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 2004->Ch0768->Section%2016#0768.16″>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 2004->Ch0768->Section%2025#0768.25″>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 2004->Ch0768->Section%2018#0768.18″>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 2004->Ch0768->Section%2025#0768.25″>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.”