Document for SWEET-DONATO, WENDY vs. IN RE: THE JAMES E. SWEET AND JUDIT GRACE BENSON-SWEET TRUST AGREEMENT U/A/D 1/12/2010

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                                Filing # 63522973 E-Filed 10/31/2017 09:10:55 AM



                  IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
                           IN AND FOR CHARLOTTE COUNTY, FLORIDA

    IN RE: THE JAMES E. SWEET AND
    JUDITH GRACE BENSON-SWEET TRUST                              CASE NO. 2016 CP 000778
    AGREEMENT U/A/D 1/12/2010

                                                        /

                MOTION TO DISMISS PETITION BY JUDITH GRACE BENSON-SWEET

            The Respondent, JUDITH GRACE BENSON-SWEET, as Trustee of The James

    E. Sweet and Judith Grace Benson-Sweet Trust Agreement dated January 12, 2010, by

    and through her undersigned counsel, hereby moves to dismiss the Petition filed on

    behalf of Wendy Sweet-Donato and Greg G. Sweet, and, as grounds therefore, would

    show the Court as follows:
            4
                    A Civil Court action in Florida is commenced by filing a complaint which

    lists the Petitioners versus the Respondents.       This Amended Petition violates the

    Florida Rules of Civil Procedure, and the Petitioners have filed a pleading in the same

    format despite the fact that their initial petition was dismissed.     See Fla.R.C.P.

    1.100(c).
            2       This Petition is also deficient as a pleading as it violates Fla.R.C.P. 1.110

    (b).   The pleading must state “a short and plain statement on the grounds upon which

    the Court's jurisdiction depends. . . " ww, “a short and plain statement of the ultimate

    facts. . .” and “a demand for judgment for the relief to which the pleader deems himself

    or herself entitled.”   One cannot read this Petition to understand what relief these

    Petitioners are seeking and they should be required to specify each manner of relief

   they seek.
3        This Petition fails to state a cause of action for an accounting as these

Petitioners have no vested interest in the Trust pursuant to its terms since all assets of

the Trust remain in a fully revocable and amendable Grantor Trust.         Florida law does

not allow these Petitioners mandatory accountings given the terms of the Trust and the

Petitioners are not qualified beneficiaries under the Florida Trust Code.

       4         Despite the fact that Petitioners petition was previously dismissed without

prejudice, for the very same deficiencies raised in the within motion, Petitioners have

made only slight changes to their petition by adding new paragraphs 3 and 4, and by

combining what were previously paragraphs 25 and 26 of the original petition into

paragraph 27 of the amended petition.

       5.        Petitioners amended petition fails to address the deficiencies originally

recognized by the Court, therefore requiring both another motion to dismiss and a

motion to strike, which was filed contemporaneously herewith.

       6.        Petitioners conduct has caused the Respondent to incur counsel fees to

address the very same issues previously reviewed by this Honorable Court, with an

Order in favor of the Respondents.

       WHEREFORE,         the Respondent, JUDITH GRACE BENSON-SWEET, as Trustee

of The James E. Sweet and Judith Grace Benson-Sweet Trust Agreement dated

January 12, 2010, prays that this Court will dismiss the Amended Petition, and order

that the Petitioners reimburse the Respondent for all counsel fees incurred in filing the

within motion.
/s/ Patrick J. Reilly, Esquire
                                         PATRICK J. REILLY, ESQUIRE
                                         Florida Bar No. 0125109
                                         Snyder & Reilly, Trial Lawyers
                                         355 West Venice Avenue
                                         Venice, Florida 34285
                                         Telephone: (941) 485-9626
                                         Facsimile:     (941) 485-8163
                                         Primary Email: pat@snyderandreilly.com
                                         and valerie@snyderandreilly.com
                                         Counsel for Respondent, JUDITH GRACE
                                         BENSON-SWEET


                              CERTIFICATE OF SERVICE

       | HEREBY CERTIFY that the foregoing has been electronically filed on this © |
day of October, 2017 with the Clerk of the Court via the E-Filing Portal System which will

simultaneously email the same to Holly M. O’Neil, Esquire, Counsel for the Petitioners,

One North Clematis Street, Suite 500, West Palm Beach, Florida 33401;

honeill@broadandcassel.com and eomalley@broadandcassel.com,           by utilizing the

Designation of Electronic Mail Address registered with the E-Filing Portal System.


                                          /s/ Patrick J. Reilly, Esquire
                                         PATRICK J. REILLY, Esquire