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Filing # 185635853 E-Filed 11/07/2023 12:57:01 PM
IN THE CIRCUIT COURT FOR THE
FIFTH JUDICIAL DISTRICT IN AND FOR
LAKE COUNTY, FLORIDA
RICKEY LYON, REGINA MARTIN,
CASE NO.: 2022-CA-000152
Plaintiffs,
V.
RODNEY LYON, individually and as Trustee
of the George Frederick Lyon and Bertha Lee
Lyon Inter Vivos Revocable Trust Agreement
dated July 13, 2004,
Defendant.
/
PLAINTIFFS’ SECOND AMENDED MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT
COMES NOW Plaintiffs, RICKEY LYON and REGINA MARTIN, by and through their
undersigned counsel, and pursuant to Rule 1.190(a), Florida Rules of Civil Procedure, file this
Second Amended Motion for Leave to File Amended Complaint, a copy of which is attached
hereto, and in support thereof, state as follows:
1 Plaintiffs Complaint was filed on or about January 27, 2022.
2 On or about June 29, 2023, Plaintiffs filed their Motion for Leave to File an
Amended Complaint, which has not been ruled on by the Court.
3 On or about August 30, 2023, Plaintiffs filed their Amended Motion for Leave to
File an Amended Complaint, which Motion sought to further amend Plaintiffs’ Complaint to
assert additional causes of action and which Amended Motion has also not been ruled on by the
Court.
4 Plaintiffs now file this Second Amended Motion for Leave to File an Amended
Complaint in order to correct a scrivener’s error in Paragraph 14 of Plaintiffs’ proposed
Amended Complaint.
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 11/07/2023 12:57:40 PM
The cause is not set for trial.
The amendment is in the best interests of the parties.
Granting Plaintiffs leave to amend their Complaint will not prejudice the parties.
The privilege to amend has not been abused by Plaintiff.
9 Leave to amend shall be freely given when justice so requires, and a request to
grant a motion to amend is especially compelling when made prior to or at a hearing on a motion
for summary judgment. Kimball v. Publix Super Markets, Inc., 901 So.2d 293, 296 (Fla. 2"4
DCA 2005); Karn v. Coldwell Bank Residential Real Estate, Inc., 705 So.2d 680 (Fla. 4° DCA
1998); and Soucy v. Casper, 658 So.2d 1017, 1018 (Fla. 4 DCA 1995).
10. Furthermore, under Florida law, refusal to allow an amendment is an abuse of the
trial court’s discretion “unless it clearly appears that allowing amendment would prejudice the
opposing party, the privilege to amend has been abused, or amendment would be futile.” State
Farm Fire & Cas. Co. v. Fleet Financial Corp., 724 So.2d 1218, 1219 (Fla. 5" DCA 1998).
WHEREFORE, Plaintiffs respectfully request that this Court enter an order granting
Plaintiffs leave to file the Amended Complaint.
/s/ Alexander S. Douglas, II
Alexander S. Douglas, II, Esq.
Florida Bar No. 817422
Paul T. Hinckley, Esq.
Florida Bar No. 48746
Shuffield, Lowman & Wilson, P.A.
1000 Legion Place, Suite 1700
Orlando, FL 32802-1010
Telephone: (407) 581-9800
Facsimile: (407) 581-9801
Attorneys for Plaintiff
The Primary email address for electronic
service of all pleadings in this case under Rule
2.516 is:[litservice@shuffieldlowman.com]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 7"
day of November 2023 via The Florida Courts e-Filing Portal to Young B. Kim, Esq. at
youngbkimlaw @ gmail.com|and to Meredith Kirste, Esq. at meredithk@kirstelaw.com.
IN THE CIRCUIT COURT OF THE FIFTH
JUDICIAL DISTRICT IN AND FOR LAKE
COUNTY, FLORIDA
RICKEY LYON, REGINA MARTIN,
Plaintiffs, CASE NO.: 2022-CA-000152
vs.
RODNEY LYON, individually and as Trustee
of the George Frederick Lyon and Bertha Lee
Lyon Inter Vivos Revocable Trust Agreement
dated July 13, 2004; MEREDITH KIRSTE, as
Successor Trustee of the George Frederick
Lyon and Bertha Lee Lyon Inter Vivos
Revocable Trust Agreement dated July 13,
2004,
Defendant/Third-Party Plaintiff,
vs.
RICKEY LYON, REGINA MARTIN,
Third-Party Defendants,
AMENDED COMPLA:
Rickey Lyon and Regina Martin, as beneficiaries of the George Frederick Lyon and
Bertha Lee Lyon Inter Vivos Revocable Trust Agreement dated July 13, 2004, as amended and
restated on October 28, 2010 (the “Lyon Trust”), sues Defendant, Rodney Lyon, individually and
as trustee of the Lyon Trust, and Meredith Kirste, solely in her capacity as successor trustee of
the Lyon Trust, and states as follows:
GENERAL ALLEGATIONS
1 This is an action for breach of fiduciary duty and breach of trust, for an order
compelling Rodney Lyon to perform a trust accounting pursuant to sections 736.0813 and
736.08135, Florida Statutes, for permanent removal of Rodney Lyon as trustee of the Trust and
the permanent appointment of a successor trustee, for damages in excess of $30,000, exclusive of
attorneys’ fees and costs, for a constructive trust or an equitable lien over any accounts in which
distributions from the Lyon Trust were deposited, and for other relief requested herein.
2 The Court has subject matter jurisdiction over this matter pursuant to section
736.0203, Florida Statutes.
3 This Court has jurisdiction over Defendant Rodney Lyon pursuant to section
736.0202(2), Florida Statutes, because Defendant Rodney Lyon was serving as Trustee of the
Lyon Trust during times material hereto and resides in Lake County, Florida.
4 Venue is proper in Lake County, Florida, pursuant to section 736.0204(1), Florida
Statutes, because the trust property is situated in Lake County and the trustee resides there.
5 Plaintiffs, Rickey Lyon and Regina Martin, and Defendant, Rodney Lyon, are the
children of trust settlors, George F. Lyon and Bertha L. Lyon, and qualified beneficiaries of the
Lyon Trust.
6. Defendant, Rodney Lyon, has at all times material hereto served as successor
trustee of the Lyon Trust.
7
Plaintiffs have retained Shuffield, Lowman and Wilson, P.A. to represent them in
this action and are obligated to pay it a reasonable fee for its services.
8 All conditions precedent to bringing this action have been met or waived.
BACKGROUND FACTS
9 On October 28, 2010, the settlors of the Lyon Trust, George F. Lyon and Bertha
L. Lyon, executed the Second Amendment and Restatement of the George Frederick Lyon and
Bertha Lee Lyon Inter Vivos Revocable Trust Agreement. A true and correct copy of the
Second Amendment and Restatement is attached hereto as Exhibit “A”.
10. Bertha Lee Lyon, who served as trustee prior to her death, died on August 26,
2018, at which time the Trust became irrevocable. Pursuant to Section | of the Second
Amendment and Restatement, Regina Martin was nominated to serve successor trustee.
However, following Bertha Lyon’s death, Rodney acted as de facto trustee of the Lyon Trust in
that he collected funds to which the Trust was entitled, distributed funds to the Trust’s
beneficiaries, maintained Trust properties, paid taxes and other expenses related to Trust
properties, and performed other administrative functions customarily performed by trustees.
11. By correspondence dated February 20, 2020, Rodney Lyon, from his attorney,
requested that Regina Martin “resign” as trustee and for Rodney to formally assume the role of
trustee of the Lyon Trust.
12. Shortly thereafter, Regina, having never acted as trustee, executed a declination to
serve as trustee, and Rodney became successor trustee of the Lyon Trust. Rodney has formally
served as trustee since Regina declined to serve.
13. On or about September 1, 2021, Plaintiffs, Rickey Lyon and Regina Martin,
through their undersigned counsel, directed correspondence to Rodney Lyon citing his breach of
fiduciary duty for failure to provide a trust accounting. Plaintiffs demanded that Rodney
provide a trust accounting reflecting all distributions from the trust, if any, all dispositions of
trust property, if any, and other trust transactions. Plaintiffs further requested that Rodney resign
as trustee. A true and correct copy of the correspondence is attached as Exhibit “B”.
14. In response to Plaintiffs’ correspondence, Rodney Lyon delivered a box of
documents to the office of Plaintiffs’ attorney, which box contained numerous printouts from the
Lake County Property Appraiser’s website, records from the Lake County Tax Collector, bank
statements, applications for agricultural exemptions, real property appraisals, and other trust
documents.
15. The documents referenced in Paragraph 14 totally failed to meet the trust
accounting requirements set forth in § 736.08135, Florida Statutes.
16. On or about September 16, 2021, the undersigned received correspondence from
Attorney Edward P. Jordan, II, indicating that Rodney had obtained an appraisal for six parcels
of land located on North Highway 27 in Lake County, Florida, in which property the Lyon Trust
held an undivided 1/3 interest (the “Nursery Property”), and that Rodney, as successor trustee,
intended to “list the property for sale via public auction”. A true and correct copy of the
correspondence is attached hereto as Exhibit “C”.
17. The appraisal obtained by Rodney was retrospective to the date of Bertha Lyon’s
death, in August 2018, and failed to take into account the value of a cell tower and billboard
situated on the Nursery Property. As such, the appraisal did not reflect the current fair market
value of the Nursery Property. A true and correct copy of the appraisal is attached hereto as
Exhibit “D”.
