Kathleen Jennings, the Attorney General of the State of Delaware v. Hugh M. Durden, John S. Lord, Thomas G. Kuntz, Terri Kelly, Geoffrey M. Rogers, and Winfred L. Thornton, etc.

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2023-0064

LT Case No. 16-2017-CA-004945

_____________________________

KATHLEEN JENNINGS, THE

ATTORNEY GENERAL OF THE

STATE OF DELAWARE,

Appellant,

v.

HUGH M. DURDEN, JOHN S.

LORD, THOMAS G. KUNTZ, TERRI

KELLY, GEOFFREY M. ROGERS,

and WINIFRED L. THORNTON, as

Trustees under the Last Will

and Testament and Codicils

thereto of Alfred I. duPont,

deceased; THE NEMOURS

FOUNDATION, a not-for-profit

corporation organized under the

laws of Florida; and ASHLEY B.

MOODY, ATTORNEY GENERAL OF

THE STATE OF FLORIDA,

Appellees.

_____________________________

On appeal from the Circuit Court for Duval County.

Marianne L. Aho, Judge.

Kristen M. Fiore, of Akerman LLP, Tallahassee, Amy M. Leitch,

of Akerman LLP, Jacksonville, Gerald B. Cope, Jr., of Akerman

LLP, Miami, Garrett B. Moritz and Elizabeth M. Taylor, of Ross

Aronstam & Moritz LLP, Wilmington, DE, and Christian Douglas

Wright, Deputy Attorney General of Delaware, Wilmington, DE,

for Appellant.

Daniel K. Bean, Jackie Van Laningham, and Stacy A. Scaldo, of

Abel Bean Law, PA, Jacksonville, and James A. McKee and

Heather A. Lee, of Foley & Lardner LLP, Tallahassee, for

Appellees Trustees.

Jonathan Y. Ellis and Mark E. Anderson, of McGuire Woods LLP,

Raleigh, NC, and R. Eric Bilik and Kimberly T. Mydock, of

McGuire Woods LLP, Jacksonville, for Appellee, Nemours

Foundation.

Ashley Moody, Attorney General, and William H. Stafford,

III, Special Counsel for Office of Attorney General, Tallahassee,

for Appellee, Attorney General.

May 31, 2024

PER CURIAM.

This appeal is one in a series among the same parties

regarding the administration of and payments from a charitable

trust. 1 We hold that the trial court erred in finding that Appellant,

the Delaware Attorney General (“DAG”), lacked standing and we

further hold that the trial court erred in dismissing the DAG’s

breach of contract claim against Appellees, Hugh M. Durden, John

S. Lord, Thomas G. Kuntz, Terri Kelly, Geoffrey M. Rogers, and

Winifred L. Thornton, as trustees under the last will and

testament and codicils thereto of Alfred I. duPont, deceased

(“Trustees”), and the Nemours Foundation, a not-for-profit

1 The current appeal was commenced in the First District

Court of Appeal and was transferred to the Fifth District Court of

Appeal on January 1, 2023, based on the realignment of the courts.

2

corporation organized under the laws of Florida. 2 Accordingly, we

reverse the final judgment entered in favor of Appellees and

remand for further proceedings consistent with this opinion.

Because this appeal and the underlying litigation are unlikely to

be the last dispute among and between these parties, we explain

the reasons behind our decisions below.

The above-referenced series of litigated and appealed disputes

between the DAG and Appellees involve, in one way or another,

the charitable trust created by Alfred I. duPont’s will (the “Trust”)

and the charitable foundation, Nemours Foundation, that was

created with funds from the Trust. Mr. duPont was a successful

businessman and investor who lived in Delaware for a great deal

of his life, later moving to Florida. Mr. duPont’s business acumen,

ingenuity, and good fortune resulted in him amassing great

wealth. His success in the business world was matched by his

charitable nature. Thus, in his will, Mr. duPont directed that

money be set aside in a charitable trust to provide medical care for

children and the elderly. 3 Being from Delaware, Mr. duPont

included in his will and in the trust documents specific, clear

direction that the children and elderly of Delaware were to receive

priority and were to be taken care of before expending trust funds

on children or elderly residing elsewhere. Although the focus of

the Trust and the Nemours Foundation was caring for those

2 Appellee, Florida and its Attorney General were not sued in

this case by Delaware; rather, Florida’s Attorney General moved

to intervene as a defendant, which motion was granted.

3 Mr. duPont’s will directed the Trustees to create “a

charitable institution for the care and treatment of crippled

children, but not of incurables, or the care of old men or old women,

and particularly old couples, first consideration, in each instance,

being given to beneficiaries who are residents of Delaware.” The

Nemours Foundation became that entity with its various facilities

providing such care. DuPont noted his “wish that the people of

Delaware needing the care of such institutions shall be properly

provided for before contributions are made to institutions of any

other state or states.”

3

specific Delaware residents, both of those entities were established

and administered in Florida where Mr. duPont had died.

As time went by, there were disagreements about, inter alia,

whether the target residents in Delaware were being accorded

proper priority and whether appropriate amounts of Trust funds

were being expended for their benefit compared to charitable

payments that were being made outside that state. There were

disagreements as to the interpretation of the Trust. Prior

litigation was sometimes initiated by the DAG on behalf of the

children and elderly residents of Delaware who were allegedly

being deprived of all that Mr. duPont had directed that they

receive. The DAG was not involved in every suit concerning the

Trust.

In the suit that resulted in State of Delaware ex rel. Gebelein

v. Florida First National Bank of Jacksonville, 381 So. 2d 1075

(Fla. 1st DCA 1979), the DAG accused the Trustees of not properly

carrying out their duties. Delaware sought legal and equitable

relief. The trial court dismissed the case with prejudice after

concluding that the DAG lacked standing and further finding that

the complaint failed to state a cause of action. The First District

discussed the general rule that the Attorney General of Florida

was the sole litigant entitled to enforce the terms of a charitable

trust and gave compelling reasons for that restriction. Id. at 1077.

However, given the explicit language in the Trust which required

primary and priority consideration of Delaware’s young and old for

receipt of charitable medical care from the Trust, the First District

held that the DAG had standing to sue the trustees because of that

state’s “special interest” as representative of those Delaware

residents. Additionally, the First District held “that the amended

complaint states a cause of action.” Id. at 1078. Accordingly, the

trial court’s order was reversed, and the case remanded for further

action. Id.

Following Gebelein, the litigation resumed but was ultimately

resolved by seeking the trial court’s adoption of a “Stipulation and

Agreement” executed by the parties, which repeated that the

recipients of Delaware are to have priority in terms of spending

from the Trust. In article F(3) of the Stipulation and Agreement,

the Trustees “agree that at no time will more than fifty percent

4

(50%) annually of the funds distributed by the trust to Nemours be

spent outside the State of Delaware” (the “50% Requirement”).

The signatories to the Agreement were the State of Florida, the

State of Delaware, the Trustees of the Alfred I. duPont

Testamentary Trust, and the Nemours Foundation. The

Agreement also acknowledged the role of the DAG in protecting

the rights of the said Delaware beneficiaries of the duPont Trust.

In the litigation underlying this appeal and in its briefs, the

DAG asserts that after honoring the 50% Requirement for decades,

the Trustees “changed their methodology for allocating funds to

Delaware,” with the result that “substantially more than 50% of

the funds distributed by the Trust to Nemours was being spent

outside the State of Delaware.” By the time the instant suit was

filed, there were Nemours hospitals or health care facilities for

children located in Delaware, Florida, Maryland, New Jersey, and

Pennsylvania. The DAG alleged, inter alia, that the Trustees were

expending trust funds in Maryland, New Jersey, and Pennsylvania

which the Trustees then reported as being spent for “Delaware

Operations” in order to facially achieve the requirement that at

least 50% of annual trust allocations had to be devoted to

Delaware. The complaint further asserted that the Trustees used

a portion of trust funds that should have gone directly to Delaware

to instead pay administrative expenses of Nemours facilities

located throughout all five states. The DAG’s complaint alleged

that the Trustees consistently failed to account for the profits and

positive cash flow generated by the Delaware facilities,

presumptively from patient revenues, when reporting what

percentage of the annual Trust allocations were being spent

outside Delaware. The complaint further alleged that the Trustees

were providing inaccurate, misleading financial reports in an

effort to obscure the fact that less than 50% was being spent in

Delaware. 4 According to the complaint, this all amounted to

4 The DAG’s complaint asserts that in 2016 no trust funds

were spent to provide health care services in the state of Delaware.

The Trustees reject that claim and point to the remarkable growth

of the trust fund itself as well as the numerous health care

facilities being operated by Nemours in Delaware for both children

5

diverting trust funds to other states that should have been

expended in Delaware, thereby damaging the needy young and old

residents of Delaware whom duPont had intended to primarily

benefit from his charity.

In simple terms, the DAG’s complaint used the same general

factual allegations set forth as Count I, a breach of contract claim

against Nemours and the Trustees, based on the Trustees not

adhering to the 50% Requirement found in the Agreement, and as

Count II, a claim for breach of trust against only the Trustees,

based on them ignoring the explicit directives of duPont as set

forth in his will and the Trust.

The Nemours Foundation and the Trust successfully moved to

dismiss Count I. They argued that the Agreement was not

enforceable as a contract because it was only a stipulation for entry

of a judgment that was in fact entered. The trial court entered its

written order dismissing this count; however, the order did not

include a statement of reasons for granting the motions to dismiss

Count I. Citing to Gebelein, the trial court denied the motions to

dismiss Count II.

The parties conducted discovery as to Count II during the two

plus years that followed. The Trustees and Florida’s Attorney

General moved for summary judgment arguing once again that the

DAG lacked standing. 5 Nemours filed its joinder in the Trustees’

motion for summary judgment. The trial court, a successor to the

judge who previously denied the motions to dismiss Count II,

granted the motions for summary judgment and ultimately

entered final judgment in favor of Appellees and against the DAG.

The DAG timely appealed. The details of the summary judgment

arguments and the trial court’s rulings will be discussed below

after we analyze the dismissal of Count I, the breach of contract

claim.

and the elderly. We recognize but do not undertake to resolve any

of these factual disputes at this time.

5 Count II only named the Trustees as defendants; however,

Florida and the Nemours Foundation were allowed to intervene as

defendants in order to contest that claim.

6

I. Dismissal of Breach of Contract Claim

First, we address the trial court’s dismissal of Count I, the

breach of contract claim.

