Jason Bradley Sims v. Robert F. Barnard and Jelks & White, P. A. ( 2018 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-4545
    _____________________________
    JASON BRADLEY SIMS,
    Appellant,
    v.
    ROBERT F. BARNARD and JELKS
    & WHITE, P.A.,
    Appellees.
    _____________________________
    On appeal from the Circuit Court for Bay County.
    James B. Fensom, Judge.
    November 6, 2018
    BILBREY, J.
    Jason Bradley Sims appeals the final summary judgment in
    favor of Robert F. Barnard and the law firm of Jelks & White,
    P.A., defendants in the trial court. In his suit against Barnard
    and the law firm, Appellant alleged that the defendants had
    committed embezzlement, gross negligence, and malpractice in
    the administration of Appellant’s father’s estate. However, two
    years before Appellant filed his suit, Barnard was discharged as
    the personal representative (PR) of the estate after the probate
    court approved the final accounting and distributions. See Fla.
    Prob. R. 5.401(f). Based on the res judicata effect of the final
    orders in the earlier probate case, and on section 733.901, Florida
    Statutes, the trial court entered summary judgment for the
    defendants in Appellant’s subsequent action. Because there were
    no genuine disputes of material fact and the defendants were
    entitled to judgment as a matter of law, we affirm the summary
    judgment. Regarding defendant Jelks & White, we affirm
    without further comment.       We write only to discuss the
    application of section 733.901 as a bar to Appellant’s lawsuit
    against Bernard.
    The facts material to the trial court’s application of section
    733.901(2) were undisputed. Upon stipulation of the parties, the
    trial court took judicial notice of the record in the probate case
    and portions of that record were incorporated into the record of
    this appeal.     The record shows that the probate action
    commenced in January of 2004 and administration of the estate
    continued for over ten years. Barnard was the second successor
    PR appointed by the probate court and the law firm served as the
    PR’s counsel. After a duly-noticed hearing, the probate court
    approved the final accounting by order entered February 11,
    2015. Upon the PR’s report of distribution, the probate court
    entered its order of discharge of Barnard on February 17, 2015.
    Neither order was appealed. See Fla. R. App. P. 9.170(b) (setting
    forth a number of appealable orders in probate cases).
    Section 733.901(2) provides: “The discharge of the personal
    representative shall release the personal representative and shall
    bar any action against the personal representative, as such or
    individually, and the surety.” Accordingly, absent facts in the
    record justifying an exception to the general statutory rule, the
    trial court correctly entered summary judgment in favor of
    Barnard as a matter of law pursuant to section 733.901.
    Appellant argues that the trial court’s summary judgment
    based on section 733.901 and res judicata must be reversed to
    avoid manifest injustice and under the exceptions to the
    statutory bar for cases where fraud and intentional
    misrepresentation are shown. Appellant raised this issue in the
    trial proceedings, and the summary judgment on appeal
    addresses it, so the issue is preserved for appellate review.
    Appellant correctly asserts that section 733.901 “does not
    serve as an absolute bar to the suits filed after the discharge of
    the personal representative.” Van Dusen v. Southeast First Nat’l
    2
    Bank of Miami, 
    478 So. 2d 82
    , 89 (Fla. 3d DCA 1985). The
    statutory bar codifies “a modified res judicata concept . . .
    applicable in probate cases.” 
    Id. at 91.
    The bar will not be
    applied to a suit for fraud by concealment, where its application
    “would permit a fiduciary to benefit from its alleged wrongful acts
    if it could conceal them for the statutory period.” Karpo v.
    Deitsch, 
    196 So. 2d 180
    , 181 (Fla. 3d DCA 1967) (holding that suit
    was not barred by discharge where suit alleged PR concealed
    from heirs the true value of estate and concealed from the court
    the identities of the heirs preventing heirs from asserting
    objection or claim prior to discharge). Likewise, where the PR
    conceals its intentional transfer of an estate asset by failing to
    report the distribution in the petition for distribution or
    otherwise, the PR “is not entitled to the sanctuary provided by”
    section 733.901. Van 
    Dusen, 478 So. 2d at 91
    .
