SALTER, J.
William Kritchman and Wells Fargo, N.A.,
We affirm the trial court's rulings relating to the co-trustees' breach of the Fourth Amended and Restated Lola Kritchman Revocable Trust Agreement (Trust Agreement) and the directive for disgorgement of attorney's fees and costs paid from the Trust to, or for the benefit of, the co-trustees. We reverse the final judgment insofar as it determined that the Trust or Mrs. Kritchman's Estate was liable for Mr. Wolk's possible and future graduate school expenses; and we remand with directions for the entry of an amended final judgment.
Mrs. Lola Kritchman created a revocable trust and amended it repeatedly. The Trust Agreement at issue here was entered into in December 2007. The co-trustees were Mrs. Kritchman and Wells Fargo. Article I.A. of the Trust Agreement specified that, during Mrs. Kritchman's lifetime, the Trustee was to "pay such sums from principal as [Mrs. Kritchman] may direct at any time." The record establishes that Mrs. Kritchman directed Wells Fargo to make payments for Mr. Wolk's private school tuition for seven
During Mr. Wolk's sophomore year, on April 17, 2010, Mrs. Kritchman signed and delivered a letter to her trust officer at Wells Fargo stating:
Mrs. Kritchman's written directive plainly and unambiguously:
Wells Fargo received this written directive and, consistent with its express terms, Wells Fargo paid Mr. Wolk's educational expenses at Yale for the fall semester of his junior year in September of 2010. But while choosing to comply with this portion of Mrs. Kritchman's written directive, Wells Fargo failed to comply with the remainder of its express terms, which required Wells Fargo to "make arrangements so that his costs will be paid for those two years [junior and senior]...." (Emphasis supplied).
Notwithstanding this directive, Mr. Wolk's Yale tuition, room, and board were not paid by Wells Fargo for his last three semesters at Yale, nor did Wells Fargo "make arrangements" — whether by establishing a reserve or prepaying the costs — to obey Mrs. Kritchman's written, lifetime instruction. Mrs. Kritchman passed away on November 8, 2010. On November 23, 2010, a trust officer from Wells Fargo's wealth management division sent an email to Mr. Wolk's mother assuring her that a check for Mr. Wolk's tuition bill would be sent to Yale by the end of November. Thereafter, Mrs. Kritchman's son and Mr. Wolk's mother disagreed regarding Mrs. Kritchman's last will and testament (and a disputed fourth codicil), and Mr. Kritchman countermanded his mother's written instructions to Wells Fargo. The check for tuition and other expenses was not sent to Yale, nor were those costs paid for his senior year.
The defendants asserted affirmative defenses based on the statute of frauds and an interpretation of the Trust Agreement that nullified (upon Mrs. Kritchman's death) her directive in her letter of April 17, 2010. The parties then cross-moved for partial summary judgments and, thereafter, a final judgment.
The trial court granted final judgment in favor of Mr. Wolk on (a) the breach of oral contract count for the unpaid Yale tuition, room, and board ($85,826.76) plus prejudgment interest, and (b) the breach of trust claim, for the unpaid tuition, room, and board, as well as other expenses, such as books and health insurance (a total of $101,491.93) plus prejudgment interest.
Wells Fargo was obligated to carry out Mrs. Kritchman's written directive, issued while she was still alive, to "make arrangements" to pay Mr. Wolk's last three semesters of undergraduate tuition, room, and board at Yale. There is no summary judgment evidence indicating that the Trust lacked the ability to make the payments or to establish a reserve to pay them. Indeed, Wells Fargo not only could, but did comply with a portion of Mrs. Kritchman's written directive, by paying Mr. Wolk's tuition, room and board for the fall semester of his junior year. Moreover, the record below includes written communications after the date of Mrs. Kritchman's death whereby (a) Wells Fargo represented to Mr. Wolk's mother that "A check will be going out at the end of the week for Hunter's tuition payment [for
Wells Fargo's attempt to impose additional procedural requirements-none of which are set forth in the Trust Agreement-is unavailing. The record establishes that the real reason Wells Fargo neither paid for Mr. Wolk's last three semesters at Yale from the Trust assets, nor set aside sufficient assets to pay those costs, is that Mr. Wolk's mother had produced a fourth codicil in Mrs. Kritchman's estate, to Mr. Kritchman's detriment.
The failure of Wells Fargo to carry out the terms of the Trust, under the factual circumstances of this case, violated sections 736.0801, Florida Statutes (2010) (duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries), 736.0803 (duty to act impartially as among beneficiaries), and 736.0804 (duty to prudently administer the trust by considering the purposes, terms, distribution requirements, and other circumstances of the trust). These breaches of duty establish the liability of the co-trustees for a breach of trust. § 736.1001(1), Fla. Stat. (2010); Covenant Trust Co. v. Guardianship of Ihrman, 45 So.3d 499, 504 (Fla. 4th DCA 2010). Upon the finding of breach of trust, the co-trustees failed to give notice as required by section 736.0802(10), Florida Statutes (2010), justifying the trial court's prohibition of further attorney's fees and costs from assets of the Trust and its order for a refund of previous attorney's fees and costs paid to Wells Fargo from the Trust.
There was also uncontroverted summary judgment evidence establishing Mrs. Kritchman's promise to Mr. Wolk, his reliance on that promise (applying to, and attending, Yale rather than utilizing his prepaid tuition account for a Florida university), and the partial performance of that agreement through the first semester of his junior year. Nonetheless, the trial court did not err in denying the claims for written contract and promissory estoppel, as these were merely duplicative of the other claims. See Laufen, Inc. v. Andrew, 83 So.3d 898, 899 (Fla. 5th DCA 2012) (final judgment should make it clear that
Finally, the appellants' claim of error with regard to any future award of expenses for graduate school is well taken. The Trust Agreement did not include any such gift or provision for the benefit of Mr. Wolk, despite its broad definition of "education." A promise of an indeterminate amount, for an indeterminate number of years of graduate school, commencing at an indeterminate time, runs afoul of the Statute of Frauds. We thus reverse the final judgment insofar as it purports to include an award for graduate school expenses "to be determined," and insofar as it awarded Mr. Wolk expenses beyond the tuition, room, and board at Yale as specified by Mrs. Kritchman in separate written instructions under Article I.A. of the Trust Agreement.
For the reasons detailed above, (a) we affirm the final judgment against Wells Fargo and Mr. Kritchman, jointly and severally, for breach of oral contract and breach of trust, although we reduce the amount of damages to the single amount of $85,826.76,
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.