The Agreement, executed in 1980 by all the parties to this

litigation, placed specific limitations on the Trustees with regard

to annual spending of trust funds through the Nemours

Foundation outside of Delaware. 6 The Agreement likewise once

again provided for the priority of consideration for those same

Delaware residents over those residing elsewhere. In the 50%

Requirement clause found in Article F(3), “[t]he Trustees agree

that at no time will more than fifty percent (50%) annually of the

funds distributed by the Trust to Nemours be spent outside the

State of Delaware.”

The breach of contract claim, Count I, was terminated by

granting motions to dismiss. “A motion to dismiss for failure to

state a cause of action admits all well-pleaded facts as true, as well

as reasonable inferences that may arise from those facts.”

Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001).

“When considering a motion to dismiss, the trial court must treat

as true all of the complaint’s well-pleaded allegations, and it must

look only to the complaint and its attachments.” Heisel v. City of

Deltona, 328 So. 3d 56, 57 (Fla. 5th DCA 2021).

6 We note our colleague’s dissent to reversing the dismissal of

Count I as to the Nemours Foundation based on the fact that the

Agreement literally placed the duty to comply with the 50%

Requirement only upon the Trustees. The dissent asserts that

because Nemours Foundation did not agree that it would comply

with the 50% Requirement, it cannot be sued for an alleged breach

of a non-existent promise. However, given that Nemours was a

party to the Agreement, that trust allocations were received by

Nemours, which in turn utilized those allocations for non-

Delaware purposes, it is assertedly complicit in the expenditure of

more than 50% of the trust benefits outside Delaware.

Accordingly, we find that the Nemours Foundation cannot escape

responsibility so simply.

7

Florida recognizes settlement agreements that resolve

litigation to be favored and enforceable contracts. The cases relied

upon by the DAG do indeed stand for that proposition. See Robbie

v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (citation

omitted); Hanson v. Maxfield, 23 So. 3d 736, 739 (Fla. 1st DCA

2009) (citations omitted). The Trustees’ argument that it was

intended not as a stand-alone contract, but only as a stipulation

for entry of a judgment, does not vary what was agreed upon nor

by whom it may be enforced. See Paulucci v. Gen. Dynamics Corp.,

842 So. 2d 797 (Fla. 2003). It is fundamental that “(a) stipulation

properly entered into and relating to a matter upon which it is

appropriate to stipulate is binding upon the parties and upon the

Court.” Dorson v. Dorson, 393 So. 2d 632, 633 (Fla. 4th DCA 1981)

(quoting Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1, 4 (Fla.

1971)).

Although the 2017 complaint goes into more detail, an

overview reveals that the DAG alleged that the Trustees were

spending far more than 50% annually of the funds distributed by

the Trust outside of Delaware in contravention of the 50%

Requirement, depriving the needy in Delaware the full measure of

duPont’s intended charity. Thus, the allegations of Count I, taken

as true, are sufficient to support a claim that the Agreement is a

contract between and among the parties, and that the Trustees

have breached the 50% Requirement, which damaged actual and

potential beneficiaries in Delaware. We find that Count I

adequately states a cause of action which is to be resolved through

litigation. Accordingly, we reverse the trial court’s dismissal of

Count I as to both the Trustees and the Nemours Foundation and

remand for further proceedings.

II. Summary Judgment on Breach of Trust Claim

Next, we discuss the summary judgment motions and explain

how the trial court erred in entering summary judgment against

the DAG on Count II, the breach of trust claim.

The primary thrust of Appellees’ motions for summary

judgment was to attack every basis for standing to sue on the part

8

of the DAG. 7 The Trustees point out that under Florida’s Trust

Code, only the Nemours Foundation is a qualified beneficiary and

thus entitled to sue the Trust. See § 736.0110(1), Fla. Stat. (2020).

First, the Trustees argued that neither Delaware as a state nor the

DAG were beneficiaries, much less qualified beneficiaries of the

Trust under the controlling statute; thus, the DAG lacked standing

to sue. Second, Appellees pointed out that the Code provides that

it is the Attorney General of Florida who “may assert the rights of

a qualified beneficiary with respect to a charitable trust having its

principal place of administration in this state.” § 736.0110(3), Fla.

Stat.

Third, Appellees argued that Gebelein was a very old, narrow

outlier of a decision that could not be reconciled with the 2007 and

2017 versions of Florida’s Trust Code. Appellees pointed out in

their summary judgment motions that the First District in

Gebelein initially discussed the general rule that only Florida’s

Attorney General could represent the interests of the beneficiaries

of a charitable trust administered in this state. Appellees asserted

that the First District’s recognition of a common law exception that

would accord standing to a party with a special interest vis-à-vis a

charitable trust was specifically limited to that one case. They

relied on the following language in Gebelein as proof that the

DAG’s standing to litigate matters relating to the Trust was

limited to only that one case: “[w]e therefore . . . hold that the

Attorney General of Delaware has standing to maintain this

action.” Gebelein, 381 So. 2d at 1078 (emphasis in Trustees’

Motion for Summary Judgment). As support for that very limited

application, Appellees asserted that the First District declined to

follow Gebelein in a more recent decision, Biden v. Lord, 147 So. 3d

632 (Fla. 1st DCA 2014), in which the DAG’s attempt to intervene

was rejected by the trial court and upheld on appeal.

7 The Trustees’ motion for summary judgment also urged the

trial court to interpret the meaning of Article F(3) of the

Agreement, the 50% Requirement, in a manner perhaps more

favorable to the Trustees. Having ruled that the DAG lacked

standing, it denied that portion of the motion as moot.

9

Appellees further argued against the DAG’s standing being

based on Gebelein by asserting that the First District had failed to

recognize in its decision that to permit the DAG to sue in place of

Florida’s Attorney General would somehow violate the separation

of powers between at least two, if not all three, branches of

Florida’s government. The Trustees in their motion for summary

judgment questioned the continued viability of Gebelein. Florida’s

Attorney General went further in its motion and argued that

Gebelein was so flawed in its reasoning, lacking in analysis, limited

in application, and outdated by revisions to Florida’s Trust Code,

that the trial court should refuse to follow it.

The trial court adopted each argument advanced by Appellees

and granted their motions for summary judgment. However, it

erred in so doing.

First, the trial court rejected that the Agreement conferred

standing upon the DAG. It found the statement that the DAG was

the proper representative of the people of Delaware was only in a

“whereas clause” which the court described as inessential to the

Agreement. It further rejected the Agreement as supporting the

DAG’s standing, stating that standing could not be conferred by

consent. In reaching those conclusions, the trial court ignored the

parties’ agreement and the fact that the Agreement had been

adopted and incorporated into a judgment by a court of competent

jurisdiction. This was error.

Next, the trial court analyzed whether the DAG could have

standing consistent with the revisions to Florida’s Trust Code. The

trial court concluded that under the revised Code, suit could be

brought against a charitable trust only by: (1) the qualified

beneficiaries of the charitable trust; (2) its trustees; (3) the settlor;

and (4) Florida’s Attorney General. We need not analyze these

findings because Gebelein employed a common law rule which

provides a solid basis for the DAG to have standing in this type of

suit involving this Trust. As noted by the DAG and conceded by

Appellees, Florida’s Trust Code provides that “[t]he common law

of trusts and principles of equity supplement this code, except to

the extent modified by this code or another law of this state.” §

736.0106, Fla. Stat. The Trustees’ separation of powers argument

likewise fails given the application of the common law special

10

interest doctrine which supplements the statutory list of those who

may sue a charitable trust. Thus, unless there is some reason to

ignore Gebelein, that was the applicable law.

We find that the special interest doctrine discussed and relied

upon in Gebelein to afford standing to the DAG in a suit involving

this Trust and the issues at hand makes imminent sense and has

a sound legal basis. Accordingly, we agree with and adopt the

reasoning of Gebelein to that extent. Courts should avoid overly-

literal application or “interpretation [of text] that would result in

an absurd or ridiculous conclusion.” M.D. v. State, 993 So. 2d 1061,

1063 (Fla. 1st DCA 2008). We find absurd the Appellees’ and trial

court’s statement that Gebelein cannot be applied to any other case

because the First District announced that it held “that the

Attorney General of Delaware has standing to maintain this

action.” Gebelein, 381 So. 2d at 1078 (emphasis added by both

Appellees and the trial court in its order). Almost every appellate

decision directly concerns only a single case. However, the

principles of law announced in one opinion by a district court are

to be applied by trial courts within the district to substantially

similar situations. It is noteworthy that the trial court was unable

to support that unreasonably narrow reading with any authority

whatsoever.

The trial court essentially proceeded as though it had the

power to overturn the First District’s decision in Gebelein. It

announced that the case was wrongly decided for each of the

reasons argued by Appellees and the trial court refused to follow

Gebelein despite the fact that it was issued by the district court of

appeal then having jurisdiction over that trial court. 8

First, the trial court ruled that Gebelein had been legislatively

overruled by adoption of Florida’s revised trust code. Granted,

changes to Florida’s trust code post-Gebelein removed Florida’s

state attorneys from having authority or responsibility for

8 When summary judgment was granted, the Fourth Circuit

was within the First District. When the district courts of appeal

were realigned effective January 1, 2023, the Fourth Circuit

became part of the Fifth District.

11

enforcing the terms of charitable trusts, vesting that instead in

Florida’s Attorney General. See Ch. 2017-155, § 5, Laws of Fla.;

§ 736.0110(3), Fla. Stat. (2023). However, the Trust Code did not

address, much less eliminate, standing for those who have a

special interest. The DAG’s reliance upon Thornber v. City of Fort

Walton Beach, 568 So. 2d 914 (Fla. 1990), is appropriate and

persuasive. “The presumption is that no change in the common

law is intended unless the statute is explicit and clear in that

respect.” Id. at 918. Had the Legislature intended to recede from

Gebelein, specifically, or the special interest doctrine, generally,

when revising the Trust Code, it certainly could have by so stating.

And, the Legislature has previously demonstrated its willingness

to explicitly overrule specific cases. See Ch. 2011-215, § 2, Laws of

Fla. (explicitly overruling D’Amario v. Ford Motor Co., 806 So. 2d

424 (Fla. 2001)). Thus, summary judgment in favor of Appellees

cannot rest on that non-existent foundation.

The trial court next suggested that the First District, while

not explicitly overruling Gebelein, refused to extend it to the

circumstances in Biden v. Lord, 147 So. 3d 632. However, Biden

dealt with a far different situation than that presented in Gebelein

or the instant litigation. In Biden, the DAG had not attempted to

commence a new suit or even to simply intervene in an ongoing

case. Rather, it attempted to re-open matters that had gone to

judgment eight years earlier. Id. at 637. The First District upheld

the trial court’s denial of the DAG’s post-judgment motion to

intervene. Id. at 634. In so doing, the First District agreed with

the trial court’s assessment that in that case, the DAG was not an

indispensable party. Id. at 635. Thus, the issues in Biden were

not whether the DAG had standing but rather, whether its initial

absence from the suit was fatal to the outcome, and whether the

DAG had waited too long to join the litigation. Those are indeed

different issues than found in Gebelein; thus, the ruling in Biden

in no way can be viewed as receding from or limiting Gebelein.

