Third District Court of Appeal
State of Florida
Opinion filed September 9, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-2008
Lower Tribunal No. 20-1188-CP-02
Olga Evgrafova, etc.,
Appellant,
vs.
In Re: The Estate of Tamara McKeehan,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge.
Cotzen Law, P.A., and Michael L. Cotzen, for appellant.
David H. Goldberg, P.L., and David Howard Goldberg, for appellee.
Before FERNANDEZ, GORDO and REBULL, JJ.
GORDO, J.
Olga Evgrafova appeals a final judgment denying her petitions for
compensation. We have jurisdiction. See Fla. R. App. P. 9.170(b)(21).
Because the trial court erred by excluding testimony and failing to consider
any evidence or making any findings required by § 733.617, Fla. Stat. (2025),
we reverse and remand for a new evidentiary hearing.
Tamara McKeehan passed away in 2020. She named Evgrafova as
the personal representative of her estate in her testamentary
documents. Tamara named Father Kenneth Daniel McKenzie as successor
trustee of a revocable trust and the sole beneficiary of her estate. At the
time of Tamara’s passing, the estate’s assets consisted primarily of several
cash accounts, personal property and a New York co-op apartment,
cumulatively valued at over one million dollars.
Throughout Evgrafova’s six years as personal representative,
McKenzie filed numerous motions seeking to compel administration of the
estate and the filing of the estate tax closing letter. McKenzie maintained
that he requested the New York apartment be sold, but that Evgrafova
instead insisted they renovate and remodel the apartment, expending
unnecessary estate monies. The apartment was not sold until April 2025 for
a price of $550,000.
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McKenzie moved to compel payment of distributive interest after the
sale, arguing that the letters of administration required the estate to be
closed within 12 months from the date the letters were issued and that, under
Florida Probate Rule 5.400, the estate was approximately three years
overdue. He further asserted that Evgrafova caused significant delays and
additional expenses by switching attorneys three times and complicating
routine aspects of the administration. The court granted the motion and
directed the issuance of $781,000 to Mckenzie as trustee.
Evgrafova then petitioned for statutory and extraordinary
compensation as personal representative and for professional CPA
services in the two petitions on appeal. McKenzie opposed both petitions
and requested that Evgrafova receive no additional compensation
arguing that all fees should be denied “as a consequence of her clearly
excessive request for fees through this petition” and because of her “failure
to afford the required attention to the duties imposed by the position of
personal representative,” which resulted in approximately six years of
administration and repeated court orders compelling progress.
The court held an evidentiary hearing where McKenzie again argued
against an award of fees because this was “not a highly complex
administration” yet it took many years to complete. Evgrafova then called
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Lance Lvovsky, a CPA, as an expert witness to testify to her petition for
professional CPA fees. Lvovsky testified that he was qualified as an expert
based on his position as a partner at Marcum, a national accounting
firm. McKenzie moved to disqualify Lvovsky because he was “not
independent,” arguing that he had been paid to provide accounting and tax
services to the estate.
The court granted the motion to disqualify. The court
also denied Evgrafova’s request to be sworn to testify, finding that she was
an interested party and as such, her ability to testify was barred. Thereafter
the court entered a written order granting McKenzie’s ore tenus motion to
disqualify Lvovsky, finding that the issue of his independence should have
been considered by Evgrafova before the evidentiary hearing. The order
also denied Evgrafova’s two petitions and her ore tenus motions for
reconsideration and clarification. Evgrafova filed a written motion for
rehearing following the court’s order which was also denied. This appeal
followed.
“We review the trial court's determination of whether a witness may
testify as an expert for abuse of discretion.” Diamond Regal Dev., Inc. v.
Matinnaz Const., Inc., 1 So. 3d 1104, 1106 (Fla. 1st DCA 2009). “A trial
court’s determination of the reasonableness or necessity of fees will not be
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overturned on appeal, unless there is an abuse of discretion.” In re Estate of
Bryan, 576 So. 2d 344, 347 (Fla. 4th DCA 1991). “The standard of review
on appeal of a motion for rehearing is abuse of discretion.” Beacon Hill
Homeowners Ass'n, Inc. v. Colfin Ah-Florida 7, LLC, 221 So. 3d 710, 712
(Fla. 3d DCA 2017). However, a trial court’s “discretion is abused if the ruling
is centered on an erroneous view of the law.” Phinney v. Phinney, 427 So.
3d 1041, 1043 (Fla. 3d DCA 2025).