18. Shortly thereafter, on or about September 25, 2021, the undersigned received
correspondence from Attorney Young B. Kim stating that he represented Rodney Lyon as trustee
and requesting that any future correspondence be directed to his office. A true and correct copy
of the correspondence is attached hereto as Exhibit “E”.
19. On or about October 4, 2021, the undersigned, on behalf of Plaintiffs, directed
correspondence to Attorney Kim objecting to the grossly inaccurate appraisal obtained by
Rodney and objecting to Rodney’s sale of the Nursery Property. A true and correct copy of the
correspondence is attached hereto as Exhibit “F”.
20. On or about January 9, 2022, the undersigned received correspondence from
Attorney Edward P. Jordan, I, indicating that, despite Plaintiff's objections, Rodney had
personally purchased the Lyon Trust’s 1/3 undivided interest in the property, the purchase price
having been based on the grossly inaccurate and self-serving appraisal, which did not include the
value of the cell tower and billboards on the Property and which was retrospective to August
2018. A true and correct copy of the correspondence is attached hereto as Exhibit “G”. True and
correct copies of the deeds conveying the Trust’s 1/3 interest in the Nursery Property to Rodney
personally are attached as Exhibit “H”. The checks received as a result of the transaction were
returned to counsel for Rodney.
21. In addition, since accepting his role as trustee, Rodney has failed to provide
accountings of the Lyon Trust that comply with Sections 736.0813 and 736.08135 of the Florida
Statutes. In response to requests for accountings, Rodney has provided only some bank
statements, copies of checks, tax statements, and other miscellaneous documents. Neither has
Rodney accounted to Plaintiffs for the time period prior to his formal appointment as successor
trustee during which he served as de facto trustee.
22. In addition, since Bertha Lyon’s death in August 2018, Rodney Lyon has resided
in the property located at 10119 Tween Waters Street, Clermont, Florida, 34715, which is a
property owned by the Lyon Trust, but has failed, as successor trustee, to collect rent on behalf
of the Trust and its beneficiaries for his personal occupancy of the property.
23. Lastly, while serving as de facto trustee of the Lyon Trust and while formally
serving as trustee, Rodney Lyon permitted B-Lyon Construction, Inc., in which Rodney Lyon
claims to hold a majority interest, to utilize the Lyon Trust’s Nursery Property for the raising of
goats and feeder cattle. The use of the Trust’s property at zero cost to B-Lyon Construction, Inc.
as authorized by Rodney as trustee allowed B-Lyon Construction, Inc. to collect thousands of
dollars in revenue. Such action by Rodney Lyon was a further breach of his fiduciary duty as
trustee.
24. Plaintiffs anticipate that additional wrongdoings by Rodney Lyon will become
known through the course of discovery.
25. On April 21, 2022, following a hearing conducted on Plaintiffs’ Emergency
Motion to Suspend Trustee and Appoint Special Fiduciary (filed by Plaintiffs on February 16,
2022), this Court entered its Order on Emergency Motion to Suspend Trustee and Appoint
Special Fiduciary (the “Order”). The Order provided in relevant part that “Defendant, Rodney
Lyon, shall not transfer or dispose of any ownership interest in trust property without the written
consent of Plaintiffs.”
26. On or about November 15, 2022, Defendant, Rodney Lyon, in his capacity as
trustee of the Trust, and in violation of the Order, executed deeds conveying title to all eight (8)
properties held by the Trust, and recorded said deeds in the public records of Lake County,
Florida.
27. Immediately upon learning of the conveyances, Plaintiffs’ filed their Emergency
Motion to Remove Current Trustee, Void Conveyances, and Appoint Successor Trustee.
28. On April 21, 2023, following a hearing on Plaintiffs’ Motion conducted on March
22, 2023, this Court entered its Order on Plaintiffs’ Emergency Motion to Remove Current
Trustee, Void Conveyances, and Appoint Successor Trustee.
29. This Court’s April 21, 2023, Order removed Rodney Lyon as trustee of the Trust
and appointed Meredith Kirste, Esq. to serve as successor trustee.
30. Following Meredith Kirste’s appointment as successor trustee, a dispute arose
regarding her authority to sell Trust property in lieu of distributing the property in kind to the
Trust’s beneficiaries.
31. Defendant, Rodney Lyon, alleges that the successor trustee of the Lyon Trust
lacks the authority to sell Trust property, despite the fact that Rodney exercised such authority
himself while serving as trustee. Rodney now asserts that the Trust properties must be
distributed in kind to the Trust’s beneficiaries.
32. Plaintiffs contend that Section 7 of the Lyon Trust, entitled “Trustee’s Powers,”
specifically authorizes the Trustee to sell Trust property. Section 7 of the Trust provides in
pertinent part as follows:
SECTION 7. TRUSTEES’S POWERS. [ ] In addition and not in
limitation of any common law or statutory authority, the Trustees shall have the
following powers, all of which shall be exercisable in the Trustees’ sole and
absolute discretion and without authorization or confirmation by any court or
other person being required:
(a) To sell, exchange or otherwise dispose of any real or personal
property and may further borrow funds and pledge and/or mortgage trust assets
for trust purposes. [Emphasis added].
33. Plaintiff, Rickey Lyon, does not wish to be a tenant in common with his brother,
Rodney Lyon, as it relates to the Nursery Property as they do not get along, and they are
otherwise unable to cooperate with each other.
34. If Meredith Kirste, Esq., as successor trustee of the Lyon Trust, is not authorized
by the terms of the Trust to sell Trust property and distribute the proceeds to the beneficiaries of
the Trust (instead of distributing the property in kind), Rickey Lyon will be compelled to bring
an action for partition of the Nursery Property following its in kind distribution to him and
Defendant, Rodney Lyon.
35. A subsequent action for partition of the Nursery Property is not in the best
interests of the beneficiaries of the Trust, will further deplete the assets of the Trust, and will be a
waste of limited judicial resources.
36. Section 3 of the Trust, entitled “Trust Property,” provides in pertinent part that
“Grantors jointly and severally transfer to Trustees the property described in the attached
Schedule A, the receipt of which is hereby acknowledged by Trustees”.
37. Paragraph 12 of Schedule A to Trust declares the following to be property of the
Trust:
Any and all interest, proceeds, cash, securities, or intangible property held
by Grantor in those certain Certificate of Deposits with Crown Bank of Clermont,
Florida, or in any substitute account for which said interest, proceeds, cash.
securities, or intangible property may be deposited, held, including after acquired
property and earned interest and dividends. [Emphasis added].
38. Upon information and belief, the Certificate of Deposits with Crown Bank of
Clermont referenced in Paragraph 12 of Schedule A were transferred by Grantors to SunTrust
Bank. Thus, upon information and belief, the “substitute account” the property was deposited
into was held with SunTrust Bank.
39. In response to Plaintiffs’ subpoena to Truist Bank (as successor in interest to
SunTrust Bank), records were provided to Plaintiffs indicating that Grantor, Bertha Lyon, held
six (6) Certificates of Deposit with SunTrust Bank, each in the amount of One Hundred
Thousand Dollars ($100,000.00), totaling $600,000.00. These Certificates of Deposit bore the
following Account Numbers (referred to as “Customer Numbers” in SunTrust’s records):
Customer Number
17547874957 $100,000.00 (2 Certificates of Deposit)
$100,000.00
17547875008 $100,000.00 (1 Certificate of Deposit)
17547874876 $100,000.00 (2 Certificates of Deposit)
$100,000.00
17548022818 $100,000.00 (1 Certificate of Deposit)
(Hereinafter the “SunTrust Certificates of Deposit”).
40. The SunTrust Certificates of Deposit were held in accounts titled jointly in the
names of Grantor, Bertha Lyon, Defendant, Rodney Lyon, and Plaintiff, Rickey Lyon.
Al. On February 6, 2019, Defendant, Rodney Lyon, withdrew $100,262.20 on the
Certificate of Deposit bearing the Customer No. 17547874876. Of this withdrawal, upon
information and belief, Rodney re-deposited $56,662.20 into a new SunTrust Certificate of
Deposit bearing Customer No. 17548808964, which was titled in Rodney’s sole name.
42. On October 10, 2019, Rodney Lyon withdrew $75,000.00 from the Certificate of
Deposit bearing the Customer No. 17547874876.
43. On August 6, 2020, Rodney Lyon withdrew $105,461.42 from the Certificate of
Deposit bearing the Customer No. 17547874957, withdrew $105,461.42 from the Certificate of
Deposit bearing the Customer No. 17547875008, and withdrew $57,758.81 from the Certificate
of Deposit bearing Customer No. 17548808964. SunTrust Check Nos. 5301813628,
5301813633, and 5301813637 were issued by SunTrust Bank and made payable to Rodney Lyon
or Rickey Lyon. Upon information and belief, Rodney deposited all withdrawn funds into an
account held solely in his own name.
44. On October 9, 2020, Rodney Lyon withdrew $105,052.41 from the Certificate of
Deposit bearing the Customer No. 17547874957, withdrew $105,052.41 from the Certificate of
Deposit bearing the Customer No. 1754802818, and withdrew $50,000.00 from the Certificate of
Deposit bearing the Customer No. 17547874876. Upon information and belief, all withdrawn
funds were transferred to an account in Rodney Lyon’s sole name.
45. During his deposition conducted on January 16, 2023, Defendant, Rodney Lyon,
denied having any knowledge concerning the Certificates of Deposit referenced in the Trust, and
claimed he “did not remember” the two SunTrust checks for $105,461.42 issued on August 6,
2020, or the check for $57,758.81 issued the same day.
