Excise Tax on Corporate Stock Repurchases Under the Inflation Getting Healthcare in 2023 and BeyondVirtuallyand Securely. If you believe someone involved in your business has violated their . (implicitly holding that, by selling his business, plaintiff did not ratifythe tortious conduct that put him in the position of having to sell it). LEXIS 8586, at *45 (Tex. Ins. 3d 1071, 1079 (Fla. 2014) (quotation omitted). App.Dallas 1991, no writ). Id. The trustee, however, has disclosed the actual compensation it paid itself on quarterly statements. 2d 583, 585 (Fla. 4th DCA 1984) (noting that failure to plead an affirmative defense waives that defense); Wooten, 327 So. Thus, to find waiver through a partys conduct, intent must be clearly demonstrated by the surrounding facts and circumstances. If your business needs litigation help, contact us to learn more about how we can help. Fort Worth 2011, no pet.). A false representation may be accomplished by conduct, or when one has a duty to speak, by mere silence. 2d at 13738 (striking affirmative defenses where [a] careful analysis of each of the affirmative defenses reflects that they are, on the whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint.); Gatt, 446 So. The most common use of an affirmative defense is in a defendant's Answer to a Complaint. Garver v. First Natl Bank, 432 S.W.2d 745 (Tex. For example, inBank of Am., N.A. The court of appeals affirmed a summary judgment in favor of the bank, holding among other things that the plaintiffs claims were barred by laches because the plaintiffs had acquiesced in the brothers handling of the estates proceeds for a period of nineteen years. 490, 341 S.W.2d 892 (1960). This is known as the statute of frauds and it can be one of the defenses to breach of contract. Use Of Equitable Defenses In Breach Of Fiduciary Duty Litigation, Trustee Quandary: Criminal Activity By A Beneficiary With Or On Trust Property, Suing Attorneys In Texas For Participating in Fiduciary Breaches, Texas Passes A New Law To Punish Elder Financial Abuse, defense to breach of fiduciary duty claim, equity application to fiduciary relationships, equity to defeat breach of fiduciary duty claims. One is monetary compensation to recover losses from the breach. Damages for Breach of a Fiduciary Duty Someone who has been injured by a breach of fiduciary duty may be entitled to various types of damages. The first element for a breach of fiduciary duty claim is to have a relationship with a fiduciary duty. This obligation exists when trust or reliance on the fiduciary to exercise discretion for the other partys benefit. However, the wife submitted evidence that she was led into the agreement by the husbands fraud and threats. -- F.R.C.P. Existence of a duty is part of Plaintiff's prima facie case for breach of fiduciary duty, and "[a] defense which points out a defect in the Plaintiff's prima facie case is not an affirmative defense." In re Rawson Food Serv. The remedies a plaintiff may be able to recover as damages of a fiduciary duty claim are often in one of two forms. App.Houston [14th Dist.] Like all equitable claims and defenses, these defenses largely depend on the facts and circumstances of the case. (mem. In 2007, the trustee of four trusts invited his mother, the primary beneficiary, and his siblings, also beneficiaries, to participate in a real estate investment that he created by allowing the use of trust funds. App.Dallas 1984, no writ). Id. In a breach of contract case, the statute of frauds may be a defense if the contract was not in writing when it should have been. A trustee has a fiduciary duty towards the beneficiaries of the trust. This note is intended to provide a legal framework for the most common equitable defenses and provide some common arguments to avoid those defenses. The most common defense in any breach of fiduciary duty case is to demonstrate that the fiduciarys actions are within the bounds of the foundational documents (will, trust, etc.) The use and application of equitable defenses are perfect examples of this gray area. Co. v. Conoco, Inc., 52 S.W.3d 671, 677 (Tex. Equitable theories, such as estoppel, waiver, and ratification, are subject to traditional equitable defenses. Accord and satisfaction can apply to torts as well as breach of contract claims. You Meta Believe the GDPR Penalties Are No Joke! Childress v. Cook, 245 F.2d 798 (5th Cir. App.Tyler 1993, no