JENNIFER L. KERKHOFF AS PERSONAL REPRESENTATIVE

v.

THE ESTATE OF LYNN EARL BROWN

CASANUEVA, Judge. Jennifer Kerkhoff, as personal representative of the Estate of Lynn Earl Brown, appeals an order of cancellation of nonjury trial/evidentiary hearing. The order was entered after attorney Stephen P. Heuston and Heuston Legal PLLC, Appellees,

- 2 - filed a notice of voluntary dismissal and notice of compliance pertaining to their claim for attorney's fees owed from the Estate. Ms. Kerkhoff, an attorney herself, alleged that Appellees never represented her; thus, she disputed their entitlement to any attorney's fees.¹ Kerkhoff correctly states that the notice of voluntary dismissal could not have been properly filed pursuant to Florida Rule of Civil Procedure 1.420(a).2 Florida Probate Rule 5.010 provides that the probate rules "govern the procedure in all probate and guardianship proceedings" and "[t]he Florida Rules of Civil Procedure apply only as provided herein." Broadly speaking, the Florida Rules of Civil Procedure are applicable in probate for purposes of discovery and for adversary proceedings. See Fla. Prob. R. 5.025(2)(d), 5.080(a).

More specifically, rule 5.025 provides that adversary proceedings, as defined therein, are governed by Florida Rules of Civil Procedure, except for Florida Rule of Civil Procedure 1.525.3 And rule 5.080(a) identifies rules of 1The amount in dispute was $2000, and the notice of compliance certified that Mr. Heuston had returned to the Estate the disputed funds, which had been held by Heuston Legal for any further Estate fees or costs that might arise. 2Neither the notice of voluntary dismissal nor the order on appeal specifically references rule 1.420(a).

However, Appellees rely heavily on this rule and related case law in their argument on appeal.

3In 2011, subdivision (d)(2) of rule 5.025 was revised to exclude rule 1.525 "to insure that an award of attorneys' fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than the law and procedures for civil proceedings." Fla. Prob. R. 5.025 committee notes.

- 3 - civil procedure that are applicable to all probate proceedings. Those rules pertain primarily to discovery, subpoenas, and depositions. Fla. Prob. R. 5.080(a).

Rule 1.420, pertaining to the dismissal of actions, is not one of those listed in rule 5.080(a). The court in In re Beeman's Estate, 391 So. 2d 276, 278 (Fla. 4th DCA 1980), recognized the scope of application of probate rules and civil procedure rules: "The characterization of the proceedings is critically important for it determines which rules of court shall govern." See also Hays v. Lawrence,¹ So. 3d 1176, 1177 (Fla. 5th DCA 2009) ("The central issue framed by the parties is whether the rules of civil procedure applied to the proceeding below. The resolution of this issue turns on whether the underlying dispute in probate court was an adversary proceeding."). In this case, no one argues (nor does the record reflect) that the proceeding was adversary.

Thus, we agree with Ms. Kerkhoff that rule 1.420(a), providing for voluntary dismissal of actions, was inapplicable to the proceedings below.

Nonetheless, whether called a notice of voluntary dismissal or a notice of withdrawal (as argued by Appellees in the alternative), it is undisputed that the notice filed by Appellees terminated their pending claim for attorney's fees with prejudice. Indeed, Ms. Kerkhoff states that she takes no issue with the termination of the pending action for fees.

The trial court properly concluded that the specific matters4 to be heard at the nonjury trial/evidentiary hearing were rendered moot by Appellees terminating 4This includes the matter of whether Mr. Heuston previously represented Ms. Kerkhoff. Though Ms. Kerkhoff contends that Mr. Heuston never actually represented her as personal representative, Ms. Kerkhoff noted at the status conference that that determination was relevant to whether fees were owed to Appellees. Again, Appellees withdrew any claim for fees and returned the disputed funds.

- 4 - their claim for fees and returning the disputed funds. Accordingly, we affirm the order on appeal. ROTHSTEIN-YOUAKIM, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.