The Fourth District Court of Appeal waded into a fight over the distribution of an $800,000 legal malpractice settlement Wednesday when it found three family members had missed their chance to duck out of the agreement.

"The old adage 'you can't change the rules in the middle of the game' accurately sets the scene in a series of hearings conducted before the probate court giving rise to this appeal," the opinion began.

The dispute stems from a probate case that began when Eleanor Klein died in 2014, making her daughter Sydria Klein and son Kenneth Klein each 50% beneficiaries of her trust. Grandchildren Alyssabeth, Russel and Travis Klein were contingent beneficiaries of their father's share.

Sydria Klein retained her mother's attorney, Jeffrey Janeiro in Naples. But in 2016, she and the rest of the family brought three legal malpractice lawsuits against Janeiro, alleging he had poorly advised Eleanor Klein.

Janeiro denied any wrongdoing. The cases settled in mediation under his malpractice insurance limits of about $800,000, according to the opinion, which said no one objected to provisions that kept the money in a trust until the probate court decided how to divide it.

Klein's grandchildren moved to collect a third, arguing they were beneficiaries of the estate and therefore also harmed by Janeiro's alleged malpractice. They had also sued Kenneth Klein for 50% of anything he had received from his mother.

But Palm Beach Circuit Judge Janis Brustares Keyser agreed with the children, who claimed all the money should go to the estate and be divided from there.

Klein's grandchildren invoked Florida Rule of Civil Procedure 1.540, asking the court to remove them from the settlement agreement if it would result in them collecting nothing. They claimed the probate court failed to hear or rule on that motion, inappropriately tried the malpractice actions and essentially awarded damages by distributing the proceeds unequally.

But the Fourth DCA disagreed.

"Had the settlement agreement contemplated a three-way split, it would have said so," the opinion said. "Instead, the settlement agreement contemplated that the probate court would make the determination if the parties could not agree."

The appellate panel also found that because the grandchildren never set their 1.540 motion for hearing or sought a rehearing, the issue wasn't preserved for appellate review. Likewise, they never specifically raised an argument under the res judicata principle, which says claims can't be relitigated after they've been decided.

"The words 'res judicata' are nowhere to be found in the record or in the transcript of the final hearing," the opinion said.

Broward Circuit Judge Kenneth Gillespie wrote the ruling, sitting as an associate judge. Fourth DCA Judges Burton Conner and Alan Forst concurred.

Fort Lauderdale solo practitioner Laura Bourne Burkhalter represented Klein's son, arguing the money should go back to the estate and trickle down to beneficiaries.

"Regardless of who won or lost in this appeal, all beneficiaries of the estate benefited from the action. The money went where it was supposed to go, back to the person that was damaged, which was Eleanor prior to her death," Burkhalter said. "It [the opinion] really goes to the heart of the fact that when parties agree to a certain manner in which to settle a case, that the court will stick to that."

It's been a long-winded suit with multiple appeals, according to Burkhalter.

"Hopefully this case is wrapping up, and the family will be able to come back together," she said.

Brian M. O'Connell, Ashley Crispin Ackal, Joielle "Joy" Foglietta Craig and Clara Crabtree Ciadella of O'Connell & Crispin Ackal in Palm Beach represented the grandchildren. Kristen M. Fiore and Erin M. Maddocks of Akerman's Tallahassee and West Palm Beach offices represented Klein's daughter. They did not immediately respond to a request for comment.

Christopher B. Hopkins of McDonald Hopkins in West Palm Beach is curator of Klein's estate.

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