46. In total, Rodney withdrew from the Certificates of Deposit referenced in the Trust
funds amounting to at least $629,000.00, and possibly more.
47. Meredith Kirste, Esq., as successor trustee of the Lyon Trust is named as a
defendant solely because she is a necessary party and not because she has committed any breach
or wrongful acts.
48. The Lyon Trust establishes a trust for Plaintiffs’ sister, Rhonda Glover, and
nominates Regina Martin to serve as trustee for Rhonda Glover’s trust. Regina Martin has
accepted her role as trustee for Rhonda Glover’s trust.
COUNT I
BREACH OF FIDUCIARY DUTY AND BREACH OF TRUST
AS TO RODNEY LYON AS TRUSTEE OF THE LYON TRUST
49. The Plaintiff repeats and re-alleges the allegations contained in Paragraphs 1
through 48 against Rodney Lyon as if fully set forth herein.
50. This is an action for breach of fiduciary duty and breach of trust pursuant to
Chapter 736, Florida Statutes.
S51. Defendant, Rodney Lyon, as trustee of the Lyon Trust, owed Plaintiffs, Rickey
Lyon and Regina Martin, a fiduciary duty.
§2. Defendant, Rodney Lyon, had a duty to act in the best interest of all of the
beneficiaries of the Lyon Trust.
53. Defendant, Rodney Lyon, as trustee of the Lyon Trust, owed a duty to administer
the Lyon Trust in accordance with its terms and purposes.
54. Defendant, Rodney Lyon, had a duty to keep clear, distinct, and accurate records
of the administration of the Lyon Trust.
55. Defendant, Rodney Lyon, had a duty to make productive use of Trust properties.
56. Defendant, Rodney Lyon, as Trustee of the Lyon Trust, committed breaches of
his fiduciary duty and a breach of trust. Said breaches include but are not limited to a) failing to
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provide annual accountings as required by § 736.08135, Florida Statutes, b) failing to provide the
qualified beneficiaries with all relevant requested information concerning the assets and
liabilities of the Lyon Trust and the particulars relating to its administration; c) self-dealing in the
sale of Trust assets to himself personally for substantially below market value; d) self-dealing in
the leasing of Trust property to himself personally at little or no cost, and e) failing to make
productive use of Trust properties by collecting rent for use and occupancy of the Tween Waters
Trust property, f) failing to make productive use of Trust property by permitting B-Lyon
Construction, Inc. to use the Nursery Trust Property at zero cost, and g) using Trust assets to pay
expenses for properties not held by the Trust.
57. In addition, due to Rodney Lyon’s failure to provide a full and timely trust
accounting, the Plaintiff suspects Rodney Lyon may have breached additional duties to the
beneficiaries which may be revealed once a proper accounting has been provided.
58. The Court may remove a trustee under section 736.0706, Florida Statutes, if the
trustee has committed a serious breach of trust, or if the Court determines that removal of the
trustee best serves the interests of the beneficiaries due to the unfitness, unwillingness, or
persistent failure of the trustee to administer the trust effectively.
59. It is in the best interests of the beneficiaries of the Lyon Trust that the Defendant,
Rodney Lyon, be permanently removed as Trustee of the Lyon Trust.
60. Other qualified entities or individuals are available to serve as the successor
Trustee of the Lyon Trust.
61. As a direct and proximate result of Defendant’s breaches of fiduciary duty,
Plaintiffs have been damaged.
62. Plaintiffs also request that the Court grant them equitable relief in the form of an
equitable lien or a constructive trust over any and all trust real estate deeded to Defendant, and/
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or over bank or financial accounts which currently hold assets which were distributed from the
Lyon Trust to Defendant, Rodney Lyon, since its inception.
63. Plaintiffs also request that the Court order Defendant, Rodney Lyon, to return all
trust property, real and personal, that he wrongfully received from the Trust.
64. Plaintiffs request that the Court award them all applicable remedies available
under section 736.1001, Florida Statutes.
65. Plaintiffs are entitled to recover their reasonable attorney’s fees and costs from
Defendant, Rodney Lyon, pursuant to sections 736.1004, 736.1005 and 736.1006, Florida
Statutes. Plaintiffs also request that their attorneys’ fees and costs be assessed against Rodney
Lyon, individually.
WHEREFORE, the Plaintiffs demand judgment against Defendant, Rodney Lyon, for
damages, including pre-judgment and post-judgment interest, establishment of a constructive
trust or an equitable lien over the accounts where funds of the Lyon Trust were wrongfully
disbursed or transferred to Rodney Lyon, the permanent removal of Rodney Lyon as trustee, the
appointment of a (permanent) successor trustee, attorney fees, costs, and such other relief as the
Court deems just and proper.
COUNT II
ACTION FOR ACCOUNTING OF TRUST ASSETS
AS TO RODNEY LYON AS TRUSTEE
66. The Plaintiffs reallege and reassert the allegations contained in Paragraphs 1
through 48 above against Rodney Lyon as if fully set forth herein.
67. This is an action for an accounting of Trust assets pursuant to sections 736.0813
and 736.08135, Florida Statutes.
68. The Court has jurisdiction pursuant to section 736.0202, Florida Statutes.
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69. Plaintiffs, as beneficiaries of the Lyon Trust, have standing to demand a full and
accurate accounting of the Lyon Trust since Rodney Lyon began to act as successor Trustee of
the Lyon Trust, including periods of time during which Rodney Lyon was acting as de facto
trustee of the Trust.
70. Defendant, Rodney Lyon, as Trustee, has a duty to inform and account to the
qualified beneficiaries of the Lyon Trust at least annually.
71. Plaintiffs have never received a Trust Accounting that complies with Florida law
since Rodney Lyon began to serve as successor Trustee of the Lyon Trust.
72. Plaintiffs are entitled to receive a complete trust accounting in a format specified
by section 736.08135, Florida Statutes.
23. Plaintiffs are entitled to an award of attorney fees and costs and requests that such
fees be accessed against Rodney Lyon individually.
WHEREFORE, Plaintiffs request that the Court order the Defendant, Rodney Lyon, as
Trustee, to render a trust accounting to Plaintiff in a format specified by section 736.01835,
Florida Statutes, award Plaintiffs their attorney fees and costs, and grant such other relief as the
Court may deem just and proper.
COUNT Il
DECLARATORY RELIEF
74. The Plaintiffs reallege and reassert the allegations contained in Paragraphs 1
through 48 above against Rodney Lyon as if fully set forth herein.
75. This is a claim for declaratory relief against all defendants pursuant to section
736.0201(4), Florida Statutes.
76. A bona fide dispute exists between Plaintiffs and Defendant, Rodney Lyon, as to
whether the successor trustee, Meredith Kriste, is authorized by the terms of the Trust or
13
otherwise under Florida law to sell Trust property and distribute the proceeds of the sale to the
beneficiaries of the Trust in lieu of an in-kind distribution of Trust properties.
77. Plaintiffs are entitled under s. 736.0201(4), Florida Statutes, to a declaratory
judgment to determine any question relating to the administration of the Trust, including
questions of construction.
78. All parties with an interest in the declaratory relief sought by Plaintiffs have been
joined in this action.
79. Plaintiffs are in doubt as to their rights under the Trust to receive the proceeds of
the sale of Trust property in lieu of an in-kind distribution of Trust property.
80. A justiciable question exists as to the right of the successor trustee to sell Trust
property in lieu of an in-kind distribution.
81. There is a bona fide, actual, and present need for the declaration.
82. The relief sought by Plaintiffs is not merely the giving of legal advice by the
courts or the answers to questions propounded by sheer curiosity.
83. Plaintiffs are entitled to an award of attorney fees and costs to be paid from the
trust pursuant to section 736.1005.
WHEREFORE, Plaintiffs request that this Court enter a declaratory judgment affirming
the successor trustee’s authority to sell Trust property and distribute the proceeds of the sale to
the Trust’s beneficiaries in lieu of an in-kind distribution of Trust property, and to award
Plaintiffs their attorney fees and costs.
COUNT IV
JUDICIAL MODIFICATION OF TRUST INSTRUMENT
(In the alternative to Count II)
84. Plaintiffs reallege and reassert the allegations contained in Paragraphs 1 through
48 above against Rodney Lyon as if fully set forth herein.
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85. This is a claim for judicial modification of the Lyon Trust pursuant to Section
736.04113, Florida Statutes.
86. Pursuant to Section 736.04113, Florida Statutes, upon the application of a trustee
or a qualified beneficiary, a court may modify the terms of an irrevocable trust, including
amending or changing the terms governing administration of the trust, if (a) the purposes of the
trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
(b) because of circumstances not anticipated by the settlor, compliance with the terms of the trust
would defeat of substantially impair the accomplishment of a material purpose of the trust; or (c)
a material purpose of the trust no longer exists.
87. The Settlors of the Trust, George Lyon and Bertha Lyon, did not anticipate the
circumstance that their sons, Rickey Lyon and Rodney Lyon, would be unable to get along
sufficiently to be co-owners of the Nursery Property, and that Rickey and Rodney would
disagree as to whether and how the Nursery Property would be sold.
88. A material purpose of the Lyon Trust is the preservation of Trust assets for the
benefit of the Trust beneficiaries- the four children of George Lyon and Bertha Lyon.
