DR. MARC BIVINS v. CHARLES W. DOUGLAS, etc.

Third District Court of Appeal

State of Florida

Opinion filed October 20, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-0965

Lower Tribunal No. 18-5077

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Dr. Marc Bivins, et al.,

Appellants,

vs.

Charles W. Douglas, etc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Rosa C.

Figarola, Judge.

Law Offices of David Howard Goldberg, P.L. and David Howard

Goldberg, for appellants Anabelle Bivins and Lorelei Bivins; Adrian Philip

Thomas, P.A. and Adrian P. Thomas, and Paula Castaneda (Fort

Lauderdale); Daniel McDermott, P.A., and Daniel L. McDermott (Fort

Lauderdale), for appellants Dr. Marc Bivins, and Dr. Marc Bivins and Dr.

Balkys Bivins, as Biological Parents and Natural Guardians of P.B., a Minor

Child.

Cartolano & Alvero, P.A., and Joe Cartolano, for appellees Phyllis

Johns, Sally Knowles, and Emily Moynihan; Dunwody White & Landon, P.A.,

and Jack A. Falk, Jr., for appellee The Dr. M. Lee Pearce Foundation, Inc.;

Goldman Felcoski & Stone, P.A., and Brian J. Felcoski and Robert W.

Goldman, for appellee Charles W. Douglas, as Trustee of the M. Lee Pearce

Living Trust, as amended.

Before EMAS, SCALES, and HENDON, JJ.

HENDON, J.

INTRODUCTION

This is an appeal of a final order dismissing Appellants’ second

amended complaint with prejudice. As the Appellants have failed to establish

that they have standing to pursue the claims asserted in the second

amended complaint, we affirm.

BACKGROUND

Dr. Marc Bivins (“Bivins”), Anabelle Bivins (“Anabelle”), Lorelei Bivins

(“Lorelei”), and the natural guardians of P.B. (“P.B.”) (hereinafter

“Appellants”) filed a declaratory action seeking to invalidate several trust

instruments executed by the decedent, Dr. Milton Lee Pearce (“Pearce”).

The appellees, defendants below, are Charles W. Douglas, as Trustee of the

M. Lee Pearce Living Trust (“Trust”), as amended, and the Dr. M. Lee Pearce

Foundation, Inc.

Bivins alleges that he and/or his three biological daughters are the

lineal descendants and sole intestate heirs of Pearce’s intestate estate. This

is so, he contends, because Bivens was born out of wedlock and that his

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biological mother and his biological father, Pearce, participated in a marriage

ceremony after Bivens’ birth and thus Bivens is a descendant of Pearce and

one of the natural kindred of Pearce’s family. Bivens alleged in his second

amended complaint that Pearce’s death vested in his intestate heirs the right

to Pearce’s property, and thus the Appellants, as Pearce’s intestate heirs,

are affected persons and interested in the Trust. Bivens additionally alleged

that his paternity is established, and no further determination is necessary.

The Trust devised Pearce’s fortune to his charitable foundation and

certain named individuals. 1 Appellants’ initial complaint chronicled several

estate planning documents executed by Pearce from 2000 until his death on

October 12, 2017. 2 The trial court dismissed this complaint, outlining the

pleading deficiencies, including, among others, lack of standing, the

prematurity of counts I and II, and the failure to join indispensable parties.

Thereafter, Appellants filed an amended complaint, raising new

allegations as to Bivins’ paternity, the statute of limitations, and allegations

1

It is important to note that, from 2000 until Pearce’s death, Appellants were

never included as beneficiaries of Pearce’s Trust.

2

The first complaint challenged the Trust and sought the following relief:

Count I – a declaration that a separate writing was invalid; Count II – a

declaration that the 2017 Trust Restatement was invalid due to a lack of a

beneficiary; and Count III – a declaration that the 2017 Trust Restatement

was invalid due to a lack of sufficient mental capacity.

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of equitable estoppel. Also referenced in the amended complaint are

Pearce’s trusts from 2000 to 2017, and the 2017 Trust Restatement, which

was attached as an exhibit. The trial court likewise dismissed the amended

complaint, elaborating even further on the deficiencies in the amended

complaint, specifically, the failure to adequately plead standing and establish

Bivins’ paternity. The court further restated that counts I and II were

premature.

