Dray v. Duffner Shendell

       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 20, 2019.
         Not final until disposition of timely filed motion for rehearing.

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                               No. 3D18-0723
                         Lower Tribunal No. 14-21638
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                            S. Patrick Dray, etc.,
                                    Appellant,

                                        vs.

                   Tamar Duffner Shendell, etc., et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.

      Friedman & Frost, P.L. and Paul D. Friedman and Alexander A. Salinas, for
appellant.

      Shendell & Associates, and Lawrence A. Shendell (Deerfield Beach); The
Haralson Law Firm, P.A., and Paul Haralson, for appellees.


Before FERNANDEZ, LINDSEY, and MILLER, JJ.

      MILLER, J.
      As the undisputed record evidence presented below firmly established that

the now-deceased settlor, who sought rescission of an irrevocable trust, was subject

to no coercion, fraud, misrepresentation, overreaching, or undue influence in his

execution of the trust documents, and the essential elements of unilateral mistake

failed, the trial court properly granted summary judgment in favor of appellees.

See Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 

(Fla. 5th DCA 1985) (“[A] party who voluntarily executes a document . . . is bound

by its terms in the absence of coercion, duress, fraud in the inducement or some

other independent ground justifying rescission.”); see also Duncan Props., Inc. v.

Key Largo Ocean View, Inc., 

 (Fla. 3d DCA 1978)

(“Generally, in order to sustain an action for rescission, one must allege grounds

amounting to fraud, misrepresentation, overreaching or undue influence.”) (citing

Richard Bertram & Co. v. Barrett, 

 (Fla. 1st DCA 1963)); DePrince

v. Starboard Cruise Servs., Inc., 

 (Fla. 3d DCA Aug. 1,

2018) (en banc) (“A contract may be set aside on the basis of unilateral mistake of

material fact if: (1) the mistake was not the result of an inexcusable lack of due

care; (2) denial of release from the contract would be inequitable; and (3) the other

party to the contract has not so changed its position in reliance on the contract that

rescission would be unconscionable.”). Affirmed.




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