Appellate Procedure: Is the Case Ready for Appeal?
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.
I have previously discussed the confusion regarding this area of appellate practice covered by 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.” 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 non-final 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 appealable.
Last year the Fourth District shed some light on the issue when it issued its opinion in Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436, 437 (Fla. 4th DCA 2008). I discussed this opinion in an earlier blog entry. Essentially, the Klingensmith ruling holds that unless the order appealed from “puts an end to all judicial labor” it is not a final order but is merely an interlocutory order.
The issue was confronted in the probate litigation context again this week by the Fourth District in Estate of Harry Rust v. Brown et al.¸34 Fla.L.Weekly D1430 (Fla.4th DCA July 15, 2009).
In Estate of Rust, the decedent died in a motor vehicle accident, which gave rise to a wrongful death claim. The personal representative of the estate is one of the decedent’s three adult sons and a residuary beneficiary of the estate. The surviving spouse is a non-citizen.
A dispute arose over the responsibility for the administrative expenses of the estate and whether a qualified domestic trust (QDT) distribution agreement encompassed the expense issue following the settlement of a wrongful death claim. The Broward County Probate court entered an order granting the surviving spouse’s motion for summary judgment, giving rise to this appeal.
First, the Court cited Rule 9.110(a) (2) of the Florida Rules of Appellate Procedure which provides for “review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” The Fourth District does not believe a summary judgment order by the probate court meets the requirements of the rule:
“An order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party…. [H]ere, the order, in essence, sustained the surviving spouse’s objection to the personal representative’s apportionment plan. It is neither a final nor an appealable, non-final order.”
This case is a reminder of the importance of making two critical assessments when seeking an appeal of a probate order. First, is it a final order? Second, does the order involve the rights of an “interested person?” “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. See, Fla.Stat.§ 731.201(23)