony obligations.

It is a

reasonable inference from the material undisputed facts that Wells
Fargo knew, or reasonably should have known, that Bruce was using
a portion of his Berlinger Trust distributions to meet his alimony
obligation.

See Fla. Stat. § 736.0104.

Other than potentially the spendthrift provisions, discussed
below, no provision in the Berlinger Trusts precluded Bruce from
requesting, receiving, and spending trust distributions to pay his
alimony

obligations.

See

supra

§§

III.A-D

relevant portions of the Berlinger Trusts).

(summarizing

the

Unless prohibited by

the spendthrift provisions, making such distributions did not
violate any of Wells Fargo’s fiduciary duties.
A spendthrift provision is defined as “a term of a trust that
restrains

both

voluntary

and

involuntary

transfer

of

a

beneficiary's interest.” Fla. Stat. § 736.0103(19). A spendthrift
provision of a trust is clearly enforceable under Florida law.
Florida law recognizes the validity of
spendthrift trusts. See Waterbury v. Munn, 159
Fla. 754, 32 So.2d 603, 605 (1947). A
spendthrift trust is a trust “created with a
view of providing a fund for the maintenance
of another, and at the same time securing it
against his own improvidence or incapacity for
self-protection.” Croom v. Ocala Plumbing &
Elec. Co., 62 Fla. 460, 57 So. 243, 244 (1911).

18

When a trust includes a valid spendthrift
provision, a beneficiary may not transfer his
interest in the trust and a creditor or
assignee of the beneficiary may not reach any
interest or distribution from the trust until
the beneficiary receives the interest or
distribution. § 736.0502(3), Fla. Stat.
(2009).
Miller v. Kresser, 34 So. 3d 172, 175 (Fla. 4th DCA 2010).

See

also Zlatkiss v. All America Team Concepts, LLC, 125 So. 3d 953,
955 (Fla. 5th DCA 2013).
It is undisputed that the Frederick Trust and the Rose Trust
are discretionary in nature.

(Doc. #359, ¶ 6; Doc. #379, ¶ 6.)

Wells Fargo asserts, however, that the Rosa Trust is a mandatory
trust.

(Doc. #379, ¶¶6, 9.)

The Rosa Trust states that the

trustee “shall pay the income of such principal during the lifetime
of [Bruce] . . . in such proportion as it determines . . . it is
my intention that [the corporate trustee] shall not be charged
with an abuse of its discretion should it pay all of the income to
[Bruce].”

(Doc. #93-1. pp. 1-2.)

The Rosa Trust further states

that distribution of principal shall be for Bruce’s “comfortable
maintenance.”
discretion

when

Because

Wells

evaluating

Fargo
how

was

often

entitled
and

in

to
what

use

its

amount

distributions were to be made, the Court finds that the terms of
the

Rosa

Trust

effectively

gave

Wells

authority to make distributions to Bruce.

Fargo

discretionary

Therefore, the Court

concludes that all Trusts at issue in this case are discretionary

19

trusts.

Fla.

Stat.

§§

736.0506(1);

736.0504(1).

See

also

Berlinger v. Casselberry, 133 So.3d 961, 964 n.4 (Fla. 2d DCA
2014); Inglis v. Casselberry, 137 So. 3d 389 (Fla. 2d DCA 2013).
(1)
The

Rosa Trust

Rosa

Trust

contains

a

“Protective

Provision”

which

states: “That interests of the beneficiaries shall not be subject
to anticipation or to voluntary or involuntary alienation, and
this protection afforded by this paragraph shall be effective both
as

to

principal

beneficiary.”

and

income

until

actual

payment

(Doc. #93-1, § 4(d) (emphasis added).)

to

the

Otherwise,

the Rosa Trust allowed distributions as summarized in § III.A of
this Opinion and Order.
The MSA was adopted by a state court final judgment and
required Bruce to directly pay Sue $16,000 per month in alimony.
(Doc. #359-1, § 3.5.) Nothing in the MSA, however, obligated Bruce
to pay Sue’s alimony from distributions from the Rosa Trust, or
allowed Sue any rights to the Rosa Trust.

