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Personal Representative in Contempt of Court – Due Process Trumps Breach of Fiduciary Duty

How do you hold a personal representative in contempt of court for failing to fulfill his or her duties?

To hold a personal representative in contempt of court you must comply with all due process requirements.

Serving as personal representative of a Florida estate requires that the personal representative fulfill certain fiduciary duties.  If the personal representative does not fulfill his fiduciary duties, an estate can be riddled with protracted litigation by beneficiaries attempting to get the personal representative in line.  In the case of Blechman v. Dely, (4th DCA 2014) the Florida probate court held the personal representative in indirect criminal contempt and removed him as personal representative.  The Florida appellate court reversed the Florida probate court’s decision as a violation of due process and for failure to comply with procedural requirements concerning contempt.

The Facts of Blechman v. Dely

Bertram Blechman died in 2011.  In 2000, Bertram executed a will and a revocable living trust.  Under the terms of the will and trust, as amended, Bertram provided that Arlene Roogow, a woman Bertram lived with, be permitted to remain in Bertram’s residence and receive $5,000 a month to pay for maintenance of the residence.

Roogow filed a motion to compel payment of the $5,000 monthly payment, claiming that the personal representative failed to pay.  In November 2011, the Florida probate court granted Roogow’s motion and ordered the personal representative to obey the directions of the will and the trust.

In July 2012, Roogow filed a motion to show cause, alleging that the personal representative failed to comply with the probate court’s order and failed to distribute monies to the trust.  Roogow asked that the Florida probate court issue an order to show cause why the personal representative should not be held in indirect criminal contempt of court for failure to comply with the November 2011 order.

The Florida probate court issued an order requiring the personal representative to appear before the court and show “why he should not be held in contempt of court” for failure to comply with the November 2011 order.

The personal representative did not appear at the hearing, but his attorney did.  Roogow requested during the hearing that the Florida probate court remove appellant as the personal representative.  The Florida probate court orally found appellant in indirect civil contempt for failure to obey the Florida probate court’s November 2011 order.  The trial court stated that the personal representative could purge the contempt by filing an accounting and handing over the reins of the estate to a new personal representative.

In a written order, the Florida probate court removed the personal representative, and found the personal representative was guilty of indirect criminal contempt for willful and intentional disregard of the Florida probate court’s prior order.

The personal representative appealed the probate court’s order.  The personal representative argued that the order finding him in indirect criminal contempt violated his due process rights because the procedures set forth in Florida Rule of Criminal Procedure 3.840 were not followed.  Rogow countered the personal representative’s argument by asserting that Rule 3.840 did not apply because the personal representative was found in indirect civil contempt, not indirect criminal contempt.

The Florida appellate court reversed the Florida probate court, finding that the probate court’s order was one of criminal, not civil contempt.

What is the Difference Between Criminal Contempt and Civil Contempt of Court?

Civil Contempt of Court

The purpose of civil contempt is to obtain compliance on the part of the person subject to the order, and the order must contain a specific purge provision that informs the contemnor what he or she must do to purge the contempt.

Criminal Contempt of Court

The purpose of criminal contempt is to punish.  In order to obtain criminal contempt, the proceedings have to comply with Rule 3.840, that is, state essential facts constituting the criminal contempt charged and require defendant to appear before the court to show cause why the defendant shouldn’t be held in contempt of court.

Why Was the Personal Representative’s Criminal Contempt of Court Reversed?

Here, the Florida probate court removed the personal representative as a punishment pursuant to the probate court’s powers of indirect criminal contempt, not to obtain compliance with an earlier order pursuant to its powers of indirect civil contempt.  There was no purge provision as required for civil contempt, and the Florida probate court’s written order said the personal representative was found in indirect criminal contempt.  But the order to show cause did not set forth essential facts constituting the contempt charged (a requirement for criminal contempt), and did not even state whether the contempt was civil or criminal.  The Florida appellate court reversed the order of contempt.

The Florida appellate court also reversed the removal and ordered the reinstatement of the personal representative, because the personal representative did not receive proper notice of the proceedings for removal.

Florida probate rule 5.440 sets forth the procedures that have to be followed for removal of a personal representative and states:

(a)  Commencement of Proceeding.  The court on its own motion may remove, or any interested person by petition may commence a proceeding to remove, a personal representative.  A petition for removal shall state the facts constituting the grounds upon which removal is sought, and shall be filed in the court having jurisdiction over the administration of the estate.

Here, no petition for removal was filed to remove the personal representative.  Because the personal representative’s removal was ordered without notice or an evidentiary hearing, it did not comply with the requirements of due process.

The lesson here is that the procedural requirements and due process (notice and an opportunity to be heard) must be strictly followed.  If not, your case is likely to be reversed on appeal.

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