Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

Estate of Madrigal v. Madrigal, --- So.3d ----, 2009 WL 4061747 (Fla. 3d DCA Nov 25, 2009)

I recently wrote here about the "Undue Influence Worksheet," a tool for probate litigators and their clients to organize their thinking and zero in on the key evidence determining the outcome of their undue influence case. Why is this so important? Because when it comes to pure fact questions, such as whether your client did or did not unduly influence the testator, expect you'll only get one shot at winning your case: at trial. As the linked-to case makes clear, it doesn't matter if a panel of appellate judges would have called your case a different way, as long as your trial judge's factual determinations are supported by competent substantial evidence, that's it, game over: the trial judge's order stands.

In the instant case, following an evidentiary hearing, the trial court entered an order making specific findings of facts and concluding that the sole beneficiary procured the testator's last will and testament by undue influence. As the trial court's findings of fact are supported by competent, substantial evidence, and the findings of fact support the trial court's conclusion of undue influence, we affirm the order under review. See Estate of Brock, 692 So.2d 907, 913 (Fla. 1st DCA 1996) (“[O]ur scope of review requires us to accept the factual findings of the trial court so long as there is support for them by competent substantial evidence. It is axiomatic that the trial court's resolution of conflicting evidence will not be disturbed by a reviewing court in the absence of a clear showing of error, or that the conclusions reached are erroneous.”).

What's going on here is pretty basic to how our court system is supposed to work: trial judges decide fact issues, appellate judges decide legal issues. If your case turns on a pure fact issue, don't expect a "do over" on appeal. This division of labor was at the heart of the Florida Supreme Court's thinking when it articulated the competent-substantial-evidence standard in Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976):

It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject "inherently incredible and improbable testimony or evidence," it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.

OK, you ask, so what's competent substantial evidence?

Here's how the phrase was broken down and defined by the 5th DCA in the context of a probate case in Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996):

The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. "Substantial" requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, "tending to prove") as to each essential element of the offense charged.

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Rust v. Brown, --- So.3d ----, 2009 WL 2031288 (Fla. 4th DCA Jul 15, 2009)

It's not unusual for courts to enter orders simply "granting" a summary judgment motion. Which may be gratifying to the winning side, but technically speaking, the order is meaningless. Why? Because it hasn't actually entered judgment for or against a party. Which means it's a non-final, non-appealable order. Here's how the 4th DCA explained the rule in Shroff v. Winn Dixie Stores, Inc., 570 So.2d 1135 (Fla. 4th DCA 1990):

With great reluctance, this appeal is dismissed on the authority of White Palms of Palm Beach v. Fox, 525 So.2d 518 (Fla. 4th DCA 1988), and Russell v. Russell, 507 So.2d 661 (Fla. 4th DCA 1987). Once again we caution trial judges and attorneys alike that this court lacks jurisdiction over an order granting a motion for summary judgment, when that order does not contain the requisite words of finality indicating that the complaint is dismissed.

Unfortunately, the parties (and the judge) in the linked-to probate case overlooked this bit of sage advice. Here again the 4th DCA was presented with an order that simply "granted" a summary judgment motion, and again the 4th DCA sent everyone packing with instructions to try to get it right the second time around:

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.

The trust beneficiaries executed a Distribution Agreement. The agreement's purpose was to convert a revocable trust into a qualified domestic trust (QDT) to preserve the marital deductions that are inapplicable to non-citizens and to save the estate money. See 26 U.S.C. § 2056A. The agreement specifically allocated the QDT administration expenses to be paid by the three sons. It did not address the proceeds of the wrongful death claim, despite everyone being aware of it prior to entering into the agreement.

Subsequently, the wrongful death claim settled for two million dollars, leaving $1.298 million for the estate. A dispute then arose over the responsibility for the administration expenses related to the QDT.

The surviving spouse filed a motion to compel the personal representative to sign the settlement checks. In response, the personal representative prepared an apportionment plan for the settlement proceeds. The second amended apportionment plan allocated $962,366 to the estate for reimbursement of the QDT's administration expenses and $335,634 to the surviving spouse.

The surviving spouse filed an objection to the plan and moved for summary judgment, attaching the Distribution Agreement, a letter written by her attorney, an estate inventory which included the value of the wrongful death claim, and an economist's report.