It is clear then that Gebelein was neither legislatively nor

judicially overruled. Despite its best efforts, the trial court was

powerless to overrule those decisions. While a trial court may

certainly question the soundness of a district court of appeal’s

decision, it clearly has no authority to do anything other than

follow those decisions which are on point. As argued by the DAG,

12

when the governing district court has decided an issue, the trial

courts within that district are required to follow its decision.

Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992); see State v. Hayes,

333 So. 2d 51, 53 (Fla. 4th DCA 1976).

We further observe that, as to the standing of the DAG when

suing the Trust and Nemours Foundation regarding the

expenditure of trust funds in accordance with the 50%

Requirement and general trust administration, relitigating that

issue is precluded by the doctrine of collateral estoppel as having

previously been litigated between the same parties and judicially

determined. State v. McBride, 848 So. 2d 287, 290–91 (Fla. 2003).

The only standing-related issue not previously litigated is whether

the Legislature’s amendment of the Trust Code impacted the

standing of the DAG; thus, it was fair game. Nevertheless, for the

reasons stated above, we hold that the amendment does not impact

the standing of any party to the action.

Thus, the trial court erred in finding that the DAG lacked

standing and by granting summary judgment on that basis.

Conclusion

We find that the trial court reversibly erred in dismissing the

DAG’s breach of contract claim alleging breach of the Agreement

which had been executed by and between the same litigants. For

the reasons set forth above, we hold that the trial court was

powerless to ignore Gebelein which was, at that time, directly

binding precedent that the trial court was obliged to follow. We

hereby adopt the reasoning of Gebelein that the Attorney General

of Delaware has standing in this duPont Trust litigation because

of the special interest doctrine discussed above.

We remand for further proceedings in accord with this

opinion.

REVERSED.

HARRIS, J., concurs;

MAKAR, J., concurs in result only, with opinion;

EDWARDS, C.J., concurs in part and dissents in part, with opinion.

13

Case No. 5D2023-0064

Lt. Case No. 16-2017-CA-004945

MAKAR, J., concurring in result.

At issue is the enforcement of a settlement agreement entered

in 1980 by the Attorneys General of Delaware and Florida with a

testamentary trust and foundation established pursuant to the

will of Alfred I. duPont, a member of one of the wealthiest and most

philanthropic families in American history. Despite long-standing

precedent explicitly allowing the Attorney General of Delaware to

enforce the settlement agreement on behalf of Delaware

beneficiaries, the trial court ruled that Delaware lacked standing

to do so, overturning a decision of the First District Court of Appeal

that is directly on point, a case involving the same parties and the

enforcement of the same settlement agreement. What follows is a

brief history of the trust litigation and the 1980 settlement

agreement that has undergirded more than four decades of the

duPont financial legacy; after that is the explanation of why the

trial court’s ruling, which barred Delaware’s lawsuit, was

erroneous.

I.

A. DuPont’s Will

DuPont was born in 1864 in Delaware where he spent most of

his life in business before moving to Jacksonville, Florida, at age

62 in 1926, with his third wife, Jessie Ball duPont, a retired

teacher who became instrumental in his business dealings and

their philanthropic activities.

Prior to his death in 1935, duPont’s endeavors shaped much

of Jacksonville’s business, civic, and charitable history, resulting

in the operation of important institutions such as Florida National

Bank and the construction of prominent architectural icons such

as Epping Forest, a 58-acre riverfront estate that served as Jessie

Ball duPont’s home until her death in 1970. DuPont’s business

interests spanned the Florida panhandle as well, resulting in the

acquisition of tens of thousands of acres of timberland, the

establishment of the St. Joe Paper Company, and the development

14

of highway infrastructure to service the region that continues to

this day (U.S. Routes 98, 90, and 17).

DuPont—in tandem with his wife, Jessie—wanted to do good

things with the enormous wealth they controlled. In his will,

duPont said:

[I]t has been my firm conviction throughout life

that it is the duty of every one [sic] in this world

to do what is within his power to alleviate

human suffering. . . . It is, therefore, natural

that I should desire, after having made proper

provision for the immediate members of my

family and the others whom I have seen fit to

remember, that the remaining portion of my

estate be utilized for charitable needs.

To fulfill his testamentary vision, duPont’s will created a trust to

fund a

charitable institution for the care and treatment

of crippled children, but not of incurables, or the

care of old men or old women, and particularly

old couples, first consideration, in each instance,

being given to beneficiaries who are residents of

Delaware, the one or more of which said

charitable purposes, however, being left to the

decision of my said Trustees[.]

The will provided that “the people of Delaware needing the care of

such institutions shall be properly provided for before

contributions are made to institutions of any other state or

states[.]” Neither Florida nor its residents are mentioned in the

will as beneficiaries.

Pursuant to duPont’s will, the Alfred I. duPont Testamentary

Trust was created. The Trust was operated much like other major

businesses with vast financial and physical assets: it continued to

manage holdings in the banking industry, its paper/box production

facilities and timberlands, and other sizable companies. For

example, it acquired the Florida East Coast Railway as a major

15

strategic transportation asset. The Trust administered the

individual legacies, bequests, and annuities specified in duPont’s

will, which would be gradually fulfilled, resulting in a surplus of

assets and funds over time.

B. The Trust and Nemours Foundation

In 1936, this residual portion of duPont’s assets was placed in

a perpetual trust named the Nemours Foundation, 9 which

henceforth grew dramatically, supporting the humanitarian

purposes that duPont and his wife envisioned. She served as a

trustee of the Trust and a member of the Nemours Foundation

directorship; her brother, Edward Ball, was involved in all aspects

of the duPont business operations as he was duPont’s close friend

and his “right hand man” in all business dealings.

To promote duPont’s vision of caring for children with physical

disabilities and establishing medical research programs, the

Nemours Foundation created the Alfred I. duPont Institute, based

in Wilmington, Delaware, where construction of a major health

care facility and pediatric orthopedic hospital began in 1939.

Expansion of facilities and programs in Delaware continued for

decades, resulting in one of the largest pediatric health care

systems in the country.

During the 1940s, the Nemours Foundation expanded its

outreach within Florida and decided to partially fund the work of

the Florida Crippled Children’s Commission as well as dozens of

other pediatric care organizations in the State. Decades later, the

Institute made even greater strides, deciding to transform and

broaden its mission by purchasing a children’s hospital in

Jacksonville, Florida, in 1981. A decade later, the Nemours

Children’s Clinic—a pediatric health care facility and hospital—

was opened in Jacksonville. Facilities in Orlando and Pensacola

9 “The name ‘Nemours’ was part of the family name and the

name of the 300-acre and ‘mansion house’ where Mr. and Mrs.

duPont lived when in Wilmington, Delaware.” The Estate of Alfred

I. duPont and the Nemours Foundation 9 (Est. of Alfred I. duPont

1974).

16

were established, creating an increasingly statewide pediatric

health care presence in Florida.

For decades, the Trust and Nemours Foundation thrived

financially, resulting in the expansion of pediatric facilities in

Delaware and support for services in Florida; both states were

desirous of additional pediatric facilities and services. After Jessie

Ball duPont’s death, however, controversy arose over the

management and financial dealings of the Trust and the Nemours

Foundation, eventually resulting in litigation in Florida state

courts over the enforcement of the terms of duPont’s will,

specifically the provisions regarding the Trust’s and the Nemours

Foundation’s responsibilities to provide for the care of the only

beneficiaries specified, i.e., children and the elderly who are

Delaware residents.

C. Gebelein I

A legal flashpoint—involving the same parties to this

litigation—arose in the late 1970s when the then-Attorney

General of Delaware, Richard S. Gebelein, 10 sued the Trust and

the Nemours Foundation for serious alleged managerial and

financial improprieties.

Delaware filed a complaint against the

trustees of the duPont Trust as trustees and as

members, officers and directors of the Nemours

Foundation, and against certain of the trustees

individually. The complaint sought injunctive

relief, the removal of some of the trustees, the

appointment of a temporary trustee, surcharges

and other relief.

State of Del. ex rel. Gebelein v. Fla. First Nat’l Bank of Jacksonville,

381 So. 2d 1075, 1076 (Fla. 1st DCA 1979) (Gebelein I). The basis

for Delaware’s standing and lawsuit was grounded in the language

of duPont’s will, which gave “first consideration” to beneficiaries

10 Gebelein was Delaware’s Attorney General from 1979 to

1983.

17

who are Delaware residents. As was explained by the First District

in 1979:

Under the terms of the trust, after Mrs. duPont’s

death, the net income of the trust was to be paid

over “at convenient intervals” to the Nemours

Foundation “for the purpose of maintaining

‘Nemours’ as a charitable institution for the care

and treatment of crippled children, but not of

incurables, or the care of old men or old women,

and particularly old couples, first consideration,

in each instance, being given to beneficiaries who

are residents of Delaware. . . .”

Id. at 1076 (emphasis added) (quoting Item 9 in duPont’s will).

Similarly, Item 10 in duPont’s will specified that “surplus income

may from time to time” be used to contribute to “other worthy

charitable institutions” for pediatric and geriatric care, but that it

was his “wish that the people of Delaware needing the care of such

institutions shall be properly provided for before contributions are

made to institutions of any other state or states.”

Unlike Delaware, no other state—including Florida—was

mentioned as having resident beneficiaries. Like all other states,

Florida’s residents might be eligible for pediatric and geriatric

services or facilities, but only if Delaware beneficiaries were

“properly provided for” in the first instance.

The State of Delaware, on behalf of its resident beneficiaries,

sought to enforce duPont’s testamentary intent. Delaware’s initial

complaint was dismissed without prejudice for failure to state a

cause of action, resulting in the filing of a multi-count amended

complaint alleging numerous improprieties.

Count I of the amended complaint seeks judicial

construction of the trust provisions pursuant to

Section 737.201, Florida Statutes (1977), and

asks the court to declare among other things

that the charitable purpose of the duPont Trust

has been defeated. Count II alleges continuing

violations of Section 738.12, Florida Statutes

18

(1977), from 1970 to the present by the trustees

holding unproductive assets, specifically the

stock in St. Joe Paper Company and shares of

Florida National Bank of Florida, Inc. Count III

alleges the Trustees’ failure to administer the

trust diligently for the benefit of the

beneficiaries. Count IV alleges conflicts of

interest in violation of Section 737.403, Florida

Statutes (1977). Count V charges the trustees

with willfully subverting the intent of the

duPont Trust by refusing the Board of Managers

of Nemours’ requests for funds when the money

is available. Count VI alleges additional

wrongful acts of the trustees in order to obtain

control of the trust. Count VII alleges that the

beneficiaries are suffering irreparable harm as a

result of the alleged mismanagement of the

trust.

