Blogs from December, 2009


Client:   What happened at court?

Lawyer:   Justice Prevailed.

Client:   Appeal Immediately!

Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.

The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a Florida probate court.  Initially, the trust and estate lawyer will examine the probate order in the context of Rule of Appellate Procedure 9.110(a) (2), which 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.” This rule operates to broaden the scope of “finality” as that concept generally applies in civil matters.  However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. Where the rights of the parties as relates to their interest in the probate estate are not finally determined, then the orders are not deemed final for purposes of appeal. 

The issue arose recently in the Fourth District Court of Appeals in Lowe v. Hall 34 Fla.L.Weekly  D2441a (Fla.4th DCA Nov. 25, 2009) when the personal representative of an estate and his surety company appealed orders entered by the Indian River County probate court.  The beneficiaries of the estate filed petitions against the personal representative seeking removal and surcharge based on the personal representative allegedly losing all of the estate assets through bad investments.  The personal representative and his surety company moved to dismiss the petitions based on a clause in the decedent’s last will and testament that stated that the personal representative would only be liable for willful misconduct.  The probate court denied the motions to dismiss and the personal representative appealed.

The Fourth District refused to expand the scope of rule 9.110 to include the denial of the motion to dismiss:  “The denial of the motion to dismiss in this case merely decided that [the beneficiaries] had stated a cause of action.  This is not a final determination of appellants’ rights or obligations, even if it implicitly establishes the standard of proof appellants must meet if this case is actually tried…they do not finally decide the question of victory or defeat; thus they are not final appealable orders.” 

The language from this opinion would appear to be an attempt by the appellate court to limit the scope of a final order to only those that result in ultimate success or defeat for a probate litigant, however, there are many circumstances where parties involved in probate and guardianship matters are subject to orders that finally determine a right or obligation of an interested person but don’t necessarily decide the ultimate question of victory or defeat.


Most Recent Posts from December, 2009