Appellants then filed the second amended complaint, which is the

operative pleading. In this amended complaint, the Appellants addressed

allegations as to standing and the application of the statute of limitations.

The second amended complaint included an additional count, count IV, in

which they alleged that the trust sought to achieve a discriminatory

objective.3

Appellees again sought a dismissal, but this time with prejudice.

Following a hearing, the trial court granted the motion, and entered final

judgment. In doing so, the court noted that as a threshold matter, the second

amended complaint “for the third time, [did] not contain sufficient allegations

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Although count IV was first pled in the second amended complaint, factual

allegations as to Pearce’s racist motives were pled in both the first complaint

and the amended complaint. Said allegations included the claim that Pearce

disinherited Bivins on the account of his having married a woman “of African

American descent.”

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to support [Appellants’] standing to bring the claims alleged.” Specifically,

count III was dismissed on the grounds that Appellants lacked standing to

challenge the 2017 Trust instruments. Counts I, II, and IV were dismissed

for failure to state a cause of action for declaratory relief. In entering final

judgment, the court reasoned that a dismissal “with prejudice” was

appropriate because “further amendments to the Complaint would be futile

given the opportunities already provided to [Appellants] to amend the

Complaint and the Court’s prior rulings regarding the deficiencies in those

pleadings.” This appeal followed.

STANDARD OF REVIEW

“A trial court’s order granting a motion to dismiss is reviewed de novo.”

Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011).

ANALYSIS

Appellants raise three issues, and several sub-issues. As a preliminary

matter, Appellants argue that the trial court erred in considering exhibits

attached to the second amended complaint when ruling on the motion to

dismiss.

The second amended complaint specifically refers to, and attaches,

the 2017 Trust Restatement. Since Appellants’ standing is premised on the

Trust’s contents, the trial court correctly considered the terms of the Trust in

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ruling on the motion to dismiss. See One Call Prop. Servs. Inc. v. Sec. First

Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) (“[W]here the terms of a

legal document are impliedly incorporated by reference into the complaint,

the trial court may consider the contents of the document in ruling on a

motion to dismiss. . .”); see also K.R. Exchange Servs., Inc. v. Fuerst,

Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla. 3d DCA 2010) (stating that

a “court must consider an exhibit attached to the complaint together with the

complaint’s allegations, and the exhibit controls when its language is

inconsistent with the complaint’s allegations”).

I. Standing

This Court reviews orders of dismissal based on lack of standing de

novo. Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 2013).

“Standing is a threshold inquiry that must be addressed before

considering the merits of a cause of action. To have standing, a would-be

litigant must show ‘a direct and articulable interest in the controversy, which

will be affected by the outcome of the litigation.’” Cruz v. Cmty. Bank & Tr. of

Fla., 277 So. 3d 1095, 1097 (Fla. 5th DCA 2019) (quoting Centerstate Bank

Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012)) (internal

citations omitted).

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Appellants contend that the second amended complaint contained

sufficient allegations to establish standing to maintain a declaratory action to

invalidate the Trust. Specifically, Appellants argue they have standing to

contest the Trust because (1) they are Pearce’s intestate heirs; and (2) they

are “interested persons” within the meaning of the Florida Trust Code. We

disagree.

A. Intestate Heirs

Both Bivins and Bivins’s children claim they have standing to contest

Pearce’s Trust because they are Pearce’s intestate heirs.

Bivins

Appellants argue that the mere statement that Bivins is Pearce’s

biological son is sufficient to establish that Bivins is Pearce’s intestate heir.

Appellants further argue that the statute of limitations as to paternity does

not bar Bivins’s claims. Appellants also contend that the “delayed discovery

doctrine” and the doctrine of equitable estoppel bar the application of the

statute of limitations. None of these arguments have merit.

a. Statute of limitations

Bivins claims standing as an intestate heir because he is Pearce’s

biological son, and points to paragraphs 14 and 16 of the second amended

complaint. However, the blanket statement that “Pearce was the biological

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father” of Bivins, without more, fails to establish Pearce’s paternity. See

Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020).