Id. at 1076–77. Florida’s then-Attorney General, Robert L.

Shevin, 11 filed an amicus brief in support of Delaware, arguing

that denying a state’s attorney general the legal standing to

vindicate the interests of those “specifically identified as the

primary beneficiaries of a charitable trust simply because that

trust is administered in another state, would severely inhibit the

attorney general’s ability to fulfill the fiduciary duty imposed upon

him by Anglo-American jurisprudence as early as the sixteenth

century.” (Emphasis added). The amicus brief was joined by

twenty-nine other states. 12

11 Shevin served as Florida’s Attorney General from 1971 to

1979. He was succeeded by Jim Smith, who served from 1979 to

1987.

12 Those states were Alabama, Alaska, Arkansas, California,

Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland,

Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New

Hampshire, North Carolina, North Dakota, Ohio, Oregon,

Pennsylvania, Rhode Island, South Carolina, Utah, Washington,

West Virginia, Wisconsin and included state attorneys’ generals,

one who became a U.S. Supreme Court Associate Justice (David

19

The amended complaint was dismissed as well, this time with

prejudice, such that no further amendment was allowed. The trial

court’s rationale was that Delaware did not have the requisite

legal standing to bring suit and that the counts alleged in its

amended complaint did not state any recognized causes of action.

Id. at 1077. Delaware appealed.

The First District reversed, saying the “first question to be

resolved by this appeal is whether Delaware has standing to

maintain a suit against the duPont trustees.” Id. The appellate

court detailed the legal arguments:

Delaware contends that the Attorney

General of Delaware, as the lawful

representative of Delaware beneficiaries, has

standing to maintain a suit to enforce a

charitable trust where the trust specifies that

the primary beneficiaries are to be residents of

Delaware. The Trustees argue that the

beneficiaries of a charitable trust have no

standing to bring an action to enforce the trust

and that only the Attorney General of Florida or

a trustee of the trust has the right to enforce

charitable trusts being administered in Florida,

unless the trust instrument or the Florida

Legislature provides otherwise.

Id. (footnote omitted). The court noted that the trustees were not

united in their opposition to Delaware’s position. 13

Souter), a U.S. President (Bill Clinton), a U.S. Attorney General

(John Ashcroft), a U.S. Senator (Slade Gorton), and Francis X.

Bellotti of First National Bank of Boston v. Bellotti fame.

13 Four Trustees as well as the Florida First National Bank of

Jacksonville, Jacksonville National Bank, and the Nemours

Foundation opposed Delaware, but “Trustee Dent filed a separate

brief supporting Delaware’s standing to bring suit.” Gebelein I, 381

So. 2d at 1077 n.1.

20

The First District rejected the Trust’s and Nemours

Foundation’s position, recognizing the importance of the role of

state attorneys general in the enforcement of charitable trusts.

As a general rule, only the Attorney

General may enforce a charitable trust. Unlike

a private trust, where there are identifiable

beneficiaries who are the equitable owners of the

trust property, the beneficiaries of a charitable

trust are the public at large. Whereas

beneficiaries of a private trust have the power to

maintain a suit to enforce the trust, the public

must act through some public official to

maintain such a suit.

Id. It explained why—according to a prominent treatise—the

power to enforce a charitable trust is generally placed in a public

official, typically a state attorney general.

“The purpose of vesting in some public

official such as the Attorney General the

exclusive power to begin proceedings to enforce

charitable trusts is obvious. The persons

affected by such trusts are usually some or all of

the members of a large and shifting class of the

public. If any member of this class who deemed

himself qualified might begin suit, the trustee

would frequently be subjected to unreasonable

and vexatious litigation. Often no given

individual can prove that he will necessarily

benefit from the charity. All may be prospective

or possible beneficiaries, but no one can be said

to be a certain recipient of aid. In ultimate

analysis it is the public at large which benefits,

and not merely the individuals directly assisted.

Obviously, there is good reason for vesting in a

single authority the discretion and power

incident to the enforcement of such trusts,

rather than in leaving the matter to the

numerous, changing, and uncertain members of

the group directly to be aided.”

21

Id. (quoting Bogert, Trusts and Trustees § 411 (rev. 2d ed. 1977)).

The appellate court noted, however, that “it has been

recognized that an entity other than the Attorney General can be a

proper party to bring suit to enforce a charitable trust.” Gebelein I,

381 So. 2d at 1077 (emphasis added). Based on this established

principle, standing to sue extended to not only the trustees but also

to any person or organization with a special interest in or special

status under the trust. Id. (“Trustees have been permitted to bring

suit against co-trustees, and persons or organizations having a

special interest in a trust or a special status under a trust

instrument are considered to have standing to enforce the trust.”

(citing three prominent treatises)). In addition, the court noted

that under Florida law “a party alleging a special interest, an

interest beyond that general interest possessed by the public at

large, has standing to bring suit.” Id. at 1077–78.

Allowing standing and proper party status to trustees and

others with a special interest or status in a charitable trust is

consistent with the principle of restricting the reach of standing to

enforce charitable trusts.

The reason for requiring a special interest is the

same reason for the general rule that only the

Attorney General may bring suit to enforce a

charitable trust:

If it were otherwise there would be no end

to potential litigation against a given defendant,

whether he be a public official or otherwise,

brought by individuals or residents, all

possessed by the same general interest[.]

Id. at 1078 (citation omitted). In other words, to avoid having too

many cooks in the kitchen, access is limited to only those with

demonstrably special and specific needs.

In applying these principles to the controversy between

Delaware and the Trust and Nemours Foundation, the First

District sided with Delaware, holding that it has the requisite

22

special interest on behalf of Delaware beneficiaries to have

standing.

We believe that the people of Delaware have

a special interest in the enforcement of the

duPont Trust. The terms of the trust give the

people of Delaware a special status not enjoyed

by the public at large. The Attorney General of

Delaware represents the people of Delaware and

is the proper party to bring suit on their behalf.

We therefore reverse the trial court and hold

that the Attorney General of Delaware has

standing to maintain this action.

Id. (emphases added). The appellate court also held that Delaware

had stated causes of action against the defendants including the

failure “to administer the trust for the benefit of the beneficiaries”

that Delaware represented.

As such, the court in Gebelein I rejected the view that only the

Florida Attorney General had standing to sue to enforce the

duPont charitable trust; instead, both Attorneys General had

standing, the former as the Florida official charged with

overseeing charitable trusts, the latter as the Delaware official

with a special interest in enforcement of the duPont trust on behalf

of Delaware beneficiaries who have a special status that the

general public lacks.

D. The 1980 Settlement Agreement

On remand, the parties litigated Delaware’s claims,

ultimately entering a settlement agreement dated January 17,

1980. The eleven-page document was titled “Stipulation and

Agreement between the State of Florida, the State of Delaware,

the Trustees of the Alfred I. duPont Testamentary Trust and the

Nemours Foundation” (“Settlement Agreement”). The agreement

stated that Delaware Attorney General Gebelein “is the

representative of the Delaware charitable beneficiaries of the

Alfred I. duPont Testamentary Trust and of The Nemours

Foundation, and as head of the Department of Justice of the State

of Delaware is charged with protecting the rights of the said

23

Delaware beneficiaries.” Based on this special interest and status,

Delaware was a direct signatory and party to the agreement and

allowed to intervene in a related lawsuit involving the Trust.

The Settlement Agreement set forth the terms and conditions

to which the parties had agreed including valuation of trust assets

for 1978, 1979, and “for years subsequent to 1979,” as well as many

provisions related to ensuring that the interests of Delaware

beneficiaries were met on an ongoing basis. For instance, the

trustees “agree[d] that they will broaden the scope and nature of

services presently being offered at the Alfred I. duPont Hospital at

Wilmington, Delaware, contingent upon the availability of

necessary funds.” The Nemours Foundation was required to

“communicate to every hospital in the State of Delaware its

willingness and intention to treat every” afflicted child in

Delaware without regard to the ability to pay (but expecting those

who can pay will do so). A contingency reserve of $225,000,000 was

established to ensure the ongoing operation of hospital facilities

located on the Nemours estate in Delaware.

Of importance, the agreement resolved the contentious issue

of the amount of trust funds that could be expended other than in

Delaware, which was the only state whose residents were named

as beneficiaries in duPont’s will. The agreement emphasized what

duPont clearly required in his will: that “first consideration” for

each distribution from the Trust “be given to the beneficiaries who

are residents in Delaware.”

To resolve the matter, the parties to the Settlement

Agreement established a fixed percentage for the distribution of

funds in the future. The agreement specified that the duPont

trustees “agree that at no time will more than fifty percent (50%)

annually of the funds distributed by the Trust to Nemours be spent

outside the State of Delaware.” Under this “50% requirement,” if

the Trust distributed $100 million of funds annually, no more than

$50 million could be distributed in states other than Delaware. The

Trust could, of course, decide to spend the entire $100 million in

Delaware, but it could not distribute $75 million in Florida and

$25 million in Delaware; the latter would be a breach of the

agreement the parties—which included the Trust—had reached.

24

Notably, the Settlement Agreement explicitly contemplated

potential future litigation of its terms and conditions by the

parties. Under the section entitled “Implementation of the

Agreement,” it specifically stated that:

The Attorney General of Florida, the

Attorney General of Delaware, and the State

Attorney for the Fourth Judicial Circuit of

Florida, while continuing to closely observe the

operations and activities of the Trust will desist

from filing any new litigation, relating to the

subject matter of this agreement, as long as the

Trustees comply with this Agreement.

(Emphasis added). Although the state and local officials were to

avoid filing any new litigation on matters resolved in the

agreement, the highlighted language clearly allowed for litigation

by the state or local officials if a failure to “comply with this

Agreement” were to occur. The Settlement Agreement did not

prohibit new litigation involving any newly discovered

improprieties that adversely impacted Delaware beneficiaries.

E. Litigation Under the Settlement Agreement

Litigation arose soon thereafter because the trustees failed to

comply with the Settlement Agreement. As the First District

stated in State of Delaware ex rel. Oberly v. Belin: 14

This litigation commenced in 1981 when the

Attorneys General of Delaware and Florida

alleged that the trustees had violated a 1980

settlement agreement. That settlement

agreement was entered into after a previous

action was filed by the State of Delaware. In that

case, the trial court had dismissed the Delaware

Attorney General’s complaint partly based on a

conclusion that the Attorney General for the

State of Delaware did not have standing to bring

14 Oberly was the Attorney General of Delaware from 1983 to

1995.

