Pereira v. Farace June 30, 2005
Docket No. 03-5053
JON O. NEWMAN, Circuit Judge, concurring:
Whether a jury is available for a claim against a fiduciary for
money damages for breach of fiduciary duties is, for me, a close
question. The Court is confident that a jury trial is available. I
find that proposition at odds with centuries of equitable proceedings
involving claims against trustees, estate executors, and other
fiduciaries, although I acknowledge that the proposition finds some
support in the two cases from the 1960s cited by the Court and, more
significantly, in the dictum recently stated by the Supreme Court in
Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204
(2002). Although that statement is dictum, I reluctantly agree that
we should follow it, and therefore concur. I think it useful,
however, to indicate that the issue is far closer than the Court
acknowledges.
It is literally black letter law, as set forth in the Restatement
(Second) of Trusts, that remedies against a fiduciary, such as a
trustee, are exclusively equitable, with an exception, inapplicable in
the pending case, for recovery of (1) a fixed sum of money that the
fiduciary is under a duty to pay immediately and unconditionally or
(2) a chattel that the fiduciary is under a duty to transfer
immediately and unconditionally:
§ 197 Nature of Remedies of Beneficiary
Except as stated in § 198, the remedies of the
beneficiary against the trustee are exclusively equitable.
§ 198 Legal Remedies of Beneficiary
(1) If the trustee is under a duty to pay money
immediately and unconditionally to the beneficiary, the
beneficiary can maintain an action at law against the
trustee to enforce payment.
(2) If the trustee of a chattel is under a duty to
transfer it immediately and unconditionally to the
beneficiary and in breach of trust fails to transfer it, the
beneficiary can maintain an action at law against him.
Restatement (Second) of Trusts §§ 197, 198 (1959) (emphasis added).
As the Restatement makes clear, the remedy at law for payment of
a sum of money immediately and unconditionally due the beneficiary
applies to money in the hands of the trustee that is being wrongfully
withheld. An example is money to be paid to a trust beneficiary upon
reaching a specified age. See Restatement (Second) Trusts, § 198,
illustration 1. Apart from this exception, it is black letter law
that the beneficiary has an equitable remedy to compel the trustee to
redress a breach of trust:
§ 199 Equitable Remedies of Beneficiary
The beneficiary of a trust can maintain a suit
. . .
(c) to compel the trustee to redress a breach of trust[.]
§ 205 Liability in Case of Breach of Trust
If the trustee commits a breach of trust, he is chargeable with
(a) any loss . . . in the value of the trust estate
resulting from the breach of trust[.]
Restatement (Second) Trusts §§ 199, 205.
A leading encyclopedia states the matter in similar language:
A trustee may be sued in equity, upon misapplication of
trust funds, for a breach of trust, and, indeed, the
remedies available to the beneficiaries of a testamentary
trust against the trustee for a breach of trust are
exclusively equitable. An action by beneficiaries for a
breach of trust is an equitable proceeding, even if money
damages are the only remedy sought.
76 Am. Jur. 2d § 598, at 627-28 (footnotes omitted) (emphases added).
A leading treatise echoes the point:
§ 199. Equitable Remedies of Beneficiary
A court of equity, having jurisdiction over the
administration of trusts, will give the beneficiaries of a
trust such remedies as are necessary for the protection of
their interests. . . . These remedies include . . . redress
for breach of trust.
III William F. Fratcher, Scott on Trusts § 199, at 203-04 (4th ed.
1988).
Abundant case law supports the ability of the victims of a breach
of fiduciary duties to obtain money damages in equity from a defendant
in breach of fiduciary duties. See, e.g., In re Interborough
Consolidated Corp., 288 F. 334 (2d Cir. 1923); Masters v. Bissett, 101
Or. App. 163, 790 P.2d 16, modified on other grounds, 102 Or. App.
289, 794 P.2d 445 (1990) Magill v. Dutchess Bank and Trust Co., 150
A.D.2d 531, 541 N.Y.S.2d 437 (2d Dep’t 1989); Estate of Rothko, 84
Misc. 2d 830, 887, 379 N.Y.S.2d 923, 978 (N.Y. Sur. 1975) (surrogate
required trustee to pay $6,464,880 in damages to trust beneficiaries),
mod. on other grounds, 56 A.D.2d 499, 392 N.Y.S.2d 870 (1st Dep’t),
aff’d, 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977).
Despite the sweep of the pronouncements in the Restatement, the
American Jurisprudence encyclopedia, and the Scott treatise, and the
decisions that have awarded money damages in equity against
fiduciaries in breach of their fiduciary duties, some decisions have
made a distinction between claims against a fiduciary in equity and
claims against a fiduciary at law. “Where . . . the beneficiaries of
a trust sue the trustee in order to restore funds to the trust, the
action is considered equitable in nature.” Allard v. Pacific National
Bank, 99 Wash. 2d 394, 400-401, 663 P.2d 104, 108 (1983) (citing
Baldus v. Bank of California, 12 Wash. App. 621, 530 P.2d 1350 (1975);
Spitznass v. First National Bank, 269 Or. 676, 525 P.2d 1318 (1974)).