Evgrafova argues that the trial court abused its discretion in refusing to
allow Evgrafova’s expert witness and herself to testify because witnesses
cannot be excluded from testifying due to bias and by failing to award
Evgrafova’s statutorily required compensation for serving as personal
representative. We agree. The court disqualified Evgrafova’s expert,
Lvovsky, because he was not a “neutral” witness as his accounting firm had
previously been paid for services to the estate. Florida law provides that an
expert’s financial interest or perceived bias does not disqualify a witness from
testifying—it is a matter of credibility and weight for the trier of fact, not a
matter of admissibility. See Diamond Regal Dev., Inc., 1 So. 3d at 1106 (“A
witness should not be excluded as an expert merely because he or she was
involved in the facts of the underlying case. It is also improper to exclude an
otherwise qualified expert from testifying because of the witness’ perceived
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bias.” (internal citation omitted)); Moore v. Huntington Nat. Bank of
Columbus, 352 So. 2d 589, 590 (Fla. 3d DCA 1977) (“The issue presented
for review is whether a trial court may properly enter an order barring a party
from calling an expert witness at trial on the ground that, in the opinion of the
trial court, the witness is biased. . . . it is the exclusive province of the jury,
not the trial court, to pass upon the credibility of a witness. . . . As such, the
trial court had no authority to exclude the expert witness herein from
testifying at trial on grounds other than the witness’ lack of qualifications as
an expert[.]”).
The court likewise erred in refusing to permit Evgrafova to testify
merely because she was an “interested party.” The interest of a witness
bears on credibility, not competency. See Martuccio v. Dep’t of Prof’l Regul.,
Bd. of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993) (“Persons having
a pecuniary or proprietary interest in the outcome of litigation are not
disqualified from testifying under the Florida Evidence Code. Interest merely
goes to the credibility of the evidence.” (internal citation omitted)); P. & N.
Inv. Corp. v. Rea, 153 So. 2d 865, 867 (Fla. 2d DCA 1963) (“It has long been
the general rule by statute in Florida that interest in the outcome of a case
does not disqualify a witness but merely goes to the weight and credibility of
his testimony.”). Her testimony regarding the services performed, time
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expended and value of those services was admissible subject to crossexamination and the court’s assessment of its weight. See Vazquez v.
Martinez, 175 So. 3d 372, 373–74 (Fla. 5th DCA 2015).
We find the court compounded the error above by immediately
concluding that without an expert, Evgrafova could not proceed and by
denying both compensation petitions. First, expert testimony may assist that
determination, but it is not required to establish the presumptively reasonable
statutory compensation. See § 733.6175(4) Fla. Stat. (“The court may
determine reasonable compensation for the personal representative or any
person employed by the personal representative without receiving expert
testimony.”). Second, under § 733.617, Fla. Stat., a personal representative
is entitled to a 3% statutory commission that is presumed reasonable,
although the court may increase, decrease or deny compensation based on
the statutory factors described therein:
(1) A personal representative shall be entitled to a commission
payable from the estate assets without court order as
compensation for ordinary services. . . .
(a) At the rate of 3 percent for the first $1 million.
(3) In addition to the previously described commission, a
personal representative shall be allowed further compensation
as is reasonable for any extraordinary services. . . .
(7) Upon petition of any interested person, the court may
increase or decrease the compensation for ordinary services of
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the personal representative or award compensation for
extraordinary services if the facts and circumstances of the
particular administration warrant. In determining reasonable
compensation, the court shall consider all of the following
factors. . . .
§ 733.617(1)(a), (3), (7), Fla. Stat. (2020) (emphasis added); see In re Estate
of Bryan, 576 So. 2d at 346–47 (“In determining ‘reasonable’ compensation
for a personal representative and the professionals it hires, the trial court is
controlled by section 733.617[.]”).
Although McKenzie correctly argues that compensation may be denied
for mismanagement, this is true only after a completed evidentiary hearing
at which the personal representative had a full opportunity to be
heard. 1 Here the court denied both Evgrafova’s petitions without receiving a
single piece of evidence—on the § 733.617 factors or otherwise. See Fla.
Nat. Bank v. Glock, 495 So. 2d 280, 281 (Fla. 2d DCA 1986) (“To permit the
trial court to rule on the issue of final [personal representative] fees. . . without
the parties having the opportunity to present evidence on the factors
1
We recognize the trial court’s frustration with its perception of unnecessary delays and perhaps mismanagement. We in no way intimate what an appropriate compensation would be after the court hears evidence and considers the appropriate statutory factors. See Matthiesen v. Estate of Masri, 343 So. 3d 124, 126-27 (Fla. 3d DCA 2022) (finding “no abuse of discretion” in a trial court’s denial of an award of personal representative fees following a full evidentiary hearing at which the parties litigated the personal representatives alleged breaches of duty and their causing the estate to “incur unnecessary expenses”).
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enumerated in section 733.617, Florida Statutes (1985), would be a violation
of the parties’ right to notice and an opportunity to be heard.”).
We therefore reverse and remand to the lower court to conduct an
evidentiary hearing regarding the appropriate compensation for Evgrafova,
taking into account the criteria established in § 733.617, Florida Statutes.
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