IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ANNEEN NINA GLORIA BAUM, 

Appellant, 

v. Case No. 5D19-2156

 5D19-3750

LT Case No. 2017-CA-049763

BECKER & POLIAKOFF, P.A., WAYNE ALDER, 

TERESA HOFFMAN, ESQ. A/K/A TERESA SUE 

ABOOD, ESQ., LAW OFFICES OF HOFFMAN & 

HOFFMAN, P.A., SEAN LANGTON, ESQ., 

MAGGIE BERRYMAN, ESQ., ET AL., 

 Appellees. 

_______________________________________/ 

Opinion filed July 1, 2022 

Appeal from the Circuit Court

for Brevard County, 

Charles J. Roberts, Judge. 

Tino Gonzalez, of Tino Gonzalez, 

P.A., Melbourne, for Appellant.

Ceci C. Berman and Joseph 

T. Eagleton, of Brannock & 

Humphries, Tampa, for Appellees, 

Becker & Poliakoff, P.A. and 

Wayne Alder. 
2

Michael M. Brownlee, of Fisher 

Rushmer, P.A., Orlando, for 

Appellees, Teresa Hoffman, Esq. and 

Hoffman & Hoffman, P.A.

Ryan C. Tyler, of Boldt Law Firm, 

Boca Raton, for Appellees, Boldt Law 

Firm, P.A., Kimberly L. Boldt, Esq., 

and Jeffrey D. Mueller, Esq.

No Appearance for Other Appellees.

EDWARDS, J.

Appellant, Anneen Nina Gloria Baum, filed suit against multiple 

attorneys and firms who had represented her in probate litigation and a 

related appeal. In this consolidated appeal, she seeks reversal of each 

summary judgment that was entered in favor of three defendant law firms 

and the individual lawyer-defendants affiliated with the law firms. Appellant

argues that the summary judgments were improvidently granted as there 

were genuine issues of material fact which remain to be litigated. We affirm 

as to The Boldt Law Firm, but we otherwise reverse for further proceedings.1

Background Facts

1 We will refer to all of the Appellees in this opinion, excluding The Boldt 

Firm, collectively as “Appellees.”
3

This is a legal malpractice case that arises out of probate litigation 

primarily in the nature of a will contest. Lawyers representing Appellant prior 

to Appellees becoming her counsel filed two related probate actions which 

attempted to revoke probate and to remove the personal representative, her 

brother, asserting that he exercised undue influence over their father, 

resulting in her being completely disinherited from the $100 million estate. 

However, Appellant’s predecessor counsel failed to effect service of process 

upon the personal representative. The probate court issued a written order

that set a firm deadline, December 13, 2013, by which service had to be 

perfected and specifically stated that parties not served by the deadline 

would be dropped. It is undisputed that process was not served by the 

deadline. Appellees did not yet represent Appellant when that deadline was 

missed.

In January 2014, the personal representative filed a motion to drop 

parties, including himself, and dismiss Appellant’s probate litigation due to 

non-service by the deadline. Also in January 2014, Appellees Becker & 
4

Poliakoff, P.A.2 and Hoffman & Hoffman, P.A.3 began representing 

Appellant, right around the time that motion was being filed.4 The Appellees 

represented Appellant at the March 18, 2014 hearing on the personal 

representative’s motion to drop parties and dismiss. They did not respond 

directly to the motion and made no effort during the March 18, 2014 hearing 

to show good cause or explain why Appellant had not timely perfected 

service. 

Instead of responding to the motion to drop parties and dismiss, the 

Appellees only filed and argued a motion to amend, which proposed 

combining the two probate actions into one petition to supposedly streamline 

things going forward. During the March 18, 2014 hearing, the personal 

representative pointed out that the Appellees made absolutely no effort to 

2 Wayne Alder, an attorney at Becker & Poliakoff, P.A., was a 

defendant below and is also a named Appellee. (Collectively “Becker & 

Poliakoff”). 

3 Teresa Hoffman a/k/a Teresa Abood, an attorney at Hoffman & 

Hoffman, P.A., was a defendant below and is also a named Appellee.

(Collectively “Hoffman & Hoffman”).

4 The other appellees are lawyers Kimberly L. Boldt and Jeffrey D. 

Mueller and their law firm, The Boldt Law Firm. They became involved in the 

underlying probate litigation after the March 18, 2014 hearing and filing of 

the motion for rehearing and clarification. They were going to participate on 

Appellant’s behalf with appellate legal representation regarding the dismissal 

of the probate litigation. (Collectively referred to hereinafter “The Boldt Law 

Firm”). 
5

explain Appellant’s failure to meet the service deadline. The personal 

representative also argued to the probate court that the Appellant’s recently 

filed motion to amend was no excuse for failing to serve process by the courtordered deadline, citing the case of Powell v. Madison County, 100 So. 3d 

753 (Fla. 1st DCA 2012), in which a similar effort had been rejected. The 

probate court entered written orders dropping the personal representative as 

a party and dismissing Appellant’s probation litigation cases, effectively with 

prejudice, since the time for filing any will contest actions or similar action 

had passed. 