89. To the extent that the Trust mandates an in-kind distribution of the Nursery
Property to Rickey Lyon and Rodney Lyon, compliance with the terms of the Trust would defeat
or substantially impair the accomplishment of this material purpose of the Trust. The in-kind
distribution of real property to Ricky Lyon and Rodney Lyon would result in litigation to
partition the property, resulting in waste in the form of the additional attorney fees and costs
incurred.
90. Pursuant to Section 736.04113(2), Florida Statutes, a court modifying a trust
under Section 736.04113, Florida Statutes, may
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(a) Amend or change the terms of the trust, including terms governing distribution
of the trust income or principal or terms governing administration of the trust; . . .
or
(c) Direct or permit the trustee to do acts that are not authorized or that are
prohibited by the terms of the trust; or
(d) Prohibit the trustee from performing acts that are permitted or required by the
terms of the trust.
91. Section 7 of the Lyon Trust currently provides as follows as it relates to the
Trustee’s powers:
SECTION 7. TRUSTEES’S POWERS. In the administration of the trusts
created by this agreement, the Trustees shall be governed by the provisions of
Section 737.402, Florida Statutes, that are not in conflict with this agreement and
shall have all additional powers and protection granted by statute to Trustees at
the time of application that are not in conflict with this agreement. In addition
and not in limitation of any common law or statutory authority, the Trustees shall
have the following powers, all of which shall be exercisable in the Trustees’ sole
and absolute discretion and without authorization or confirmation by any court or
other person being required:
(a) To sell, exchange, or otherwise dispose of any real property or
personal property and may further borrow funds and pledge and/or mortgage trust
assets for trust purposes.
92. Plaintiffs respectfully request that, pursuant to Section 736.04113, Florida
Statutes, the Court modify the language in Section 7(a) of the Lyon Trust as set forth below:
SECTION 7. TRUSTEES’S POWERS. In the administration of the trusts
created by this agreement, the Trustees shall be governed by the provisions of
Section 737.402, Florida Statutes, that are not in conflict with this agreement and
shall have all additional powers and protection granted by statute to Trustees at
the time of application that are not in conflict with this agreement. In addition
and not in limitation of any common law or statutory authority, the Trustees shall
have the following powers, all of which shall be exercisable in the Trustees’ sole
and absolute discretion and without authorization or confirmation by any court or
other person being required:
(a) To sell, exchange, or otherwise dispose of any real property or
personal property and may further borrow funds and pledge and/or mortgage trust
assets for trust purposes. Notwithstanding any other provision herein to the
contrary, the Trustees shall have the power and authority to sell or otherwise
dispose of real property, including following termination of the Trust as provided
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in Section 5, and distribute the proceeds of such sale to the specific beneficiaries
to whom the real property was to be distributed pursuant to Section S(c).
[END OF PROPOSED TRUST MODIFICATIONS]
93. The Proposed Trust Modifications set forth in Paragraph 77 are consistent with
the Settlors’ purpose in establishing the Trust, which is the preservation of Trust assets for the
benefit of the Trust’s beneficiaries. Without the requested modification, the Trust assets would
be wasted through payment of attorney fees and costs to partition the property due to the inability
of the co-owners to cooperate with each other.
94. Based on the foregoing, Plaintiffs bring this Count against all Defendants and
respectfully request that the Court modify the Lyon Trust consistent with the Proposed Trust
Modifications outlined above pursuant to Sections 736.04113 and 736.0201, Florida Statutes.
95. Plaintiffs are entitled to recover their attorney’s fees and costs pursuant to Section
736.1004, Florida Statutes, and request that such attorney fees and costs be accessed against the
share of Rodney Lyon.
WHEREFORE, Plaintiffs, RICKEY LYON and REGINA MARTIN, as qualified
beneficiaries of the Lyon Trust, respectfully request that this Court enter Final Judgment i)
finding that all persons with an interest in these proceedings are before the Court, (ii) finding that
because of circumstances not anticipated by the Settlors, compliance with the terms of the Trust
would substantially defeat or impair the accomplishment of a material purpose of the Trust, (iii)
modifying the Trust Instrument consistent with the Proposed Trust Modifications as outlined in
Paragraph 74 pursuant to Sections 736.04113 and 736.0201, Florida Statutes, (iv) awarding
Plaintiffs their reasonable attorney’s fees and costs and assessing the same against Defendant,
Rodney Lyon’s, share of the Trust, and (v) granting such other and further relief as this Court
deems just and proper.
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COUNT V
DECLARATORY RELIEF
96. Plaintiffs reallege and reassert the allegations contained in Paragraphs | through
48 above against Rodney Lyon as if fully set forth herein.
97. This is a claim for declaratory relief against all defendants.
98. Section 3 ofthe Trust provides in pertinent part as follows:
SECTION 3. TRUST PROPERTY. Grantors jointly and severally
transfer to Trustees the property described in the attached Schedule A, the receipt
of which is hereby acknowledged by Trustees. [...].
99. Schedule A of the Trust provides in pertinent part as follows:
For record keeping purposes only, the initial property held by the Trustees
under the July 13, 2004 George Frederick Lyon and Bertha Lee Lyon Inter Vivos
Revocable Trust Agreement is as follows: [...]
13. Any and all interest, proceeds, cash, securities, or intangible
property held by Grantor in that certain Florida Corporation known as B-Lyon
Construction, Inc., its successors or assigns as their interest may appear, or in any
substitute corporation for which said interest, proceeds, cash securities, or
intangible property may be deposited, held, including after acquired property and
earned interest and dividends.
[ ]
100. B-Lyon Construction, Inc. owns certain real property located in Georgia as well
as personal property in Florida.
101. Plaintiffs are unable to ascertain the security and/or other interests of Grantors,
George Frederick Lyon and Bertha Lee Lyon, in B-Lyon Construction, Inc.
102. Defendant, Rodney Lyon, has asserted that upon Grantors’ deaths, the security
interests held by Grantors in B-Lyon Construction, Inc. was divided evenly between himself and
Plaintiff, Rickey Lyon.
103. The language in the Trust does not support Rodney Lyon’s assertion.
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104. Plaintiffs are entitled under s. 736.0201(4) and 86.041(3), Florida Statutes, to a
declaratory judgment to determine the Trust’s security and other interests in B-Lyon
Construction, Inc.
105. All parties with an interest in the declaratory relief sought by Plaintiffs are joined
in this action.
106. Plaintiffs are in doubt as to the interest in B-Lyon Construction, Inc. held by the
Trust.
107. A justiciable question exists as to what share of B-Lyon Construction, Inc. is
owned by the Trust.
108. There is a bona fide, actual, and present need for the declaration.
109. The relief sought by Plaintiffs is not merely the giving of legal advice by the
courts or the answers to questions propounded by sheer curiosity.
110. Plaintiffs are entitled to an award of attorney fees and costs to be paid from the
trust pursuant to section 736.1005 and that such fees and costs be accessed against the share of
Rodney Lyon.
WHEREFORE, Plaintiffs, RICKEY LYON and REGINA MARTIN, respectfully request
that this Honorable Court enter a declaratory judgment 1) determining the Trust’s security and/or
other interests in B-Lyon Construction, Inc., and 2) determining Grantor’s intent as it relates to
the distribution of the Trust’s interests in B-Lyon Construction, Inc. to the beneficiaries of the
Trust; and 3) awarding Plaintiffs their attorney fees and costs to be paid from the trust or the
share of Rodney Lyon.
COUNT VI
BREACH OF FIDICUIARY DUTY CLAIM AGAINST RODNEY LYON-- RETURN
OF ATTORNEY’S FEES TO TRUST
19
111. Plaintiffs reallege and reassert the allegations contained in Paragraphs | through
48 above against Rodney Lyon as if fully set forth herein.
112. Section 736.0802(10)(b), Florida Statutes, provides in pertinent part as follows as
it relates to a trustee’s payment of attorney’s fees from trust assets:
If a trustee incurs attorney fees or costs in connection with a claim or
defense of breach of trust which is made in a filed pleading, the trustee may pay
such attorney fee or costs from trust assets without the approval of any person and
without any court authorization. However, the trustee must serve a written notice
of intent upon each qualified beneficiary of the trust whose share of the trust may
be affected by the payment before such payment _is made. [ ] [Emphasis
added].
113. Section 736.0802(10)(c), Florida Statutes, further provides as follows:
The notice of intent must identify the judicial proceeding in which the
claim or defense of breach of trust has been made in a filed pleading and must
inform the person served of his or her right under paragraph (e) to apply to the
court for an order prohibiting the trustee from using trust assets to pay attorney
fees or costs as provided in paragraph (b) or compelling the return of such
attorney fees and costs to the trust. The notice of intent must be served by any
commercial delivery service or form of mail requiring a signed receipt; the
manner provided in the Florida Rules of Civil Procedure for service of process;
or, as to any party over whom the court has already acquired jurisdiction in that
judicial proceeding, in the manner provided for service of pleadings and other
documents by the Florida Rules of Civil Procedure.
114. Section 736.0802(10)(d), Florida Statutes, further provides as follows:
If_a trustee has used trust assets to pay attorney fees or costs
described in paragraph (b) before service of a notice of intent, any qualified
beneficiary who is not barred under s. 736.1008 and whose share of the trust may
have been affected by such payment is entitled, upon the filing of a motion to
compel the return of such payment to the trust, to_an_order_compelling the
return of such payment, with interest at the statutory rate. The court shall
award attorney fees and costs incurred in connection with the motion to compel as
provided in s. 736.1004. [Emphasis added].
