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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FIRST UNION NATIONAL
NOT FINAL UNTIL TIME EXPIRES TO
BANK,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellant,
v.
CASE NO.: 1D01-1120
HELEN J. TURNEY,
Appellee.
___________________________/
Opinion filed February 6, 2003.
An appeal from the Circuit Court for Duval County.
Charles O. Mitchell, Jr., Judge.
Virginia B. Townes and Stacey L. Cole of Akerman, Senterfitt & Eidson, P.A.,
Orlando, for Appellant.
Thomas S. Edwards of Peek, Cobb, Edwards & Ashton, P.A., Jacksonville, and
James L. Ford, Sr., Atlanta, Georgia, for Appellee.
VAN NORTWICK, J.
First Union National Bank (First Union) appeals a final judgment awarding
attorney's fees to Helen J. Turney, appellee. Mrs. Turney, as beneficiary of her late

husband's trust, brought the underlying action against First Union, in its capacity as
trustee of the Turney trust, based upon allegations that First Union had breached its
fiduciary duty during the life of the trust. Mrs. Turney recovered a substantial jury
verdict which was affirmed by this court. See First Union Nat'l Bank v. Turney, 824
So. 2d 172 (Fla. 1st DCA 2001)(Turney I), rev. denied, 828 So. 2d 385 (Fla. 2002).
Also, the trial court ordered First Union to pay Mrs. Turney's attorney's fees and
costs pursuant to section 737.627, Florida Statutes (1993). First Union asserts that
the award of fees under section 737.627 was erroneous because appellee's cause of
action for breach of fiduciary duty accrued prior to the effective date of the statute
and, based upon the authority of Florida Patient's Compensation Fund v. Scherer, 558
So. 2d 411 (Fla. 1990), the fee statute cannot be retroactively applied. Because we
find that certain of the acts constituting a breach of fiduciary continued beyond the
October 1, 1993, effective date of the statute, we conclude that the trial court did not
err in applying this fee statute, and we affirm.
Because this case involves the threshold resolution of the legal issue of whether
section 737.627 can be applied in the instant case, we review that portion of the trial
court's order under a de novo standard of review. See Gibbs Constr. Co. v. S.L.
Page Corp., 755 So. 2d 787 (Fla. 2d DCA 2000). Once the attorney's fee statute is
determined to be applicable, however, any issue relating to whether the award under
2

the statute is appropriate is reviewed under an abuse of discretion standard. See Nalls
v. Millender, 721 So. 2d 426, 427 (Fla. 4th DCA 1998)(holding that abuse of discretion
standard applies to review of order granting fees under section 737.627).
Section 737.627, Florida Statutes (1993), provides, in pertinent part, that "[i]n
all actions challenging the proper exercise of a trustee's powers, the court shall award
taxable costs as in chancery actions, including attorney's fees." First Union argues
that, because section 737.627 was enacted with an effective date of October 1, 1993,
see chapter 93-257, § 18 at 2512, Laws of Florida, and Mrs. Turney's cause of action
accrued several years prior to 1993 when the acts constituting a breach of fiduciary
duty occurred, the trial court erred in applying section 737.627 as the basis for an
award of fees. The trial court rejected First Union's argument, ruling that "Plaintiff's
entitlement to fees vested upon the Plaintiff's becoming the prevailing party" and that
"[t]he date of enactment of § 737.627, Fla. Stat., is of no consequence, as it was
enacted prior to the jury's determination which resulted in the prevailing party in this
suit being determined."
We agree with First Union that the trial court erred in basing its application of
the fee statute on the fact that the date on which Mrs. Turney was determined to be the
prevailing party occurred after the effective date of section 737.627. In Scherer, the
plaintiff suffered damages by an act of medical malpractice which occurred in 1979
3