The restoration of funds to the trust is often referred to as a
“surcharge.” Allard, 99 Wash. at 401 (citing Lockwood v. OFB Corp.,
305 A.2d 636, 638 (Del. Ch. 1973)). On the other hand, “[w]here the
beneficiaries seek recovery for themselves personally, the action is
considered legal in nature.” Id. at 400 (citing Brys v. Pratt, 55
Wash. 2d 122, 104 P. 169 (1909)).
In the pending case, the Court cites two court of appeals
decisions from the 1960s in support of the proposition that a jury is
required in a suit involving a trust or a fiduciary where only “legal
issues,” Halladay v. Verschoor, 381 F.2d 100, 109 (8th Cir. 1967), or
a claim “actionable in a direct suit at common law,” DePinto v.
Provident Security Life Insurance Co., 323 F.2d 826, 837 (9th Cir.
1963), are involved. Halladay strikes me as rather weak authority for
a jury right in claims against a fiduciary because the Court noted
that the complaint against the defendant “failed to allege any
specific averments of fiduciary relationship between the parties.”
Halladay, 381 F.3d at 109. DePinto broadly states that “where a claim
of breach of fiduciary duty is predicated on underlying conduct, such
as negligence, which is actionable in a direct suit at common law, the
issue of whether there has been such a breach is . . . a jury
question.” 323 F.2d at 837. That statement, if followed literally,
would authorize jury trials for countless surcharge actions against
trustees and executors, normally litigated on the equity side, because
it is not uncommon for a claim of breach of fiduciary duties to
include an allegation that the breaching fiduciary was negligent.
More relevant, it seems to me, is the discussion in Ross v.
Barnhard, 396 U.S. 531 (1970), which upheld a right to jury trial for
a shareholder’s derivative suit. In ruling for a jury trial, the
Court said:
[T]he corporations claim is, at least in part, a legal
one. The relief sought is money damages. There are
allegations in the complaint of breach of fiduciary duty,
but there are also allegations of ordinary breach of
contract and gross negligence. The corporation, had it sued
on its own behalf, would have been entitled to a jury’s
determination, at a minimum, of its damages against its
broker under the brokerage contract and of its rights
against its own directors because of their negligence.
Under these circumstances it is unnecessary to decide
whether the corporations’ other claims are also properly
triable to a jury.
Id. at 542-43. Although the Court does not decide whether the other
claims, i.e., the breach of fiduciary duty claims, are triable to a
jury, a reasonable inference from the introduction of the law claims
with the word “but,” in distinction to the breach of fiduciary claims
is that the latter, standing alone, would not require a jury.
Even if the isolated state court cases such as Spitznass and
Brys, cited above, are correct in requiring a jury for a claim against
a trustee for damages for the personal benefit of a plaintiff, as
distinguished from a claim to replenish a trust, I have difficulty
understanding why the issue of whether a fiduciary has breached his
duties requires a jury when the defaulting trustee must pay money to a
claimant but does not require a jury in a typical surcharge action
when the trustee must pay the same amount of money to the trust for
the same breach of duty.
Despite the sweep of the language from the Restatement supporting
actions in equity against fiduciaries for breach of their duties and
the rarity of decisions requiring a jury for such claims, I am
persuaded that the Supreme Court’s dictum in Great-West, sends a
signal that should not be ignored. The Court there stated: “[F]or
restitution to lie in equity, the action generally must seek not to
impose personal liability on the defendant, but to restore to the
plaintiff particular funds in the defendant’s possession.” Great-West.
534 U.S. at 214 (footnote omitted). The statement is dictum with
respect to an action against a fiduciary because the defendant in
Great-West was not a fiduciary. But the Court appears to be little
concerned with the nature of the defendant and critically concerned
with whether the defendant is being compelled to disgorge specific,
traceable funds in his possession, in which case the action is in
equity, or to pay money out of his pocket, i.e., damages, to a
claimant. Restitution of the latter type, the Court states, requires
a jury. In my view, this broad assertion of a jury right is at odds
with numerous traditional equity actions that have historically been
brought and currently are being brought in probate courts throughout
the country without juries. Nevertheless, the Supreme Court has
asserted that the availability of the jury turns on whether the funds
being sought are in the defendant’s possession, and I am obliged to
follow that guidance.
Since the funds being sought in the pending case are not in the
defendant’s possession, the claim appears to require a jury under
Great-West, notwithstanding that the basis of the claim is breach of
fiduciary duties. For these reasons, I concur in the Court’s opinion.