25

the suit. That conclusion was reversed by this

court in [Gebelein I], 381 So.2d 1075 (Fla. 1st

DCA 1979). This court found that the people of

Delaware had a special interest in the

enforcement of the trust, and that the Attorney

General of Delaware was the proper party to

represent the people of that state. After [the]

decision in [Gebelein I], the parties entered into

the above referenced settlement agreement.

453 So. 2d 1177, 1177–78 (Fla. 1st DCA 1984). The appellate court

continued, noting that the Attorney General of Delaware had

prevailed in its lawsuit to enforce the Settlement Agreement by

proving a massive undervaluation of trust assets.

The outcome of the current action, which was

based on alleged breaches of the settlement

agreement, was a finding that the trustees had

been undervaluing the fair market value of the

trust’s principal asset by approximately

$164,000,000. This finding resulted in a

requirement that approximately $5,000,000 in

additional income be paid to the beneficiaries.

Id. at 1178. As indicated, the undervaluation resulted in $5 million

of remedial income to be paid to the beneficiaries of the Trust.

Because of its “protracted quest to protect the special interests of

the Delaware beneficiaries,” the Delaware Attorney General

sought to recover attorneys’ fees that it had paid for Florida

counsel, which the trial court denied.

On appeal, the legal question was whether Delaware was

entitled to recover its attorneys’ fees because its attorney general

was representing Delaware beneficiaries with a special interest

rather than the public at large. In rejecting Delaware’s argument,

the First District first recounted that the trustees had taken the

position that

the Attorney General of the State of Florida was

the only proper party. However, that contention

was rejected by this court in [Gebelein I]. In that

26

case, this court held that the Attorney General

of the State of Delaware was also a proper party

because he was representing a special interest of

the people of Delaware, in that the trust

particularly provides that first consideration be

given to beneficiaries . . . who are residents of

Delaware.

Id. The First District thereby, once again, reiterated that the

Attorney General of Delaware was a proper party to enforce the

Settlement Agreement at issue. The court nonetheless declined to

award attorneys’ fees because it determined that the Delaware

Attorney General’s representation of Delaware beneficiaries was

part and parcel of what attorneys general do: represent the public

in charitable trust matters as well as those with a special interest

who are unable to represent themselves, such as the children and

elderly in this case. Id. at 1179.

Additional litigation to enforce the Settlement Agreement

occurred, though not in favor of Delaware and Florida. In State of

Delaware ex rel. Gebelein v. Belin, 456 So. 2d 1237, 1238 (Fla. 1st

DCA 1984) (Gebelein II), the Attorneys General of Delaware and

Florida sued the Trust claiming that it had violated the prudent

trustee rule and breached the Settlement Agreement. The trial

court ruled in the Trust’s favor and the First District affirmed.

The appellate court reemphasized the history of the parties’

prior litigation, noting that the lawsuit at issue was based on

enforcement of the terms of the Settlement Agreement as well as

the failure of trustees to abide by standards applicable to prudent

investments and avoiding conflicts of interest that violated

trustees’ fiduciary duties. Gebelein II, 456 So. 2d at 1239–40. It

noted that after execution of the Settlement Agreement, Delaware

“charged a breach of the Stipulation and Settlement Agreement by

the Trustees’ failure to make a fair market valuation of the St. Joe

stock” and “by the Trustees’ failure to raise Trust income above 3

percent of the total value of the Trust corpus.” Id. at 1239. Other

claims were asserted, but all were eventually denied by the trial

court, the appellate court affirming that “no breach of the

agreement” occurred as to the Trustees’ “working to raise the

productivity of the Trust” Id.

27

Similarly, in Smith v. Belin, 456 So. 2d 1242 (Fla. 1st DCA

1984), the Attorneys General of Florida (Smith) and Delaware

(Oberly) challenged a joint venture between the Trust and the

Florida East Coast Railway. The trial court approved the joint

venture (though it was abandoned during litigation), and the First

District rejected the Attorneys Generals’ arguments that the

trustees were not acting in furtherance of a duty to raise the

productivity of the trust. Id. at 1243 & n.1. As such, litigation over

the trust and the terms of the Settlement Agreement has

continued sporadically for decades, oftentimes with the

involvement of the Attorneys General of Delaware and Florida and

sometimes without one or the other. See Biden v. Lord, 147 So. 3d

632, 635 (Fla. 1st DCA 2014) (recounting history of litigation).

F. Litigation Under the Settlement Agreement – 2017

With this historical backdrop of long-standing and protracted

litigation against the Trust and the Nemours Foundation by the

Attorneys General of Delaware and Florida involving the

Settlement Agreement, it came as no surprise that similar

litigation—involving the identical parties to those in the Gebelein

cases—arose once again. In April 2017, Delaware Attorney

General Matthew Denn 15 sued the Trust and Nemours Foundation

on behalf of the Delaware beneficiaries, claiming breaches of the

Settlement Agreement and breaches of trust/fiduciary duties.

These claims were styled as a breach of contract (i.e., the

Settlement Agreement) (Count I) and a breach of trust (i.e., a

breach of the trust’s requirement that Delaware residents must

receive “first consideration” and be properly provided for before

trust distributions are made to any other states) (Count II). The

State of Florida was not named as a party but was notified

immediately of the lawsuit via a courtesy copy from Delaware and

thereafter intervened unopposed.

15 Denn served as Delaware Attorney General from 2015 until

2019 when Delaware’s current Attorney General, Katherine

Jennings, substituted for him in the lawsuit.

28

The lawsuit focuses on how the Trust and Nemours classified

and utilized patient revenues (which were in the hundreds of

millions of dollars annually) and the vast infusions of trust funds

to bolster the deteriorating financial condition of a new Nemours

hospital in Central Florida. The gist of the lawsuit is that these

actions resulted in a major deviation from the 50% Requirement in

the Settlement Agreement (i.e., that no more than fifty percent of

trust distributions could be to states other than Delaware). Stated

differently, disproportionate trust distributions to Florida

operations breached the requisite 50% allocation in the Settlement

Agreement as well as trustees’ duties to Delaware beneficiaries.

In September 2017, the Trust moved to dismiss the lawsuit,

joined by Florida; Nemours also moved to dismiss. The trial judge

at the time dismissed Count I (breach of contract) without a

written explanation but allowed Count II (breach of trust duties)

to proceed under the Gebelein I precedent.

In January 2021, after resolution of premature appeals from

the dismissal order, 16 the Trust and Florida filed motions for

summary judgment arguing that Delaware lacked standing and

similar arguments previously made in their motions to dismiss.

They argued that the Gebelein I decision, which governed the

parties’ relationship since 1979, was no longer binding precedent

for three reasons: the Florida trust code had changed in recent

years, the First District in the Biden decision had altered that

decision, and Gebelein I was wrongly decided. Delaware countered

that Gebelein I remained binding precedent, nothing in the Florida

trust code or the Biden case altered that decision, and Delaware

continued to have standing and the right to enforce the Settlement

16 Delaware appealed the dismissal of Count I to the First

District (which was dismissed before it was briefed and without

reaching the merits). See Denn v. Durden, Case No. 1D18-2705.

The Trust filed a petition for writ of certiorari to that same court,

claiming error in the failure to dismiss Count II. The petition for

writ of certiorari was briefed and argued but was also dismissed

without reaching the merits. See Durden v. Jennings, 262 So. 3d

697, 697 (Fla. 1st DCA 2019).

29

Agreement on behalf of Delaware beneficiaries under the special

interest/status doctrine.

In a thirty-five-page order dated November 16, 2021, the trial

judge (who substituted after the initial judge’s retirement) granted

summary final judgment for the Trustees and Florida, adopting

their arguments in their entirety, 17 ruling that Gebelein I was no

longer binding precedent or otherwise applicable to the long-

standing relationship and responsibilities set forth in the parties’

1980 Settlement Agreement. It concluded that Gebelein I’s holding,

which specifically granted standing to the Delaware Attorney

General, was limited to just that case and no others; it also held

that Gebelein I was wrongly decided on separation of powers

grounds, concluding that the First District in Gebelein I “lacked

subject matter jurisdiction to allow the Delaware AG to maintain

his action, in his official capacity, for breach of a Florida trust.”

Delaware appealed to the First District and briefing was complete

as of December 2022; the case was thereafter transferred to the

Fifth District on January 1, 2023.

II.

On appeal, Delaware raises two related issues. The first issue

is whether the trial court erred in dismissing Count I, which

asserted a breach of the Settlement Agreement. Delaware claims

the Settlement Agreement is a binding and enforceable contract,

incorporated into an enforceable judgment, that has been routinely

enforced in the past. The Trust counters that the Settlement

Agreement is not enforceable as a contract; instead, the Settlement

Agreement’s only purpose was to modify the Trustees’ duties via

the judgment that was entered. The second issue is whether the

trial court erred in dismissing Count II, which asserted breaches

of the Trust’s duties to the Delaware beneficiaries. Delaware

claims that the trial court erred in overruling the First District’s

decision in Gebelein I, which remains binding precedent. The Trust

claims, however, that Gebelein I has been tacitly overruled by

changes in Florida’s trust code and, in any event, was incorrectly

17 At the conclusion of the hearing on the motion for summary

judgment, the trial judge requested that the parties submit

proposed orders for the court’s consideration.

30

decided on separation of powers grounds. As next discussed,

Delaware’s positions are the correct ones.

A. Enforcement of the Settlement Agreement (Count I).

Based upon well-established principles of Florida law,

Delaware’s position—that the trial court erred in dismissing the

breach of contract claim in Count I because the 1980 Settlement

Agreement is a binding and enforceable contract—is correct. It was

erroneous for the trial court to dismiss Count I because it clearly

states a breach of contract claim for violations of the Settlement

Agreement; 18 that it was incorporated into a court judgment does

not make it any less enforceable. This conclusion is bolstered by

the fact that litigation enforcing the Settlement Agreement has

previously occurred without objection as confirmed by precedent

involving the same settlement agreement and the same parties in

this case.

This Court and others universally hold that “[s]ettlement

agreements are highly favored and once entered, are binding upon

the parties and the courts.” Crosby Forrest Prods., Inc. v. Byers,

623 So. 2d 565, 567 (Fla. 5th DCA 1993). It is well-established that

although “a settlement agreement may be the basis upon which a

judgment may be entered, it is also a contract between the parties,

the enforceability of which is governed by the laws of contract.”