and discovered her injuries some time after September 1, 1980. The Supreme Court
held that the attorney's fees provision of section 768.56, Florida Statutes (1981),
which had become effective on July 1, 1980, could not be applied because "a cause
of action for medical malpractice accrues for purposes of applying section 768.56
when the malpractice incident causing the injury and giving rise to the liability occurs,"
not upon discovery of the injury. Scherer, 558 So. 2d at 414. For the purposes of the
statute of limitations, the delayed discovery doctrine applies to postpone accrual of
a cause of action until the act or injury is discovered by the plaintiff, see Hearndon v.
Graham, 767 So. 2d 1179 (Fla. 2000).1 Nevertheless, the Supreme Court reasoned in
Scherer that to apply a fee statute to a tort that occurred before the statute's effective
date violates the constitutional prohibitions against ex post facto laws. Scherer, 558
So. 2d at 414. In that context, Scherer held that the damages, including an award of
attorney's fees, for which the defendant may be held liable cannot constitutionally be
enlarged after the date of the malpractice. Id. As a result, under Scherer, the date of
the accrual of a cause of action may differ, depending on whether one is seeking to
apply the statute of limitations or an attorney's fee statute.
1Indeed, this court has already held that the delayed discovery doctrine applies
in this case. See Turney I, 824 So. 2d at 188, n.13 ("[Mrs. Turney's] causes of action
did not accrue until she became aware of facts that would have put a reasonable
person on notice.").
4

Although the reason stated by the trial court to support its award of attorney's
fees was erroneous, "if a trial court reaches the right result, but for the wrong reasons,
it will be upheld if there is any basis which would support the judgment in the record."
Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
"[T]here must have been support for the alternate theory or principle of law in the
record before the trial court." Robertson v. State, 829 So. 2d 901 (Fla. 2002). This
principle, sometimes referred to as the "tipsy coachman" rule, see Home Depot
U.S.A. Co., Inc. v. Taylor, 676 So. 2d 479, 480 (Fla. 5th DCA 1996), arises from the
presumption of correctness with which the judgment of the trial court is clothed. See
Cohen v. Mohawk, Inc., 137 So. 2d 222, 225 (Fla. 1962). We find that the record
here supports affirmance on a theory different than that adopted by the trial court.
Under the rule of Scherer, it is the date of the acts that constituted a breach or
breaches of fiduciary duty, and not the date of the determination of the prevailing
party, which must be used in deciding whether section 737.627 can be applicable.
Because it is apparent from the jury's answers to the interrogatories in the verdict form
below and from this court's earlier opinion in Turney I that First Union's tortuous acts
continued beyond the October 1, 1993 effective date of section 737.627, we hold that
the award of fees did not constitute a retroactive application of the statute and Scherer
does not apply.
5

As discussed in Turney I, among the acts constituting breaches of fiduciary by
First Union were the bank's conflicts of interest in a transaction with Port Sanibel,
Ltd., the bank's deliberate withholding of information from Mrs. Turney concerning
the facts constituting its breach of fiduciary duty, and the bank's attempt to obtain a
general release from Mrs. Turney without providing her with the relevant and material
information necessary to make an informed decision. See Turney I. "A fiduciary's
deliberate withholding of material information the fiduciary has a duty to disclose
constitutes fraudulent concealment." Turney I, 824 So. 2d at 190; see also Nardone
v. Reynolds, 333 So. 2d 25, 39 (Fla. 1976), receded from on other grounds,
Hearndon v. Graham, 767 So. 2d at 1184-85. From the facts discussed in Turney I,
it is apparent that First Union continued its concealment of relevant and material facts
at least through 1993, as it unsuccessfully sought to obtain the general release from
Mrs. Turney. See Turney I, 824 So. 2d at 179-181. For example, in late September
and early October 1993, First Union continued to communicate with two separate law
firms relating to, among other things, First Union's possible liability either to the
beneficiaries or to a successor trustee of the Turney trust arising out of the bank's
conflict of interest. Id. at 180-181. At the same time, as Mrs. Turney and her son-in-
law both testified at trial, First Union never advised Mrs. Turney or other beneficiaries
that it had any conflict of interest during its administration of the trusts. Id. at 181.
6