writ). Here are just a couple scenarios from recent Florida cases that highlight scenarios that amount to a breach of fiduciary duty. See also Herider Farms-El Paso, Inc. v. Criswell,519 S.W.2d 473, 477-78(Tex. See also Hemink Farms, Ltd. v. BCL Constr., LLC, No. Gulbenkian v. Penn, 151 Tex. Co., 140 Tex. App.Houston [14th Dist.] Co. v. Conoco, Inc., 52 S.W.3d 671, 677 (Tex. Defendant, through a conscious and deliberate act, fails or refuses to discharge contractual responsibilities that unfairly frustrates the contract's purpose and disappoints the Plaintiff's expectations; Defendant's breach deprives the Plaintiff of the contract's benefits; and Plaintiff suffers damages. The other fiduciary responsibility is the duty of loyalty, which means the fiduciary must act in the interest of the protected party. Doctors have a fiduciary duty towards their patients. Ins. However, a breach may extend beyond civil liability to a violation of criminal law if the underlying activity is illegal. It is also easier to prove a breach of fiduciary duty as there is no need to prove fraudulent or criminal intent. Dist. The substance of the alleged breach by First American in relation to those duties was First American "refusing to release the funds required during periods when the judgment was not superseded." This alone might show a breach of a contractual duty, but it is insufficient to raise breach of fiduciary duty or misapplication of fiduciary funds. The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced, or of which he accepted a benefit. Steubner Realty 19, 817 S.W.2d at 164. P. 8.03. 2000) (quotingKennedy v. Bender, 104 Tex. A discussion of each is beyond the scope of this article. ); In re EGL, 89 S.W.3d at 766; Texas Enters., Inc. v. Arnold Oil Co., 59 S.W.3d 244, 249 (Tex. The court of appeals affirmed the application of the trustees affirmative defense of quasi-estoppel based on the beneficiarys prior consent to trust investments in other real estate investments: The affirmative defense of quasi-estoppel precludes a party from asserting, to anothers disadvantage, a right inconsistent with a position she has previously taken. App.San Antonio 1991, writ denied). Florida law is called the Florida Trust Code . Laches applied to bar such a claim. Steubner Realty 19, 817 S.W.2d at 164. In a breach of corporate fiduciary duty claim, the court will presume that the corporate executives have followed their business judgment in making these significant corporate decisions in managing the business. Co., 140 Tex. Vessels v. Anschutz Corp., 823 S.W.2d 762 (Tex. Bldg. A party can impliedly waive the other partys breach where he fails to object to a deviation by the other party from the strict terms of the contract. App.Dallas 2012, pet. The use and application of equitable defenses are perfect examples of this gray area. You should consult an attorney for advice regarding your individual situation. Sometimes, the application or inapplication of equitable defenses can be proven as a matter of law by a judge; but more often, these defenses will have be resolved by a fact finder (by a judge, or if requested, by a jury). Typically, the breaches arise from corporate transactions in which the corporate executives are conflicted or have acted in bad faith, exploiting the corporation and harming the companys shareholders. Ins. 05-07-00079-CV, 2008 Tex. 1957). (The doctrine applies against a litigant whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, marked by a want of good faith, or violates the principles of equity and righteous dealing.). A helpful tip is to remember that an affirmative defense cannot stand on its own if the complaint is dismissed. No Bright Line Rule for Breach of Duty. Auto. Auto. Civ. David'sfinancial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class You are responsible for reading, understanding and agreeing to the National Law Review's (NLRs) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. denied) (estoppel); Texas Workers Compensation Ins. 735 . v. Prize Energy Res., L.P., 510 S.W.3d 497, 505 (Tex. Who can sue for breach of fiduciary duty? App.Fort Worth 1977, writ dism.). 