Kathleen G. Kozinski, as Trustee and as Personal Representative, Appellant, v. Amy Stabenow and Nora Faul, Appellees.

Summary

The Florida District Court of Appeal held that a petition under sections 733.6175 or 736.0206, Florida Statutes, seeking a refund or surcharge against a fiduciary individually for excessive fees is an adversary proceeding that requires formal notice under Florida Probate Rule 5.025 to obtain personal jurisdiction. The court reasoned that such a proceeding imposes personal liability tantamount to a judgment for damages, distinguishing it from in rem probate administration.

Holdings

1. A proceeding seeking an order or judgment imposing a refund or surcharge against a fiduciary or a fiduciary's agent, individually, for breach of fiduciary duty by charging excessive fees is tantamount to a judgment for damages and requires personal service on the fiduciary as an individual by formal notice under the Florida Probate Rules; absent a written waiver, formal notice served on the respondent individually is required for such a proceeding.

Questions Presented

1. Whether a proceeding filed in a probate case under sections 733.6175 or 736.0206, Florida Statutes, seeking a refund or surcharge against a fiduciary individually, constitutes an adversary proceeding requiring service by formal notice under the Florida Probate Rules.

Disposition

reversed_and_remanded