115. Lastly, Section 736.0802(10)(e), Florida Statutes, provides as follows:
Upon the motion of any qualified beneficiary who is not barred under s.
736.1008 and whose share of the trust may be affected by the use of trust assets to
pay attorney fees or costs as provided in paragraph (b), the court may prohibit the
trustee from using trust assets to make such payment and, if such payment has
been made from trust assets after service of a notice of intent, the court may enter
20
an order compelling the return of the attorney fees and costs to the trust, with
interest at the statutory rate.
116. Defendant, Rodney Lyon, has paid attorney’s fees to Edward P. Jordan, II, Esq.
and/or to Young B. Kim, Esq., using Trust assets.
117. Defendant failed to provide notice to Plaintiffs as required under Section
736.0802(10)(b), Florida Statutes, prior to paying said attorneys using Trust assets.
118. Plaintiffs are qualified beneficiaries of the Trust whose share of the Trust may
have been affected by such payment.
119. Rodney Lyon’s failure to comply with the law is a breach of fiduciar
Preview
Filing # 185635853 E-Filed 11/07/2023 12:57:01 PM IN THE CIRCUIT COURT FOR THE FIFTH JUDICIAL DISTRICT IN AND FOR LAKE COUNTY, FLORIDA RICKEY LYON, REGINA MARTIN, CASE NO.: 2022-CA-000152 Plaintiffs, V. RODNEY LYON, individually and as Trustee of the George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement dated July 13, 2004, Defendant. / PLAINTIFFS’ SECOND AMENDED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT COMES NOW Plaintiffs, RICKEY LYON and REGINA MARTIN, by and through their undersigned counsel, and pursuant to Rule 1.190(a), Florida Rules of Civil Procedure, file this Second Amended Motion for Leave to File Amended Complaint, a copy of which is attached hereto, and in support thereof, state as follows: 1 Plaintiffs Complaint was filed on or about January 27, 2022. 2 On or about June 29, 2023, Plaintiffs filed their Motion for Leave to File an Amended Complaint, which has not been ruled on by the Court. 3 On or about August 30, 2023, Plaintiffs filed their Amended Motion for Leave to File an Amended Complaint, which Motion sought to further amend Plaintiffs’ Complaint to assert additional causes of action and which Amended Motion has also not been ruled on by the Court. 4 Plaintiffs now file this Second Amended Motion for Leave to File an Amended Complaint in order to correct a scrivener’s error in Paragraph 14 of Plaintiffs’ proposed Amended Complaint. FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 11/07/2023 12:57:40 PM The cause is not set for trial. The amendment is in the best interests of the parties. Granting Plaintiffs leave to amend their Complaint will not prejudice the parties. The privilege to amend has not been abused by Plaintiff. 9 Leave to amend shall be freely given when justice so requires, and a request to grant a motion to amend is especially compelling when made prior to or at a hearing on a motion for summary judgment. Kimball v. Publix Super Markets, Inc., 901 So.2d 293, 296 (Fla. 2"4 DCA 2005); Karn v. Coldwell Bank Residential Real Estate, Inc., 705 So.2d 680 (Fla. 4° DCA 1998); and Soucy v. Casper, 658 So.2d 1017, 1018 (Fla. 4 DCA 1995). 10. Furthermore, under Florida law, refusal to allow an amendment is an abuse of the trial court’s discretion “unless it clearly appears that allowing amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” State Farm Fire & Cas. Co. v. Fleet Financial Corp., 724 So.2d 1218, 1219 (Fla. 5" DCA 1998). WHEREFORE, Plaintiffs respectfully request that this Court enter an order granting Plaintiffs leave to file the Amended Complaint. /s/ Alexander S. Douglas, II Alexander S. Douglas, II, Esq. Florida Bar No. 817422 Paul T. Hinckley, Esq. Florida Bar No. 48746 Shuffield, Lowman & Wilson, P.A. 1000 Legion Place, Suite 1700 Orlando, FL 32802-1010 Telephone: (407) 581-9800 Facsimile: (407) 581-9801 Attorneys for Plaintiff The Primary email address for electronic service of all pleadings in this case under Rule 2.516 is:[litservice@shuffieldlowman.com] CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 7" day of November 2023 via The Florida Courts e-Filing Portal to Young B. Kim, Esq. at youngbkimlaw @ gmail.com|and to Meredith Kirste, Esq. at meredithk@kirstelaw.com. IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL DISTRICT IN AND FOR LAKE COUNTY, FLORIDA RICKEY LYON, REGINA MARTIN, Plaintiffs, CASE NO.: 2022-CA-000152 vs. RODNEY LYON, individually and as Trustee of the George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement dated July 13, 2004; MEREDITH KIRSTE, as Successor Trustee of the George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement dated July 13, 2004, Defendant/Third-Party Plaintiff, vs. RICKEY LYON, REGINA MARTIN, Third-Party Defendants, AMENDED COMPLA: Rickey Lyon and Regina Martin, as beneficiaries of the George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement dated July 13, 2004, as amended and restated on October 28, 2010 (the “Lyon Trust”), sues Defendant, Rodney Lyon, individually and as trustee of the Lyon Trust, and Meredith Kirste, solely in her capacity as successor trustee of the Lyon Trust, and states as follows: GENERAL ALLEGATIONS 1 This is an action for breach of fiduciary duty and breach of trust, for an order compelling Rodney Lyon to perform a trust accounting pursuant to sections 736.0813 and 736.08135, Florida Statutes, for permanent removal of Rodney Lyon as trustee of the Trust and the permanent appointment of a successor trustee, for damages in excess of $30,000, exclusive of attorneys’ fees and costs, for a constructive trust or an equitable lien over any accounts in which distributions from the Lyon Trust were deposited, and for other relief requested herein. 2 The Court has subject matter jurisdiction over this matter pursuant to section 736.0203, Florida Statutes. 3 This Court has jurisdiction over Defendant Rodney Lyon pursuant to section 736.0202(2), Florida Statutes, because Defendant Rodney Lyon was serving as Trustee of the Lyon Trust during times material hereto and resides in Lake County, Florida. 4 Venue is proper in Lake County, Florida, pursuant to section 736.0204(1), Florida Statutes, because the trust property is situated in Lake County and the trustee resides there. 5 Plaintiffs, Rickey Lyon and Regina Martin, and Defendant, Rodney Lyon, are the children of trust settlors, George F. Lyon and Bertha L. Lyon, and qualified beneficiaries of the Lyon Trust. 6. Defendant, Rodney Lyon, has at all times material hereto served as successor trustee of the Lyon Trust. 7 Plaintiffs have retained Shuffield, Lowman and Wilson, P.A. to represent them in this action and are obligated to pay it a reasonable fee for its services. 8 All conditions precedent to bringing this action have been met or waived. BACKGROUND FACTS 9 On October 28, 2010, the settlors of the Lyon Trust, George F. Lyon and Bertha L. Lyon, executed the Second Amendment and Restatement of the George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement. A true and correct copy of the Second Amendment and Restatement is attached hereto as Exhibit “A”. 10. Bertha Lee Lyon, who served as trustee prior to her death, died on August 26, 2018, at which time the Trust became irrevocable. Pursuant to Section | of the Second Amendment and Restatement, Regina Martin was nominated to serve successor trustee. However, following Bertha Lyon’s death, Rodney acted as de facto trustee of the Lyon Trust in that he collected funds to which the Trust was entitled, distributed funds to the Trust’s beneficiaries, maintained Trust properties, paid taxes and other expenses related to Trust properties, and performed other administrative functions customarily performed by trustees. 11. By correspondence dated February 20, 2020, Rodney Lyon, from his attorney, requested that Regina Martin “resign” as trustee and for Rodney to formally assume the role of trustee of the Lyon Trust. 12. Shortly thereafter, Regina, having never acted as trustee, executed a declination to serve as trustee, and Rodney became successor trustee of the Lyon Trust. Rodney has formally served as trustee since Regina declined to serve. 13. On or about September 1, 2021, Plaintiffs, Rickey Lyon and Regina Martin, through their undersigned counsel, directed correspondence to Rodney Lyon citing his breach of fiduciary duty for failure to provide a trust accounting. Plaintiffs demanded that Rodney provide a trust accounting reflecting all distributions from the trust, if any, all dispositions of trust property, if any, and other trust transactions. Plaintiffs further requested that Rodney resign as trustee. A true and correct copy of the correspondence is attached as Exhibit “B”. 14. In response to Plaintiffs’ correspondence, Rodney Lyon delivered a box of documents to the office of Plaintiffs’ attorney, which box contained numerous printouts from the Lake County Property Appraiser’s website, records from the Lake County Tax Collector, bank statements, applications for agricultural exemptions, real property appraisals, and other trust documents. 15. The documents referenced in Paragraph 14 totally failed to meet the trust accounting requirements set forth in § 736.08135, Florida Statutes. 16. On or about September 16, 2021, the undersigned received correspondence from Attorney Edward P. Jordan, II, indicating that Rodney had obtained an appraisal for six parcels of land located on North Highway 27 in Lake County, Florida, in which property the Lyon Trust held an undivided 1/3 interest (the “Nursery Property”), and that Rodney, as successor trustee, intended to “list the property for sale via public auction”. A true and correct copy of the correspondence is attached hereto as Exhibit “C”. 17. The appraisal obtained by Rodney was retrospective to the date of Bertha Lyon’s death, in August 2018, and failed to take into account the value of a cell tower and billboard situated on the Nursery Property. As such, the appraisal did not reflect the current fair market value of the Nursery Property. A true and correct copy of the appraisal is attached hereto as Exhibit “D”. 18. Shortly thereafter, on or about September 25, 2021, the undersigned received correspondence from Attorney Young B. Kim stating that he represented Rodney Lyon as trustee and requesting that any future correspondence be directed to his office. A true and correct copy of the correspondence is attached hereto as Exhibit “E”. 