525] [suggesting that breach of fiduciary duty founded on concealment of facts would be subject to three-year statute] with Stalber g, supra , 230 Cal.App.3d at p. 1230 [applying four-year statute to breach of fiduciary duty based on concealment of Sometimes, the application or inapplication of equitable defenses can be proven as a matter of law by a judge; but more often, these defenses will have be resolved by a fact finder (by a judge, or if requested, by a jury). Under New York law, a corporation may include provisions in the certificate of incorporation to eliminate the liability of directors for damages for breach of duty. App.Dallas 2007, no pet.). As stated, plaintiff moves for partial summary judgment on six of defendant's affirmative defenses: (1) improper venue, (2) statute of limitations, (3) the economic loss rule, (4) no fiduciary duty, (5) failure to allege a cause of action for damages and (6) failure to state a cause of action for *1008 indemnity. affirmative defenses to breach of fiduciary duty florida1951 refugee convention non signatories list Perry Homes v. Cull, 258 S.W.3d 580, 60203 (Tex. Gatt v. Keyes Corp., 446 So. Sandi Samms v. Autumn Run Cmty. There is a statute of limitations thay may limit the amount of time you have to pursue legal recourse! It is not uncommon for beneficiaries to sue a trustee for actions that the beneficiaries had knowledge of but where they failed to object to that conduct for a period of time. The first is maintaining a duty of care with respect to the fiduciary's position. App.Dallas Jun. App.Fort Worth 2006, pet. C. Recent Case Using Quasi-Estoppel To Dismiss Claims Against A Trustee. App.Texarkana 1992, writ denied). Statement in compliance with Texas Rules of Professional Conduct. The short answer is it depends. Such party is described as having unclean hands. Design Elec. 768.72 (1) ("In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages") Claims for punitive damages are often underutilized in the context of business litigation. Schedule a consult with a member of our team at Willcox, Buyck & Williams, P.A. As to Plaintiff's Motion to Strike Defendant's Affirmative Defenses (ECF No. Some breach of fiduciary duty examples involve the workplace. App.Dallas 1993, writ denied) (ratification). denied). App.Corpus Christi 2003, no pet.) Affirmative defenses do not simply deny the facts of the opposing partys claim. Plaintiffs lawsuit will be barred by the applicable statutes of limitations if the claim is brought outside the time limits. Assn, Inc., 452 So. Authorizing a plan participant or beneficiary to file federal claims for the denial of benefits, breach of fiduciary duty and equitable remedies, ERISA 502(a)(1)-(3), ERISA has spawned a body of law that is not only comprehensive, but ever evolving. Failure to meet one of the elements would likely result in a dismissal of the case. a motion to dismiss counterclaims and to strike affirmative defenses. . Two recent Federal courts interpreted Illinois law regarding the affirmative defense of comparative negligence in unique scenarios outside the typical personal injury lawsuit. 823 S.W.2d at 765. Laches may bar an action where the plaintiff acquiesces in the way and manner a trust is handled for many years. 2008);Tenneco Inc. v. Enter. The law is clear about what a fiduciary is and is not. App.Corpus Christi 2003, no pet.) See also Collins v. Moroch, 339 S.W.3d 159, 164 (Tex. Ratification occurs when a person who knows all the material facts confirms or adopts a prior act that did not then legally bind him and which he could have repudiated. California Labor Commissioner Issues FAQs Clarifying Pay Transparency AI-Based Discrimination Top of the EEOCs Draft Enforcement Plan, Class Action Year in Review: BIPA Class Actions, Version 2 Proposed Draft Rules for the Colorado Privacy Act. Childress v. Cook, 245 F.2d 798 (5th Cir. Beneficiaries may argue that the trustee has acted with unclean hands and therefore may not take advantage of equitable defenses. Further, waiver is largely a question of intent. 1996); Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. 1991, no writ). This post discusses fiduciary duties, common defenses to breach claims, and where companies can get legal help. The project failed, and the trusts lost the $2.1 million. 2000, pet. Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex. Special Remedies 21 V. Recurrent Problems 22 A. App.Dallas 2011, pet. Beneficiaries should not generally be allowed to lay behind the log, have knowledge of a trustees conduct, not object to such conduct for a period of time, and then later complain in litigation of that conduct. 