Fourth District Court of Appeals Ruling Reminds Practitioners of Need for Rules Clarification
The appeal of a probate court decision can be tricky. The appellate process is full of land mines, and the probate court appellate procedure is no exception. One of the most common issues that need to be immediately addressed by the practitioner is to determine whether the appeal is premature. This question can be very challenging in the probate context because the administration of an estate and/or trust is a series of events that can be viewed as both temporal and final at the same time.
What Probate Court Orders Can Be Appealed?
One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. The party who wishes to seek appellate review of an order by the probate court is required to await the entry of a final order or decree before seeking review of the allegedly erroneous interlocutory order. For example, an order setting aside and declaring letters of administration void ab initio is not an appealable order, nor is an order dismissing a petition in probate for construction of a will.
Rule of Appellate Procedure 9.110(a)(2) provides that the review of an order by the appellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.” However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. While everyone recognizes that a probate order that merely fixes some administrative or procedural step in the administration of an estate without finally determining the rights of the parties is interlocutory and not directly appealable, there are other situations that don’t present such a clear and distinct conclusion as to whether the appeal is premature or not. An example of this confusion is evident in the split among Florida’s appellate courts as to whether the appointment of an administrator ad litem is a final appealable order. See, In re Estate of Bierman, 587 So.2d 1163 (Fla. 4th DCA 1991) holding order nonfinal and not appealable, and compare Sine v. Davidson¸530 So.2d 506 (Fla. 3d DCA 1988); In re Estate of Cordiner, 458 So.2d 418 (Fla.2d DCA 1984); Woolf v. Reed, 389 So.2d 1026 (Fla. 3d DCA 1980) holding that it is appealable.
Another one of these confusing cases arose a couple of years ago when the court of appeals held that a probate court order that determined a widow’s entitlement to her elective share of the decedent’s estate was not a final, appealable order. Although some observers argued that the widow’s rights had clearly been “finally” determined, the district court of appeals reasons that the order wasn’t final because the probate court had not yet issued an order determining the amount of the elective share and the assets to be distributed to satisfy the share, the appeal was premature. See, Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005).
New Rule
In light of these confusing cases, I’m pleased the 4th District Court of Appeals decided to shed some light this week on premature appeals and the probate process in Klingensmith v. Ferd and Gladys Albert Jewish Family, –So.2d–, 2008 WL 4922917; 33 Fla. L. Weekly D2688b (4th DCA November 19, 2008). This case originated in Palm Beach County Probate Court when the Ferd and Gladys Albert Jewish Family and Children’s Service of Palm Beach County, Inc. filed a petition for administration over the objection of Dorothy Klingensmith, the mother of the decedent, Gloria Herman.
The underlying facts of the case reflect that at one time, AJFCS had been the guardian of Gloria’s person and property, however, Gloria sued AJFCS for breach of fiduciary duty, negligence, and gross negligence and at the time of Gloria’s intestate death, AJFCS was guardian only of her property. Immediately after Gloria’s death, AJFCS filed a caveat as “the former Plenary Guardian of the Person and Property of Gloria Herman.” AJFCS then filed a petition for administration identifying itself as “Guardian of the decedent, pursuant to F.S. 733.301(2).”
Gloria’s mother, Dorothy Klingensmith filed her own petition for administration as the sole heir of her daughter Gloria. In reply, AJFCS filed: (1) a motion to compel depositions; (2) an amended answer to Klingensmith’s petition; and (3) a second amended petition for administration. Klingensmith moved to strike all three pleadings.
Palm Beach County Probate Judge Phillips found that AJFCS had the standing to file the second amended petition and its amended answer to Klingensmith’s petition, and to engage in motion practice and discovery. The court then granted AJFCS’s motion to compel depositions, allowed it to file its second amended petition, and denied Klingensmith’s motions to strike.
Klingensmith sought to appeal Judge Phillip’s order in the Fourth District Court of Appeals, however, the appellate court looked at the content of Appellate Rule 9.110 and also examined the committee notes to the rule which explains that the case law that existed prior to the enactment of the rule holding that a party’s right of appeal arises “when there is a termination of judicial labor on the issue involved as to that party.” The Fourth District reasoned that Judge Philips did not finally determine whether AJFCS was an “interested person.” The Probate Code provides that “[a]ny interested person may petition for administration.” Fla. Stat. § 733.202 Rather, Judge Phillips found only that AJFCS had standing to “file” a petition for administration. Since the order did no “put an end to all judicial labor” on the issue of whether AJFCS is an interested person under the Probate Code it was not final and the appeal was premature.
Note: The Probate Code provides that “[a]ny interested person may petition for administration.” § 733.202, Fla. Stat. (2007). “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. . . . The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in any proceedings.
§ 731.201(23), Fla. Stat. (2007).