Olga Evgrafova, Etc. v. in Re: The Estate of Tamara McKeehan

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 9, 2026.

Not final until disposition of timely filed motion for rehearing.

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No. 3D25-2008

Lower Tribunal No. 20-1188-CP-02

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Olga Evgrafova, etc.,

Appellant,

vs.

In Re: The Estate of Tamara McKeehan, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jorge E.

Cueto, Judge.

Cotzen Law, P.A., and Michael L. Cotzen, for appellant.

David H. Goldberg, P.L., and David Howard Goldberg, for appellee.

Before FERNANDEZ, GORDO and REBULL, JJ.

GORDO, J.

Olga Evgrafova appeals a final judgment denying her petitions for compensation. We have jurisdiction. See Fla. R. App. P. 9.170(b)(21). Because the trial court erred by excluding testimony and failing to consider any evidence or making any findings required by § 733.617, Fla. Stat. (2025), we reverse and remand for a new evidentiary hearing.

Tamara McKeehan passed away in 2020. She named Evgrafova as the personal representative of her estate in her testamentary documents. Tamara named Father Kenneth Daniel McKenzie as successor trustee of a revocable trust and the sole beneficiary of her estate. At the time of Tamara’s passing, the estate’s assets consisted primarily of several cash accounts, personal property and a New York co-op apartment, cumulatively valued at over one million dollars.

Throughout Evgrafova’s six years as personal representative, McKenzie filed numerous motions seeking to compel administration of the estate and the filing of the estate tax closing letter. McKenzie maintained that he requested the New York apartment be sold, but that Evgrafova instead insisted they renovate and remodel the apartment, expending unnecessary estate monies. The apartment was not sold until April 2025 for a price of $550,000.

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McKenzie moved to compel payment of distributive interest after the sale, arguing that the letters of administration required the estate to be closed within 12 months from the date the letters were issued and that, under Florida Probate Rule 5.400, the estate was approximately three years overdue. He further asserted that Evgrafova caused significant delays and additional expenses by switching attorneys three times and complicating routine aspects of the administration. The court granted the motion and directed the issuance of $781,000 to Mckenzie as trustee.

Evgrafova then petitioned for statutory and extraordinary compensation as personal representative and for professional CPA services in the two petitions on appeal. McKenzie opposed both petitions and requested that Evgrafova receive no additional compensation arguing that all fees should be denied “as a consequence of her clearly excessive request for fees through this petition” and because of her “failure to afford the required attention to the duties imposed by the position of personal representative,” which resulted in approximately six years of administration and repeated court orders compelling progress.

The court held an evidentiary hearing where McKenzie again argued against an award of fees because this was “not a highly complex administration” yet it took many years to complete. Evgrafova then called

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Lance Lvovsky, a CPA, as an expert witness to testify to her petition for professional CPA fees. Lvovsky testified that he was qualified as an expert based on his position as a partner at Marcum, a national accounting firm. McKenzie moved to disqualify Lvovsky because he was “not independent,” arguing that he had been paid to provide accounting and tax services to the estate.

The court granted the motion to disqualify. The court also denied Evgrafova’s request to be sworn to testify, finding that she was an interested party and as such, her ability to testify was barred. Thereafter the court entered a written order granting McKenzie’s ore tenus motion to disqualify Lvovsky, finding that the issue of his independence should have been considered by Evgrafova before the evidentiary hearing. The order also denied Evgrafova’s two petitions and her ore tenus motions for reconsideration and clarification. Evgrafova filed a written motion for rehearing following the court’s order which was also denied. This appeal followed.

“We review the trial court's determination of whether a witness may testify as an expert for abuse of discretion.” Diamond Regal Dev., Inc. v. Matinnaz Const., Inc., 1 So. 3d 1104, 1106 (Fla. 1st DCA 2009). “A trial court’s determination of the reasonableness or necessity of fees will not be

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overturned on appeal, unless there is an abuse of discretion.” In re Estate of Bryan, 576 So. 2d 344, 347 (Fla. 4th DCA 1991). “The standard of review on appeal of a motion for rehearing is abuse of discretion.” Beacon Hill Homeowners Ass'n, Inc. v. Colfin Ah-Florida 7, LLC, 221 So. 3d 710, 712 (Fla. 3d DCA 2017). However, a trial court’s “discretion is abused if the ruling is centered on an erroneous view of the law.” Phinney v. Phinney, 427 So. 3d 1041, 1043 (Fla. 3d DCA 2025).

