         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4545
                 _____________________________

JASON BRADLEY SIMS,

    Appellant,

    v.

ROBERT F. BARNARD and JELKS
& WHITE, P.A.,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

                        November 6, 2018


BILBREY, J.

     Jason Bradley Sims appeals the final summary judgment in
favor of Robert F. Barnard and the law firm of Jelks & White,
P.A., defendants in the trial court. In his suit against Barnard
and the law firm, Appellant alleged that the defendants had
committed embezzlement, gross negligence, and malpractice in
the administration of Appellant’s father’s estate. However, two
years before Appellant filed his suit, Barnard was discharged as
the personal representative (PR) of the estate after the probate
court approved the final accounting and distributions. See Fla.
Prob. R. 5.401(f). Based on the res judicata effect of the final
orders in the earlier probate case, and on section 733.901, Florida
Statutes, the trial court entered summary judgment for the
defendants in Appellant’s subsequent action. Because there were
no genuine disputes of material fact and the defendants were
entitled to judgment as a matter of law, we affirm the summary
judgment. Regarding defendant Jelks & White, we affirm
without further comment.       We write only to discuss the
application of section 733.901 as a bar to Appellant’s lawsuit
against Bernard.

     The facts material to the trial court’s application of section
733.901(2) were undisputed. Upon stipulation of the parties, the
trial court took judicial notice of the record in the probate case
and portions of that record were incorporated into the record of
this appeal.     The record shows that the probate action
commenced in January of 2004 and administration of the estate
continued for over ten years. Barnard was the second successor
PR appointed by the probate court and the law firm served as the
PR’s counsel. After a duly-noticed hearing, the probate court
approved the final accounting by order entered February 11,
2015. Upon the PR’s report of distribution, the probate court
entered its order of discharge of Barnard on February 17, 2015.
Neither order was appealed. See Fla. R. App. P. 9.170(b) (setting
forth a number of appealable orders in probate cases).

     Section 733.901(2) provides: “The discharge of the personal
representative shall release the personal representative and shall
bar any action against the personal representative, as such or
individually, and the surety.” Accordingly, absent facts in the
record justifying an exception to the general statutory rule, the
trial court correctly entered summary judgment in favor of
Barnard as a matter of law pursuant to section 733.901.

     Appellant argues that the trial court’s summary judgment
based on section 733.901 and res judicata must be reversed to
avoid manifest injustice and under the exceptions to the
statutory bar for cases where fraud and intentional
misrepresentation are shown. Appellant raised this issue in the
trial proceedings, and the summary judgment on appeal
addresses it, so the issue is preserved for appellate review.

    Appellant correctly asserts that section 733.901 “does not
serve as an absolute bar to the suits filed after the discharge of
the personal representative.” Van Dusen v. Southeast First Nat’l
                                2
Bank of Miami, 478 So. 2d 82, 89 (Fla. 3d DCA 1985). The
statutory bar codifies “a modified res judicata concept . . .
applicable in probate cases.” Id. at 91. The bar will not be
applied to a suit for fraud by concealment, where its application
“would permit a fiduciary to benefit from its alleged wrongful acts
if it could conceal them for the statutory period.” Karpo v.
Deitsch, 196 So. 2d 180, 181 (Fla. 3d DCA 1967) (holding that suit
was not barred by discharge where suit alleged PR concealed
from heirs the true value of estate and concealed from the court
the identities of the heirs preventing heirs from asserting
objection or claim prior to discharge). Likewise, where the PR
conceals its intentional transfer of an estate asset by failing to
report the distribution in the petition for distribution or
otherwise, the PR “is not entitled to the sanctuary provided by”
section 733.901. Van Dusen, 478 So. 2d at 91.

     The record in this case fails to support any concealment of
any estate asset or distribution from the court or from Appellant
which prevented Appellant from raising his objection prior to the
order of discharge so as to remove Appellant’s lawsuit from the
application of section 733.901(2). In fact, the record amply
demonstrates that Appellant did repeatedly but unavailingly
raise his same objections and claims of mismanagement against
the PR throughout the probate proceedings.

     It is undisputed that Appellant was identified as one of the
beneficiaries of the estate in the original petition for
administration filed in 2004. His receipt of notice of the PR’s
petitions for court authorization to sell estate properties and pay
the PR, legal counsel, and other expenses is demonstrated by
Appellant’s active participation in the probate action via pro se
filings of requests, motions, and objections at every opportunity. 1



    1 Not only did Appellant actively participate in the probate
proceedings, but we note that he is an active pro se appellant in
this Court, as evidenced by his two appeals stemming from the
probate case (Sims v. Estate of Steven Henry Sims, Case No.
1D17-5059 & Sims v. Estate of Steven Henry Sims, Case No.
1D18-3396); three appeals from civil case number 2015 CA
000352 (14th Cir., Bay Cnty.) (Sims v. Wells Fargo Bank, N.A.,
                                 3
     Appellant’s     first    complaint     of      “neglect    and
misrepresentation” by the PR was in response to the PR’s petition
for court authorization to sell estate property, filed in December
2008. Despite Appellant’s objection, the probate court authorized
the PR’s actions and payment for the PR’s and the law firm’s
services. Over the course of the administration, Appellant
continued to file objections to the PR’s proposals for sales of real
estate and payment of legal fees, and he consistently complained
about the delay of disbursements to the beneficiaries. The record
shows no concealment of any kind by the PR.

     On August 28, 2014, the PR filed the petition for final
distribution and discharge. Appellant timely filed his objection to
this petition, complaining that two interim accountings covering
approximately three months of the ten-year administration were
missing from his copies received from the PR. He also challenged
payments by the estate to lawyers and accountants and sought a
court order for distribution of the remaining estate assets to the
beneficiaries instead. After notice and a hearing, the probate
court approved the final accounting and, after the PR’s report of
distribution, entered the order of discharge on February 17, 2015.

     Appellant filed his lawsuit against Bernard and the law firm
on March 13, 2017. While the amended complaint generally
alleged fraud and “embezzlement,” the facts asserted by
Appellant were that the PR failed to provide him with sufficient
accountings to explain all expenditures, leading Appellant to the
conclusion that estate funds had been removed without
explanation. The missing interim accountings, which Appellant
was ultimately provided, simply do not rise to the level of
“concealment” by the PR presented in Van Dusen and Karpo.


Case No. 1D16-4898; Sims v. Wells Fargo Bank, N.A., Case No.
1D17-5055; and Sims v. Wells Fargo Bank, N.A., Case No. 1D18-
2197); and petition for writ of prohibition (Sims v. Clerk of Circuit
Court, Bay Cnty., Case No. 1D18-3595). Although untrained in
the law, Appellant’s filings in this Court and the circuit court are
inconsistent with a situation where his ability and willingness to
file claims and appeals has been hindered or interfered with by
others.

                                 4
    The probate court’s entry of orders approving and
authorizing the PR to act despite Appellant’s objections
constituted denials of the objections. The trial court correctly
determined that the lawsuit filed two years after closure of the
probate case was barred as res judicata and by section
733.901(2). The summary judgment on appeal is therefore

    AFFIRMED.

WETHERELL and M.K. THOMAS, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jason Bradley Sims, pro se, Appellant.

Larry A. Bodiford of Hutto & Bodiford, Panama City, for Appellee
Robert F. Barnard; Clifford W. Sanborn of Barron & Redding,
P.A., Panama City, for Appellee Jelks & White, P.A., for
Appellees.




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