Nothing in the Rosa

Trust precludes a beneficiary from spending a distribution on
alimony after its receipt.
Bruce did just that.
and

then

spent

obligation.

part

The undisputed facts establish that

Bruce requested and received distributions,
of

the

proceeds

to

satisfy

his

alimony

This did not violate any provision of the Rosa Trust,

and Wells Fargo breached no duty as trustee by authorizing such

20

distributions with knowledge that part would be spent on alimony
obligations.
(2)

Frederick Family Trust

The Frederick Trust also contains a protective provision
which states: “No beneficiary may sell, give, or otherwise transfer
his or her interest in income or principal hereunder.

No person

having a claim against a beneficiary may reach any such interest
before actual payment to the beneficiary.”
(emphasis

added).)

Otherwise,

the

(Doc. #93-2, Art. XIV

Frederick

Trust

allowed

distributions as summarized in § III.B of this Opinion and Order.
Again, nothing in the MSA obligated Bruce to pay alimony to
Sue from distributions from the Frederick Trust, or allowed Sue
any rights to the Frederick Trust.

Nothing in the Frederick Trust

precludes a beneficiary from spending a distribution on alimony
after its receipt.
just that.

The undisputed facts establish that Bruce did

Bruce requested and received distributions, and then

spent part of the proceeds to satisfy his alimony obligation. This
did not violate any provision of the Frederick Trust, and Wells
Fargo breached no duty as trustee by authorizing such distributions
with knowledge that part would be spent on alimony obligations.
(3)

Rose Family Trust

The Rose Trust contains a spendthrift clause that provides:
“The interest of beneficiaries in principal and income shall not
be subject to the claims of any creditor, any spouse for alimony

21

or support, or others, or to legal process, and may not be
voluntarily or involuntarily transferred or encumbered.”
#93-3,

Art.

XII(B).)

Otherwise,

the

Rose

Trust

(Doc.
allowed

distributions as summarized in § III.D of this Opinion and Order.
Nothing in the MSA obligated Bruce to pay alimony to Sue from
distributions from the Rose Trust, or allowed Sue any rights to
the Rose Trust.

Nothing in the Rose Trust precludes a beneficiary

from spending a distribution on alimony after its receipt.
undisputed facts establish that Bruce did just that.

The
Bruce

requested and received distributions, and then spent part of the
proceeds to satisfy his alimony obligation.

This did not violate

any provision of the Rose Trust, and Wells Fargo breached no duty
as trustee by authorizing such distributions with knowledge that
part would be spent on alimony obligations.
The
corporate

Berlinger
trustee

distributions.

Trusts
with

are

broad

consistent

authority

to

in
make

providing

the

discretionary

The Berlinger Trusts only limit the beneficiaries’

ability to transfer their interests in the trusts and protect Trust
assets from attachment by creditors prior to distribution to a
beneficiary.

The MSA did not provide that Bruce’s financial

obligations were to be satisfied by Berlinger Trusts assets, and
nothing in the MSA transferred Bruce’s interests in the Berlinger
Trusts or entitled Sue to any portion of such assets.

Nothing in

the Berlinger Trust documents precluded Bruce from using his

22

distributions to pay existing debt in order to maintain his
lifestyle, whether the debts be a mortgage or car payment, a
grocery bill, or alimony.
The undisputed evidence establishes that Wells Fargo did not
have a fiduciary duty to refrain from making distributions to Bruce
which would be used to pay alimony, and that Wells Fargo breached
no fiduciary duty as a corporate trustee when it made distributions
to Bruce knowing Bruce would use a portion of the distributions
for such purpose.

Therefore, plaintiffs’ motion for summary

judgment as to the alimony portion of the claims is denied, and
Wells Fargo’s motion for summary judgment as to alimony portion of
the claims is granted.
C.