19. On or about October 4, 2021, the undersigned, on behalf of Plaintiffs, directed correspondence to Attorney Kim objecting to the grossly inaccurate appraisal obtained by Rodney and objecting to Rodney’s sale of the Nursery Property. A true and correct copy of the correspondence is attached hereto as Exhibit “F”. 20. On or about January 9, 2022, the undersigned received correspondence from Attorney Edward P. Jordan, I, indicating that, despite Plaintiff's objections, Rodney had personally purchased the Lyon Trust’s 1/3 undivided interest in the property, the purchase price having been based on the grossly inaccurate and self-serving appraisal, which did not include the value of the cell tower and billboards on the Property and which was retrospective to August 2018. A true and correct copy of the correspondence is attached hereto as Exhibit “G”. True and correct copies of the deeds conveying the Trust’s 1/3 interest in the Nursery Property to Rodney personally are attached as Exhibit “H”. The checks received as a result of the transaction were returned to counsel for Rodney. 21. In addition, since accepting his role as trustee, Rodney has failed to provide accountings of the Lyon Trust that comply with Sections 736.0813 and 736.08135 of the Florida Statutes. In response to requests for accountings, Rodney has provided only some bank statements, copies of checks, tax statements, and other miscellaneous documents. Neither has Rodney accounted to Plaintiffs for the time period prior to his formal appointment as successor trustee during which he served as de facto trustee. 22. In addition, since Bertha Lyon’s death in August 2018, Rodney Lyon has resided in the property located at 10119 Tween Waters Street, Clermont, Florida, 34715, which is a property owned by the Lyon Trust, but has failed, as successor trustee, to collect rent on behalf of the Trust and its beneficiaries for his personal occupancy of the property. 23. Lastly, while serving as de facto trustee of the Lyon Trust and while formally serving as trustee, Rodney Lyon permitted B-Lyon Construction, Inc., in which Rodney Lyon claims to hold a majority interest, to utilize the Lyon Trust’s Nursery Property for the raising of goats and feeder cattle. The use of the Trust’s property at zero cost to B-Lyon Construction, Inc. as authorized by Rodney as trustee allowed B-Lyon Construction, Inc. to collect thousands of dollars in revenue. Such action by Rodney Lyon was a further breach of his fiduciary duty as trustee. 24. Plaintiffs anticipate that additional wrongdoings by Rodney Lyon will become known through the course of discovery. 25. On April 21, 2022, following a hearing conducted on Plaintiffs’ Emergency Motion to Suspend Trustee and Appoint Special Fiduciary (filed by Plaintiffs on February 16, 2022), this Court entered its Order on Emergency Motion to Suspend Trustee and Appoint Special Fiduciary (the “Order”). The Order provided in relevant part that “Defendant, Rodney Lyon, shall not transfer or dispose of any ownership interest in trust property without the written consent of Plaintiffs.” 26. On or about November 15, 2022, Defendant, Rodney Lyon, in his capacity as trustee of the Trust, and in violation of the Order, executed deeds conveying title to all eight (8) properties held by the Trust, and recorded said deeds in the public records of Lake County, Florida. 27. Immediately upon learning of the conveyances, Plaintiffs’ filed their Emergency Motion to Remove Current Trustee, Void Conveyances, and Appoint Successor Trustee. 28. On April 21, 2023, following a hearing on Plaintiffs’ Motion conducted on March 22, 2023, this Court entered its Order on Plaintiffs’ Emergency Motion to Remove Current Trustee, Void Conveyances, and Appoint Successor Trustee. 29. This Court’s April 21, 2023, Order removed Rodney Lyon as trustee of the Trust and appointed Meredith Kirste, Esq. to serve as successor trustee. 30. Following Meredith Kirste’s appointment as successor trustee, a dispute arose regarding her authority to sell Trust property in lieu of distributing the property in kind to the Trust’s beneficiaries. 31. Defendant, Rodney Lyon, alleges that the successor trustee of the Lyon Trust lacks the authority to sell Trust property, despite the fact that Rodney exercised such authority himself while serving as trustee. Rodney now asserts that the Trust properties must be distributed in kind to the Trust’s beneficiaries. 32. Plaintiffs contend that Section 7 of the Lyon Trust, entitled “Trustee’s Powers,” specifically authorizes the Trustee to sell Trust property. Section 7 of the Trust provides in pertinent part as follows: SECTION 7. TRUSTEES’S POWERS. [ ] In addition and not in limitation of any common law or statutory authority, the Trustees shall have the following powers, all of which shall be exercisable in the Trustees’ sole and absolute discretion and without authorization or confirmation by any court or other person being required: (a) To sell, exchange or otherwise dispose of any real or personal property and may further borrow funds and pledge and/or mortgage trust assets for trust purposes. [Emphasis added]. 33. Plaintiff, Rickey Lyon, does not wish to be a tenant in common with his brother, Rodney Lyon, as it relates to the Nursery Property as they do not get along, and they are otherwise unable to cooperate with each other. 34. If Meredith Kirste, Esq., as successor trustee of the Lyon Trust, is not authorized by the terms of the Trust to sell Trust property and distribute the proceeds to the beneficiaries of the Trust (instead of distributing the property in kind), Rickey Lyon will be compelled to bring an action for partition of the Nursery Property following its in kind distribution to him and Defendant, Rodney Lyon. 35. A subsequent action for partition of the Nursery Property is not in the best interests of the beneficiaries of the Trust, will further deplete the assets of the Trust, and will be a waste of limited judicial resources. 36. Section 3 of the Trust, entitled “Trust Property,” provides in pertinent part that “Grantors jointly and severally transfer to Trustees the property described in the attached Schedule A, the receipt of which is hereby acknowledged by Trustees”. 37. Paragraph 12 of Schedule A to Trust declares the following to be property of the Trust: Any and all interest, proceeds, cash, securities, or intangible property held by Grantor in those certain Certificate of Deposits with Crown Bank of Clermont, Florida, or in any substitute account for which said interest, proceeds, cash. securities, or intangible property may be deposited, held, including after acquired property and earned interest and dividends. [Emphasis added]. 38. Upon information and belief, the Certificate of Deposits with Crown Bank of Clermont referenced in Paragraph 12 of Schedule A were transferred by Grantors to SunTrust Bank. Thus, upon information and belief, the “substitute account” the property was deposited into was held with SunTrust Bank. 39. In response to Plaintiffs’ subpoena to Truist Bank (as successor in interest to SunTrust Bank), records were provided to Plaintiffs indicating that Grantor, Bertha Lyon, held six (6) Certificates of Deposit with SunTrust Bank, each in the amount of One Hundred Thousand Dollars ($100,000.00), totaling $600,000.00. These Certificates of Deposit bore the following Account Numbers (referred to as “Customer Numbers” in SunTrust’s records): Customer Number 17547874957 $100,000.00 (2 Certificates of Deposit) $100,000.00 17547875008 $100,000.00 (1 Certificate of Deposit) 17547874876 $100,000.00 (2 Certificates of Deposit) $100,000.00 17548022818 $100,000.00 (1 Certificate of Deposit) (Hereinafter the “SunTrust Certificates of Deposit”). 40. The SunTrust Certificates of Deposit were held in accounts titled jointly in the names of Grantor, Bertha Lyon, Defendant, Rodney Lyon, and Plaintiff, Rickey Lyon. Al. On February 6, 2019, Defendant, Rodney Lyon, withdrew $100,262.20 on the Certificate of Deposit bearing the Customer No. 17547874876. Of this withdrawal, upon information and belief, Rodney re-deposited $56,662.20 into a new SunTrust Certificate of Deposit bearing Customer No. 17548808964, which was titled in Rodney’s sole name. 42. On October 10, 2019, Rodney Lyon withdrew $75,000.00 from the Certificate of Deposit bearing the Customer No. 17547874876. 43. On August 6, 2020, Rodney Lyon withdrew $105,461.42 from the Certificate of Deposit bearing the Customer No. 17547874957, withdrew $105,461.42 from the Certificate of Deposit bearing the Customer No. 17547875008, and withdrew $57,758.81 from the Certificate of Deposit bearing Customer No. 17548808964. SunTrust Check Nos. 5301813628, 5301813633, and 5301813637 were issued by SunTrust Bank and made payable to Rodney Lyon or Rickey Lyon. Upon information and belief, Rodney deposited all withdrawn funds into an account held solely in his own name. 44. On October 9, 2020, Rodney Lyon withdrew $105,052.41 from the Certificate of Deposit bearing the Customer No. 17547874957, withdrew $105,052.41 from the Certificate of Deposit bearing the Customer No. 1754802818, and withdrew $50,000.00 from the Certificate of Deposit bearing the Customer No. 17547874876. Upon information and belief, all withdrawn funds were transferred to an account in Rodney Lyon’s sole name. 45. During his deposition conducted on January 16, 2023, Defendant, Rodney Lyon, denied having any knowledge concerning the Certificates of Deposit referenced in the Trust, and claimed he “did not remember” the two SunTrust checks for $105,461.42 issued on August 6, 2020, or the check for $57,758.81 issued the same day. 46. In total, Rodney withdrew from the Certificates of Deposit referenced in the Trust funds amounting to at least $629,000.00, and possibly more. 47. Meredith Kirste, Esq., as successor trustee of the Lyon Trust is named as a defendant solely because she is a necessary party and not because she has committed any breach or wrongful acts. 48. The Lyon Trust establishes a trust for Plaintiffs’ sister, Rhonda Glover, and nominates Regina Martin to serve as trustee for Rhonda Glover’s trust. Regina Martin has accepted her role as trustee for Rhonda Glover’s trust. COUNT I BREACH OF FIDUCIARY DUTY AND BREACH OF TRUST AS TO RODNEY LYON AS TRUSTEE OF THE LYON TRUST 49. The Plaintiff repeats and re-alleges the allegations contained in Paragraphs 1 through 48 against Rodney Lyon as if fully set forth herein. 