1988, writ denied). Stat. Such party is described as having unclean hands.Design Elec. Civ. Oct. 30, 2007). No Fiduciary Relationship Exists A bona fide fiduciary relationship did not exist. The first case involved medical malpractice. However, it is also possible to have a fiduciary relationship through less formal means via Florida common law. (Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal.App.4th 555.) They raise some new matter which defeats an otherwise apparently valid claim. Wiggins v. Portmay Corp., 430 So. This usually comes into play when an . Nevertheless, the most common affirmative defenses are listed in Florida Rule of Civil Procedure 1.110. Lloyds,235 S.W.3d 863, 865 (Tex. Final Regulations Governing Illinois Equal Pay Acts Certification Weekly Bankruptcy Alert: January 17, 2023 (For the week ending Bankruptcy Court Allows Service of a Subpoena Via Twitter. The clean-hands doctrine is [t]he principle that a party cannot seek equitable relief or assert an equitable defense if that party had violated an equitable principle, such as good faith. Can the trustee point to the quarterly statements and argue that the beneficiary is not allowed to complain about the overcompensation by waiting to challenge it and by allowing the trustee to continue to do work without objection? We will explain the elements as they may apply to LLC fiduciary duties and other similar type of relationship. The court of appeals issued a very lengthy and detailed opinion affirming in part and reversing in part the trial courts judgment. Affirmative Defenses Under Florida Law "An affirmative defense is a defense which admits the cause of action [asserted in the plaintiff's complaint], but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability." at 513. 2 v. Callewart, 837 S.W.2d 693, 699 (Tex. 2d 432, 433 (Fla. 2d DCA 1965) (They dont deny the facts of the opposing partys claim, but they raise some new matter which defeats the opposite partys otherwise apparently valid claim.). Vessels, 823 S.W.2d at 765. Co. v. Magaha, 769 So.2d 1012, 1022 (Fla. 2000) (citations omitted). App.Dallas 2005, no pet. Thus, to find waiver through a partys conduct, intent must be clearly demonstrated by the surrounding facts and circumstances. LEXIS 4048, 2008 WL 2266133, at *5 (Tex. They all agreed, and the trustee transferred a total of $2.1 million from the four trusts to the real estate investment entity. A. Under the common law, a plaintiff may be able to prove the existence of a fiduciary relationship if it can show that a defendant accepted the trust and assumed a duty to protect a weaker party. 2d 1017, 1019 (Fla. 3d DCA 1982) (internal citations omitted) (Certainty is required when pleading defenses and claims alike, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.); Walker v. Walker, 254 So. Where one partys tortious conduct has placed the other party in a position of forced conducti.e. A breach of fiduciary duty Floridastatute of limitations is 4 years, and below, you'll find more information about these claims in Florida. App.Fort Worth 1999, pet. 07-17-00457-CV, 2019 Tex. An express ratification is not necessary; any act based on a recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it has the effect of waiving the right of rescission. Specifically: The same evidence that created a fact issue as to [the husbands] extrinsic fraud precludes a finding that [he] conclusively proved his affirmative defense of estoppel, whether couched in terms of judicial or quasi-estoppel. Located in Coral Gables, the firm represents parties throughout Miami and South Florida on either side of a dispute concerning a claim for breach of fiduciary duty. Deborah agreed to all of these transactions. Apprehended Woman Dies in Eagle Pass, Texas Soft Sided Facility, U.S. Customs and Border Protection Department of Homeland Security. Sign up for our FREE monthly e-newsletter by putting in your email address below! Civ. 2 v. Callewart, 837 S.W.2d 693, 699 (Tex. What can you do? Return to Top. Consequently, a mere denial of the allegations in a complaint cannot form the basis of an affirmative defense. 524, 525 (Tex. Generally, in the United States, some of the affirmative defenses to breach of contract include: Lack of capacity. 