The personal representative filed a response, indicating that, “[p]rior to the settlement of the wrongful death action, the Parties entered into an oral agreement. As part of the Oral Agreement, [the surviving spouse] agreed to pay the expenses of the Estate out of the proceeds of the wrongful death action.” He attached his affidavit, attesting to the oral agreement. The court entered an order granting the surviving spouse's motion for summary judgment, giving rise to this appeal.

Rule 9.110(a)(2) of the Florida Rules of Appellate Procedure 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.” “Significantly, the committee note explains that the 1996 amendment to the rule ‘does not abrogate prior case law 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.’ “ Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So.2d 436, 437 (Fla. 4th DCA 2008) (quoting Walters v. Edwards, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997)).

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. White Palms of Palm Beach, Inc. v. Fox, 525 So.2d 518, 519 (Fla. 4th DCA 1988), abrogated on other grounds by Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991).

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Edelstein v. Beagell, --- So.2d ----, 2009 WL 500913 (Fla. 1st DCA Feb 27, 2009)

Not all probate orders are created equal. Some are appealable, and some aren't. The controlling rule is broadly stated in Florida Rule of Appellate Procedure 9.110(a)(2) as follows:

(a) Applicability. This rule applies to those proceedings that . . . (2) seek 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 rule seems simple, but figuring out which orders "finally determine a right or obligation of an interested person" is easier said than done. In the linked-to case the appellant guessed wrong and had her appeal dismissed by the 1st DCA. Here's how the court explained its ruling:

Having considered the appellant's response to this Court's order of December 11, 2008, we dismiss this appeal for lack of jurisdiction. The order on appeal, entitled “Final Order on Petition for Determination of Beneficiaries,” denied the petition below without making any final determination as to the beneficiaries of the estate. Therefore, the order on appeal did not “finally determine a right or obligation of an interested person,” so as to be appealable under Florida Rule of Appellate Procedure 9.110(a)(2). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005); Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).

Do we need a better rule?

A subcommittee of the Probate and Trust Litigation Committee has been looking at ways to add a bit more certainty to the question of when a probate order is or is not appealable. They've been working on this since 2007 and still no changes, so don't hold your breath. But in the meantime committee members Sean Kelley, Tom Karr and Peter Sachs have produced an extremely thorough 38-page white paper [click here] that's worth holding on to. Their analysis of the existing rule and how it's been applied by each of the DCAs is a must read the next time you're trying to figure out whether to file that notice of appeal . . . or not.

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Klingensmith v. Ferd and Gladys Alpert Jewish Family of Palm Beach County, Inc., --- So.2d ----, 2008 WL 4922917 (Fla. 4th DCA Nov 19, 2008)

In probate proceedings your standing to participate in any aspect of the administration of the estate depends on whether or not you're an "interested person" of the estate, as that term is defined by F.S. 731.201(23). So I see motion practice in probate aimed at cutting a party out of a contested proceeding based on the party not being an interested person of the estate as analogous to a motion to dismiss for lack of standing in general civil litigation.

The denial of a motion to dismiss for lack of standing is NOT an appealable order. It's not a final order, and it's not listed as an appealable non-final order in Rule 9.130(a). See Supal v. Pelot, 469 So.2d 949 (Fla. 5th DCA 1985) (recognizing that an order denying a motion to dismiss based on a lack of standing is not an appealable nonfinal order). So I wasn't surprised when the 4th DCA held that a denial of a motion to strike a petition for administration based on the petitioner NOT being an interested person of the estate is NOT a final order and is therefore NOT an appealable order. Here's how the 4th DCA explained its ruling:

In its initial brief, Klingensmith relies on Florida Rule of Appellate Procedure 9.110(a)(2) and its committee note as authorization for this appeal. “Florida Rule of Appellate Procedure 9.110(a)(2) authorizes appellate review ‘of orders entered in probate ... matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.’ “ Dempsey v. Dempsey, 899 So.2d 1272, 1273 (Fla. 2d DCA 2005) (omission in original). The committee note states: “An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.” Rule 9.110(a)(2), Fla. R.App. P. cmt. Klingensmith suggests that the court's finding that AJFCS had standing to “file” the petition is in essence a finding that AJFCS is an interested person under the probate code. We disagree.