Section 95.11(3)(b) of the Florida Statutes imposes a four-year statute

of limitations on an “action relating to the determination of paternity, with the

time running from the date the child reaches the age of majority.” Thus, in

order to qualify as Pearce’s intestate heir, Bivins would have had to establish

Pearce’s paternity within the time period allowed by the statute of limitations.

Here, the limitations period ran in 1987, i.e., four years after Bivins reached

the age of majority when he turned eighteen years old. Because Bivins failed

to obtain a judicial declaration of paternity within that period. Bivins’s claim

is barred by the statute of limitations. 4

In another effort to circumvent the statute of limitations, Appellants

assert that Bivins was born out of wedlock and that his biological mother and

Pearce participated in a marriage ceremony after his birth. In Appellants’

view, Bivins is Pearce’s descendent. In support of this contention, Appellants

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We disagree with Appellants’ contention that the trial court erred in

considering the statute of limitations in ruling on the motion to dismiss

because it required the court to consider matters outside the four corners of

the complaint. The second amended complaint clearly showed the

applicability of the defense given that it contains allegations as to Bivins’

paternity without reference to a declaration or other proof. See Gen. Motors

Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993).

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cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant

part: “For the purpose of intestate succession . . . a person born out of

wedlock is . . . a descendant of his or her father . . . if: (a) [t]he natural parents

participated in a marriage ceremony before or after the birth of the person

born out of wedlock, even though the attempted marriage is void.”

In making this assertion, Bivens has overlooked the fact that section

732.108(2)(a) requires proof that the marriage was between Bivins’ natural

parents. This would still require a legal determination of paternity. See

Thurston v. Thurston, 777 So. 2d 1001, 1004 (Fla. 1st DCA 2000)

(“[A]lthough section 732.108(2)(a) permits a person born out of wedlock to

establish an intestacy relationship between that person and a man married

to his or her mother, . . . it requires the putative heir to also establish that the

marriage was between his or her natural parents. Under the authority of In

re Estate of Smith, [685 So. 2d 1206 (Fla. 1996)] such a probate proceeding

is a proceeding relating to the determination of paternity to which section

95.11(3)(b) applies.”) (emphasis added)). Thus, Bivins would have had to

prove that Pearce was his biological father to establish an intestacy

relationship to Pearce on the basis of his marriage to Bivins’s mother

pursuant to section 732.108(2)(a). Given that Bivins never obtained such a

declaration from Pearce within the statute of limitations, this argument fails.

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b. Delayed discovery doctrine

The delayed discovery doctrine “generally provides that a cause of

action does not accrue until the plaintiff either knows or reasonably should

have known of the tortious act giving rise to the cause of action.” Hearndon

v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000).

Here, Appellants contend that Pearce made repeated fraudulent

misrepresentations 5 that he was not Bivins’ biological father, and that said

misrepresentations were made until nearly the time of Pearce’s death.

Because of these fraudulent misrepresentations, Appellants claim that the

facts giving rise to this cause of action were only discovered four years ago.

In Appellants’ view, the action to establish paternity is timely, given that the

alleged fraud occurred less than twelve years ago. 6 This argument fails.

The delayed discovery doctrine applies solely to causes of action that

are specified in section 95.031, Florida Statutes, which includes claims of

5

As Appellees correctly noted, fraud must be pled with specificity, and

Appellants failed to assert any cause of action for fraud as part of this suit in

any of their complaints. See Strack v. Fred Rawn Constr., Inc., 908 So. 2d

563, 565 (Fla. 4th DCA 2005).

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Appellants cite to section 95.031(2)(a) for the proposition that “in any event

an action for fraud under s. 95.11(3) must be begun within 12 years after the

date of the commission of the alleged fraud, regardless of the date the fraud

was or should have been discovered.” However, as discussed above,

Appellants never included a claim for fraud in any of the three versions of the

complaint filed below.

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fraud, products liability, professional malpractice, medical malpractice, and

intentional torts based on abuse. See Davis v. Monahan, 832 So. 2d 708,

709–10 (Fla. 2002) (refusing to extend the application of the delayed

discovery doctrine to claims involving breach of fiduciary duty). Given that

Appellants failed to specifically plead a claim for fraud on the part of Pearce,

the delayed discovery doctrine does not serve to bar the application of the

statute of limitations.

c. Equitable estoppel

Appellants next argue that the doctrine of equitable estoppel renders

the statute of limitations inapplicable as to the issue of paternity.

