Kozinski v. Stabenow

Kozinski v. Stabenow, 152 So.3d 650 (2014), 2014 WL 5611595

This case dealt with the issue of whether a petition to review a personal representative's compensation and to enter such surcharge or disgorgement orders as were warranted under F.S. 733.6175 (proceedings for review of employment of agents and compensation of personal representatives and employees of the estate) and F.S. 736.0206 (proceedings for review of employment of agents and review of compensation of trustee and employees of trust) was an adversary proceeding which required formal notice in order to obtain personal jurisdiction over the personal representative. Appellees argued that a petition for review of fees under F.S. 733.6175 or 736.0206 seeking an immediate refund of money to the probate or trust estate does not initiate an adversary proceeding subject to the notice requirements.  

The Court considered whether such a proceeding is considered an adversary proceeding under the Florida Probate Rules, and found that the determination of whether it is an adversary proceeding depends on whether a "refund" under F.S. 733.6175 or 736.0206 is a "surcharge."  It then found that Florida case law clearly holds that a fee dispute under F.S. 733.6175 is a surcharge proceeding.

The Court ultimately held that a proceeding seeking an order for judgment imposing a refund or surcharge against a fiduciary or fiduciary's agent, individually, and the immediate return of money to a trust, probate, or guardianship estate as a result of a breach of fiduciary duty (such as charging excessive fees) is tantamount to a judgment for damages, requiring personal service on the fiduciary as an individual and not in any representative capacity.


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