Brillium, Inc. and Curt R. Rogers v. Jennifer Oles-Dugre, Individually and as Personal Representative of the Estate of Robert William Dugre

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2024-1892
L.T. Case No. 2020-CP-789
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BRILLIUM, INC. AND CURT R.
ROGERS,

Appellants,

v.

JENNIFER OLES-DUGRE,
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF ROBERT WILLIAM DUGRE,
DECEASED,

Appellees.
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On appeal from the Circuit Court for St. Johns County.
Howard Mason Maltz, Judge.

Joshua H. Roberts and Michael B. Decembrino, Jr., of Holland &
Knight LLP, Jacksonville, for Appellants.

Ryan Williams and Christopher Knox, of T. Ryan Williams Law
Group, Ponte Vedra, for Appellees.

June 12, 2026

MACIVER, J.

Brillium, Inc., and Curt R. Rogers (“Appellants”) appeal the
trial court’s Order on Motions for Summary Judgment raising two
issues on appeal. Regarding Appellants’ first issue—that the trial
court erred by ruling that Jennifer Oles-Dugre, individually and
as Personal Representative of the Estate of Robert William Dugre,
deceased (“Appellee”) did not owe a fiduciary duty to Appellants—
we affirm without further discussion.

As to Appellants’ second claim—that the trial court erred by
ruling Appellants were required to file a notice of claim under
section 733.702(1), Florida Statutes (2020), to preserve their
replevin claim—we agree, reverse the order of summary judgment
on the replevin claim, and remand for further proceedings.

I.

Robert William Dugre (“Decedent”) and Curt R. Rogers
(“Rogers”) were each fifty percent (50%) owners of Brillium, Inc.
Decedent and Rogers executed a Stockholders’ Agreement on
February 24, 2015, which outlined the process for an orderly
transfer of the shares of Brillium, Inc., to the living shareholder in
the case of the death of a shareholder. The Stockholders’
Agreement provided that the family of the deceased shareholder
would receive financial compensation for those shares through life
insurance proceeds from a policy paid for by Brillium, Inc.
Following Decedent’s passing, Appellee received the proceeds of a
life insurance policy through Northwestern Mutual for which
Brillium, Inc., had paid the premiums during Decedent’s life.
Appellee filed the appropriate Notice to Creditors, which was first
published on December 18, 2020 (“Notice to Creditors”). On July
20, 2021, Brillium, Inc., transferred Decedent’s shares to Rogers
by issuing a unanimous consent entitled “Consent to Action
Without a Meeting of the Sole Director of Brillium, Inc.”

After Rogers and Brillium, Inc., had effectuated the transfer
of stock, Appellee filed a Petition for Declaratory Action against
Appellants. In response, Appellants filed counterclaims against
Appellee. In Count II of their Amended Counterclaim, Appellants
asserted a claim for replevin under section 78.01, Florida Statutes,
against Appellee in her capacity as Personal Representative. The
replevin claim was based on allegations that, although Decedent,
as a Brillium, Inc., owner, rightfully possessed certain property
(computer, hard drives, electronic data and files, camera and

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photography supplies, office chair, and notebooks) owned by
Brillium, Inc., during his lifetime, Appellee wrongfully refused to
return the property to Brillium, Inc., following Decedent’s death
and, instead, improperly exercised dominion over the same.

Both parties filed motions for summary judgment which were
heard on May 7, 2024. Relevant to this appeal, the trial court
granted Appellee’s motion for summary judgment on the replevin
claim. On June 12, 2024, the trial court entered its Order on
Motions for Summary Judgment. Specifically, the trial court found
that the replevin claim was subject to the notice of claim
requirements contained in section 733.702.

II.

“The essence of an action of replevin is the unlawful detention
of personal property from plaintiff at the commencement of the
action, regardless of whether defendant acquired possession
rightfully or wrongfully.” Brown v. Reynolds, 872 So. 2d 290, 294
(Fla. 2d DCA 2004) (citation modified). The trial court granted
Appellee’s motion for summary judgment on the replevin claim on
the basis that under section 733.702, Appellants were required to
file a notice of claim against the Estate for return of the property
by March 18, 2021, but failed to do so. The trial court’s ruling on
Appellee’s motion for summary judgment is subject to a de novo
standard of review. See Olsen v. First Team Ford, Ltd., 359 So. 3d
873, 876 (Fla. 5th DCA 2023) (citing Baxter v. Northrup, 128 So.
3d 908, 910 (Fla. 5th DCA 2013)).

Section 733.702 provides that “no claim or demand against the
decedent’s estate that arose before the death of the decedent . . .
[and] no claim for personal property in the possession of the
personal representative” is binding on the estate unless filed
within three months after first publication of notice to creditors.
See §733.702(1), Fla. Stat. However, replevin actions asserting
ownership of specific property do not generally constitute “claims”
subject to this statute. See Zeidel v. Rosenberg’s Est., 357 So. 2d
259 (Fla. 3d DCA 1978).

The critical distinction lies in whether the claimant seeks to
recover property that never belonged to the decedent versus

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asserting a debt or demand against estate assets. Section 733.702
applies to “claim[s] or demand[s] against the decedent’s estate that
arose before the death of the decedent.” See § 733.702(1), Fla. Stat.
The Supreme Court of Florida in Spohr v. Berryman, 589 So. 2d
225, 228 (Fla. 1991), explained that the reference to claims “arising
before the death of the decedent is intended to make clear that it
is unnecessary to file a statement of claim in order to prosecute an
action against the estate that is predicated upon events that take
place after the decedent’s death.” See also Swenszkowski v.
Compton, 662 So. 2d 722, 723 (Fla. 1st DCA 1995) (“Because
[plaintiff] is not making a claim or demand against the decedent’s
estate that arose before her death, and because the action cannot
be deemed a liability of the decedent, as it arose well after her
death, the claim is not subject to the probate code’s statutes of
nonclaim.”).

Where, as here, the decedent was merely in possession of the
property without asserting ownership, and the assertion of
ownership is made by the personal representative or heirs for the
first time after death, then filing a claim under section 733.702 is
not required. Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005).

Appellants allege Decedent was in permissive possession of
Brillium, Inc.’s personal property and assert that, because
Decedent had permission to possess this personal property,
Brillium, Inc.’s claim for return of the property arose after
Decedent’s death. Appellants are correct. Because Decedent was
merely in possession of the property at the time of his death
without asserting ownership, and the assertion of ownership was
made by the personal representative for the first time after
Decedent’s death, filing a claim under section 733.702 was not
required.

AFFIRMED in part; REVERSED in part; and REMANDED for
further proceedings.

LAMBERT and KILBANE, 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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