Further, according to the testimony of outside counsel to First Union who negotiated
with the beneficiaries of the Turney trust on behalf of the bank, the bank offered to
lend money to the trust, but only if the beneficiaries agreed to release all prior claims
against the bank. Id. First Union's in-house counsel acknowledged that the bank did
not, as far as she knew, ever inform Mrs. Turney of any conflict or of the nature of
any claim that she might be giving up by executing the release First Union sought. Id.
Our conclusion that the breaches of fiduciary duty continued beyond October
1993 is also supported by the jury's answers to the verdict interrogatories. In those
answers, the jury found that, prior to October 24, 1995, First Union had not provided
Mrs. Turney an accounting or other statement fully disclosing the facts underlying the
bank's breach of fiduciary duty. Further, Turney I observes that "[t]he bank never
disclosed the breaches of fiduciary duty upon which Mrs. Turney ultimately sued."
Id. at 188, n.13.
Thus, we find that, although the initial tortuous acts involving the bank's
conflicts of interest may have been undertaken during a period covering 1982 through
1984, the bank's fraudulent concealment continued well after October 1, 1993, the
effective date of section 737.627. As appellee correctly argues, unlike Scherer, where
the tortuous act was completed prior to the effective date of the fee statute, here, the
7

tortuous acts continued after the fee statute's effective date. As a result, the rule in
Scherer does not preclude an award of attorney's fees under section 737.627 in the
present case.
Section 737.627 provides that "[i]n all actions challenging the proper exercise
of a trustee's powers, the court shall award taxable costs as in chancery actions,
including attorney's fees." An action seeking to recover for a bank trustee's breach
of fiduciary duty is an "action" under section 737.627. See First Union Nat'l Bank v.
Jones, 768 So. 2d 1213, 1215 (Fla. 4th DCA 2000); and Republic Nat'l Bank v.
Araujo, 697 So. 2d 164, 166 (Fla. 3d DCA 1997). Further, "[t]he well settled `rule in
chancery cases is that a court of equity may, as justice requires, order that costs
follow the result of the suit, apportion the costs between the parties, or require all
costs be paid by the prevailing party.'" Estate of Brock, 695 So. 2d 714, 716 (Fla. 1st
DCA 1996)(quoting Dayton v. Conger, 448 So. 2d 609, 612 (Fla. 3d DCA 1984)).
In view of the substantial jury verdict here, there is no abuse of discretion in the award
of the attorney's fee. See Nalls v. Millender, 721 So. 2d at 427.
AFFIRMED.
LEWIS, J., CONCURS and KAHN, J., DISSENTS WITH WRITTEN OPINION.
8

KAHN, J., dissenting.
I dissent from the majority opinion because this court has no authority to affirm
the award of attorney's fees to appellee.
Appellee correctly argues that the delayed discovery doctrine applies to
postpone accrual of a cause of action until the act or injury is discovered by the
plaintiff. See Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000). Indeed, this court
has already held that the delayed discovery doctrine applies in this case. See First
Union Nat'l Bank v. Turney, 824 So. 2d 172, 190 (Fla. 1st DCA 2002) (Turney I)
("[Mrs. Turney's] causes of action did not accrue until she became aware of facts that
would have put a reasonable person on notice."). Appellee maintains that the rule of
accrual that applies to postpone or toll the running of the statute of limitations should
also apply in this case where statutory attorney's fees are at stake. The Florida
Supreme Court has, however, indicated otherwise.
Our decision should be guided by Florida Patient's Compensation Fund v.
Scherer, 558 So. 2d 411 (Fla. 1990). In Scherer, the plaintiff suffered, in 1979, an
injury due to medical malpractice. The plaintiff discovered her injury sometime after
September 30, 1980, and filed suit September 20, 1982. Scherer was successful at
trial, and the trial court awarded attorney's fees pursuant to section 768.56, Florida
9

