[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-12212

Non-Argument Calendar

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D.C. Docket No. 2:10-cv-00237-SPC-CM

ALEXANDER L. KAPLAN, 

 Plaintiff - Appellant,

 versus

LEON KAPLAN, 

 Defendant - Appellee. 

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Appeals from the United States District Court

for the Middle District of Florida

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(August 4, 2015)

Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: 
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Alexander L. Kaplan (Alexander), an attorney proceeding pro se, appeals the 

district court’s dismissal of his case based on res judicata. Upon review, we 

affirm. 

I. BACKGROUND

On July 28, 2006, Alexander’s father, Mack Kaplan (Mack), passed away. 

Mack’s brother, Leon Kaplan (Leon), was appointed the sole personal 

representative of Mack’s estate. 

1. The Federal Action

While Mack’s estate was being administered, Alexander filed the underlying 

federal action against Leon for acts arising out of Leon’s duties as personal 

representative of Mack’s estate. Alexander’s complaint alleged Leon (1) breached 

fiduciary duties by settling Mack’s wrongful death action for an unreasonably low 

amount (Count 1); (2) violated Florida’s Prudent Investor Rule, Fla. Stat. § 518.11, 

by failing to mitigate the estate’s losses during economic downturns (Count 2); (3) 

negligently retained inexperienced counsel to represent Mack’s estate in the abovementioned wrongful death action (Count 3); and (4) breached fiduciary duties in 

regards to “other estate matters,” such as failing to timely pay a pharmacy bill, and 

failing to timely pay a funeral expense (Count 4). 
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2. The Florida Probate Action

Before the district court dismissed Alexander’s complaint, the following 

events occurred in the Florida probate court. Leon filed and served Alexander with 

the estate’s final accounting and a petition for discharge in the probate court

pursuant to Florida Rule of Probate 5.400 (“A personal representative who has 

completed administration except for distribution shall file a final accounting and a 

petition for discharge including a plan of distribution.”). The final accounting 

disclosed all of the estate’s investments and expenses at issue in Counts 2 and 4. 

Although Alexander filed a formal objection to the accounting, he did not raise any 

of the claims he raises in this lawsuit. The Florida probate court ultimately 

overruled Alexander’s objection and approved Leon’s accounting. Alexander did 

not appeal that decision. The Florida probate court subsequently granted Leon’s 

petition for discharge, which Alexander also did not appeal. 

Additionally, during the administration of the estate, the Florida probate 

court approved a settlement of the wrongful death lawsuit at issue in Counts 1 and 

3. 

II. DISCUSSION

The district court did not err in dismissing Alexander’s suit on res judicata

grounds. When determining the res judicata effect of a state court judgment, we 

apply the res judicata principles of the state whose decision will preclude the 
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subsequent action—in this case, Florida. See Kizzire v. Baptist Health Sys., Inc., 

441 F.3d 1306, 1308 (11th Cir. 2009). In Florida, “res judicata applies where there 

is: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity 

of the persons and parties to the action; (4) identity of the quality [or capacity] of 

the persons for or against whom the claim is made; and (5) the original claim was 

disposed on the merits.” Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 

1074 (11th Cir. 2013) (quotation and citation omitted) (alteration in original). On 

appeal, Alexander disputes only whether the district court correctly held that both 

proceedings involved (a) identity of parties and (b) identity of causes of action. 

A. Identity of Parties

For res judicata to apply, Florida law requires an identity of parties in both 

proceedings. See Lozman, 713 F.3d at 1074. Alexander contends there is not an 

identity of parties between this action and the Florida probate proceeding because 

the Florida probate proceeding was against Leon as personal representative of 

Mack’s estate, whereas this federal action is against Leon personally. In support of 

this argument, Alexander contends the Florida probate court did not even have in 

personam jurisdiction over Leon personally because Leon is a citizen of Arizona, 

not Florida. 