    The record in this case fails to support any concealment of
    any estate asset or distribution from the court or from Appellant
    which prevented Appellant from raising his objection prior to the
    order of discharge so as to remove Appellant’s lawsuit from the
    application of section 733.901(2). In fact, the record amply
    demonstrates that Appellant did repeatedly but unavailingly
    raise his same objections and claims of mismanagement against
    the PR throughout the probate proceedings.
    It is undisputed that Appellant was identified as one of the
    beneficiaries of the estate in the original petition for
    administration filed in 2004. His receipt of notice of the PR’s
    petitions for court authorization to sell estate properties and pay
    the PR, legal counsel, and other expenses is demonstrated by
    Appellant’s active participation in the probate action via pro se
    filings of requests, motions, and objections at every opportunity. 1
    1 Not only did Appellant actively participate in the probate
    proceedings, but we note that he is an active pro se appellant in
    this Court, as evidenced by his two appeals stemming from the
    probate case (Sims v. Estate of Steven Henry Sims, Case No.
    1D17-5059 & Sims v. Estate of Steven Henry Sims, Case No.
    1D18-3396); three appeals from civil case number 2015 CA
    000352 (14th Cir., Bay Cnty.) (Sims v. Wells Fargo Bank, N.A.,
    3
    Appellant’s     first    complaint     of      “neglect    and
    misrepresentation” by the PR was in response to the PR’s petition
    for court authorization to sell estate property, filed in December
    2008. Despite Appellant’s objection, the probate court authorized
    the PR’s actions and payment for the PR’s and the law firm’s
    services. Over the course of the administration, Appellant
    continued to file objections to the PR’s proposals for sales of real
    estate and payment of legal fees, and he consistently complained
    about the delay of disbursements to the beneficiaries. The record
    shows no concealment of any kind by the PR.
    On August 28, 2014, the PR filed the petition for final
    distribution and discharge. Appellant timely filed his objection to
    this petition, complaining that two interim accountings covering
    approximately three months of the ten-year administration were
    missing from his copies received from the PR. He also challenged
    payments by the estate to lawyers and accountants and sought a
    court order for distribution of the remaining estate assets to the
    beneficiaries instead. After notice and a hearing, the probate
    court approved the final accounting and, after the PR’s report of
    distribution, entered the order of discharge on February 17, 2015.
    Appellant filed his lawsuit against Bernard and the law firm
    on March 13, 2017. While the amended complaint generally
    alleged fraud and “embezzlement,” the facts asserted by
    Appellant were that the PR failed to provide him with sufficient
    accountings to explain all expenditures, leading Appellant to the
    conclusion that estate funds had been removed without
    explanation. The missing interim accountings, which Appellant
    was ultimately provided, simply do not rise to the level of
    “concealment” by the PR presented in Van Dusen and Karpo.
    Case No. 1D16-4898; Sims v. Wells Fargo Bank, N.A., Case No.
    1D17-5055; and Sims v. Wells Fargo Bank, N.A., Case No. 1D18-
    2197); and petition for writ of prohibition (Sims v. Clerk of Circuit
    Court, Bay Cnty., Case No. 1D18-3595). Although untrained in
    the law, Appellant’s filings in this Court and the circuit court are
    inconsistent with a situation where his ability and willingness to
    file claims and appeals has been hindered or interfered with by
    others.
    4
    The probate court’s entry of orders approving and
    authorizing the PR to act despite Appellant’s objections
    constituted denials of the objections. The trial court correctly
    determined that the lawsuit filed two years after closure of the
    probate case was barred as res judicata and by section
    733.901(2). The summary judgment on appeal is therefore
    AFFIRMED.
    WETHERELL and M.K. THOMAS, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Jason Bradley Sims, pro se, Appellant.
    Larry A. Bodiford of Hutto & Bodiford, Panama City, for Appellee
    Robert F. Barnard; Clifford W. Sanborn of Barron & Redding,
    P.A., Panama City, for Appellee Jelks & White, P.A., for
    Appellees.
    5
    

Document Info

Docket Number: 17-4545

Filed Date: 11/6/2018

Precedential Status: Precedential

Modified Date: 11/6/2018