Significantly, the committee note explains that the 1996 amendment to the rule “does not abrogate prior case law 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.” Walters v. Edwards, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997). In fact, the amendment “has been viewed as strengthening the requirement of finality.” Delgado v. Estate of Garriga, 870 So.2d 912, 918 (Fla. 3d DCA 2004).

Here, the trial court did not finally determine whether AJFCS was an interested person and therefore able to petition for administration. Rather, the trial court found only that AJFCS had standing to “file” a petition for administration. The order on appeal does not therefore put an end to all judicial labor on the issue of whether AJFCS is an interested person under the Probate Code. It is not final and we are without jurisdiction.

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Whether certain probate-related orders are or are not subject to appeal is a topic that comes up with some frequency on this blog [click here]. In an effort to add greater certainty to this area of the law, the Probate and Trust Litigation Committee has been working on an appellate rule project. Click here for the latest draft of the proposed appellate rule which is making its way through the appellate rules committee. The current proposal gives probate orders their own separate rule similar to family law orders. If you have any comments to this latest draft, please forward them directly to the sub-committee members working on this important project: Bill Hennessey, Tom Karr, and Sean Kelley.

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Hoegh v. Estate of Johnson, --- So.2d ----, 2008 WL 2605068 (Fla.App. 5 Dist. Jul 03, 2008)

In this case there's no question whom the courts considered to be the villain of the story.

According to the trial court Hoegh, the appellant and pro se litigant, attempted to "perpetrate a fraud on the court" by knowingly seeking to have a forged will admitted to probate. According to the 5th DCA, Hoegh didn't do herself any favors on appeal, acting in "bad faith" because her appeal failed to raise any justiciable issue of law. And just to make sure everyone got the point, the 5th DCA charged the estate's reasonable appellate attorney's fees against Hoegh through application of the "inequitable conduct" doctrine.

So far so good for the estate.  But then the 5th DCA reversed the trial court's award of $37,125 in appellate fees, loping off $15,125 of the trial court's original fee award (a 41% reduction)!! So what happened? Sometimes a slam dunk can work against you. On appeal the court asked why the estate was claiming 135 hours worth of attorney time (over three weeks of full-time labor) on an appeal that was baseless? Apparently the estate couldn't come up with a convincing answer.

Notwithstanding Hoegh's misconduct, the estate is only entitled to recover reasonable appellate attorney's fees. Here, pursuant to Florida Rule of Appellate Procedure 9.400(c), Hoegh has filed a motion to review the trial court's award of $37,125 for appellate attorney's fees. (It appears that the trial court's award of $37,125 was based on multiplying 135 hours by an hourly rate of $275 .) She contends that this award was excessive. We agree.

The amount of appellate attorney's fees awarded by a trial court is reviewed by an abuse of discretion standard. Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997). However, an appellate court has a greater ability to review the reasonableness of an appellate attorney's fee award than an award for trial court work because the legal work was done in the appellate court. Id. at 285; see also G.H. Johnson Const. Co. v. A.P.G. Elec., Inc., 656 So.2d 566 (Fla. 2d DCA 1995); Dalia v. Alvarez, 605 So.2d 1282 (Fla. 3d DCA 1992). As previously noted, Hoegh did not raise any justiciable issue of law in her appeal. No oral argument was held. The primary issue presented to us was whether there was substantial competent evidence to support the trial court's decision. We find no error in the trial court's determination that $275 per hour was a reasonable rate for the estate's attorneys. However, after a thorough review of the record, we find that it was an abuse of discretion to find that more than 80 hours of attorney time was reasonably necessary for this appeal. Accordingly, we reverse the trial court's award of appellate attorney's fees and remand for entry of an order awarding the estate appellate attorney's fees of $22,000.

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Greene v. Borsky, --- So.2d ----, 2007 WL 2119215 (Fla. 4th DCA Jul 25, 2007)

Whether a particular type of order is subject to appeal can have a huge impact on how a case is litigated.  In this case, the issue was whether a trial court's order permitting trustees to pay their legal fees with assets of the trust was subject to appeal.  The 4th DCA said YES.  Thankfully!