We disagree. There is no evidence that Leon appeared in the probate court 

solely as the personal representative of the estate. Rather, by petitioning for and 
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obtaining appointment as personal representative, Leon submitted himself to the 

probate court’s jurisdiction for all purposes. See, e.g., Payette v. Clark, 559 So. 2d 

630, 634 (Fla. Dist. Ct. App. 1990) (“At the inception of the probate proceedings 

the appellee . . ., by obtaining appointment as personal representative, submitted 

himself to the jurisdiction of the court for all purposes . . . .”). We therefore 

conclude there is an identity of parties in both proceedings. 

B. Identity of Causes of Action

Florida’s res judicata doctrine also requires “identity of the cause of action.” 

See Lozman, 193 F.3d at 1238. Florida law defines “identity of causes of action” 

as actions “sharing similarity of facts essential to both actions.” See Saboff v. St. 

John’s River Water Mgmt. Dist., 200 F.3d 1356, 1360 (11th Cir. 2000); Lozman, 

713 F.3d at 1074-75 (“Identity of the cause of action is a question of whether the 

facts or evidence necessary to maintain the suit are the same in both actions.” 

(quotation and citation omitted)). Importantly, the “identity of cause of action” test 

is satisfied not only when the claims in the new suit “were raised” in the prior suit, 

but also when the claims “could have been raised.” Felder v. State, Dep’t of Mgmt. 

Servs., Div. of Ret., 993 So. 2d 1031, 1034 (Fla. Dist. Ct. App. 2008); Fla. Dep’t 

Transp. v. Juliano, 801 So.2d 101, 107 (Fla. 2001) (“[R]es judicata bars 

relitigation in a subsequent cause of action not only of claims raised, but also 

claims that could have been raised.”). 
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Alexander contends there is no identity of causes of action for res judicata 

purposes because the breaches of fiduciary duty and other improper acts at issue in 

this federal action occurred after the probate proceeding commenced in 2006. As 

such, these claims could not have been raised in the probate proceeding. 

We disagree. Alexander could have raised Counts 2 and 4 in the probate 

court. See Felder, 993 So. 2d at 1034; Juliano, 801 So. 2d at 107. As the district 

court found, Leon fully disclosed to the probate court the disposition of estate 

assets and expenses in a final accounting, including the actions of which Alexander 

complains in Counts 2 and 4. Pursuant to Florida law, Alexander had an 

opportunity to object to that accounting and assert the claims he raises here. See 

Fla. Probate R. 5.401(a) (“An interested person may object to the petition for 

discharge or final accounting within 30 days . . . .”); Fla. Stat. § 733.619 (“Issues 

of liability as between the estate and the personal representative individually may 

be determined in a proceeding for accounting . . . .”). Despite this opportunity, 

Alexander chose not to raise these claims. As a result, the probate court entered a 

final order of discharge, releasing Leon from liability for the alleged violations in 

Counts 2 and 4. See Fla. Stat. § 733.901(2) (“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.” 
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(emphasis added)). Therefore, the district court did not err in holding Counts 2 and 

4 could have been raised in the probate court and cannot be raised now. 

Likewise, Counts 1 and 3 involved causes of action that were raised or could 

have been raised in the probate court. See Felder, 993 So. 2d at 1034; Juliano, 801 

So. 2d at 107. Both counts relate to Leon’s settlement of a wrongful death action. 

The probate court, however, approved Leon’s settlement, and in doing so relieved 

Leon of all liability related to that settlement. See Fla. Stat. § 733.708 (“When a 

proposal is made to compromise any claim, whether in suit or not, by or against the 

estate of a decedent or to compromise any question concerning the distribution of a 

decedent’s estate, the court may enter an order authorizing the compromise if 

satisfied that the compromise will be for the best interest of the interested persons. 

The order shall relieve the personal representative of liability or responsibility for 

the compromise.” (emphasis added)). To the extent Count 3 seeks to hold Leon 

personally liable for negligently relying on his counsel’s advice in settling the 

wrongful death action, Alexander could have raised this issue in an objection to the 

final accounting. Accordingly, the district court did not err in concluding Counts 1 

and 3 were, or could have been, resolved by the probate court. 

III. CONCLUSION

For the foregoing reasons, the district court did not err in concluding 

Alexander’s suit against Leon is precluded by res judicata. 
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AFFIRMED.