From Casetext: Smarter Legal Research

Bradbury v. Fuller

District Court of Appeal of Florida, Fifth District
Jun 27, 1980
385 So. 2d 7 (Fla. Dist. Ct. App. 1980)

Opinion

No. 79-4/T4-348.

June 27, 1980.

Appeal from the Circuit Court, Osceola County, Lon S. Cornelius, J.

Neal E. Young, Haines City, for appellant.

William M. Rowland, Jr. of Rowland, Bowen Thomas, Orlando, for appellees.


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.


Summaries of

Bradbury v. Fuller

District Court of Appeal of Florida, Fifth District
Jun 27, 1980
385 So. 2d 7 (Fla. Dist. Ct. App. 1980)
Case details for

Bradbury v. Fuller

Case Details

Full title:ROBERT K. BRADBURY, GUARDIAN OF THE PROPERTY OF FRANK DANIELS, APPELLANT…

Court:District Court of Appeal of Florida, Fifth District

Date published: Jun 27, 1980

Citations

385 So. 2d 7 (Fla. Dist. Ct. App. 1980)

Citing Cases

Key v. Trattmann

Applying a statute of limitations to a resulting trust, the Fifth District held that the "beneficiary of a…