Patel v. Ashco Enters., Inc., 711 So. 2d 239, 240 (Fla. 5th DCA

1998) (emphasis added); see also Gallagher v. Dupont, 918 So. 2d

342, 347 (Fla. 5th DCA 2005) (same). Likewise, the Florida

Supreme Court has held that,

when a court incorporates a settlement

agreement into a final judgment or approves a

18 Nemours’s motion to dismiss Delaware’s breach of contract

claim mirrored that of the Trust (i.e., that no enforceable

agreement exists), but also claimed Nemours had no legal

obligation under the 1980 Agreement to comply with the 50%

requirement. The dismissal order did not address this latter claim,

and Nemours has only argued the former point on appeal. Count I

states a claim for breach of contract against Nemours, whose scope

of contractual obligations is indeterminate at this juncture.

31

settlement agreement by order and retains

jurisdiction to enforce its terms, the court has

the jurisdiction to enforce the terms of the

settlement agreement even if the terms are

outside the scope of the remedy sought in the

original pleadings.

Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003).

Remedy may be sought in the court that approved the settlement

agreement or, alternatively, if a party seeks a remedy not specified

in the settlement agreement, the “appropriate action would be to

file a separate lawsuit.” Id. What matters most is that the terms

of the settlement agreement are enforceable as a contract.

In this regard, the Settlement Agreement is—and has been

since its inclusion in the 1980 final judgment—a binding and

judicially enforceable contract to which the identical parties in this

case agreed and which has governed their relationships since that

time. The parties—Delaware’s Attorney General, Florida’s

Attorney General, the Trust, and Nemours—negotiated and then

entered the Settlement Agreement “in consideration of the mutual

promises and covenants contained” therein. All the elements of a

judicially enforceable contract exist; distinctions in nomenclature

are irrelevant because the Settlement Agreement is clearly a

contract that bound and continues to bind the parties.

The Settlement Agreement establishes the standing of the

Delaware Attorney General, as the representative of the Delaware

charitable beneficiaries of the Trust, to protect their rights. The

First District has twice made this point abundantly clear. In

Gebelein I, it established that Delaware has standing to sue; in

Gebelein II, it upheld litigation enforcing the Settlement

Agreement. It is beyond reasonable dispute that the Settlement

Agreement is and continues to be a legally binding and enforceable

agreement.

Indeed, the Settlement Agreement clearly states that future

litigation by the parties over its enforcement and other Trust-

related concerns was anticipated. The Settlement Agreement says

the Attorney General of Delaware and the local state attorney were

to “closely observe the operations and activities of the Trust” and

32

“will desist from filing any new litigation, relating to the subject

matter of this agreement, as long as the Trustees comply with this

Agreement.” (Emphasis added). The explicit language of the

Settlement Agreement, confirmed by the highlighted language,

makes clear that the Attorney General of Delaware and the local

state attorney were not to initiate “any new litigation” unless the

Trustees did not “comply with this Agreement.” In other words, the

Settlement Agreement specifically intended that the Attorney

General of Delaware was empowered to pursue litigation to enforce

its terms against the Trustees if non-compliance were to occur. The

only reasonable construction of this language is that the

Settlement Agreement created duties and obligations that are

enforceable by the “Attorney General of Delaware,” who has

standing to do so.

The Trustees argue that the 1980 Settlement Agreement was

never intended to be an independently binding contract; instead,

it was entered into by the parties solely for the trial court to

judicially amend the Trust with the settlement terms. They

contend the agreement was only entered for this limited purpose

and “not as an independently significant agreement with ongoing

enforcement rights.” Similarly, Nemours argues that the plain

language of the 1980 Settlement Agreement reflected that the

parties expressly intended for the terms modifying the trust to be

implemented through a judgment and that by itself, without the

adoption of the judgment modifying the terms of the trust, the

1980 Settlement Agreement is unenforceable.

Neither the text nor the history of litigation under the

Settlement Agreement supports these arguments. The parties to

the Settlement Agreement agreed “that the terms of this

agreement shall become the subject of a judicial order, or final

judgment to be entered pursuant to the decision of Circuit Court

Judge . . ., as soon as is reasonably possible[.]” This language in no

way limits the judgment’s enforcement; it would require rewriting

the Settlement Agreement and injecting new language to achieve

the interpretation the Trust and Nemours advance. For example,

the Settlement Agreement could have been written to say that the

“parties agree that the terms of this agreement shall be the subject

of a final judgment solely for the purposes of modifying the Trust’s

terms; neither this agreement nor its incorporation into a final

33

judgment creates any enforceable rights by the parties.” But no

such limitations were included. To the contrary, the Settlement

Agreement explicitly envisioned and empowered the enforcement

of its terms: the parties were to stand down and not litigate the

“subject matter of this agreement, as long as the Trustees comply

with this Agreement.” Succinctly stated: If the Trustees don’t

comply, they get sued. The agreement itself thereby contradicts

the position taken by Trust and Nemours; moreover, the history of

litigation under the Settlement Agreement belies their position.

See, e.g., Gebelein II, 456 So. 2d at 1238.

Notably, the inclusion of a settlement agreement in a final

judgment can serve multiple purposes. It may be done to amend a

trust’s terms, but it is also a means of enforcing the newly revised

terms of the trust. Nothing logically or legally precludes a final

judgment from doing both, i.e., chewing gum and walking at the

same time. The Settlement Agreement, once judicially approved

and made part of the Trust, was enforceable as a contract as First

District precedent and the history of litigation under the

Settlement Agreement demonstrate.

Additionally, the parties also agreed that the Settlement

Agreement would be filed in each of the other cases that were then

pending before the trial court, “for consideration and the

determination of any issues pending therein.” Delaware was also

allowed to intervene in a related lawsuit involving the Trust.

These provisions support that the Settlement Agreement was no

mere one-time modification of the terms of the Trust’s terms.

Rather, it was an independent contractually enforceable

agreement that governed the ongoing relationship of the parties in

both the Gebelein litigation and beyond. 19

19 As discussed below, a legislative change to an existing

contract may result in a breach of the constitutional protection in

the Contract Clause against governmental interference with

private agreements, as conceded at oral argument.

34

B. Gebelein I is Binding Precedent

Next, Delaware argues that the trial court erred in holding

that Gebelein I had been overruled, was wrongly decided, and must

be limited to only that specific case without future application. It

asserts that by overruling Gebelein I, the trial court wrongfully

strips Delaware of its vested rights to safeguard the interests of its

children and elderly under the trust as beneficiaries of the duPont

will. As the next sections explain, each of the purported grounds

for jettisoning Gebelein I as it applies to the identical parties and

claims in this successor case are insupportable.

1. Stare Decisis

The importance of stare decisis in our judicial system cannot

be overemphasized. It bears noting at the outset that the first trial

judge declined to dismiss Count II of Delaware’s complaint,

concluding that Gebelein I was binding precedent thereby allowing

Delaware to pursue its breach of trust claims. It is unsurprising

that dismissal was declined. That’s because the decision in

Gebelein I is a commanding precedent, the reddest of red cow

cases, 20 as it is identical in every material respect to this litigation:

same parties, same trust, same claim for relief. The sanctity of a

judicial precedent is at its most critical point when it involves the

identical parties who have placed reliance on its stability and

enforceability, in this case for over four decades.

Plus, it is not a trial court’s prerogative to deviate from

appellate precedent. See Pardo v. State, 596 So. 2d 665, 667 (Fla.

1992) (citation omitted) (“[I]f the district court of the district in

which the trial court is located has decided the issue, the trial court

is bound to follow it.” (emphasis added)). 21 Here, the trial court was

20 Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1390 (11th

Cir. 1993) (“The term ‘red cow’ is used in some legal circles,

particularly in Florida, to describe a case that is directly on point,

a commanding precedent.”).

21 The trial court, situated in the Fourth Circuit, was required

to follow Gebelein I, a First District precedent. The recent

realignment of the district courts of appeal, which now places the

35

required to follow Gebelein I and its progeny. That’s because “a

trial court may not overrule or recede from the controlling decision

of a district court.” Sys. Components Corp. v. Fla. Dep’t of Transp.,

14 So. 3d 967, 973 n.4 (Fla. 2009).

For example, in System Components, the trial court refused to

follow a precedent of the Fourth District based on the Department

of Transportation’s argument that it had a constitutional duty to

not accept a decision of an appellate court that “had erroneously

‘legislated’ and thereby exceeded its authority.” Id. at 973; see also

Sys. Components Corp. v. Dep’t of Transp., 985 So. 2d 687, 689 n.3

(Fla. 5th DCA 2008) (noting the trial court’s failure to follow

precedent with which it expressed disagreement and attempted to

distinguish). The supreme court agreed with the Fifth District,

which had concluded “that FDOT’s contentions in this regard were

totally improper” and that the trial court erred in failing to apply

precedent with which it disagreed. Sys. Components, 14 So. 3d at

973 n.4.

Under principles of stare decisis, the trial court was required

to follow Gebelein I. Doing otherwise in this case would negate the

underlying foundation upon which the parties themselves built

their ongoing relationship. Courts exist to ensure the stability of

enforceable rights including those reached in settlement

agreements; absent judicial enforcement, settlement agreements

serve little purpose. The high bar of stare decisis cannot be easily

vaulted lest confidence in the judicial branch is lessened; this

principle is particularly applicable in cases involving property and

contract rights where reliance interests are at their zenith. Payne

v. Tennessee, 501 U.S. 808, 828 (1991) (“Considerations in favor of

stare decisis are at their acme in cases involving property and

contract rights, where reliance interests are involved.”); State v.

Poole, 297 So. 3d 487, 507 (Fla. 2020) (citing Payne). Just as a

district court of appeal must follow supreme court precedent, so too

must a trial court follow district court precedent to promote

stability and certainty. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.

1973) (“To allow a District Court of Appeal to overrule controlling

precedent of this Court would be to create chaos and uncertainty

Fourth Circuit within this Court’s jurisdiction, occurred on

January 1, 2023, after this case had been fully briefed.

36

in the judicial forum, particularly at the trial level.”). The next

sections demonstrate why it was erroneous for the trial court to

conclude that Gebelein I and its progeny were no longer binding

precedents.

2. Florida Trust Code/Special Interest Doctrine

Adopting the Trustees’ position, the trial court held that

changes to Florida’s trust code implicitly overruled Gebelein I and

made Florida’s attorney general the sole and exclusive public

official nationwide to act on behalf of public trust beneficiaries

regardless of where they live, thereby tacitly abandoning the

special interest doctrine. Both conclusions are legally erroneous.