Acquisition Of Interest In Banyan Blvd. Property
The

Second

Amended

Complaint

alleges

that

in

November-

December, 2007, Wells Fargo approved the Rosa Trust’s acquisition
of a one-third interest in residential property on Banyan Blvd.
for $2 million, when the property was valued at less than $700,000,
and paid Sue the $2 million dollars due as her marital equitable
distribution under the MSA on behalf of Bruce.
26.)

Plaintiffs

assert

in

Count

I

that

(Doc. #93, ¶¶ 22this

was

a

Trust

distribution which constituted a breach of trust by Wells Fargo
because it was made for the support and maintenance of Sue, a nonbeneficiary, and not for the health, support or maintenance of the
named beneficiaries.

(Id. at ¶ 26.)

23

Count II alleges that the

purchase of this non-income producing real estate violated Wells
Fargo’s duty to diversify and was not a prudent decision.
¶¶ 35-38, 42.)

(Id. at

Additionally, Count II also alleges a breach of

fiduciary duty when Wells Fargo authorized payment of principal
and/or income to non-beneficiary Sue.

(Id. at ¶ 43.)

Certain relevant material facts are undisputed as to these
portions of Counts I and II.
the

acquisition

of

the

Only the Rosa Trust was involved in

Banyan

Blvd.

Property.

Wells

Fargo

authorized the Rosa Trust to acquire a one-third interest in the
Banyan Blvd. Property in exchange for $2 million, which the Trust
paid to Bruce. The $2 million paid to Bruce was not a distribution,
but was an investment by the Rosa Trust in the Banyan Blvd.
Property.

Bruce used the $2 million to pay Sue three installments

which constituted her marital equitable distribution as required
under the MSA. The Rosa Trust allowed investment in real property,
without an obligation to diversify, minimize risk, or produce
income. Accordingly, summary judgment is entered in favor of Wells
Fargo and against plaintiffs as to those portions of Counts I and
II which allege (1) the $2 million investment in 550 Banyan Blvd.
was a distribution to Bruce; (2) the $2 million payment authorized
by Wells Fargo from the Rosa Trust was made to non-beneficiary
Sue; and (3) the investment in the Banyan Blvd. Property violated
Wells Fargo’s duty to diversify.

24

Counts I and II also assert that the investment in the Banyan
Blvd. Property was imprudent and/or made in bad faith.
37-38, 42.)

(Id. at ¶¶

While a trustee may be excused from diversifying

investments, as was done here in the trust documents, a trustee
must nonetheless act in good faith.
736.1011(1)(a).

Fla. Stat. §§ 736.0105(2)(b),

A trustee also “has a duty to invest and manage

investment assets as a prudent investor would considering the
purposes,

terms,

distribution

circumstances of the trust.”

requirements,

and

other

Id. § 518.11(1)(a).

Material facts remain disputed as to whether the decision
to invest in the Banyan Blvd. Property was imprudent and/or made
in bad faith. The parties dispute whether Bruce was the sole owner
of the property at the time the Rosa Trust paid him $2 million for
the one-third interest.

The parties continue to disagree as to

the correct value of the Banyan Blvd. Property at the time of the
purchase, and the exhibits and depositions on the issue conflict.
(Doc. #366, ¶¶ 25-31; Doc. #383, 11-13.)

The plaintiffs’ expert

witness, John Rodgers, provided a report asserting the investments
into the Banyan Property were imprudent and prohibited under the
terms of the Berlinger Trusts, while Wells Fargo’s expert witness,
William Ries, asserts positions to the contrary.
12; Doc. #383, ¶¶ 9, 11-13.)

(Doc. #160-1, p.

Accordingly, summary judgment for

Wells Fargo must be denied as to this component of Counts I and
II.

25

D.

Capital Improvements To The Banyan Blvd. Property
Counts I and II also assert that Wells Fargo used principal

from the Rosa Trust to make capital improvements to the Banyan
Blvd. Property totaling $167,615.3

The Second Amended Complaint

is not clear whether plaintiffs consider the capital improvement
payments to be distributions to Bruce or further investment by the
Rosa Trust in the Banyan Blvd. Property.

The Rosa Trust financial

records show that payments were made directly from the Rosa Trust
to the entities making the capital improvements.

