Bookman v. Davidson

Bookman v. Davidson, --- So.3d --- (2014), 2014 WL 1772707

This case centered around the rights of a successor personal representative to (1) sue the attorney who represented the original personal representative for malpractice and (2) seek disgorgement of fees paid to that attorney in a separate civil case.  For purposes of discussion, the initial personal representative will be referred to as PR1 and her successor will be referred to as PR2.  

PR1 served as personal representative of the estate for approximately 3 years. During those three years, she engaged the legal services of an attorney.  In total, the attorney received $195,000 in fees from the estate.  

When PR2 was appointed as successor personal representative, he filed suit against both PR1 and her attorney, alleging that PR1, with her attorney's guidance, had improperly disclaimed or transferred assets out of the estate that could have been used to pay its creditors.  PR1 filed her affirmative defenses, which included the defense that her actions were done in reliance on the advice of legal counsel, and she filed a cross-claim against her attorney.

Malpractice Claim

The trial court held that as a matter of law, PR2 did not have standing against the attorney who represented PR1 in her administration of the estate.  The Appellate Court, noting that the question of whether a successor personal representative may bring a cause of action for legal malpractice against an attorney hired by his predecessor was a question of first impression, found that this was not a question of privity, and rather should be governed by the relevant statutes of the Florida Probate Code.  It then walked through the Probate Code to ultimately find that PR2 had the right to sue PR1's attorney for malpractice:

          (1)  F.S. 733.602(1) grants the personal representative broad general duties and requires the personal representative to act in the best interests of the estate and all interested persons, including creditors;

          (2)  To accommodate those broad general duties, F.S. 733.612 authorizes the personal representative to hire an attorney and prosecute lawsuits for the protection of the estate; and

          (3)  F.S. 733.614 provides that the powers granted to the original personal representative flow to the successor personal representative.

Thus, since PR1 had the authority to bring suit against her attorney for legal malpractice, by virtue of F.S. 733.614, PR2 had the same authority.

Disgorgement of Fees

The trial court also granted the attorney's motion to dismiss PR2's claims for disgorgement of attorney's fees, concluding that while PR2 had the right to pursue the claim, he should have done so in the estate proceedings.  The Appellate Court affirmed the trial court's decision on principal, but held that the court could, in its discretion on remand, exercise its subject matter jurisdiction to hear that issue along with the other counts of the civil case.  Citing F.S. 733.6175(2), the Court noted that the Florida probate court had exclusive jurisdiction over the matter of compensation, so it was "more appropriate" for this claim to be heard in the probate court.  However, the Court also pointed out that the trial court did not actually lack subject matter jurisdiction to consider the claim for disgorgement, since the "court" as defined in the Probate Code is the "circuit court" and thus F.S. 733.6175(2) does not preclude a circuit court of general jurisdiction from hearing, in a related civil suit, the issue of compensation of a person who was employed by the personal representative of an estate as part of the estate's administration.


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