The doctrine of equitable estoppel bars the application of the statute of

limitations defense where an injured party recognized a basis for filing suit,

but was induced to forbear filing suit during the limitations period by the party

who caused the injury. W.D. v. Archdiocese of Miami, Inc., 197 So. 3d 584,

590 (Fla. 4th DCA 2016). The argument here is that Pearce fraudulently

induced Bivins to forego his right to establish paternity by fraudulently

concealing the fact that he was Bivins’ biological father, which Bivins did not

discover until years later.

This argument fails because “equitable estoppel ‘presupposes that the

plaintiff knows of the facts underlying the cause of action but delayed filing

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suit because of the defendant’s conduct.’” Black Diamond Props., Inc. v.

Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) (citations omitted)

(emphasis in original). In other words, Bivins would have had to: (a) be aware

of the right to file a claim for paternity, but (b) then failed to do so because of

Pearce’s fraudulent misrepresentation. First, the second amended complaint

contains no allegations that anyone actively induced Bivins into foregoing

filing a paternity suit. Further, Appellants’ argument centers on the fact that

Bivins did not become aware of the facts underlying this cause of action,

including Pearce’s status as his biological father, until recently given

Pearce’s alleged fraud. The above facts render the doctrine of equitable

estoppel inapplicable.

2. Bivins’ children

Appellants argue that even if Bivins has no standing, his children,

Anabelle, Lorelei, and P.B. still have standing to contest the validity of the

Trust instruments as Pearce’s sole heirs at law.

Because Bivins was alive when Pearce died, and would have been in

a superior class of alleged descendants, Bivens’ children have no standing

and, thus, cannot claim any interest in the Trust. §§ 732.103, 732.104, Fla.

Stat.; Estate of Tim, 180 So. 2d 161, 163 (Fla. 1965) (stating that “to be

‘entitled’ to inherit a share of the estate there must be no other persons of a

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class having a prior right, under the established order of succession, to such

estate”). Given that Bivins’ children do not qualify as intestate heirs, and were

not included as beneficiaries in any of the Trust instruments attached to the

second amended complaint, they cannot challenge the Trust. See Cruz, 277

So. 3d at 1098-99 (Fla. 5th DCA 2019).

B. “Interested Persons”

Appellants alternatively argue that they have standing to invalidate the

Trust because they qualify as “interested persons” under section

731.201(23), Florida Statutes.

Section 731.201(23), Florida Statutes, defines an “interested person”

as: “any person who may reasonably be expected to be affected by the

outcome of the particular proceeding involved. . . .”

Here, Appellants suggest that they will be affected by the outcome of

the litigation because they are the intestate recipients of the Trust corpus

once the assets pass through intestacy upon the invalidation of the Trust. In

so doing, Appellants erroneously equate this case to Richardson v.

Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988), the facts of which are

easily distinguishable. Here, Appellants do not qualify as “interested

persons” because they are not contingent beneficiaries under the Trust as

they were never named beneficiaries in any of the numerous versions of the

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Trust. Additionally, Appellants’ interest in the Trust corpus, if any, has not

already vested, as they do not qualify as contingent beneficiaries. Finally,

even if the Trust instruments were deemed void, Appellants could not inherit

Pearce’s estate through intestacy given Bivins’s failure to establish paternity

within the applicable statute of limitations.

Appellants argue that they should be considered interested persons

because they would inherit Pearce’s estate through intestacy if the Trust

were invalidated. However, the lack of a declaration of paternity rendered

their cause of action barred by the statute of limitations. The Appellants

cannot claim that there is a possibility that they will inherit Pearce’s estate

under a previous will or the law of intestacy.

Consistent with the above, the trial court correctly found that Appellants

lack standing to contest the Trust because they are not “interested persons”

under the Florida Trust Code.

Given that that standing is a threshold matter, and that the Appellants

have failed to establish standing, we need not discuss the remaining

arguments. Accordingly, we affirm the trial court’s order dismissing

Appellants’ second amended complaint with prejudice.

Affirmed.

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