(Doc. # 365-19;

Doc. #365-23.) Thus, the capital improvement payments are properly
understood as further investment by the Rosa Trust in the Banyan
Blvd. Property.4

As with the Rosa Trust’s initial investment in

the Banyan Blvd. Property, plaintiffs allege that the capital
improvements were not a prudent investment decision.5

As with the

3

Wells Fargo agrees that there were payments made from the
Rosa Trust for capital improvements to the Banyan Blvd. Property,
but asserts that the total amount was $147,983.
4

To the extent the capital improvement payments are properly
construed as distributions to Bruce, such distributions did not
breach Wells Fargo’s fiduciary duty. As with the distributions
used by Bruce to pay alimony, Wells Fargo was entitled to use its
discretion when evaluating how often and in what amount
distributions were to be made, and the Rosa Trust’s spendthrift
provision did not bar such distributions.
See supra §§ III.A,
IV.B (summarizing the relevant portions of the Rosa Trust).
5

Wells Fargo argues that plaintiffs conceded in deposition
testimony that the capital improvements were prudent. However,
Heather and Stacey testified only that they did not object to the
capital improvements at the time they were made, and Brian
testified only that “it would be smart to make sure that the . .

26

acquisitions, material facts remain disputed as to whether the
decision to invest in capital improvements was prudent.

The

plaintiffs’

the

expert

witness

contends

the

investments

into

Banyan Property were imprudent, while Wells Fargo’s expert witness
argues to the contrary.
13.)

(Doc. #160-1, p. 12; Doc. #383, ¶¶ 9, 11-

Accordingly, summary judgment for Wells Fargo must be denied

as to this component of Counts I and II.
E.

Investment In Mutual Funds
Count II also alleges that Wells Fargo breached its fiduciary

duty by investing Berlinger Trust assets in Wells Fargo’s in-house
propriety mutual funds, which charged additional management fees
above and beyond those which Wells Fargo was receiving as trustee.
(Doc. #93, ¶¶ 40, 44.)

Plaintiffs allege that these investments

were imprudent and/or made in bad faith because Wells Fargo could
have avoided those additional fees by investing in other incomeproducing assets.

Wells Fargo is entitled to summary judgment on

this portion of Count II because a reasonable jury could not
conclude that Wells Fargo authorized these investments imprudently
or in bad faith.

. property doesn’t become decrepit.” (Doc. #383-6, pp. 105-07;
Doc. #383-7, pp. 103-05; Doc. #383-8, pp. 218-25.)
The Court
concludes that these statements are insufficient to demonstrate
that plaintiffs concede that the particular capital improvements
in question were prudent, especially in light of their decision to
proffer expert testimony to the contrary.

27

The

Berlinger

discretion

trusts

concerning

grant

the

investments,

corporate

see

supra

trustee

§§

broad

III.A-D,

and

plaintiffs do not contend that Wells Fargo was prohibited from
investing

Berlinger

Trust

assets

in

mutual

funds

generally.

Instead, plaintiffs allege that these particular mutual funds were
imprudent

and/or

bad-faith

investments

because

they

carried

management fees which could have been avoided had Wells Fargo
chosen

to

invest

elsewhere.

imprudence

and/or

bad

faith

Plaintiffs’
is

the

fact

sole
that

evidence

of

investing

in

proprietary mutual funds meant that the management fees were paid
to a Wells Fargo entity.

However, plaintiffs point to no evidence

suggesting that the proprietary mutual fund management fees were
greater than those for non-proprietary funds.
plaintiffs
investment.

nor

their

expert

identify

a

Indeed, neither

single

alternative

Viewing the record in the light mist favorable to

plaintiffs, the Court concludes that a jury could not reasonably
conclude that Wells Fargo’s decision to invest Berlinger Trust
assets in proprietary mutual funds was imprudent or made in bad
faith.

Accordingly, Wells Fargo is entitled to summary judgment

as to this portion of Count II.
F.

