In a fact pattern that looks more like a law school exam than real life, the appeals court quickly cut through a complex fact pattern based on elemental Florida law. In Correa v. Marcela Tovar-Restrepo, No. 3D23-1265 (3rd DCA 2025), Mr. Tovar set up three revocable trusts and funded them with substantial assets. He then made the trusts irrevocable, giving his daughters total control of the trusts, as trustees and beneficiaries. Subsequently, he changed his mind about giving up control of the three trusts to his daughters and decided to sue them to unwind what he had done. Before he brought suit, Mr. Tovar assigned his causes of actions related to the three trusts to a new revocable trust (“Colspak Revocable Trust”). He then filed suit against his daughters, bringing the suit only in his own name. Then he died.
Ms. Correa then sought to be substituted as the plaintiff in the case, as the successor trustee of the Colspak Revocable Trust. The daughters sought to dismiss the case, and argue that
Mr. Tovar lacked standing when he commenced the underlying action because he previously assigned the rights to the litigation to the Colspak Revocable Trust. The Daughters further argued that the substitution of Ms. Correa as Trustee of the Colspak Revocable Trust, some four years after the lawsuit was filed, could not cure the deficiency in standing that was present at the lawsuit’s inception because the statute of limitations had since run.
No plaintiff ever wants to see this argument made, and no plaintiff’s lawyer wants to see this either, especially if the lawyer had full knowledge of the facts (which seems pretty doubtful, in the lawyer’s defense). As is often the case, the trial court agreed with this straightforward and simple argument and dismissed the case.
The trial court specifically concluded that Mr. Tovar lacked standing to initially commence the lawsuit because he previously assigned all his rights to bring the lawsuit to the Colspak Revocable Trust, leaving him with no interest to enforce. The trial court further concluded that Ms. Correa, individually and as Trustee of the Colspak Revocable Trust, could not cure the standing deficiency by being substituted as plaintiff. Finally, the trial court concluded that the relation back doctrine was not applicable because there was no identity of interest between the original plaintiff and the substituted plaintiff.
Fortunately, in the words of the famous satirist H.L. Mencken: For every complex problem there is an answer that is clear, simple, and wrong.
Do You Have to Name all the Capacities in Which Suit is Brought?
No, although you risk a trial court judge dismissing your case in error. Florida Rule of Civil Procedure 1.120(a) specifically provides that a party does not need to plead the capacity in which suit is brought, unless required to establish jurisdiction:
(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.
In holding that Mr. Tovar had standing when the suit was filed and that his original complaint complied with Rule 1.120(a), the Court reasoned:
Mr. Tovar did not assign his rights to a wholly unrelated third party, but rather he assigned it to himself in a different capacity. In this sense, the assignment was only a means to transfer the legal title to himself in a different capacity. The fact remains that he, Mr. Tovar, still held these rights, only now in his capacity as trustee of the Colspak Revocable Trust. Accordingly, he still had standing to sue.
The Court concluded by explaining the Ms. Correa had standing to continue the lawsuit on behalf of the Colspak Revocable Trust.
Finally, having established that Mr. Tovar had standing to sue because he was the trustee of the Colspak Revocable Trust, it follows that upon his passing, Ms. Correa obtained standing to continue to prosecute the underlying action as successor trustee of the Colspak Revocable Trust. Accordingly, the trial court properly substituted Ms. Correa as plaintiff, but erred in subsequently concluding that she lacked standing to continue to pursue the action.