Here's how the 4th DCA explained it's ruling:

The orders in this case are appealable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Rule 9.130(a)(3)(C)(ii) provides that appealable non-final orders include those that determine “the right to immediate possession of property .” This Court has previously held that a sum of money is property to which Rule 9.130(a)(3)(C)(ii) can apply. In Florida Discount Properties, Inc. v. Windermere Condominium, Inc., 763 So.2d 1084 (Fla. 4th DCA 1999), a lessor filed a motion to have disputed rent paid into the registry of the court. Id. at 1084. The trial court denied the motion, and the lessor appealed. Id. On appeal, this Court concluded that the order was an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), because it determined “the right to immediate possession of property, i.e., the rent payments.” Id. Likewise, in the present case, the trial court orders determined the right to immediate possession of property, here trust assets to be used by trustees to pay for attorney's fees and witness fees expended in defense of the trust. As such, we conclude that this Court possesses jurisdiction over this appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and affirm in all respects without further comment.

Careful readers of this blog will recognize the name of one of the attorneys on the winning side of the linked-to case: Amy B. Beller of Miller & O'Neill, P.L.  (see here for prior post).  Well done Amy.

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Fach v. Brown Bros. Harriman Trust Co. of Florida, 949 So.2d 260 (Fla. 4th DCA Feb 07, 2007)

The issue explicitly addressed by the linked-to opinion is relatively simple: is an order appointing a successor trustee a final appealable order?  The 4th DCA held it is not:

In this consolidated appeal, Barbara A. Fach and her daughter Lauren K. Cain appeal two non-final orders denying, without hearing, their emergency motions for relief from orders, filed pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The orders from which they sought relief were entered in an adversarial proceeding in which the probate court appointed U.S. Trust as the successor trustee to Brown Brothers Harriman Trust Company on an emergency basis in two separate cases. The appellees argue that this court lacks jurisdiction because the orders from which the appellants sought relief in the probate court were not final orders, and thereby not subject to Rule 1.540. We agree and dismiss the appeal.

What was really driving this appeal? .  .  .  VENUE!

Although never stated in the linked-to opinion, I think the real issue driving this appeal was venue.  Appointing a new corporate trustee may result in the trust's "principal place of administration" changing to the location of the new corporate trustee's "usual place of business" (736.0108), which in turn may result in a change of venue for trust litigation purposes (736.0204) (see here for real life example).

With this background in mind, the following excerpt from the linked-to opinion now makes sense:

At oral argument, the appellants essentially agreed that this appeal was taken to insure that the trial court had left certain issues open for consideration. In fact, in this case the probate court specifically asked whether it could appoint U.S. Trust as successor trustee and leave the situs of the trust in Palm Beach County, without prejudice to addressing the latter issue at a subsequent hearing. The court then dictated its order to counsel, again reiterating that the appointment was without prejudice to addressing the situs of the trust at a later time.

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Trenchard v. Gray, --- So.2d ----, 2007 WL 837294 (Fla. 2d DCA Mar 21, 2007)

In Dempsey v. Dempsey (a 2005 opinion I wrote about here) the 2d DCA ruled on when elective share orders are subject to appeal.  Under Florida Probate Rule 5.360, determining the elective share is a two-step process:

• First, the trial court must rule on the issue of entitlement (Rule 5.360(c)).
• Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)). 

Step one is a non-final, non-appealable order.  Step two is an appealable order.


Based on the same rationale, the 2d DCA dismissed an appeal of a step-one elective share order in the linked-to opinion.  The following excerpt from Judge Silberman's concurring opinion does a good job of explaining - again - the 2d DCA's approach to elective-share-order appeals:

Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray's claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court's order finds that the decedent's interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent's interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).


The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court's order is nonfinal and nonappealable. See Dempsey, 899 So.2d 1272.

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EHQF Trust v. S & A Capital Partners, Inc. , --- So.2d ----, 2007 WL 45838 (Fla. 4th DCA Jan 09, 2007)

I wrote here about a 2006 opinion out of the 5th DCA addressing Florida Rule of Probate Procedure 5.030(a), which, subject to limited exceptions, requires Florida guardians and personal representatives to be represented by counsel.  There's no such rule for Florida trustees.  However, the 4th DCA came to the same conclusion with respect to trustees based on the following rationale:

The notice of appeal filed by appellant, a trust, was not signed by an attorney licensed to practice law in Florida. Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. Curry v. Kilgore, 2004 UT App. 112 (Utah Ct.App.2004); Ziegler v. Nickel, 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 (Cal.2d 1998); Life Science Church v. Shawano County, 221 Wis.2d 331, 585 N.W.2d 625 (Wis.Ct.App.1998); Mahoning County Bar Ass'n v. Alexander, 79 Ohio St.3d 1220, 681 N.E.2d 934 (Ohio 1997); Beaudoin v. Kibbie, 905 P.2d 939 (Wyo.1995); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604 (Neb.1989); In re Ellis, 53 Haw. 23, 487 P.2d 286 (Haw.1971).