Plaintiffs’ Releases In Connection With The MSA
As set forth above, Wells Fargo is entitled to summary

judgment as to the portions of Counts I and II which allege (1)
Wells

Fargo

had

a

fiduciary

duty

28

to

refrain

from

making

distributions to Bruce which would be used to pay alimony; (2) the
$2 million investment in 550 Banyan Blvd. was a distribution to
Bruce; (3) the $2 million payment authorized by Wells Fargo from
the Rosa Trust was made to non-beneficiary Sue; (4) the investment
in the Banyan Blvd. Property violated Wells Fargo’s duty to
diversify; and (5) Wells Fargo breached its fiduciary duty by
investing trust assets in in-house propriety mutual funds.

What

remains is plaintiffs’ claim that the Rosa Trust’s investment in
the Banyan Blvd. Property (and capital improvements made to the
property) was imprudent and/or made in bad faith.

Wells Fargo

argues that Releases plaintiffs executed in connection with the
MSA bar these claims.
It

is

undisputed

that

each

plaintiff

signed

a

Receipt,

Release, Refunding Agreement, Waiver of Audit, and Indemnification
(the Release) in connection with the MSA.
30, 365-31.)

(Docs. ##365-29, 365-

In the Release, plaintiffs agreed “to execute any

documents or join in any and all actions necessary to accomplish
the terms of the [MSA].”

(Id. at ¶ 6.)

According to Wells Fargo,

the Releases preclude plaintiffs from challenging the propriety of
the investment in the Banyan Blvd. Property because plaintiffs
knew that the proceeds of that investment would be used by Bruce
to satisfy his MSA obligations to Sue and, therefore, any challenge
to the investment would contravene plaintiffs’ obligation under

29

the Release to cooperate in “accomplish[ing] the terms of the
[MSA].”

The Court disagrees.

As explained in § IV.B of this Opinion and Order, nothing in
the MSA obligated Bruce to sell a one-third interest in the Banyan
Blvd. Property.

Nor did the MSA require Bruce to use proceeds

from such a sale to satisfy his MSA obligations to Sue.

Likewise,

the MSA does not address the use of Berlinger Trust assets for
capital improvements to the Banyan Blvd. Property.

Therefore, a

finding that the investment in the Banyan Blvd. Property was
imprudent or made in bad faith (or that Bruce was not authorized
to sell an interest in the property because he was not the sole
owner) would not impact Bruce’s obligations under the MSA.

At

most, such a result would impact a source of funds used by Bruce
to satisfy his MSA obligations (the $2 million Bruce received from
the Rosa Trust for the one-third share).

Because the MSA did not

require Bruce to use funds from the investment in the Banyan Blvd.
Property to satisfy his obligations to Sue, the Court concludes
that

plaintiffs

did

not

waive

their

right

to

challenge

the

propriety of the investment simply by promising in a general
fashion to cooperate in accomplishing the terms of the MSA.

See

Air Products & Chemicals, Inc. v. Louisiana Land & Exploration
Co., 867 F.2d 1376, 1379 (11th Cir. 1989) (“Waiver requires the
existence at the time of the alleged waiver of a right which may
be waived, actual or constructive knowledge of that right, and the

30

intention

to

relinquish

that

right.”)

(emphasis

added).

Accordingly, the Releases do not entitle Wells Fargo to summary
judgment on plaintiffs’ remaining claims.
V.
In its Third Party Complaint, Wells Fargo asserts claims of
contribution and unjust enrichment.

All parties move for summary

judgment on these claims.
A.

Count I:
Wells

Contribution

Fargo

against Bruce.

brings

a

contingent

claim

for

contribution

Attorneys' Title Ins. Fund, Inc. v. Punta Gorda

Isles, Inc., 547 So. 2d 1250, 1251 (Fla. 2d DCA 1989)

(“a claim

for contribution can be brought as a cross-claim or a third party
claim, on a contingent basis, prior to the payment.”)

Wells Fargo

asserts that Bruce, as co-trustee and/or trust beneficiary, is
liable under Fla. Stat. § 768.31 for contribution for the full
amount of any liability that may be imposed should plaintiffs
prevail on their claims against Wells Fargo.
10.)

