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04/18/95 ROBERT C. TONSMEIRE v. AMSOUTH BANK

April 18, 1995

ROBERT C. TONSMEIRE
v.
AMSOUTH BANK, ET AL



Appeal from Mobile Circuit Court. (CV-93-2328). Robert T. Cunningham, TRIAL JUDGE.

Released for Publication August 28, 1995.

Maddox, Almon, Houston, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Per Curiam

PER CURIAM.

The trial court made findings of fact and Conclusions of law and entered a judgment in accordance with them. We set forth in its entirety the "Order and Judgment" appealed from:

"This case came on for nonjury trial on April 13, 1994. At the Conclusion of the plaintiff's [Robert C. Tonsmeire's] case, all defendants *fn1 moved for involuntary dismissal pursuant to Rule 41(b), Ala. R. Civ. P., and, based upon the evidence presented by the plaintiff and [based upon] the law, the court grants the defendants' motions and enters the following findings of fact, Conclusions of law, and judgment.

" FINDINGS OF FACT

"Based upon the plaintiff's opening statement and the pleadings, the plaintiff's claims against AmSouth Bank, N.A., and Ken Niemeyer are for an accounting and [damages for an alleged] breach of fiduciary duty in connection with administration of trusts for which the plaintiff was a beneficiary and [for damages] for fraud in connection with a certain assignment of an interest in insurance policies. The plaintiff's claims against Michael C. Delaney, while variously stated, [allege] negligence, breach of contract, or other wrongdoing arising from legal services provided in connection with Mr. Delaney's role in liquidation of a certain trust. Finally, the plaintiff's claims against his brothers Arthur C. Tonsmeire III, Joseph Lewis Tonsmeire, Daniel Lee Tonsmeire, and Edward C. Tonsmeire ('older brothers') [allege] breach of contract and fraud arising from these defendants' failure to convey or transfer to the plaintiff an interest in certain real estate in Mobile County, Alabama, and an interest in an island known as Barbaretta off the coast of Honduras.

"1. The plaintiff, Robert C. ('Mike') Tonsmeire, and his older brothers were beneficiaries of a certain trust created in 1951 ('1951 Trust') by their father, Arthur C. Tonsmeire, Jr. The 1951 Trust terminated by its own terms when the youngest child, the plaintiff, reached age thirty. First National Bank of Mobile (AmSouth as successor) was trustee of the 1951 Trust. The plaintiff was born in August 1955.

"2. In October 1978, the plaintiff created a revocable trust ('1978 Trust'). Again, First National Bank of Mobile (AmSouth as successor) was trustee of the trust. The 1978 Trust was created to receive assets from the 1951 Trust as they were available to the plaintiff under the terms of the 1951 Trust.

"3. The plaintiff received periodic statements as to the condition of the 1951 Trust and the 1978 Trust on at least a yearly basis and as frequently as quarterly.

"4. Niemeyer was the trust officer acting for AmSouth from time to time in connection with the 1951 Trust and the 1978 Trust.

"5. The 1951 Trust terminated by its own terms in 1985.

"6. The plaintiff terminated the 1978 Trust by letter dated July 13, 1987.

"7. On September 4, 1987, the plaintiff received distribution of certain assets from the 1978 Trust, and he signed a 'Release and ...


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