It is therefore ordered that this appeal will be dismissed unless appellant files an amended notice of appeal signed by an attorney licensed to practice law within twenty days of this order. This appeal is stayed pending compliance with this order.

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Simpson v. In re Estate of Norton, 2007 WL 397463 (Fla. 3d DCA Feb 07, 2007)

The most frustrating probate litigant has to be the irrational adversary.  Not because this type of adversary is more apt to win, but because this type of adversary is more apt to make everyone waste a lot of time and money using the court system to force compliance with existing black letter law every step of the way.  The last sentence of the linked-to opinion gives you a hint of what type of litigant Ms. Simpson is:

[T]his is not the proper forum in which to litigate Simpson's numerous complaints about her three former attorneys and we decline to address those issues.

What's most striking about the linked-to opinion is that although the three orders at issue all cover mundane administrative decisions that all appear to be common sense rulings by a thoughtful probate judge -- an irrational litigant was able to cause unnecessary delay and expense by exploiting the expansive appellate rules applicable to probate proceedings.  Two of the orders on appeal were entered in April of 2006, the third in July of 2006.  The appellate decision upholding those rulings wasn't published until February of 2007: that's 7 months of needless delay!?  If you read the opinion it sounds like the estate's attorney did everything right.  Is there a better way to manage this type of irrational litigant?  I have to admit that in this case I can't think of one.  Sure, you can always move for sanctions, but that doesn't put a stop to the delaying tactics and the irrational litigant will probably brush off the threat of sanctions anyway.

In terms of guidance for future litigants, the following line from the linked-to opinion probably says it best:

[D]issatisfaction with the administration of a probate estate unaccompanied by any legal basis as to how the trial court abused its discretion is not grounds for an appeal.

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Somogyi v. Nevai, __ So.2d __ (Fla. 4th DCA Feb 22, 2006)

In the probate context it is not unusual to have multiple orders entered prior to completion of the estate administration that are subject to appeal under Florida Probate Rule 5.100 and Florida Rule of Appellate Procedure 9.110(a)(2). The Committee Note for the 1996 amendment to Florida Rule of Appellate Procedure 9.110(a)(2) recognizes this reality, and addresses it head on, stating in part as follows:

The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.

So every time the probate court issues an order, the attorney needs to immediately ask him or herself whether that order is subject to appeal under the special rule applicable to probate proceedings. The answer is not always clear (when in doubt, the prudent approach is to file the appeal and let the appeallate court determine the issue). In this case the question was whether an order denying a motion to dismiss was subject to appeal. The Fourth DCA said NO in the following one-paragraph opinion:

PER CURIAM.

We grant appellee's motion to dismiss this appeal for lack of jurisdiction. The "Order Denying Motion to Dismiss Petition for Revocation of Portions of Will and Related Relief" does not finally determine a right or obligation of an interested person under Fla. R.App. P. 9.110(a)(2), where it merely denies a motion to dismiss and does not revoke the probate of the will. See Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).
Dismissed.

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In re Estate of Wejanowski, __ So.2d __ (Fla. 2d DCA February 15, 2006)

It's not unusual for a personal representative to seek explicit prior approval from the probate judge when contemplating some sort of litigation involving the estate - even is such authority is not required. This type of pre-approval is sought pursuant to F.S. § 733.602(2), which removes liability for any act of administration of the state if the act was "authorized" at the time.

This case is an example of what can go wrong when asking a probate judge for prior approval. You may not like the answer you get. Here the personal representative filed a motion with the probate court seeking approval of costs and fees associated with prosecuting an appeal of a wrongful-death judgment pending against the estate.

