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.