PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Disgorgement Of Attorney’s Fees – Personal Jurisdiction Over Counsel Is Required

In Simmons v. Estate of Baranowitz, 2015 Fla. App. LEXIS 6733; 40 Fla. L. Weekly D 1072 (Fla. 4th DCA 5/6/15), the PR filed a petition for discharge and final accounting. The accounting indicated that the PR and his counsel received certain amounts as compensation for their services. The trustee of the decedent’s trust filed objections to the accounting, as well as a petition to review the compensation which the PR and his counsel received. The trustee argued that the compensation received was excessive in relation to the compensable value of the estate and that any excessive compensation should be refunded. The court held an evidentiary hearing on the objections and petition. At the hearing, the PR argued that the court lacked jurisdiction over his counsel because counsel was not a party. Following the hearing, the court entered an order determining that the compensation which the PR and his counsel received was excessive and ordered the PR and his counsel to disgorge those amounts which the court determined to be excessive.

On appeal, the PR argued among other things, that the court had no personal jurisdiction over his counsel because his counsel never was served with initial process by a summons or formal notice. The court agreed with the PR. The court reasoned that the remedy sought in the petition against the PR’s counsel was against him individually; therefore, service by formal notice under the Florida probate rules was required for the court to have personal jurisdiction over him. In response, the trustee argued that service by formal notice is not required because the Florida probate code gives a court the authority to review the propriety of any compensation paid to the PR’s employee and, if that employee has received excessive compensation, to order that employee to make appropriate refunds. The court disagreed with the trustee. The court reasoned: “We recognize that the Florida probate code gives a court the authority to review the propriety of any compensation paid to a personal representative’s employee and, if that employee has received excessive compensation, to order that employee to make appropriate refunds. See §§ 733.6175(1) & (3), Fla. Stat. (2010). Here, however, the issue is not the court’s authority to act, but the manner by which the court notifies the employee that action may be taken.”