DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

KATHLEEN G. KOZINSKI, 

as Trustee and as Personal Representative,

Appellant,

v.

AMY STABENOW and NORA FAUL,

Appellees.

No. 4D14-1056

[November 5, 2014]

Appeal of a non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 

502013CP001771XXXXNB.

Beverly A. Pohl of Broad and Cassel, Fort Lauderdale and Gary E. 

Lehman of Broad and Cassel, Miami, for appellant.

Edward Downey and Lee McElroy IV of Downey & Downey, P.A., Palm 

Beach Gardens, for appellees.

CONNER, J.

Appellant, Kathleen Kozinski, appeals the entry of a non-final order 

denying her motion to dismiss the Appellees’ petition for lack of personal 

jurisdiction. Kozinski argues that the trial court erred in denying her 

motion to dismiss because she was never served with formal notice that 

she might be subject to personal liability. Specifically, Kozinski argues 

that the remedy of “surcharge” sought in the Appellees’ petition against 

her individually constituted an adversary proceeding requiring service by

formal notice under the Florida Probate Rules in order for the probate 

court to have personal jurisdiction over her individually, as opposed to 

personal jurisdiction over her as personal representative or trustee. We 

agree and reverse.

Facts and Trial Proceedings

Kozinski, an attorney, serves as the trustee of a trust created by her 
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mother, E.W.H. After E.W.H. died, Kozinski filed a notice of trust, which 

noted that the trust would be liable to E.W.H.’s creditors to the extent her

estate was insufficient to pay them. Thereafter, a petition for 

administration of E.W.H.’s estate was filed as a separate case. Kozinski 

was appointed as personal representative of the estate. 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. In the petition, the 

appellees also objected to accountings based on the payment of the fees. 

The appellees claimed Kozinski had paid excessive fees from the estate and 

trust assets. The appellees asked the court to determine the 

reasonableness of the compensation and also “to enter such surcharge or 

disgorgement orders as are warranted,” along with fees and other relief. 

(emphasis added). 

The appellees’ petition for review was not formally served upon 

Kozinski, but was sent via e-mail service to her counsel. In response, 

Kozinski filed a motion to dismiss the petition for lack of personal 

jurisdiction, arguing, among other things, that the appellees failed to 

invoke the court’s personal jurisdiction over her where they sought 

surcharge and disgorgement against her in her individual capacity. 

At the hearing on the motion, Kozinski argued that a surcharge action, 

which is based on a breach of fiduciary duty, was an adversary proceeding 

which required formal notice or a complaint served under the Florida Rules 

of Civil Procedure in order to obtain personal jurisdiction over Kozinski 

individually. See Fla. 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. The trial court denied the motion to dismiss, 

but granted a stay pending this appeal.

Appellate Analysis

“The denial of a motion to dismiss for lack of personal jurisdiction is 

reviewed de novo.” Kent v. Marmorstein, 120 So. 3d 604, 605 (Fla. 4th 
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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. Stat. If the fee review proceeding is not filed in the 

settlor’s probate proceeding, the Florida Rules of Civil Procedure and 

service of process procedure under Chapter 48, Florida Statutes, apply. 

See §§ 736.0201(1), 736.02025, Fla. Stat. (2014).

Resolution of the issue of whether a proceeding for the review of fees 

paid to a personal representative or the personal representative’s agents 

requires service by formal notice depends on whether the proceeding is

considered an “adversary proceeding” under the Florida Probate Rules.

1 

The issue of whether such a proceeding is considered an adversary

proceeding, in turn, depends on whether a “refund” ordered pursuant to

either statute is tantamount to a “surcharge,” as that term is used in the 

Florida Probate Rules and the case law. Section 733.6175 makes no 

reference to “surcharge.”2 However, as discussed below, the case law in 

Florida clearly indicates that a fee dispute arising under section 733.6175 

is, in essence, a surcharge proceeding. 

Florida Probate Rule 5.025(a) specifically provides that a proceeding to 

“surcharge a personal representative” is an adversary proceeding. 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.”
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Prob. R. 5.025(a). The rule provides the same regarding guardians and 

guardianship proceedings. Thus, case law discussing the principles of 

“surcharge” in the guardianship context are useful in analyzing the 

principles of “surcharge” in the probate context. We also note that Chapter 

744 governing guardianship proceedings has similar provisions for review 

of fees as found in section 733.6175. See § 744.108, Fla. Stat. (2014).

“A ‘surcharge’ is the amount that a court may charge a fiduciary that 

has breached its duty.” Reed v. Long, 111 So. 3d 237, 238 (Fla. 4th DCA 

2013) (citing Merkle v. Guardianship of Jacoby, 862 So. 2d 906, 907 (Fla. 

2d DCA 2003)). We also wrote in Reed that “[t]he purpose of such an 

award is to make the [ ] estate whole when the [fiduciary]’s actions cause 

loss or damage to the [estate].” Id. at 239 (citations omitted). Moreover, 

in the context of trust proceedings, the Fifth District has said that “[a]

surcharge action seeks to impose personal liability on a fiduciary for 

breach of trust through either intentional or negligent conduct.” Miller v. 

