RYAN VON ALVORDEN KITTEL, APPELLANT,
v.
HENRY G. SIMMONITE, APPELLEE
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The court held that an amended complaint stating a cause of action for damages due to improper advice from an administrator/legal advisor should not have been dismissed, even with outstanding probate orders.
Plaintiff sued the defendant individually for damages, alleging that the defendant, who was both the estate administrator and plaintiff's legal adviso…
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This is an appeal by the plaintiff from an order dismissing his amended complaint in a law action brought in the circuit court in Dade County. The determinative question is whether the amended complaint stated a cause of action. We hold that it did, and reverse the judgment of dismissal on authority of Dacus v. Blackwell, Fla. 1956, 90 So.2d 324.
Plaintiff and defendant were entitled to share equally in an estate. Defendant was the administrator and also legal adviser of the plaintiff. Acting on advice from the defendant which he charges was improperly given, plaintiff agreed to a distribution which he alleges resulted in his obtaining less and the defendant obtaining more than entitled from the estate. Orders of distribution and for discharge of the administrator were entered in the probate court. Nine months later the plaintiff sued the defendant individually for compensatory damages for the loss allegedly thus sustained and for punitive damages.
In dismissing the amended complaint on the ground that such action could not be maintained so long as the probate orders remained in effect, the trial court was in error. The action against the defendant is as an individual and not as an administrator, and does not challenge the orders of the probate court. Cases which are closely in point on the facts and support appellant’s contention that his amended complaint stated a cause of action are Durrance v. Underhill, 154 Fla. 437, 18 So.2d 4, and Dacus v. Blackwell, supra, Fla.1956, 90 So. *8182d 324. See also Gerlach v. Donnelly, Fla. 1957, 98 So.2d 493, 498; First National Bank of Colorado Springs v. McGuire, 7 Cir., 1950, 184 F.2d 620, 626. Cf. Deal v. Migoski, Fla.App.1960, 122 So.2d 415.
Reversed and remanded for further proceedings.
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VAN Dusen v. Se. First Nat'l Bank OF Miami, 478 So. 2d 82 (Fla. 3d DCA 1985)…tatutes (1983)). The fact that the probate court order of discharge of personal representative remains in effect does not prevent the Van Dusens from maintaining this action against Southeast Bank in its individual capacity. See Kittel v. Simmonite, 152 So. 2d 817 (Fla. 3d DCA 1963), cert. dismissed, 159 So. 2d 645 (Fla.1964). . While we may harbor strong doubt as to the Van Dusens’ ability to support their allegations with competent evidence, it is not the plaintiffs burden to prove his cause upon a defenda…
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Fraser v. Se. First Bank OF Jacksonville, 417 So. 2d 707 (Fla. 5th DCA 1982)…, § 220. . In Re Enger’s Will, 225 Minn. 229, 30 N.W. 2d 694 (1948); In Re Weinberg’s Will, 63 N.Y.S.2d 472 (Sur.Ct.1946). . Nat’l Academy of Sciences v. Cambridge Trust Co., 370 Mass. 303, 346 N.E. 2d 879, 880 (Mass.1976). . Kittel v. Simmonite, 152 So. 2d 817 (Fla. 3d DCA 1963). . Hudson v. Lindsay, 13 Mich.App. 671, 164 N.W. 2d 731 (Ct.App.1968), rev’d on other grounds, 383 Mich. 126, 174 N.W. 2d 822 (1970). . Dacus v. Blackwell, 90 So. 2d 324 (Fla.1956). . In Re Bailey’s Trust, 241 Minn. 143, 62 N.W…
Authorities Cited
- Kingsley H. Gerlach v. Jess Stanley Donnelly under the Last Will and Testament of Emmett Donnelly, 98 So. 2d 493 (Fla. 1957)
- Dacus v. Blackwell, 90 So. 2d 324 (Fla. 1956)
- Deal v. Migoski, 122 So. 2d 415 (Fla. 3d DCA 1960)
- Durrance v. Underhill, 154 Fla. 437 (Fla. 1944)
- First Nat. Bank of Colo. Springs v. McGUIRE (two cases), 184 F.2d 620 (7th Cir. 1950)