50. This is an action for breach of fiduciary duty and breach of trust pursuant to Chapter 736, Florida Statutes. S51. Defendant, Rodney Lyon, as trustee of the Lyon Trust, owed Plaintiffs, Rickey Lyon and Regina Martin, a fiduciary duty. §2. Defendant, Rodney Lyon, had a duty to act in the best interest of all of the beneficiaries of the Lyon Trust. 53. Defendant, Rodney Lyon, as trustee of the Lyon Trust, owed a duty to administer the Lyon Trust in accordance with its terms and purposes. 54. Defendant, Rodney Lyon, had a duty to keep clear, distinct, and accurate records of the administration of the Lyon Trust. 55. Defendant, Rodney Lyon, had a duty to make productive use of Trust properties. 56. Defendant, Rodney Lyon, as Trustee of the Lyon Trust, committed breaches of his fiduciary duty and a breach of trust. Said breaches include but are not limited to a) failing to 10 provide annual accountings as required by § 736.08135, Florida Statutes, b) failing to provide the qualified beneficiaries with all relevant requested information concerning the assets and liabilities of the Lyon Trust and the particulars relating to its administration; c) self-dealing in the sale of Trust assets to himself personally for substantially below market value; d) self-dealing in the leasing of Trust property to himself personally at little or no cost, and e) failing to make productive use of Trust properties by collecting rent for use and occupancy of the Tween Waters Trust property, f) failing to make productive use of Trust property by permitting B-Lyon Construction, Inc. to use the Nursery Trust Property at zero cost, and g) using Trust assets to pay expenses for properties not held by the Trust. 57. In addition, due to Rodney Lyon’s failure to provide a full and timely trust accounting, the Plaintiff suspects Rodney Lyon may have breached additional duties to the beneficiaries which may be revealed once a proper accounting has been provided. 58. The Court may remove a trustee under section 736.0706, Florida Statutes, if the trustee has committed a serious breach of trust, or if the Court determines that removal of the trustee best serves the interests of the beneficiaries due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively. 59. It is in the best interests of the beneficiaries of the Lyon Trust that the Defendant, Rodney Lyon, be permanently removed as Trustee of the Lyon Trust. 60. Other qualified entities or individuals are available to serve as the successor Trustee of the Lyon Trust. 61. As a direct and proximate result of Defendant’s breaches of fiduciary duty, Plaintiffs have been damaged. 62. Plaintiffs also request that the Court grant them equitable relief in the form of an equitable lien or a constructive trust over any and all trust real estate deeded to Defendant, and/ W or over bank or financial accounts which currently hold assets which were distributed from the Lyon Trust to Defendant, Rodney Lyon, since its inception. 63. Plaintiffs also request that the Court order Defendant, Rodney Lyon, to return all trust property, real and personal, that he wrongfully received from the Trust. 64. Plaintiffs request that the Court award them all applicable remedies available under section 736.1001, Florida Statutes. 65. Plaintiffs are entitled to recover their reasonable attorney’s fees and costs from Defendant, Rodney Lyon, pursuant to sections 736.1004, 736.1005 and 736.1006, Florida Statutes. Plaintiffs also request that their attorneys’ fees and costs be assessed against Rodney Lyon, individually. WHEREFORE, the Plaintiffs demand judgment against Defendant, Rodney Lyon, for damages, including pre-judgment and post-judgment interest, establishment of a constructive trust or an equitable lien over the accounts where funds of the Lyon Trust were wrongfully disbursed or transferred to Rodney Lyon, the permanent removal of Rodney Lyon as trustee, the appointment of a (permanent) successor trustee, attorney fees, costs, and such other relief as the Court deems just and proper. COUNT II ACTION FOR ACCOUNTING OF TRUST ASSETS AS TO RODNEY LYON AS TRUSTEE 66. The Plaintiffs reallege and reassert the allegations contained in Paragraphs 1 through 48 above against Rodney Lyon as if fully set forth herein. 67. This is an action for an accounting of Trust assets pursuant to sections 736.0813 and 736.08135, Florida Statutes. 68. The Court has jurisdiction pursuant to section 736.0202, Florida Statutes. 12 69. Plaintiffs, as beneficiaries of the Lyon Trust, have standing to demand a full and accurate accounting of the Lyon Trust since Rodney Lyon began to act as successor Trustee of the Lyon Trust, including periods of time during which Rodney Lyon was acting as de facto trustee of the Trust. 70. Defendant, Rodney Lyon, as Trustee, has a duty to inform and account to the qualified beneficiaries of the Lyon Trust at least annually. 71. Plaintiffs have never received a Trust Accounting that complies with Florida law since Rodney Lyon began to serve as successor Trustee of the Lyon Trust. 72. Plaintiffs are entitled to receive a complete trust accounting in a format specified by section 736.08135, Florida Statutes. 23. Plaintiffs are entitled to an award of attorney fees and costs and requests that such fees be accessed against Rodney Lyon individually. WHEREFORE, Plaintiffs request that the Court order the Defendant, Rodney Lyon, as Trustee, to render a trust accounting to Plaintiff in a format specified by section 736.01835, Florida Statutes, award Plaintiffs their attorney fees and costs, and grant such other relief as the Court may deem just and proper. COUNT Il DECLARATORY RELIEF 74. The Plaintiffs reallege and reassert the allegations contained in Paragraphs 1 through 48 above against Rodney Lyon as if fully set forth herein. 75. This is a claim for declaratory relief against all defendants pursuant to section 736.0201(4), Florida Statutes. 76. A bona fide dispute exists between Plaintiffs and Defendant, Rodney Lyon, as to whether the successor trustee, Meredith Kriste, is authorized by the terms of the Trust or 13 otherwise under Florida law to sell Trust property and distribute the proceeds of the sale to the beneficiaries of the Trust in lieu of an in-kind distribution of Trust properties. 77. Plaintiffs are entitled under s. 736.0201(4), Florida Statutes, to a declaratory judgment to determine any question relating to the administration of the Trust, including questions of construction. 78. All parties with an interest in the declaratory relief sought by Plaintiffs have been joined in this action. 79. Plaintiffs are in doubt as to their rights under the Trust to receive the proceeds of the sale of Trust property in lieu of an in-kind distribution of Trust property. 80. A justiciable question exists as to the right of the successor trustee to sell Trust property in lieu of an in-kind distribution. 81. There is a bona fide, actual, and present need for the declaration. 82. The relief sought by Plaintiffs is not merely the giving of legal advice by the courts or the answers to questions propounded by sheer curiosity. 83. Plaintiffs are entitled to an award of attorney fees and costs to be paid from the trust pursuant to section 736.1005. WHEREFORE, Plaintiffs request that this Court enter a declaratory judgment affirming the successor trustee’s authority to sell Trust property and distribute the proceeds of the sale to the Trust’s beneficiaries in lieu of an in-kind distribution of Trust property, and to award Plaintiffs their attorney fees and costs. COUNT IV JUDICIAL MODIFICATION OF TRUST INSTRUMENT (In the alternative to Count II) 84. Plaintiffs reallege and reassert the allegations contained in Paragraphs 1 through 48 above against Rodney Lyon as if fully set forth herein. 14 85. This is a claim for judicial modification of the Lyon Trust pursuant to Section 736.04113, Florida Statutes. 86. Pursuant to Section 736.04113, Florida Statutes, upon the application of a trustee or a qualified beneficiary, a court may modify the terms of an irrevocable trust, including amending or changing the terms governing administration of the trust, if (a) the purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill; (b) because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat of substantially impair the accomplishment of a material purpose of the trust; or (c) a material purpose of the trust no longer exists. 87. The Settlors of the Trust, George Lyon and Bertha Lyon, did not anticipate the circumstance that their sons, Rickey Lyon and Rodney Lyon, would be unable to get along sufficiently to be co-owners of the Nursery Property, and that Rickey and Rodney would disagree as to whether and how the Nursery Property would be sold. 88. A material purpose of the Lyon Trust is the preservation of Trust assets for the benefit of the Trust beneficiaries- the four children of George Lyon and Bertha Lyon. 89. To the extent that the Trust mandates an in-kind distribution of the Nursery Property to Rickey Lyon and Rodney Lyon, compliance with the terms of the Trust would defeat or substantially impair the accomplishment of this material purpose of the Trust. The in-kind distribution of real property to Ricky Lyon and Rodney Lyon would result in litigation to partition the property, resulting in waste in the form of the additional attorney fees and costs incurred. 90. Pursuant to Section 736.04113(2), Florida Statutes, a court modifying a trust under Section 736.04113, Florida Statutes, may 15 (a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust; . . . or (c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or (d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust. 91. Section 7 of the Lyon Trust currently provides as follows as it relates to the Trustee’s powers: SECTION 7. TRUSTEES’S POWERS. In the administration of the trusts created by this agreement, the Trustees shall be governed by the provisions of Section 737.402, Florida Statutes, that are not in conflict with this agreement and shall have all additional powers and protection granted by statute to Trustees at the time of application that are not in conflict with this agreement. In addition and not in limitation of any common law or statutory authority, the Trustees shall have the following powers, all of which shall be exercisable in the Trustees’ sole and absolute discretion and without authorization or confirmation by any court or other person being required: (a) To sell, exchange, or otherwise dispose of any real property or personal property and may further borrow funds and pledge and/or mortgage trust assets for trust purposes. 