Florida/Georgia Personal Injury & Workers Compensation

...The plain and unambiguous language of section 736.0201(1) mandates that, with three exceptions not relevant here, judicial proceedings concerning trusts shall be governed by Florida Rules of Civil Procedure as follows: "Except as provided in subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure ." § 736.0201(1) (emphasis added). Thus, the legislature has set forth in no uncertain terms that, absent the exceptions found in subsections (5) and (6) and section 736.0206, the judicial proceedings shall be bound by the Florida Rules of Civil Procedure....

...We reject the notion that subsection (3) somehow renders inapplicable the legislature's mandate that the Florida Rules of Civil Procedure "shall" apply in this context. The exceptions, set forth by the legislature in subsections 736.0201(5) and (6) and section 736.0206, are wholly irrelevant to what we have here....

...Subsection (6) relates to the application of a particular Florida Rule of Civil Procedure, rule 1.525, in certain circumstances. See § 736.0201(6). The legislature set forth a third exception to the mandatory application of the Florida Rules of Civil Procedure in section 736.0201(1). But section 736.0206 is also inapplicable here, as it relates to proceedings initiated to review the employment of agents and compensation of trustees and employees of a trust....

...Subsequently, the two cases were consolidated. Appellees Stabenow and Faul, E.W.H.’s two other daughters, are beneficiaries under the will and the trust. Kozinski is also a beneficiary under the will and the trust. Pursuant to sections 733.6175 and 736.0206, Florida Statutes (2014), the appellees filed a petition to review the compensation of Kozinski as personal representative and as trustee, as well as fees paid to Kozinski’s law firm and the law firm of Broad and Cassel....

...Prob. R. 5.025(a), (d). The appellees disagreed and argued that the petition was not an adversary proceeding and did not require formal notice. The appellees maintained that the remedy of a “refund” which is provided for under sections 733.6175 and 736.0206 was indistinguishable from a “surcharge,” and asserted that the court already had jurisdiction over Kozinski as personal representative and trustee by virtue of her initial pleadings....

...4th 2 DCA 2013). The appellees filed their petition in a probate case pursuant to section 733.6175 (Proceedings for review of employment of agents and compensation of personal representatives and employees of estate) and section 736.0206 (Proceedings for review of employment of agents and review of compensation of trustee and employees of trust). §§ 736.0206, 733.6175, Fla. Stat. Both statutes provide that “[a]ny person who is determined to have received excessive compensation [from a trust or estate] for services rendered may be ordered to make appropriate refunds.” §§ 733.6175(3), 736.0206(3), Fla. Stat. (emphasis added). The issue on appeal is whether a proceeding filed in a probate case pursuant to those statutory sections requires service by formal notice under the Florida Probate Rules. Section 736.0206(1), Florida Statutes, allows for the review of fees paid to a trustee or the trustee’s agents in general. Subsection (2) of the statute allows for the review to be filed in with the settlor’s probate proceeding. § 736.0206(2), Fla. Stat. If the fee review proceeding is filed in a probate proceeding, the Florida Probate Rules regarding formal notice apply. § 736.0206(6), Fla....

...ceeding. Fla. 1 Florida Probate Rule 5.025 provides three mechanisms for treating a proceeding as an “adversary proceeding.” The only mechanism at issue in this appeal is the one provided for in Rule 5.025(a) (specific proceedings). 2 Likewise, section 736.0206 makes no reference to “surcharge.” 3 Prob....

...excessive fees) is tantamount to a judgment for damages, requiring personal service on the fiduciary as an individual, and not in any representative capacity.4 We thus reject appellees’ contention that their petition for review of fees pursuant to sections 733.6175 or 736.0206 seeking an immediate refund 4Even if the order or judgment is construed to be a sanction, the result would be the same....

...aiver, formal notice served on the respondent individually, and not in a representative capacity, is required for a proceeding to surcharge a personal representative, as well as for a petition filed in a probate case pursuant to sections 733.6175 or 736.0206 seeking to require the fiduciary to return to the estate the overpayment of compensation paid to the fiduciary or agent....

...Kozinski’s motion to dismiss is reversed without prejudice. Reversed and remanded. LEVINE and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 5 Neither section 733.6175 nor section 736.0206 prescribes a time period as to when the refund is to be paid....

...The plain and unambiguous language of section 736.0201(1) mandates that, with three exceptions not relevant here, judicial proceedings concerning trusts shall be governed by Florida Rules of Civil Procedure as follows: "Except as provided in subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure ." § 736.0201(1) (emphasis added). Thus, the legislature has set forth in no uncertain terms that, absent the exceptions found in subsections (5) and (6) and section 736.0206, the judicial proceedings shall be bound by the Florida Rules of Civil Procedure....

...We reject the notion that subsection (3) somehow renders inapplicable the legislature's mandate that the Florida Rules of Civil Procedure "shall" apply in this context. The exceptions, set forth by the legislature in subsections 736.0201(5) and (6) and section 736.0206, are wholly irrelevant to what we have here....

...Subsection (6) relates to the application of a particular Florida Rule of Civil Procedure, rule 1.525, in certain circumstances. See § 736.0201(6). The legislature set forth a third exception to the mandatory application of the Florida Rules of Civil Procedure in section 736.0201(1). But section 736.0206 is also inapplicable here, as it relates to proceedings initiated to review the employment of agents and compensation of trustees and employees of a trust....

...The plain and unambiguous language of section 736.0201(1) mandates that, with three exceptions not relevant here, judicial proceedings concerning trusts shall be governed by Florida Rules of Civil Procedure as follows: "Except as provided in subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure." § 736.0201(1) (emphasis added). Thus, the legislature has set forth in no uncertain terms that, absent the exceptions found in subsections (5) and (6) and section 736.0206, the judicial proceedings shall be bound by the Florida Rules of Civil Procedure. The trial court, however, set forth an additional exception, separate from those enumerated by the legislature, to the mandatory app...

...We reject the notion that subsection (3) somehow renders inapplicable the legislature's mandate that the Florida Rules of Civil Procedure "shall" apply in this context. The exceptions, set forth by the legislature in subsections 736.0201(5) and (6) and section 736.0206, are wholly irrelevant to what we have here.3 It would render subsection (1), where the legislature explicitly identifies the three exceptions, wholly superfluous if we interpret subsection (3) in isolation, as the daughters sugge...

...Subsection (6) relates to the application of a particular Florida Rule of Civil Procedure, rule 1.525, in certain circumstances. See § 736.0201(6). The legislature set forth a third exception to the mandatory application of the Florida Rules of Civil Procedure in section 736.0201(1). But section 736.0206 is also inapplicable here, as it relates to proceedings initiated to review the employment of agents and compensation of trustees and employees of a trust. -8- isolation, 'but when give...