Successor Personal Representative’s Standing and Circuit Court Jurisdiction

Posted on May 16, 2014

Earlier this month, the First District Court of Appeal of Florida (1st DCA) in Bookman v. Davidson, 2014 WL 1772707 (Fla. 1st DCA 2014) held as a matter of first impression before the court, a successor personal representative of an estate does have every right and duty to pursue legal malpractice claims against an attorney retained by the original personal representative of such estate, and held that although the lower circuit court in Walton County acted within its discretion when it dismissed the disgorgement claim on the ground that the claims should be heard in the probate proceedingswhich were still pending, a circuit court of general jurisdiction has subject matter jurisdiction over the claim and could hear all counts in a joint trial.

Alan Bookman (“Bookman”), the successor personal representative of the Estate of Deborah E. Irby, appealed the circuit court’s ruling that he did not have standing to bring a legal malpractice action against the attorney hired by the initial personal representative to aid her in the administration of the estate.  In 2007, Dana Ford (“Ford”), through her attorney and Appellee in the present case, filed a petition for the administration of the estate, and was appointed to be the initial personal representative.  During the course of his representation and advice concerning Ford’s administrative duties, the Appellee/attorney was paid from the estate funds in the amount of $195,000.00 before Ford resigned and a successor personal representative of the state was appointed in early 2010.  After his appointment, Bookman filed suit against Ford and her attorney, alleging that the Appellee/attorney improperly advised Ford in regards to her responsibilities as personal representative, and that Ford improperly disclaimed or transferred out of the estate certain assets belonging to the estate.  Bookman also sought disgorgement ofpersonal representative fees paid to her.  In response, Ford raised numerous affirmative defenses, including that her actions were done in good faith and in reliance on the advice of legal counsel.  Ford also filed a cross-claim against Appellee/attorney for legal malpractice, breach of fiduciary duty, and contribution.

The Appellee/attorney moved for summary judgment claiming, that as successor personal representative, Bookman lacked any attorney-client relationship and therefore could not file suit against him for legal malpractice.  Primarily, he argued that Bookman lacked any kind of privity with him, a prerequisite for maintaining a malpractice claim in Florida, and urged that the probate court had exclusive jurisdiction on the count for disgorgement of attorney’s fees paid to him, and not a circuit court of general jurisdiction. 

The 1st DCA reversed the lower court’s decision, and concluded it need not address the privity issue, but instead, their decision was informed by the plain meaning of the language of the relevant statutes of the Florida Probate Code, specifically, §§ 733.601­­—733.620.  The aforementioned sections address the powers and duties of the personal representative.  A successor personal representative has the same powers and duties as the original personal representative to complete the administration and distribution of the estate.  Therefore, the powers granted to the original personal representative flow through to his or her successor.  See Florida Statute § 733.614.  In essence, Bookman stepped into the shoes of Ford.  The personal representative is required by law to pursue assets and claims of the estate, with value, including those assets which are in the hands of a former personal representative or her agent.  See Sessions v. Willard, 172 So. 242, 245, 246 (Fla. 1937).  All the powers and rights which Ford possessed, including the right to bring a malpractice suit against her attorney on behalf of the estate, likewise transferred to Bookman as the successor personal representative.  He has every right and duty under the Florida Probate Code to pursue a legal action for malpractice against Ford’s attorney on behalf of the estate.

Furthermore, although a more appropriate venue for claims of disgorgement of attorney’s fees may be in the probate court, the circuit court did not lack subject matter jurisdiction to consider the claim for disgorgement.  Any circuit court has exclusive original jurisdiction over proceedings related to the settlement of estates of decedents and minors, and other jurisdiction usually pertaining to courts of probate.  Florida Statute § 26.012(2)(b).   The internal operation of the court system and the assignment of judges to various divisions do not limit a particular judge’s jurisdiction.  On remand, the 1st DCA concluded that the trial court may hold a joint trial of all the claims “if it is shown that a joint trial will not prejudice a party or cause inconvenience”, because a circuit court of general jurisdiction in a related civil suit can hear the issue of compensation of a person who was employed by the personal representative of an estate.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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