(Doc. #363, pp. 6-

Wells Fargo asserts that it is undisputed Bruce was co-

trustee and/or trust beneficiary, was a beneficiary who requested
and received the distributions now claimed to be improper, and is
therefore jointly liable to plaintiffs.
Bruce responds that he cannot be held liable for contribution
because the language of the Berlinger Trusts give the power to
make distributions solely to the corporate trustee.

31

Because Bruce

cannot be held liable to the plaintiffs, he argues he cannot be
liable for contribution to Wells Fargo.6
Contribution

is

exclusively

a

statutory

remedy

meant

to

apportion the responsibility to pay innocent injured third parties
between or among those causing the injury.

Fla. Stat. § 768.31;

Nesbitt v. Auto-Owners Ins. Co., 390 So. 2d 1209 (Fla. 5th DCA
1980).

To establish a claim for contribution, the claimant must

allege a common liability to the injured party. Horowitz v. Laske,
855 So. 2d 169, 173-74 (Fla. 5th DCA 2003).

Under Florida law, a

co-trustee is entitled to contribution from the other co-trustee
only if both co-trustees are liable to the beneficiaries.

Fla.

Stat. § 736.1002(2) (“if more than one person, including a trustee
or trustees, is liable to the beneficiaries for a breach of trust,
each liable person is entitled to pro rata contribution from the
other person or persons”). See also Restatement (Second) of Trusts
§ 258(1) (“where two trustees are liable to the beneficiary for a
breach of trust, each of them is entitled to contribution from the
other”).

Thus, in order to hold Bruce liable for contribution,

Wells Fargo must show that Bruce is jointly liable to plaintiffs
for breach of trust.

6

All parties rely on Florida law in their moving papers. Even
if Pennsylvania law governed during a portion of the time, as Bruce
has previously asserted, the results would be no different.

32

It is undisputed that Bruce was the primary beneficiary and
co-trustee of the Berlinger Trusts; that Bruce requested Wells
Fargo to authorize the Rosa Trust to invest $2 million dollars in
the Banyan Blvd. Property; that Bruce received the $2 million from
Wells Fargo, and thereafter paid Sue $2 million as her marital
equitable distribution; that Bruce requested and received funds
from the Berlinger Trusts which were used for alimony; that Rosa
Trust assets were used to make capital improvements on the Banyan
Blvd. Property; and that it is these distributions and investments
which plaintiffs now assert were improper and for which they seek
to impose liability on Wells Fargo.
The basis of Bruce’s motion for summary judgment and his
opposition to Wells Fargo’s motion for summary judgment rests on
the

assertion

that

Bruce

did

not

have

the

power

distributions or investment decisions for the Trusts.

to

make

The Court

will assume for purposes of these motions that Bruce is factually
correct as to his lack of power to make distributions or investment
decisions under the Trusts.

That, however, does not necessarily

preclude summary judgment.
Florida Statute § 736.0703(9) discusses the liability of cotrustees when a trust allocates certain powers among the trustees.
If the terms of a trust provide for the
appointment of more than one trustee but
confer upon one or more of the trustees, to
the exclusion of the others, the power to
direct or prevent specified actions of the

33

trustees, the excluded trustees shall act in
accordance with the exercise of the power.
Except in cases of willful misconduct on the
part of the excluded trustee, an excluded
trustee is not liable, individually or as a
fiduciary, for any consequence that results
from compliance with the exercise of the
power.
Fla. Stat. § 736.0703(9).
Assuming that plaintiffs prevail on their claim that the
Banyan Blvd. Property investments were improper, the undisputed
facts establish willful misconduct and joint participation by
Bruce.

Bruce was the primary beneficiary and co-trustee who made

specific

requests

for

distributions

and

investments

which

plaintiffs allege were improper, received the distributions and
benefitted from the investments, and used the funds as he saw fit.
Since

Bruce

was

literally

the

prime

beneficiary

of

the

distributions and investments, it would be inequitable to allow
him to retain these benefits which he solicited from the Berlinger
Trusts and which were approved by the corporate trustee.

