          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-2928
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KARISSA SENOPOULOS,

    Appellant,

    v.

HARRY C. SENOPOULOS, II, In Re:
Estate of Harry Alexander
Senopoulos, III,

    Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
Ross Goodman, Judge.

                         August 24, 2018

PER CURIAM.

     Karissa Senopoulos appeals the order appointing her former
father-in-law, Harry C. Senopoulos, II, as personal representative
for the estate of her late husband, Harry Alexander Senopoulos,
III. She argues that as the surviving spouse, she is the rightful
personal representative of the estate under § 733.301(1)(b), Florida
Statutes. We reverse.

                         BACKGROUND

    Decedent Harry Alexander Senopoulos, III, and Karissa
Senopoulos met in college and began a relationship in 2013. They
were engaged to be married in 2016, and on May 5, 2016, entered
into a prenuptial agreement in which neither waived rights to the
other’s estate. The couple were married on May 9, 2016. Four days
later, on May 13, 2016, the decedent died in his bedroom from a
gunshot wound to the head.

     On June 21, 2016, the decedent’s father filed a Petition for
Administration requesting the court appoint him as personal
representative of the estate. He has alleged foul-play by Ms.
Senopoulos in the death of his son. Ms. Senopoulos filed an
objection and counter-petition asserting her right as the surviving
spouse to be appointed as personal representative. The trial court
held a hearing in February 2017, and entered an order appointing
the decedent’s father as personal representative in July 2017. In
making the appointment, the order used the language of
§ 733.301(1)(b)3, concluding that the decedent’s father was
“entitled to” appointment as the “nearest heir of the Decedent
willing to serve as personal representative.” Ms. Senopoulos
appealed.

                            ANALYSIS

     When an appeal turns on the interpretation of the terms of a
statute, the court reviews the legal question de novo. State v. Rand,
209 So. 3d 660, 663 (Fla. 1st DCA 2017). In this case, the court
interpreted the statute to entitle the decedent’s father to
appointment as personal representative over Ms. Senopoulos, who
is the surviving spouse. This was an error because the decedent’s
father is not “[t]he heir nearest in degree,” and because there is a
surviving spouse. § 733.301(1)(b), Fla. Stat. As the “surviving
spouse,” Ms. Senopoulos ranks first in the statute’s order of
preference for appointment as the personal representative.
§ 733.301(1)(b)1. And so, the statute did not entitle the decedent’s
father to the appointment.

     The decedent’s father argues that we can affirm irrespective
of the statute’s preference for the surviving spouse based on the
inherent authority of courts to evaluate a person’s fitness for
serving as a personal representative. See Padgett v. Estate of
Gilbert, 676 So. 2d 440, 443 (Fla. 1st DCA 1996) (recognizing the
inherent authority of trial courts to consider “a person’s character,
ability and experience to serve as personal representative and . . .

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refuse to appoint even a person occupying a position of statutory
preference who is not specifically disqualified by the statute”). But
doing so would ignore the order below. The order stated that
decedent’s father was appointed based upon his entitlement under
the statute, not pursuant to trial court’s discretion, or Ms.
Senopoulos’s lack of fitness to serve. It is not the appellate court’s
place to assess Ms. Senopoulos’s fitness in the first instance, when
the trial court hasn’t decided this issue. See, e.g., Frederick v.
United Airlines, 688 So. 2d 412, 413 (Fla. 1st DCA 1997) (warning
against appellate courts usurping the factfinding prerogatives of
the lower tribunal).

     Accordingly, we reverse the order appointing the decedent’s
father as personal representative under the statute. And we
remand for a determination of the issue based upon either the
statutory order of preference, which favors Ms. Senopoulos, or the
court’s inherent authority to appoint someone else, including
perhaps the decedent’s father, if statutorily preferred persons lack
the qualities and characteristics necessary to act as personal
representative. See Padgett, 676 So. 2d at 443.

    REVERSED and REMANDED.

WOLF, OSTERHAUS, and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Bentley M. Fisher, Pensacola, for Appellant.

Robert J. Powell and James R. Green, Jr., Clark Partington,
Pensacola, for Appellee.




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