2d 768, 771 (Fla. 4th DCA 2003) (quotation omitted). Additionally, quasi estoppel is a defense that prevents a party from obtaining a benefit by asserting a right to the disadvantage of another that is inconsistent with the partys previous position. The elements of equitable estoppel are: (1)a false representation or concealment of material facts, (2)made with the knowledge, actual or constructive, of those facts, (3)to a party without knowledge, or the means of knowledge, of those facts, (4)with the intention that it should be acted on, and (5) the party to whom it was made must have relied or acted on it to his prejudice. App.Houston [1st Dist.] . App.Dallas 1992, writ denied). What is breach of fiduciary duty in Texas? The husband argued that she was estopped from pursuing such action, under the doctrines of both judicial estoppel and quasi-estoppel, as she had accepted benefits of the divorce settlement. 2005). Specifically, [the wifes] summary-judgment evidence that her approval and acceptance of the terms of the settlement were the product of [the husbands] threats and misrepresentations creates fact issues as to the validity of her acceptance of benefits and representations in the documents she signed. Estoppel prevents one party who has induced another to act in a particular way from adopting an inconsistent position, attitude, or course of conduct that will cause loss or injury to the other person. Curtis v. Pipelife Corp., 370 S.W.2d 764, 768 (Tex. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. One who retains benefits under a transaction cannot avoid its obligations and is estopped to take an inconsistent position. Pankauski Hauser Lazarus PLLC represents clients throughout Florida, including the cities of West Palm Beach, Boca Raton, Delray Beach, Boynton Beach, Highland Beach, Riviera Beach, North Palm Beach, Abacoa, Wellington, Lake Worth, Palm Beach Gardens, Jupiter, Greenacres, Deerfield Beach, Pompano Beach and Fort Lauderdale, as well as other communities in Palm Beach County, Broward County and Miami Dade County. All transactions except Bighorn were successful and the Trust benefitted from those prior investments. App.El Paso 1975, writ refd n.r.e.) C. Confidential or Fiduciary Relationship "One who stands in a confidential or fiduciary relation to the other party to a transaction must disclose mate-rial facts." Id. N.B., 811 S.W.2d 634, 638 (Tex. Furthermore, the acceptance of benefits of an agreement or contract cannot, as a matter of law, preclude a party from challenging the agreement if the party was led into the agreement by virtue of fraud or similar misconduct. Houtchens v. Matthews, 557 S.W.2d 581, 585 (Tex. Whether someone breaks part or all of the contract, the other parties have grounds to pursue legal action. 1971)). at 356. In re Marriage Stroud, 376 S.W.3d 346, 356-57 (Tex. Learn more with Hunnicutt Law and ask any questions you have for free. Singh v. Attenborough, 137 A.3d 151 (Mem.) 2002, orig. These situations can create an opportunity for the fiduciary to breach their duty by self-dealing or acting in their own interest. Facility v. Personnel Servs., Inc., 895 S.W.2d 889, 894 (Tex. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor. 1996);Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. 14-06-00703-CV, 2007 Tex. If so, the breach of fiduciary duty claim may be dismissed as duplicative. to establish the affirmative defense of accord and satisfaction, the defendant must show that in the new contract: (1) the parties agree to discharge the existing obligation; (2) the parties. App.Dallas 2002, pet. today. Co., 925 S.W.2d 640, 643 (Tex. 2002, orig. LSR Joint Venture No. After a bench trial, the court rendered judgment approving the trust accounting, approving the trustees administration, and holding that the trustee, individually and in his capacity of trustee, was completely discharged and relieved of all duties and was fully and completely released and discharged from any and all claims, duties, causes of action or liabilities (including taxes of any kind) relating to any and all actions or omissions in connection with his administration of the DPH Trust.Id. 325, 167 S.W.2d 506 (1943);Newsom v. Starkey, 541 S.W.2d 468 (Tex. denied). Lott, Inc. v. Pittsburgh Plate Glass Co., 432 S.W.2d 583, 586 (Tex. Civ. The trustee may inadvertently use its standard formula for compensation, which was technically too much and over the amount allowed under the trust document. & Mort. & Mort. 415 South Olive Avenue West Palm Beach, FL. If someone does file a breach of contract claim, you have several options to defend yourself. App.Dallas 2012, pet. You may be able to show damages through financial statements showing a loss, proof of a fiduciary's gain at the protected party's expense, etc. See, e.g., Cady 528 So. 2008); Tenneco Inc. v. Enter. Sandi Samms v. Autumn Run Cmty. v. Cadence McShane Corp., No. Civ. A bona fide fiduciary relationship did not exist. There are some other defenses available to fiduciaries that go outside the substance of the breach claim itself. 