If Wells

Fargo is liable for the distributions or investments, Bruce is
liable for contribution.
is granted.
B.

Summary judgment in favor of Wells Fargo

Bruce’s motion for summary judgment is denied.

Count II:

Unjust Enrichment-Bruce

Count II of the Third Party Complaint alleges Bruce was
unjustly enriched when certain benefits were conferred on him by
Wells Fargo.

“A claim for unjust enrichment has three elements:

34

(1) the plaintiff has conferred a benefit on the defendant; (2)
the defendant voluntarily accepted and retained that benefit; and
(3) the circumstances are such that it would be inequitable for
the defendants to retain it without paying the value thereof.”
Virgilio v. Ryland Grp., 680 F.3d 1329, 1337 (11th Cir. 2012);
Fla. Power Corp. v. City of Winter Park, 887 So. 2d. 1237, 1241
n.2 (Fla. 2004).
Wells Fargo seeks summary judgment against Bruce alleging he
voluntarily

accepted

and

retained

benefits

conferred

on

him

through the distributions and investments made by Wells Fargo.
Wells Fargo asserts that should plaintiffs prevail in this action,
Wells Fargo will be required to pay back the monies it paid to
Bruce, which Bruce used to satisfy his obligations to Sue.
Fargo

may

also

be

required

to

reimburse

the

Trusts

Wells

for

the

investment in capital improvements to the Banyan Blvd. Property.
Wells Fargo argues it would be inequitable for Bruce (and Sue) to
retain the benefit of those funds should the distributions or
investments be deemed improper.
The undisputed facts establish all three elements of unjust
enrichment if Wells Fargo is held liable for the distributions.
The Court rejects Bruce’s argument that since the benefits were
conferred on him by the Berlinger Trusts, not Wells Fargo, it is
the Berlinger Trusts that have a cause of action for unjust
enrichment, not Wells Fargo.

This Court has already found that

35

“if plaintiffs succeed, Wells Fargo will be held liable for the
distributions of the funds, not the Trusts.”

(Doc. #196, p. 7.)

Therefore, if Wells Fargo is found liable to plaintiffs, it is
Wells Fargo that will have conferred the benefit on Bruce.
The Court also rejects Bruce’s argument that he did not retain
a benefit from Wells Fargo. Bruce voluntarily solicited, accepted,
retained,

and

spent

the

funds

approved

distributions from the Berlinger Trusts.

by

Wells

Fargo

as

Bruce also voluntarily

solicited, accepted, retained, and enjoyed the benefits of the
Berlinger Trusts’ investments in the Banyan Blvd. Property.

It

would be inequitable for Bruce to retain the funds and benefits,
spend them as he chooses, and have Wells Fargo liable to reimburse
the Berlinger Trusts.

Therefore, the Court finds there are no

disputed issues of material fact and Wells Fargo is entitled to
summary judgment as to the unjust enrichment claim in Count II if
Wells Fargo is found liable to plaintiffs in the underlying case.
C.

Count III:

Unjust Enrichment-Sue

Count III of the Third Party Complaint alleges Sue was
unjustly
benefits

enriched
stemming

when

she

from

voluntarily
Wells

accepted

Fargo’s

distributions of trust assets to Bruce.

and

alleged

retained
improper

(Doc. #60, p. 7.)

The

elements for a claim of unjust enrichment are discussed above.
Wells Fargo seeks summary judgment against Sue on Count III,
alleging Sue voluntarily accepted and retained benefits conferred

36

on her through Wells Fargo’s distributions to Bruce.

Wells Fargo

asserts that should plaintiffs prevail in this action, Wells Fargo
will be required to repay monies it had paid to Bruce which were
used to satisfy his obligations to Sue.