First of all, a trial court must follow precedent unless it has

been overruled by our supreme court, an appellate court en banc

recedes from the precedent, or the legislature has clearly

expressed disapproval of a precedent by a later statutory

enactment. See, e.g., Wood v. Fraser, 677 So. 2d 15, 18–19 (Fla. 2d

DCA 1996). No clearly expressed legislative disapproval exists for

overruling Gebelein I or the special interest doctrine.

At most, changes to Florida’s trust code merely made Florida’s

attorney general the exclusive Florida public official vested with

standing to enforce a charitable trust under the Code. Prior to its

revision, the Code stated that a local state attorney had the

authority to do so; that authority no longer exists. Ch. 2017-155, §

5, Laws of Fla. The Legislature eliminated the role of local state

attorneys, placing that authority with the Florida Attorney

General, making her the sole Florida official with charitable trust

responsibilities. § 736.0110(3), Fla. Stat. (2023). The Code states

that “[t]he Attorney General may assert the rights of a qualified

beneficiary with respect to a charitable trust” and “has standing to

assert such rights in any judicial proceedings.” Id.

The Code does not state that only the Florida Attorney

General may vindicate rights with respect to a charitable trust

involving out-of-state beneficiaries; had the Legislature intended

such a result, it could have said so, but it has not. The Legislature

clearly intended to eliminate the official role of state attorneys and

shift those responsibilities to the Florida Attorney General, but no

37

statutory language supports such a major change in the law as the

renunciation of the special interest doctrine. Neither the

legislation nor its history supports that the Legislature intended

to overturn the established legal principle that those with a special

interest or status in a trust are proper parties and have standing

to vindicate their rights. Just as courts don’t overrule precedent

silently, the Legislature does not jettison a long-standing common

law doctrine with nary a whisper of its intent to do so. Puryear v.

State, 810 So. 2d 901, 905 (Fla. 2002) (“We take this opportunity

to expressly state that this Court does not intentionally overrule

itself sub silentio.”).

The trial court also claimed that section 736.0405(3), Florida

Statutes, must be read to exclude persons or entities with a special

interest in a public trust. But the statute merely says that the

“settlor of a charitable trust, among others, has standing to enforce

the trust.” Id. § 736.0405(3) (emphasis added). Far from an

exclusion, the highlighted language emphasizes that the

legislature recognized that “others” may have standing as well.

Indeed, the United States District Court for the Northern District

of Florida explicitly relied on this language—as well as Gebelein

I—in ruling that an individual who financially contributed to,

restored, and enhanced a foundation’s “primary asset—the

plantation—and his central role in carrying out the Foundation’s

‘principal public charitable activity[,]’” had “adequately alleged a

‘special interest’ in the Foundation.” Milton v. Milligan, No.

4:12cv384-RH/CAS, 2013 WL 828607, at *4 (N.D. Fla. Mar. 5,

2013).

The Trust and Nemours argue that amendments to the Code

impliedly changed the law, making the Florida Attorney General

the exclusive protector of all beneficiaries nationwide and

repealing the common law special interest doctrine. But implied

repeals of caselaw and established common law legal doctrines are

disfavored, much like implied repeals of statutes are disfavored.

Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1035 (Fla. 2001) (stating

that the general rule “is that implied repeals are not favored and

will not be upheld in doubtful cases”); Sweet v. Josephson, 173 So.

2d 444, 446 (Fla. 1965) (reiterating that “it goes without saying

that repeals by implication are not favored”); State v. Collier Cnty.,

171 So. 2d 890, 892 (Fla. 1965) (same). That’s true where—as

38

here—nothing supports such a radical change in well-established

common law. Not a single word in the trust code or its legislative

history establishes an intent to overrule the common law principle

that persons and entities with a special interest or status in a

charitable trust are proper parties with standing to litigate. To the

contrary, the trust code states that the “common law of trusts and

principles of equity supplement this code,” unless the Code or other

Florida law has modified the common law. § 736.0106, Fla. Stat.

(entitled “Common law of trusts; principles of equity”).

The Trust argues as a policy matter that the special interest

doctrine is “outdated” and that Gebelein I ought to be overturned.

To begin, it is hard to imagine a more entrenched and well-

established doctrine than the consideration of whether a plaintiff

has a special interest or injury, and thereby standing, to initiate

and pursue litigation; it’s a test used in many contexts—such as

tax, zoning, public nuisance, and statutory challenges 22—and

includes enforcement of charitable trusts where it is the prevailing

standard. See generally 14 C.J.S. Charities § 64 (2023) (“Generally,

a person with a special interest, which is an interest beyond the

general interest possessed by the public at large, has standing to

sue to enforce a charitable trust.” (footnotes omitted)). In the public

trust context, the doctrine was memorialized over sixty years ago

in a leading treatise on the law of trusts. Restatement (Second) of

Trusts § 391 (Am. Law Inst. 1959) (“A suit can be maintained for

the enforcement of a charitable trust by the Attorney General or

22 See Fla. Home Builders Ass’n v. Dep’t of Lab. & Emp. Sec.,

412 So. 2d 351, 352 (Fla. 1982); see also Sch. Bd. of Volusia Cnty.

v. Clayton, 691 So. 2d 1066, 1068 (Fla. 1997) (“The requirement

that a taxpayer seeking standing allege a ‘special injury’ or a

‘constitutional challenge’ is consistent with long established

precedent.”); U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9,

12–13 (Fla. 1974) (adhering to “the concept of special injury in

determining standing,” which applies the well settled standard

that a plaintiff’s injury must differ in kind or degree from that

suffered by the community generally); Rickman v. Whitehurst, 74

So. 205, 207 (Fla. 1917) (establishing the so-called Rickman Rule

which states that a person who shows “special damage to his

individual interests, distinct from that of every other inhabitant,”

has standing to maintain an action).

39

other public officer, or by a co-trustee, or by a person who has a

special interest in the enforcement of the charitable trust, but not

by persons who have no special interest[.]”).

As in other contexts, the reason that a plaintiff must have a

special interest or injury in the enforcement of a charitable trust

is to prevent “persons having no special interest different from that

of the general public” from doing so. See 14 C.J.S. Charities § 64

(“The purpose of precluding members of the public from enforcing

charitable trusts is to protect the trustees from frequent suits

based on cursory investigation and brought by irresponsible

parties.” (footnote omitted)). Because the special interest doctrine

is so ingrained in standing analysis and has undergirded the basis

for the enforcement of charitable trusts for generations in Florida

and elsewhere, it is a particularly ill-suited candidate for the

exercise of judicial power to overturn it.

In addition, the position that attorneys general should not

have standing to litigate on behalf of beneficiaries specified in an

out-of-state trust is a complete turn of the wheel from the Florida

Attorney General’s amicus brief in Gebelein I, which supported

Delaware’s “standing” to “bring an action in [the circuit court] on

behalf of the Delaware beneficiaries of the Trust created under the

will of Alfred I. duPont.” Noting the “ancient origins” of the

authority of state attorneys general to institute litigation on behalf

of public trust beneficiaries, the Florida amicus brief stated:

To deny an attorney general the ability to

vindicate the interests of those beneficiaries

where they are specifically identified as the

primary beneficiaries of a charitable trust

simply because that trust is administered in

another state, would severely inhibit the

attorney general’s ability to fulfill the fiduciary

duty imposed upon him by Anglo-American

jurisprudence as early as the sixteenth century.

It would also leave the beneficiaries without the

representation which they have the right to

expect the Attorney General to provide.

40

(Emphasis added). As the highlighted language indicates, it is

essential that state attorneys general have standing due to their

special interest in protecting public trust beneficiaries from their

home states in the courts of other states.

The Trust’s policy argument would thwart this principle,

which has traditionally been exercised by Florida’s Attorney

General 23 and others. It is also at odds with a statute they rely

upon, which says that the Florida Attorney General “may assert

the rights of a qualified beneficiary with respect to a charitable

trust” and “has standing to assert such rights in any judicial

proceedings.” § 736.0110(3), Fla. Stat. (emphasis added). The

highlighted language does not limit standing to just Florida courts

but to judicial proceedings generally, which could be in other

states. Thus, the claim that a “foreign” attorney general must be

prevented from enforcement of a public trust in Florida is not well

taken; indeed, the history of the duPont Trust litigation in Florida

courts, done jointly and cooperatively by the Attorneys General of

Florida and Delaware, belie this claim.

Finally, the trial court concluded that the language conferring

standing in Gebelein I was only meant to be applied one-time on a

limited basis in that case alone. It pointed to the language in

Gebelein I that states: “[w]e . . . hold that the Attorney General of

23 As First District Judge Clay Roberts said at oral argument

in an interlocutory appeal in this case, “When I was Deputy

Attorney General we always took the position that the Florida

Attorney General had the authority to go basically anyplace on the

planet and intervene on any case where citizens of the State of

Florida had an interest on their behalf. So, does the Attorney

General not feel like that anymore?” Oral argument at 9:00,

Durden v. Jennings, Case No. 1D18-2894 (Fla. 1st DCA Jan. 8,

2019) FIRST DISTRICT COURT OF APPEAL, https://1dca.flcourts.gov/

(follow “Oral Arguments” hyperlink; then follow “Oral Argument

Video Archives” hyperlink; then search “18-2894”; then follow

“18-2894” hyperlink). Of course, an attorney general’s office may

change its litigation position as a matter of policy, but such a

change does not change a state’s organic law or its judicial

precedent.

41

Delaware has standing to maintain this action.” According to the

trial court, this highlighted language meant “it was not bound to

follow [Gebelein I] in this case.” This misreading of the highlighted

language overlooks that Gebelein I was followed and relied upon in

other cases. See Gebelein II. The First District, in State of Delaware

ex rel. Oberly v. Belin, also confirmed that the Attorney General of

Delaware was the proper party to represent the children and

elderly of Delaware as beneficiaries of the Trust. 453 So. 2d at

1179.

3. Biden Is Inapplicable

Next, Nemours and the Trustees argue that the First District

decision in Biden v. Lord 24 supports the trial court’s decision to

depart from Gebelein I. This argument overlooks the

fundamental principle announced long ago by

our Florida Supreme Court that “[f]or one case

to have the effect of overruling another, the

same questions must be involved; they must be

affected by a like set of facts and a conclusion

must be reached in hopeless conflict with that in

the former case.”

State ex rel. Garland v. City of W. Palm Beach, 193 So. 297, 298

(1940); see Lee v. Williams, 711 So. 2d 57, 59 n.4 (Fla. 5th DCA

1998) (same) (quoting Garland). No “hopeless” conflict exists.

