ROBERT K. BRADBURY, GUARDIAN OF THE PROPERTY OF FRANK DANIELS, APPELLANT,
v.
WILLIAM B. FULLER AND WIFE, RUBYE D. FULLER, APPELLEES
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The court held that the plaintiff should be given an opportunity to amend his complaint, as it is not certain that all theories of action would be barred by the statute of limitations.
Plaintiff appealed an order dismissing his complaint with prejudice, which was based on the statute of limitations. The trial court found the action b…
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PER CURIAM.
Plaintiff, Robert K. Bradbury, appeals an order of the trial court granting, with prejudice, defendants’ motion to dismiss the complaint. The order granting the motion to dismiss recites that the complaint shows on its face that plaintiff’s action is barred by section 95.11, Florida Statutes (1977). Plaintiff contends there are theories available to plaintiff which would not be barred by section 95.11 and suggests among others the theory of a resulting trust.
A beneficiary of a resulting trust is not bound to act until the trustee repudiates the trust or begins to hold the property adversely with knowledge on the part of the beneficiary. Smith v Reddish, 113 Fla. 20, 151 So. 273 (1933); Anderson v. Northop, 30 Fla. 612, 12 So. 318 (1892); Peacock v. Firman, 177 So. 2d 560 (Fla. 3d DCA 1965), cert. denied, 183 So. 2d 215 (Fla.1965).
We cannot say that plaintiff will be able to state a cause of action not barred by the statute of limitations. However, he should be given the opportunity to amend his complaint. Fla.R.Civ. P. 1.010; Town of Coreytown v. State, 60 So. 2d 482 (Fla.1952).
REVERSED.
ORFINGER and COBB, JJ., and WATSON, RICHARD O., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Garrison KEY v. Dieter Trattmann, 959 So. 2d 339 (Fla. 1st DCA 2007)…ulting trust,5 the Fifth District held that the “beneficiary of a resulting trust is not bound to act until the trustee repudiates the trust or begins to hold the property adversely with knowledge on the part of the beneficiary.” Bradbury v. Fuller, 385 So. 2d 7, 8 (Fla. 5th DCA 1980). See also Grable v. Nunez, 64 So. 2d 154, 160 (Fla.1953) (“The statutes of limitations do not operate against a resulting trust until the trustee has disclaimed the trust and begins to hold adversely to the beneficial interest…
Authorities Cited
- Anderson v. Northrop, 30 Fla. 612 (Fla. 1892)
- Town of Coreytown v. State Ex Rel. Ervin, 60 So.2d 482 (Fla. 1952)
- Peacock v. Firman, 177 So. 2d 560 (Fla. 3d DCA 1965)
- Smith v. Otto L. Reddish Ad Litem of the Estate of Blanche Reddish, 113 Fla. 20 (Fla. 1933)
- Perry's Fashions, Inc. v. Guar. Sec. Ins. Co., 183 So. 2d 215 (Fla. 1965)
- Murray v. Holiday on Ice Shows, Inc., 183 So. 2d 215 (Fla. 1965)