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 Nos. 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 November 18, 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, and Robert D. Critton and J.

Chris Bristow, of Critton, Luttier &
2

Coleman, LLP, West Palm Beach,

for Appellees, Becker & Poliakoff, 

P.A. and Wayne Alder.

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.

ON MOTION FOR REHEARING

Appellees, Becker & Poliakoff and Hoffman & Hoffman, have moved 

for rehearing and rehearing en banc, which motions are denied. We 

withdraw our prior opinion and substitute this opinion in its place to clarify 

certain matters.

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 
3

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

affirm as to The Boldt Law Firm, but we otherwise reverse for further 

proceedings.1

Background Facts

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 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.

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

Firm, collectively as “Appellees.”
4

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. Hoffman & Hoffman, P.A.2 and Becker & 

Poliakoff began representing Appellant sometime January or February of 

2014. In response to the motion to drop parties and dismiss, Appellees filed 

a motion to amend, which proposed combining the two probate actions into 

one petition to supposedly streamline things going forward. The motion did 

not argue good cause for failure to serve the personal representative.

Appellees3 appeared on behalf of 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 again made no effort during 

2 Teresa Hoffman a/k/a Teresa Abood, and Sean Langton, attorneys 

at Hoffman & Hoffman, P.A., were defendants below and are also named as

Appellees (collectively “Hoffman & Hoffman”). In one aspect of their motion 

for rehearing, Hoffman & Hoffman argue that Sean Langton’s involvement in 

the underlying case was de minimis and that summary judgment as to him 

should have been affirmed. In resolving the motions for rehearing, this Court 

has considered that argument and concluded that the record is not yet ripe 

as to that issue; therefore, that aspect of Hoffman & Hoffman’s motion for 

rehearing is denied without prejudice. 

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

Mueller and their law firm, The Boldt Law Firm (collectively referred to 

hereinafter “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. 
5

the March 18, 2014 hearing to show good cause or explain why Appellant

had not timely perfected service. 

During that hearing, the personal representative pointed out to the 

probate court that Appellees made absolutely no effort to explain Appellant’s 

failure to meet the service deadline. The personal representative also 

argued to the probate court that Appellant’s recently filed motion to amend 

was no excuse for failing to serve process by the court-ordered 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 probate 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.4 Appellees also argued for the 

4 We do not decide here whether the motion for rehearing was timely 

filed. 
6

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 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. 

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 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 Florida Rule of Civil Procedure 1.070(j) in Pixton v. Williams 

Scotsman, Inc., 924 So. 2d 37, 40 (Fla. 5th DCA 2006). 
7

Appellees basically argue that what sank 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 

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

showed up, it had not yet sunk. Appellant alleged in her affidavit opposing 

summary judgment that Appellees were aware of the November 15, 2013 

order setting the deadline for service of process and further that Becker & 

Poliakoff represented to her they could and would easily overcome it.

Appellant also alleged that Appellees indeed could have salvaged her case 

by showing good cause or excusable neglect during the March 18, 2014 

hearing; however, they made no effort to do so. Appellant contends that 

Appellees’ representation of her was negligent and 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. 
8

After litigation and discovery proceeded in the legal malpractice case, 

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

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

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 

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 has 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 
10

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

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, according to Appellant’s affidavit opposing summary 

judgment, 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. From all facts in the summary judgment

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

and dismiss to keep Appellant’s probate litigation going.

However, the facts demonstrate that Appellees made no attempt, prior 

to or during the March 18, 2014 hearing, to prove good cause or excusable 

neglect for failing to timely serve process. Thus, there is clearly a dispute 
11

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 argue 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, for purposes of summary judgment on this record, given 

Appellees’ failure to offer any evidence prior to or during the March 18, 2014 

hearing 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 remain 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 Appellees. We therefore reverse 

and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

EISNAUGLE and SASSO, JJ., concur.