Statutes (1981), a statute that had become effective July 1, 1980. The supreme court
reversed, finding that "a cause of action for medical malpractice accrues for purposes
of applying section 768.56 when the malpractice incident causing the injury and giving
rise to the liability occurs," not upon discovery of the injury. Id. at 414. Accordingly,
the accrual of a cause of action may differ, depending on whether one is seeking to
apply the statute of limitations, or a recently enacted attorney's fee statute.
The right to recover attorney's fees, as well as the burden to pay such fees, is
substantive in nature. See L. Ross, Inc. v. R.W. Roberts Constr. Co., 481 So. 2d
484 (Fla. 1986); see also Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985) ("[A]
statutory requirement for the non-prevailing party to pay attorney fees constitutes 'a
new obligation or duty,' and is therefore substantive in nature."). "Substantive rights
cannot be adversely affected by the enactment of legislation once those rights have
vested." Williams Coll. v. Bourne, 670 So. 2d 1118, 1120 (Fla. 5th DCA 1996). The
Florida Supreme Court in Scherer made clear that due process considerations preclude
retroactive application of a law creating a new substantive right to attorney's fees. See
Scherer, 558 So. 2d at 414. For the reasons expressed by the court in Scherer, the
delayed discovery doctrine does not apply to application of a newly enacted attorney's
fee statute. The basis for such a rule is due process. A defendant's liability cannot be
10

increased after the defendant has committed the tortious acts for which the defendant
is ultimately found responsible.
Nothing in the trial court's order awarding attorney's fees suggests that tortious
acts occurred after the effective date of the attorney's fee statute. Also, nothing in this
court's earlier opinion will support an argument that tortious acts causing additional
damages occurred after the effective date of the statute. As the majority
acknowledges, the trial court's determination that entitlement to fees vested upon
plaintiff becoming the prevailing party is an incorrect statement of the law. See
Scherer, 558 So. 2d at 414 . Under the due process considerations enunciated by
Scherer, First Union cannot be held responsible for attorney's fees based upon a
statutory enactment that became effective after its tortious acts.
The majority would apply the "tipsy coachman" rule as support for affirming
the award of attorney's fees. Slip Op. 5-7. The majority contends that our Turney I
decision establishes, "First Union continued its concealment of relevant material facts
at least through 1993, as it unsuccessfully sought to obtain the general release from
Mrs. Turney." Slip Op. 6. The problem with this predicate, a predicate completely
necessary for the majority's conclusion, is that our discussion in Turney I relates to
an evidentiary dispute concerning admissibility of certain documents in evidence over
11

First Union's objection that these documents fell within the attorney-client privilege.
See Turney I, 824 So. 2d at 174. The context of the facts relevant to the determination
of that evidentiary dispute in Turney I is simply different in kind from the present
attorney's fee dispute. Respectfully, I do not believe that the majority has satisfied the
threshold requirement for the "tipsy coachman" doctrine -- "the record before the trial
court must support the alternative theory or principle of law." State Farm Fire & Cas.
Co. v. Levine, 27 Fla. L. Weekly S1043, S1044 (Fla. Dec. 19, 2002).
Beyond the case law cited in this dissenting opinion, I must point out that both
this court and the Florida Supreme Court have denied motions for attorney's fees filed
by Turney in this matter and relying upon the identical theory now adopted by the
majority. See First Union Nat'l Bank v. Turney, Case No. SC02-197 (Fla. Sept. 30,
2002) (unpublished order denying Turney's motion for attorney's fees after Turney
succeeded in convincing the supreme court to decline to accept jurisdiction); First
Union Nat'l Bank v. Turney, Case No. 1D00-2803 (Fla. 1st DCA Jan. 17, 2002)
(unpublished order denying appellate attorney's fees and citing Scherer). I find it
particularly significant that in the supreme court matter, Turney filed a motion for
appellate attorney's fees relying upon section 737.627 and specifically alleging "the
bad acts . . . found by the jury were committed, in part, after said statute was
12

enacted." See Turney, Case No. SC02-197 (Appellee Turney's Motion for Attorney's
Fees filed February 26, 2002). Now that the supreme court has rejected Turney's
argument, I am at a loss to understand how the majority feels it is empowered to
accept this argument. I would reverse the order awarding appellee attorney's fees.
13

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