Evgrafova argues that the trial court abused its discretion in refusing to allow Evgrafova’s expert witness and herself to testify because witnesses cannot be excluded from testifying due to bias and by failing to award Evgrafova’s statutorily required compensation for serving as personal representative. We agree. The court disqualified Evgrafova’s expert, Lvovsky, because he was not a “neutral” witness as his accounting firm had previously been paid for services to the estate. Florida law provides that an expert’s financial interest or perceived bias does not disqualify a witness from testifying—it is a matter of credibility and weight for the trier of fact, not a matter of admissibility. See Diamond Regal Dev., Inc., 1 So. 3d at 1106 (“A witness should not be excluded as an expert merely because he or she was involved in the facts of the underlying case. It is also improper to exclude an otherwise qualified expert from testifying because of the witness’ perceived

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bias.” (internal citation omitted)); Moore v. Huntington Nat. Bank of Columbus, 352 So. 2d 589, 590 (Fla. 3d DCA 1977) (“The issue presented for review is whether a trial court may properly enter an order barring a party from calling an expert witness at trial on the ground that, in the opinion of the trial court, the witness is biased. . . . it is the exclusive province of the jury, not the trial court, to pass upon the credibility of a witness. . . . As such, the trial court had no authority to exclude the expert witness herein from testifying at trial on grounds other than the witness’ lack of qualifications as an expert[.]”).

The court likewise erred in refusing to permit Evgrafova to testify merely because she was an “interested party.” The interest of a witness bears on credibility, not competency. See Martuccio v. Dep’t of Prof’l Regul., Bd. of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993) (“Persons having a pecuniary or proprietary interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code. Interest merely goes to the credibility of the evidence.” (internal citation omitted)); P. & N. Inv. Corp. v. Rea, 153 So. 2d 865, 867 (Fla. 2d DCA 1963) (“It has long been the general rule by statute in Florida that interest in the outcome of a case does not disqualify a witness but merely goes to the weight and credibility of his testimony.”). Her testimony regarding the services performed, time

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expended and value of those services was admissible subject to cross- examination and the court’s assessment of its weight. See Vazquez v. Martinez, 175 So. 3d 372, 373–74 (Fla. 5th DCA 2015).

We find the court compounded the error above by immediately concluding that without an expert, Evgrafova could not proceed and by denying both compensation petitions. First, expert testimony may assist that determination, but it is not required to establish the presumptively reasonable statutory compensation. See § 733.6175(4) Fla. Stat. (“The court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony.”). Second, under § 733.617, Fla. Stat., a personal representative is entitled to a 3% statutory commission that is presumed reasonable, although the court may increase, decrease or deny compensation based on the statutory factors described therein:

(1) A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. . . .

(a) At the rate of 3 percent for the first $1 million.

(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services. . . .

(7) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of

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the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors. . . .

§ 733.617(1)(a), (3), (7), Fla. Stat. (2020) (emphasis added); see In re Estate of Bryan, 576 So. 2d at 346–47 (“In determining ‘reasonable’ compensation for a personal representative and the professionals it hires, the trial court is controlled by section 733.617[.]”).

Although McKenzie correctly argues that compensation may be denied for mismanagement, this is true only after a completed evidentiary hearing at which the personal representative had a full opportunity to be heard. 1 Here the court denied both Evgrafova’s petitions without receiving a single piece of evidence—on the § 733.617 factors or otherwise. See Fla. Nat. Bank v. Glock, 495 So. 2d 280, 281 (Fla. 2d DCA 1986) (“To permit the trial court to rule on the issue of final [personal representative] fees. . . without the parties having the opportunity to present evidence on the factors

1 We recognize the trial court’s frustration with its perception of unnecessary delays and perhaps mismanagement. We in no way intimate what an appropriate compensation would be after the court hears evidence and considers the appropriate statutory factors. See Matthiesen v. Estate of Masri, 343 So. 3d 124, 126-27 (Fla. 3d DCA 2022) (finding “no abuse of discretion” in a trial court’s denial of an award of personal representative fees following a full evidentiary hearing at which the parties litigated the personal representatives alleged breaches of duty and their causing the estate to “incur unnecessary expenses”).

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enumerated in section 733.617, Florida Statutes (1985), would be a violation of the parties’ right to notice and an opportunity to be heard.”).

We therefore reverse and remand to the lower court to conduct an evidentiary hearing regarding the appropriate compensation for Evgrafova, taking into account the criteria established in § 733.617, Florida Statutes.