After the orders dropping parties and dismissing the case were 

rendered, Appellees filed a motion for rehearing and clarification in which 

they, for the first time, argued that good cause and excusable neglect existed 

to excuse missing the deadline for serving process; they attached affidavits 

of Appellant’s predecessor counsel and the process server outlining the 

unsuccessful attempts at serving process. Appellees also argued for the first 

time in the motion for rehearing that the probate court erred in dismissing the 

probate litigation without having conducted the analysis required by Kozel v. 

Ostendorf, 629 So. 2d 817 (Fla. 1993).5

 The probate court denied the motion 

5 The Florida Supreme Court in Kozel concluded that dismissing a case 

because a lawyer failed to comply with a court’s order may often be too 

harsh. The supreme court found that although the trial court “acted within the 
6

for rehearing and clarification, and the orders dropping parties and 

dismissing the case were affirmed on appeal. 

Summary of Malpractice Claims and Defenses

This consolidated appeal includes a massive record reflecting years of 

litigation. We offer the following in an effort to simplify what is involved. 

Appellant filed a multi-count legal malpractice action against all the lawyers 

who represented her at any time in the probate litigation. This consolidated 

appeal only involves the summary judgments in favor of the named 

Appellees and does not concern claims against Appellant’s predecessor 

counsel. 

Appellees basically argue that what sunk Appellant’s probate litigation 

was the failure of her predecessor counsel to effect timely service of process. 

Because that omission occurred before they ever got involved, Appellees 

argue that under no theory can they be liable. However, Appellant argues 

boundaries of the law,” the court’s “decision to dismiss the case based solely 

on the attorney’s neglect unduly punishes the litigant and espouses a policy 

that this Court does not wish to promote.” Kozel, 629 So. 2d at 818. The 

Kozel factors were adopted for use in determining good cause under rule

1.070(j) in Pixton v. Williams Scotsman, Inc., 924 So. 2d 37, 40 (Fla. 5th DCA

2006). 

Here, Appellees ultimately argued in the motion for rehearing and 

clarification that the failure to timely serve process was solely due to 

Appellant’s predecessor counsel with no fault on her individually. 
7

that while her case already was in peril of going under before Appellees 

showed up, it had not yet sunk. Appellant argues that Appellees Becker & 

Poliakoff and Hoffman & Hoffman represented to her that they could easily 

keep the probate litigation afloat by showing, during the March 18, 2014 

hearing, good cause or excusable neglect for failing to serve process by the 

court-ordered deadline. Appellant asserts that when the probate court 

entered orders dropping parties and dismissing the case, her case would 

have been salvaged if Appellees had presented evidence of good cause at 

the initial hearing on the March 18, 2014 hearing on the motion to drop 

parties. Appellant claims that Appellees’ representation of her was 

negligent, led to dismissal of her probate litigation, which in turn proximately 

resulted in her having no opportunity to receive anything from her father’s 

$100 million estate. In other words, she claims that but for Appellees’ alleged 

negligence, she would have prevailed on the personal representative’s 

motion to drop parties and dismiss, which would have permitted her to 

pursue setting aside the probate of the subject will and would have given her 

a reasonable prospect of receiving some inheritance from her father’s estate. 

After litigation and discovery proceeded in the legal malpractice case, 

which is the subject of this appeal, the Appellees moved for summary 
8

judgment.6 The trial court granted the motions for summary judgment, and 

this timely appeal follows. 

Standard of Review

District courts of appeal employ a de novo standard of review when it 

comes to summary judgments. See Volusia Cnty. v. Aberdeen at Ormond 

Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper 

if there is no genuine issue of material fact and if the moving party is entitled 

to a judgment as a matter of law.” Id. The underlying summary judgments 

were entered prior to the Florida Supreme Court's adoption of the new

summary judgment standard. 

Florida law is clear: “The moving party bears the initial burden of 

showing that, based on the summary judgment evidence, no material issues 

of fact exist and it is entitled to a judgment as a matter of law.” Boyle v. 