The trial court denied the personal representative's motion without prejudice to resubmit the request at the conclusion of the appeal upon a showing of monetary benefit to the estate and ordered him not to expend estate funds for prosecution of the appeal, to include attorney's fees and costs.

The Second DCA reversed, essentially holding that a monetary benefit (i.e., prevailing party) standard was too high a bar for approval of fees and costs associated with an appeal, stating as follows:

Requiring [the personal representative] to show a monetary benefit to the estate before he is entitled to reimbursement for appellate expenses narrows the definition of "benefit to the estate" to an unworkable level in this appellate context. An appellate attorney has an ethical duty not to prosecute a baseless or frivolous appeal. Payment of appellate fees and costs cannot be contingent upon prevailing on appeal because neither party can guarantee the outcome. The true benefit to an estate provided by an appellate attorney is the presentation of a good-faith appeal and its ultimate resolution. Our system affords litigants the right to resolve disputes with due process, safeguarded by appellate review of the trial court's decisions. Cf. Brake v. Murphy, 693 So.2d 663 (Fla. 3d DCA 1997) (reversing an order that required the personal representative and her husband to post a bond in order to file further pleadings in a surcharge proceeding because the order violated the access to the courts provision and due process clause of the state constitution).

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Herskovitz v. Hershkovich, 2005 WL 2254003, 30 Fla. L. Weekly D2209 (Fla. 5th DCA Sept. 16, 2005) (Trial Court Affirmed)

This case is yet another example of why probate litigation can be especially challenging. Not only must counsel in these cases have the ability to quickly spot the often highly technical probate-law issues in play in the relatively short period of time permitted to challenge a will in probate, he or she must also be sufficiently knowledgeable in civil procedure and trial techniques to successfully venture into the litigation arena.

The decedent's surviving brother in this case challenged the validity of a second codicil to his brother's will (which completely cut him out of the estate) on the grounds that the two attesting witnesses to that codicil were unaware of the testamentary nature of the instrument they were signing. In other words, counsel for surviving brother correctly identified a substantive issue under Florida probate law that favored his client. Counsel made this argument when he successfully opposed a summary judgment motion filed by the surviving spouse. So far, so good. Unfortunately, counsel failed to make this argument again when the probate court conducted an evidentiary hearing on the matter . . . thereby waiving the issue on appeal. The Fifth District Court of Appeal summed up its ruling on this point as follows:

In [his memorandum opposing summary judgement, surviving brother] contended questions of fact existed as to whether the witnesses could authenticate the documents. Subsequently, the trial court denied [surviving spouse's] motion for summary judgment. Once the summary judgment was denied, it was incumbent upon [surviving brother] to present whatever arguments and documents he believed relevant to determining those questions of fact to the trial court at the evidentiary hearing. By failing to do so, he waived this issue for appellate review.

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Brunson v. McKay, 2005 WL 1677939 (Fla. 2d DCA July 20, 2005) (Trial Court Reversed)

Polk County Judge Ronald A. Herring was apparently convinced that the decedent's adult children had a negligible interest, if any, in a $450,000 wrongful death action settled by the decedent's surviving spouse (who was also the sole personal representative of his estate). As such, when the children sought to object to the terms of the settlement agreement under Florida's Wrongful Death Act, the probate judge held that they lacked standing to do so and denied their request. On appeal, the surviving spouse argued that the probate judge's order was a non-appealable, non-final order. The surviving spouse also argued on appeal that even if the surviving adult children had standing to object, the probate judge was not required to give them a hearing on their timely objections because F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections.

Although the Second DCA clearly signaled that it was inclined to agree with the probate judge's assessment of the "merits" of the adult children's claims, on strict procedural grounds it ruled against the surviving spouse on all issues, holding as follows:

• Citing Fla. R. App. P. 9.030(b)(1)(A) and 9.110(a)(2), the Second DCA ruled that the probate judge's order approving the settlement was an appealable, final order.
• Noting that the probate judge had confused the issue of "standing" with the question of the "merits" of the adult children's claims, the Second DCA held that the adult children fell within the definition of "survivors" contained in F.S. § 768.18(1) of the Wrongful Death Act, and thus had standing as a matter of law to object to the terms of the settlement agreement.
• Recognizing that F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections, the Second DCA nonetheless held that "routine practice under the Act requires one where there is an objection to a proposed settlement."

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Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).

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