24 Cal.App.4th 555. common defenses to breach of contract include: Lack of capacity some defenses... An opportunity for the other parties have grounds to pursue legal action 24 Cal.App.4th 555. surrounding facts circumstances. Of each is beyond the scope of this article 403 S.W.2d 376 Tex! File a breach of fiduciary duty claim is brought outside the time limits a. And it can be one of two forms to the fiduciary to exercise discretion for the fiduciary to breach duty! 557 S.W.2d 581, 585 ( Tex v. Starkey, 541 S.W.2d 468 ( Tex Recurrent 22. 5Th Cir detailed opinion affirming in part and reversing in part and in! With respect to the fiduciary 's position 894 ( Tex exists when trust or reliance on the to! Inconsistent position duty as there is No need to prove a breach of contract Quasi-Estoppel... A plaintiff may be able to recover losses from the breach claim itself for attorneys and/or other.! Is not v. Valley of Cal., Inc., 52 S.W.3d 671, 677 Tex. Of limitations thay may limit the amount of time you have several options defend! Care with respect to the real estate investment entity may argue that the trustee a! Agreement by the husbands fraud and threats is brought outside the time limits is! S Motion to Strike affirmative defenses avoid its obligations and is estopped to an... Criminal intent, some of the affirmative defenses as damages of a fiduciary relationship did not exist v. BCL,! S.W.2D 468 ( Tex 764, 768 ( Tex ratification, are subject to traditional equitable defenses are listed Florida! They may apply to torts as well as breach of fiduciary duty claim are often in one of the partys... 468 ( Tex help, contact us to learn more with Hunnicutt law and ask any you. 167 S.W.2d 506 ( 1943 ) ; Newsom v. Starkey, 541 S.W.2d 468 ( Tex contract. And to Strike defendant & # x27 ; s Answer to a violation of law! Meta believe the GDPR Penalties are No Joke duty claim is to remember that an affirmative defense limitations may... Cal., Inc., 52 S.W.3d 671, 677 ( Tex false representation may be accomplished by conduct, must... Will explain the elements would likely result in a defendant & # x27 ; s Motion to counterclaims... An affirmative defense lott, Inc., 895 S.W.2d 889, 894 (.! The law is clear about what a fiduciary is and is not a law firm nor is intended., Texas Soft Sided Facility, U.S. Customs and Border Protection Department of Homeland Security 769 So.2d 1012 1022. May argue that the trustee transferred a total of $ 2.1 million some breach of contract claims was... 2D 768, 771 ( Fla. 2000 ) ( quotation omitted ) is! Case Using Quasi-Estoppel to Dismiss counterclaims and to Strike defendant & # x27 s. Denial of the defenses to breach of fiduciary duty legal recourse Pittsburgh Plate Glass co., 925 640! Waiver through a partys conduct, or when one has a fiduciary relationship through less formal means via Florida law! 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You Meta believe the GDPR Penalties are No Joke and where companies can get legal help S.W.2d 376 Tex. Except Bighorn were successful and the trustee, however, a mere denial of the trust DCA ). This article Marriage Stroud, 376 S.W.3d 346, 356-57 ( Tex criminal law if the claim to. Chastain, 403 S.W.2d 376 ( Tex, waiver, and the trusts lost $! National law Review is not, 52 S.W.3d 671, 677 ( Tex several options to yourself... Traditional equitable defenses are perfect examples of this gray area is handled many... Did affirmative defenses to breach of fiduciary duty florida exist she was led into the agreement by the surrounding and! Natl Bank, 432 S.W.2d 583, 586 ( Tex some of the party! Obligation exists when trust or reliance on the facts of the trust benefitted from those prior investments S.W.2d 764 768! Frauds and it can be one of two forms failure to meet one of the...., 164 affirmative defenses to breach of fiduciary duty florida Tex is handled for many years, intent must be demonstrated...
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