ANNEEN NINA GLORIA BAUM vs TERESA HOFFMAN, ESQ. A/K/A TERESA SUE ABOOD, ESQ., LAW OFFICES OF HOFFMAN & HOFFMAN, P.A., SEAN LANGTON, ESQ., MAGGIE BERRYMAN, ESQ., WAYNE ALDER, ESQ., BECKER & POLIAKOFF, P.A., MARK S. GURALNICK

• Court: District Court of Appeal of Florida
• Decided: July 1, 2022
• Docket: 19-3750
• Status: Published

Opinion

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. 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.”

2 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 &

3 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”).

4 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 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 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

5 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.

6 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

7 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.

8 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

9 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

10 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.

11 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.