Hernando Beach S. Prop. Owners Ass’n, 124 So. 3d 317, 319 (Fla. 5th DCA 

2013) (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Bryson v. Branch 

Banking & Tr. Co., 75 So. 3d 783, 785 (Fla. 2d DCA 2011); Krol v. City of 

Orlando, 778 So. 2d 490, 491–92 (Fla. 5th DCA 2001)). Until the moving 

6 Hoffman & Hoffman’s motion for summary judgment adopted many 

of the arguments and documents set forth in Becker & Poliakoff’s motion for 

summary judgment and its summary judgment evidence. In turn, The Boldt 

Law Firm filed a notice adopting the summary judgment motion previously 

filed by Hoffman & Hoffman. 
9

party has met that burden, the non-moving party is not obliged to prove or 

disprove anything. If “the movant has met its initial burden, the non-moving 

party then bears the burden of showing that there are issues of material fact 

that exist and that the movant is not entitled to a judgment as a matter of 

law.” Id. “The movant cannot satisfy that initial burden merely ‘by showing 

that up until the time of his motion his adversary had not produced sufficient 

evidence in support of his pleadings to require a trial.’” Fields v. Devereux 

Found., Inc., 244 So. 3d 1193, 1195 (Fla. 2d DCA 2018) (citations omitted). 

“The trial court must view the summary judgment evidence in the light most 

favorable to the non-moving party when deciding whether summary 

judgment is appropriate.” Boyle, 124 So. 3d at 319 (citations omitted). 

Elements of a Legal Malpractice Claim Arising from Litigation

“In Florida, to prevail on a legal malpractice claim, the plaintiff must 

prove the following three elements: (1) the attorney’s employment; (2) the 

attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence 

resulted in and was the proximate cause of loss to the client.” Tarleton v. 

Arnstein & Lehr, 719 So. 2d 325, 328 (Fla. 4th DCA 1998) (citations omitted); 

see also Bill Branch Chevrolet, Inc. v. Burnett, 555 So. 2d 455, 456 (Fla. 2d 

DCA 1990). The central issue in this appeal is Appellees’ argument that they 
10

could not be the proximate cause of Appellant’s case being dismissed 

because prior counsel had already missed the deadline to serve process. 

 Appellees’ Response to Motion to Drop Parties and Dismiss

Becker & Poliakoff argued below and on appeal that Appellant’s 

probate litigation was “effectively dismissed” in December 2013; however, 

the hearing on the motion to dismiss occurred in March 2014 and the orders 

of dismissal were rendered in April 2014, weeks if not months after Appellees 

undertook to represent Appellant. The fact that the deadline for serving 

process was missed obviously did not by itself terminate Appellant’s probate 

litigation. In fact, Appellees were retained, at least in part, to take reasonable 

steps to avoid the adverse consequences of Appellant’s predecessor 

counsel’s failure to effect service of process. According to Appellant’s 

affidavit opposing summary judgment, Appellees Hoffman & Hoffman and 

Becker & Poliakoff specifically represented to Appellant that they would 

respond to the motion to drop parties and dismiss. From all facts in the 

record, the Appellees undertook the duty to respond to the motion to drop 

parties and dismiss to keep Appellant’s probate litigation going.

The facts demonstrate that the Appellees did not directly respond to 

the personal representative’s motion to drop parties and dismiss, nor did they 

make any attempt, prior to or during the March 18, 2014 hearing, to prove 
11

good cause or excusable neglect for failure to timely serve process. Thus, 

there is clearly a dispute concerning Appellees’ claim that they “did 

everything possible to revive the [probate] claim.” 

Appellees, Hoffman & Hoffman and Becker & Poliakoff, claimed during 

the summary judgment hearing and in this appeal that there was absolutely 

no hope of dealing with the consequences of Appellant’s predecessor 

counsel’s failure to timely serve process. They claim that missing the 

December 13, 2013 deadline meant that Appellant’s probate litigation was 

already “Black-Flag”7 dead before they got involved. We reject this argument 

given Appellees’ failure to offer any evidence concerning good cause.

Whether the grounds and proofs later offered by Appellees would have 

successfully excused failing to serve process, or if the trial court would have 

employed some sanction other than dismissal pursuant to Kozel, also 

remains disputed. Indeed, Appellant points to testimony that, if timely

presented at the March 18, 2014 hearing, could demonstrate Appellant 

played no role in the failure to timely serve process, other than to inquire 

frequently as to the status of service.

7 The trial court used that term, an apparent reference to the 

predictable consequence of insects being sprayed with Black-Flag brand 

insecticide.
12

Thus, summary judgment was improvidently granted as to Appellees, 

Hoffman & Hoffman and Becker & Poliakoff. 

Conclusion

Accordingly, for the reasons set forth above, we find that the trial court 

erred in granting summary judgment for the Appellees. We therefore reverse 

and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

EISNAUGLE and SASSO, JJ., concur.