Instead, the Biden case is easily distinguishable because it

merely held that the trial court’s denial of Delaware’s attempt to

intervene in the trial court twelve years post-judgment was not an

abuse of discretion. In Biden, the Trustees filed an action in 2004

to modify the trust resulting in a final judgment that redefined

“crippled children” and “required the Trustees to distribute three

percent of the fair market value of the Trust every year, even if

such distribution required taking part of the principal.” Biden, 147

So. 3d at 635. Eight years later, the Delaware Attorney General

24 Joseph Robinette “Beau” Biden III served as Attorney

General of Delaware from 2007 to 2015, passing on shortly after

the expiration of his second term.

42

moved to intervene as an indispensable party and set aside the

2004 final judgment, but the trial court denied the motion finding

that Delaware was not an indispensable party and that existing

parties would be injured by the intervention. Id. The First

District’s holding in Biden dealt with whether the trial court

abused its discretion in denying the motion to intervene at such a

late date; the decision did not address Delaware’s standing or

make any binding determination contrary to Gebelein I. No

conflict, let alone a “hopeless” conflict, exists between Biden and

Gebelein I, which remains binding precedent.

In fact, the panel’s analysis in Biden confirms that Delaware’s

Attorney General continues to have standing. See id. at 636. The

panel noted that “the Delaware Attorney General has a separate

action pending in the circuit court concerning the Trust.” Id. It

concluded that “[i]t would be more appropriate for the Delaware

Attorney General to seek modification of the Trust in that

proceeding rather than attempting to invalidate a judgment that

has been final for eight years.” Id. The panel thereby reaffirmed

that the Delaware Attorney General had standing in that separate

action, one in which she could seek a modification of the Trust; it

clearly had no intention to overrule Gebelein I or its progeny.

Moreover, it is well-established that a three-judge panel lacks

judicial power to overrule a prior decision of its own court; an en

banc decision of the court is necessary to do so. In re Rule 9.331,

416 So. 2d 1127, 1128 (Fla. 1982) (noting that intra-district conflict

should be resolved by the district courts of appeal sitting en banc

and expecting a district court of appeal panel of judges “confronted

with precedent with which it disagrees” to suggest an en banc

hearing). In reliance on supreme court precedent, the Second

District has held that:

absent an en banc opinion expressly receding

from a point of law announced in previous

opinions of this court, a trial court should not

rely on the expressions of a three-judge panel as

a basis to conclude that a previous opinion of

another three-judge panel no longer carries the

force of law.

43

Wood, 677 So. 2d at 18. Based on this principle, the panel in Biden

had no judicial authority to overrule Gebelein I or any other

precedent involving the Delaware Attorney General’s standing,

the Settlement Agreement’s enforceability, or the Trust’s

responsibilities. Not only did it not overrule precedent, but the

panel in Biden was powerless to do so. Gebelein I and its progeny

remain binding precedent.

4. Gebelein I does not violate separation of powers

Finally, the trial court held that Gebelein I was wrongly

decided from the start, essentially void from its inception on

separation of powers grounds, an argument not made in that case

and first raised in this litigation. The premise underlying this

conclusion is that the First District in Gebelein I was overriding

the authority of Florida’s attorney general, who—it is contended—

had then, and continues to have now, exclusive authority to

represent the rights of all beneficiaries of a public trust no matter

where they live.

The problems with this argument are many. First, the Florida

Attorney General did not make a separation of powers argument

in Gebelein I. To the contrary, he, along with twenty-nine states,

argued exactly the contrary—that every state’s attorney general

has the standing and authority to appear and vindicate the

interests of its home state beneficiaries of a charitable trust even

if the trust is administered in another state. Second, this policy

position—that only the Florida Attorney General may engage in

litigation on behalf of all beneficiaries—is of recent vintage. It

overlooks that the application of the common law special interest

doctrine, which does not infringe on the Florida Attorney General’s

powers; it simply allows those with a special interest or status to

intervene on a limited basis. As such, neither Gebelein I nor the

special interest doctrine violates separation of powers principles.

Instead, they simply apply the common law special interest

doctrine, which no court nor the legislature has discredited or

overturned. § 736.0106, Fla. Stat. (common law supplements the

Florida trust code).

A potential separation of powers problem does exist in this

case. If Delaware is powerless to pursue a breach of the Settlement

44

Agreement, as the Trust and State urge, that would amount to a

violation of the contract clauses of the federal and state

constitutions by voiding those prior agreements. The Settlement

Agreement is a binding and enforceable contract that has formed

the basis for the relationship between the parties in this litigation.

The trial court essentially nullified the contract by its ruling,

overturning Gebelein I and the special interest doctrine. Even if

Gebelein I were now overturned legislatively, it doesn’t affect the

established and enforceable rights upon which that litigation was

based; judicially nullifying them would be, as is conceded, a

constitutional violation.

Finally, the claim that Delaware’s attorney general cannot

represent Delaware beneficiaries because they are no longer

defined as “beneficiaries under the Florida Trust Code” misses the

point that they are public trust beneficiaries under duPont’s will

who, by judicial precedent and agreement of the parties, is

represented by Delaware. In this regard, Nemours asserts that

granting Delaware standing in this case would “pose grave

separation-of-powers concerns by overriding the Florida

Legislature’s statutory design and frustrating the Florida

[Attorney General’s] constitutional and statutory authority.” To

overturn an equitably litigated and amicably resolved case—one

memorialized in the Settlement Agreement—would itself be a

separation of powers violation. See Bush v. Schiavo, 885 So. 2d 321,

331 (Fla. 2004) (concluding that an executive order that

“effectively reversed a properly rendered final judgment . . .

constituted an unconstitutional encroachment on the power that

has been reserved for the independent judiciary”).

III.

Gebelein I was a commanding precedent of the First District

that was binding on the parties and the trial court. No valid reason

existed for the trial court to depart from the decision’s long-

standing principles and holding, particularly in a case that

involves the same parties, agreement, and issues. Gebelein I

remains binding precedent and has ongoing application to the

parties to the Settlement Agreement. In conclusion, the trial court

erred in dismissing Delaware’s breach of contract claim, which was

based on enforcement of the Settlement Agreement that formed

45

the now over-four-decades-old relationship between the same

parties: the Attorneys General of Delaware and Florida, the Trust,

and Nemours. It was also erroneous to deny Delaware the ability

to continue to pursue its breach of trust claim by representing

Delaware beneficiaries, which was and continues to be its right

under Gebelein I. The merits of Delaware’s claims are entitled to

be heard and fairly litigated.

Epilogue

A few months after oral argument in March 2023, the

foregoing opinion, with the most minor of edits, was prepared to

resolve this case. It thoroughly recounts factually and legally the

momentous legacy of the duPont family in Florida and the

significance of the lengthy history underlying the decades of legal

skirmishes over literally billions of dollars between the affected

parties; it also emphasizes the history of the 1980 Settlement

Agreement and its ongoing importance, now in its fifth decade. A

case of this magnitude merits a detailed opinion whose scope and

detail reflects this deeply rooted history, recognizes its impact on

the medical and charitable communities in Florida and Delaware,

and preserves the testamentary intent of Alfred I. duPont and the

rule of law. Because the per curiam opinion is an abridgement of

this opinion, I concur in the result now reached, albeit a year later

than should have occurred.

46

Case No. 5D2023-0064

LT Case No. 16-2017-CA-004945

EDWARDS, C.J., concurring in part and dissenting in part.

I concur entirely with the majority’s reasoning and holding

that Delaware’s Attorney General has standing to pursue its

claims against the Trustees.

However, I must respectfully dissent with regard to the

majority’s decision to reinstate Delaware’s breach of contract count

(Count I) against the Nemours Foundation based upon its alleged

violation of the 50% Requirement. That requirement is found only

in article F(3) of the Agreement, which reads as follows: “(3) The

Trustees agree that at no time will more than fifty percent (50%)

annually of the funds distributed by the Trust to Nemours be spent

outside the State of Delaware.” By its plain language, only the

Trustees specifically agreed to abide by the 50% requirement.

Nemours, while a party to the Agreement, did not undertake that

obligation.

“Settlements, of course are governed by the rules for

interpretation of contracts.” Robbie v. City of Miami, 469 So. 2d

1384, 1385 (Fla. 1985). We are guided in the construction of

contracts by the “‘supremacy-of-text principle,’ which means that

‘[t]he words of a governing text are of paramount concern, and

what they convey, in their context, is what the text means.’” Fla.

Farm Bureau Gen. Ins. v. Worrell, 359 So. 3d 890, 892 (Fla. 5th

DCA 2023) (quoting Ham v. Portfolio Recovery Assocs., LLC, 308

So. 3d 942, 946–47 (Fla. 2020)). We are not free to place a

contractual obligation on Nemours that cannot be found in the

Agreement. It is not our task to determine why the Agreement

was drafted as it was; likewise, it is not within our power to rewrite

the forty-four-year-old document. Saha v. Aetna Cas. & Sur. Co.,

427 So. 2d 316, 317 (Fla. 5th DCA 1983).

I further dissent to reversal of Count I, the breach of contract

claim, as to both the Trustees and Nemours Foundation for an

additional reason. A charitable trust whose settlor has died cannot

be revised or amended by simple agreement of litigants even if that

47

agreement is in writing. Rather, judicial approval in the nature of

a judgment is required. The parties to this appeal have previously

resorted to judicial declarations when they found it appropriate to

seek amendment, revision, or clarification of the Trust. 25 If

judicial approval were not necessary, then why did the parties in

this case present the stipulation and agreement to the circuit court

for its approval and adoption into a final judgment?

Indeed, in Biden v. Lord, 147 So. 3d 632, 636 (Fla. 2014), the

First District instructed the DAG that if it wished to seek

modification of the Trust, it should do so in an already pending,

separate action rather than by tardy intervention. If judicial

adoption of an agreement to modify a charitable trust were not

required, it is submitted that the First District would not have

given that direction. Given that the parties were powerless to vary

the terms of the Trust by simple execution of the Agreement,

pursuit of a contract action is futile. I express no opinion on

whether the DAG could pursue enforcement of the judgment that

recognized and adopted the Agreement as that is not before our

Court.

Thus, I respectfully dissent to reversing the order dismissing

Count I, the breach of contract claim.

25 See Ball v. Nichols, Case No. 71-7001 (Fla. 4th Cir. Ct.

1971), clarifying priority of Delaware residents; Belin v. Shorstein,

Case No. 93-02502-CA (Fla. 4th Cir. Ct. 1993), resulting in final

judgments in 1993, later amended in 1996 and 2002 relating to the

number of Trustees and their compensation; Lord v. Shorstein,

Case No. 16-2004-CA-007960 (Fla. 4th Cir. Ct. 2004), resulting in

final judgment defining or redefining “crippled children,”

expanding services to include preventative care, and clarifying the

organization and governance of the Nemours Foundation.

48

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

49