Miller, 89 So. 3d 962, 962 n.1 (Fla. 5th DCA 2012). It is clear under the 

case law that a surcharge proceeding can be pursued when a fiduciary 

pays excessive fees to himself, herself, or agents of the fiduciary. In re 

Estate of Winston v. Winston, 610 So. 1323, 1325 (Fla. 4th DCA 1992) (“It 

follows without the necessity of citation of authority that the personal 

representative is subject to surcharge for any improper or excessive 

payments [of fees].”).

The case which most strongly equates a petition for review of fees

pursuant to section 733.6175 with a surcharge is Beck v. Beck, 383 So. 

2d 268 (Fla. 3d DCA 1980). In Beck, the Third District said that “[the 

appellee]’s challenge to payment of that compensation invoked Section 

733.6175, Florida Statutes (1977), which placed the burden of proof as to 

the propriety, reasonableness and necessity of such payments upon the 

personal representative.” Id. at 271 (emphasis added). The court went on 

to hold that “[t]he record amply reflects the propriety of the surcharge

against [the appellant-personal representative] for payments he made with 

funds from [the appellee]’s share of the estate for . . . overpayment of 

attorneys’ fees.” Id. at 272 (emphasis added); see also Merkle, 862 So. 2d

at 907 (holding that the order directing a refund of fees paid to the 

guardian “was tantamount to an order surcharging the guardian”).

3

3 In In re Estate of Winston, we said that because a personal representative could 

be subject to surcharge for the payment of excessive fees, a personal 

representative has the right to file a petition for review of fees pursuant to section 

733.6175, Florida Statutes, but we did not equate a petition for review of fees 

with a petition for surcharge for the obvious reason that it was the fiduciary who 

brought the review proceeding. 610 So. 2d at 1325.
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“A personal representative is a fiduciary who shall observe the 

standards of care applicable to trustees.” § 733.602(1), Fla. Stat. (2014); 

see also § 733.609(1), Fla. Stat. (2014) (“A personal representative’s 

fiduciary duty is the same as the fiduciary duty of a trustee of an express 

trust, and a personal representative is liable to interested persons for 

damage or loss resulting from the breach of this duty.”); State v. Lahurd, 

632 So. 2d 1101, 1104 (Fla. 4th DCA 1994) (“The personal representative, 

like a trustee, is a fiduciary in handling the estate for the beneficiaries. As 

such, he or she is to observe the standard of care in dealing with the estate 

as a prudent trustee exercises in dealing with property of the trust.”) 

(citations omitted). A trustee is required to seek only reasonable fees for 

his or her services and the trustee’s agents. See §§ 736.0105(1), (2)(b); 

736.0801; 736.0802(1), (7)(b), (8), Fla. Stat. (2014).

“Issues of liability as between the estate and the personal representative 

individually may be determined in a proceeding for accounting, surcharge, 

or indemnification, or other appropriate proceeding.” § 733.619(4), Fla. 

Stat. (2014) (emphasis added). In In re Estate of Pearce, 507 So. 2d 729 

(Fla. 4th DCA 1987), we said:

Inasmuch as section 733.609 likens the role of a personal 

representative to that of a trustee of an express trust, we find 

it helpful to see what is the usual law respecting surcharge, 

which is payment by a trustee . . . out of the trustee’s own 

funds for breach of trust.”

Id. at 731 (emphasis added). 

Accordingly, we hold that a proceeding seeking an order or judgment 

imposing a refund or surcharge against a fiduciary or a fiduciary’s agent, 

individually, and the immediate return of money to a trust, probate, or 

guardianship estate as a result of a breach of fiduciary duty (charging 

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 

4 Even if the order or judgment is construed to be a sanction, the result would be 

the same. Taylor v. Mercedes, 760 So. 2d 282 (Fla. 4th DCA 2000) (treating an 

order directing a guardian to reimburse the guardianship from the guardian’s 

personal funds to be in the nature of a sanction and holding that the failure to 

give the guardian formal notice that such a sanction would be imposed required 

reversal).
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of money to the probate or trust estate does not initiate an adversary 

proceeding subject to the notice requirements of the Florida Probate 

Rules.5 We hold that, absent a written waiver, 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. With regard to notice and 

procedure in such adversary proceedings, Florida Probate Rule 5.025(d)(1)

explicitly states that in adversary proceedings, a “[p]etitioner must serve 

formal notice.” Fla. Prob. R. 5.025(d)(1) (emphasis added).

Kozinski was not served individually with formal notice of the petition 

for review of fees, and she did not waive in writing her right to receive such 

notice. Because personal jurisdiction over Kozinski in her individual 

capacity was not properly obtained, the trial court’s order denying 

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. Arguably, the court has the discretion to order 

the refund against future compensation payable to the fiduciary. We do not 

address whether formal notice is required in a situation in which a refund is used 

as an offset of the amount of the overpayment against future compensation.