FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4545

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JASON BRADLEY SIMS,

Appellant,

v.

ROBERT F. BARNARD and JELKS 

& WHITE, P.A.,

Appellees.

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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 
2

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 
3

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., 
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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. 
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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.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.