Wells Fargo argues it

would be inequitable for Sue to retain those funds at Wells Fargo’s
expense should these distributions be deemed improper.
Sue asserts that she is entitled to summary judgment as to
Count III in the Third Party Complaint because: (1) it fails to
state a claim for relief ; (2) the claim is barred by the statute
of

limitations;

detrimentally

(3)

relied

changing her position;

Wells
on

Fargo

the

(5)

funds

has

unclean

distributed

hands;
by

(4)

Sue

irrevocably

Sue gave fair consideration for the

benefits conferred; (6) there is no privity between Wells Fargo
and Sue; and (7) the claim in barred by the doctrine of laches.
(Doc. #362.)
Sue first claims that Wells Fargo must prove that it directly
conferred a benefit on her in order to allege a claim for unjust
enrichment.

Specifically, Sue alleges that Bruce is the one who

conferred a benefit on her, not Wells Fargo or the Berlinger
Trusts, and thus Wells Fargo’s unjust enrichment claim fails as to
her even if Wells Fargo is found liable to plaintiffs. Wells Fargo
does not dispute the fact that the benefits Sue received first
passed through Bruce, but asserts that it would nonetheless be

37

inequitable for Sue to retain the funds to the detriment of Wells
Fargo.
Florida law is clear that a claim of unjust enrichment
requires proof of a direct benefit, and that an indirect benefit
will not suffice.

Virgilio v. Ryland Group, Inc., 680 F.3d 1329,

1337 (11th Cir. 2012); Peoples Nat'l Bank of Commerce v. First
Union Nat'l Bank, 667 So. 2d 876, 879 (Fla. 3d DCA 1996).

It is

clear from the record that Wells Fargo did not make any payments
from the Berlinger Trusts directly to Sue.

It is undisputed that

Wells Fargo made payments to Bruce, who used those payments to
satisfy Bruce’s obligations to Sue under the MSA. Therefore, there
is no viable unjust enrichment claim as to Sue, and summary
judgment is granted as to Sue on Count III.

The Court need not

discuss the other issues raised by Sue as to this count.
Accordingly, it is now
ORDERED:
1.

Plaintiffs’ Motion for Summary Judgment (Doc. #360) is

DENIED.
2.

Defendant Wells Fargo Bank, N.A.’s Motion for Final

Summary Judgment against Plaintiffs (Doc. #364) is GRANTED IN PART
AND DENIED IN PART.

The motion is granted as to the allegations

in Counts I and II of the Second Amended Complaint (Doc. #93) that
(i) Wells Fargo had a fiduciary duty to refrain from making
distributions to Bruce D. Berlinger which would be used to pay

38

alimony; (ii) the $2 million investment in 550 Banyan Blvd. was a
distribution to Bruce D. Berlinger; (iii) the $2 million payment
authorized by Wells Fargo from the Rosa Trust was made to nonbeneficiary Sue Casselberry; (iv) the investment in the Banyan
Blvd. Property violated Wells Fargo’s duty to diversify; and (v)
Wells Fargo breached its fiduciary duty by investing trust assets
in in-house propriety mutual funds. The motion is otherwise DENIED
as to the prudence and good faith of the investment in and capital
improvements to the property located at 550 Banyan Blvd., Naples,
Florida.
3.

Third Party Plaintiff, Wells Fargo Bank N.A.’s Motion

for Final Summary Judgment against Third Party Defendants Bruce D.
Berlinger and Sue Casselberry (Doc. #363) is GRANTED in part and
DENIED in part.
Bruce

D.

The motion is GRANTED as to Counts I and II as to

Berlinger,

but

DENIED

as

to

Count

III

as

to

Sue

Casselberry.
4.

Third Party Defendant, Bruce D. Berlinger's Motion for

Summary Judgment (Doc. #358) is DENIED.
5.

Third Party Defendant, Sue Casselberry’s Motion for

Summary Judgment (Doc. #362) is GRANTED.
6.

The Clerk shall defer the entry of final judgment pending

the disposition of plaintiffs’ remaining claims.
7.

The pretrial deadlines and trial term set forth in the

Court’s August 25, 2015 Order (Doc. #464) will be discussed, and

39

modified if necessary, at the October 19, 2015 Status Conference
before the undersigned.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2015.

Copies: Counsel of record

40

16th

day of