92. Plaintiffs respectfully request that, pursuant to Section 736.04113, Florida Statutes, the Court modify the language in Section 7(a) of the Lyon Trust as set forth below: SECTION 7. TRUSTEES’S POWERS. In the administration of the trusts created by this agreement, the Trustees shall be governed by the provisions of Section 737.402, Florida Statutes, that are not in conflict with this agreement and shall have all additional powers and protection granted by statute to Trustees at the time of application that are not in conflict with this agreement. In addition and not in limitation of any common law or statutory authority, the Trustees shall have the following powers, all of which shall be exercisable in the Trustees’ sole and absolute discretion and without authorization or confirmation by any court or other person being required: (a) To sell, exchange, or otherwise dispose of any real property or personal property and may further borrow funds and pledge and/or mortgage trust assets for trust purposes. Notwithstanding any other provision herein to the contrary, the Trustees shall have the power and authority to sell or otherwise dispose of real property, including following termination of the Trust as provided 16 in Section 5, and distribute the proceeds of such sale to the specific beneficiaries to whom the real property was to be distributed pursuant to Section S(c). [END OF PROPOSED TRUST MODIFICATIONS] 93. The Proposed Trust Modifications set forth in Paragraph 77 are consistent with the Settlors’ purpose in establishing the Trust, which is the preservation of Trust assets for the benefit of the Trust’s beneficiaries. Without the requested modification, the Trust assets would be wasted through payment of attorney fees and costs to partition the property due to the inability of the co-owners to cooperate with each other. 94. Based on the foregoing, Plaintiffs bring this Count against all Defendants and respectfully request that the Court modify the Lyon Trust consistent with the Proposed Trust Modifications outlined above pursuant to Sections 736.04113 and 736.0201, Florida Statutes. 95. Plaintiffs are entitled to recover their attorney’s fees and costs pursuant to Section 736.1004, Florida Statutes, and request that such attorney fees and costs be accessed against the share of Rodney Lyon. WHEREFORE, Plaintiffs, RICKEY LYON and REGINA MARTIN, as qualified beneficiaries of the Lyon Trust, respectfully request that this Court enter Final Judgment i) finding that all persons with an interest in these proceedings are before the Court, (ii) finding that because of circumstances not anticipated by the Settlors, compliance with the terms of the Trust would substantially defeat or impair the accomplishment of a material purpose of the Trust, (iii) modifying the Trust Instrument consistent with the Proposed Trust Modifications as outlined in Paragraph 74 pursuant to Sections 736.04113 and 736.0201, Florida Statutes, (iv) awarding Plaintiffs their reasonable attorney’s fees and costs and assessing the same against Defendant, Rodney Lyon’s, share of the Trust, and (v) granting such other and further relief as this Court deems just and proper. 17 COUNT V DECLARATORY RELIEF 96. Plaintiffs reallege and reassert the allegations contained in Paragraphs | through 48 above against Rodney Lyon as if fully set forth herein. 97. This is a claim for declaratory relief against all defendants. 98. Section 3 ofthe Trust provides in pertinent part as follows: SECTION 3. TRUST PROPERTY. Grantors jointly and severally transfer to Trustees the property described in the attached Schedule A, the receipt of which is hereby acknowledged by Trustees. [...]. 99. Schedule A of the Trust provides in pertinent part as follows: For record keeping purposes only, the initial property held by the Trustees under the July 13, 2004 George Frederick Lyon and Bertha Lee Lyon Inter Vivos Revocable Trust Agreement is as follows: [...] 13. Any and all interest, proceeds, cash, securities, or intangible property held by Grantor in that certain Florida Corporation known as B-Lyon Construction, Inc., its successors or assigns as their interest may appear, or in any substitute corporation for which said interest, proceeds, cash securities, or intangible property may be deposited, held, including after acquired property and earned interest and dividends. [ ] 100. B-Lyon Construction, Inc. owns certain real property located in Georgia as well as personal property in Florida. 101. Plaintiffs are unable to ascertain the security and/or other interests of Grantors, George Frederick Lyon and Bertha Lee Lyon, in B-Lyon Construction, Inc. 102. Defendant, Rodney Lyon, has asserted that upon Grantors’ deaths, the security interests held by Grantors in B-Lyon Construction, Inc. was divided evenly between himself and Plaintiff, Rickey Lyon. 103. The language in the Trust does not support Rodney Lyon’s assertion. 18 104. Plaintiffs are entitled under s. 736.0201(4) and 86.041(3), Florida Statutes, to a declaratory judgment to determine the Trust’s security and other interests in B-Lyon Construction, Inc. 105. All parties with an interest in the declaratory relief sought by Plaintiffs are joined in this action. 106. Plaintiffs are in doubt as to the interest in B-Lyon Construction, Inc. held by the Trust. 107. A justiciable question exists as to what share of B-Lyon Construction, Inc. is owned by the Trust. 108. There is a bona fide, actual, and present need for the declaration. 109. The relief sought by Plaintiffs is not merely the giving of legal advice by the courts or the answers to questions propounded by sheer curiosity. 110. Plaintiffs are entitled to an award of attorney fees and costs to be paid from the trust pursuant to section 736.1005 and that such fees and costs be accessed against the share of Rodney Lyon. WHEREFORE, Plaintiffs, RICKEY LYON and REGINA MARTIN, respectfully request that this Honorable Court enter a declaratory judgment 1) determining the Trust’s security and/or other interests in B-Lyon Construction, Inc., and 2) determining Grantor’s intent as it relates to the distribution of the Trust’s interests in B-Lyon Construction, Inc. to the beneficiaries of the Trust; and 3) awarding Plaintiffs their attorney fees and costs to be paid from the trust or the share of Rodney Lyon. COUNT VI BREACH OF FIDICUIARY DUTY CLAIM AGAINST RODNEY LYON-- RETURN OF ATTORNEY’S FEES TO TRUST 19 111. Plaintiffs reallege and reassert the allegations contained in Paragraphs | through 48 above against Rodney Lyon as if fully set forth herein. 112. Section 736.0802(10)(b), Florida Statutes, provides in pertinent part as follows as it relates to a trustee’s payment of attorney’s fees from trust assets: If a trustee incurs attorney fees or costs in connection with a claim or defense of breach of trust which is made in a filed pleading, the trustee may pay such attorney fee or costs from trust assets without the approval of any person and without any court authorization. However, the trustee must serve a written notice of intent upon each qualified beneficiary of the trust whose share of the trust may be affected by the payment before such payment _is made. [ ] [Emphasis added]. 113. Section 736.0802(10)(c), Florida Statutes, further provides as follows: The notice of intent must identify the judicial proceeding in which the claim or defense of breach of trust has been made in a filed pleading and must inform the person served of his or her right under paragraph (e) to apply to the court for an order prohibiting the trustee from using trust assets to pay attorney fees or costs as provided in paragraph (b) or compelling the return of such attorney fees and costs to the trust. The notice of intent must be served by any commercial delivery service or form of mail requiring a signed receipt; the manner provided in the Florida Rules of Civil Procedure for service of process; or, as to any party over whom the court has already acquired jurisdiction in that judicial proceeding, in the manner provided for service of pleadings and other documents by the Florida Rules of Civil Procedure. 114. Section 736.0802(10)(d), Florida Statutes, further provides as follows: If_a trustee has used trust assets to pay attorney fees or costs described in paragraph (b) before service of a notice of intent, any qualified beneficiary who is not barred under s. 736.1008 and whose share of the trust may have been affected by such payment is entitled, upon the filing of a motion to compel the return of such payment to the trust, to_an_order_compelling the return of such payment, with interest at the statutory rate. The court shall award attorney fees and costs incurred in connection with the motion to compel as provided in s. 736.1004. [Emphasis added]. 115. Lastly, Section 736.0802(10)(e), Florida Statutes, provides as follows: Upon the motion of any qualified beneficiary who is not barred under s. 736.1008 and whose share of the trust may be affected by the use of trust assets to pay attorney fees or costs as provided in paragraph (b), the court may prohibit the trustee from using trust assets to make such payment and, if such payment has been made from trust assets after service of a notice of intent, the court may enter 20 an order compelling the return of the attorney fees and costs to the trust, with interest at the statutory rate. 116. Defendant, Rodney Lyon, has paid attorney’s fees to Edward P. Jordan, II, Esq. and/or to Young B. Kim, Esq., using Trust assets. 117. Defendant failed to provide notice to Plaintiffs as required under Section 736.0802(10)(b), Florida Statutes, prior to paying said attorneys using Trust assets. 118. Plaintiffs are qualified beneficiaries of the Trust whose share of the Trust may have been affected by such payment. 119. Rodney Lyon’s failure to comply with the law is a breach of fiduciar