Russell R. Winer, Esq.

Russell R. Winer of St. Petersburg, Florida was on the winning side of Geraci ex rel. Geraci v. Sunstar EMS, — So.3d —- 2012 WL 2401793 (Fla. 2d DCA June 27, 2012), an interesting homestead case I wrote about here. Given the thicket of complexity presented by Florida homestead law, I invited Russell to share some of the lessons he drew from this case with the rest of us and he kindly accepted.

[Q] Were there any developments after your win at the 2d DCA?

[A] Yes. The Florida Supreme Court entered this order accepting jurisdiction of the case, but did not cite a reason. I had assumed it was that I, as Respondent, had consented to jurisdiction based on the 2d DCA having interpreted a provision of the Constitution. I had opposed jurisdiction based on a conflict. Then, the Florida Supreme Court entered this order in which  (for the first time) it cited to “express and direct conflict.” So this supports AHCA (& Pinellas County’s) theory that the holding in Geraci is applicable in the 2d DCA, and not in the 3d DCA, which addressed a similar homestead issue in Phillips v. Hirshon, 958 So.2d 425 (Fla. 3d DCA 2007). Once the case got back to the probate court, it entered this amended homestead order.

[Q] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

[A] Initially, the trial court simply declined to enter my proposed homestead order finding that the leasehold interest was exempt from claims of creditors. I then submitted a proposed, appealable final order. The Court entered its own order instead. As for the appeal, I kept the brief to the 2DCA concise. The statement of the case and facts was two pages. The argument was three pages. The conclusion was one page. Our appellate courts have a mountain of materials they must go through and I wanted this brief to stand out, because I very much needed the Court to take a close look at this issue; our only chance for relief was the 2DCA.

[Q] Would you have done anything differently in terms of framing the issues for your probate judge?

[A] Our probate judge in South Pinellas County has served 17 years as a Circuit Judge, the last 8 of which have been in probate. Before serving as a Judge, she was staff counsel in probate, so it’s not a division where time needs to be spent orienting the Court to the legal issues. The Court is keenly aware of the legal issues, and in this case, there were zero facts in dispute.

[Q] Do you think there’s anything that could have been done in better estate planning to avoid this litigation or at least mitigate its financial impact on the family?

[A] As the late Judge Paskay was fond of saying in that thick Hungarian accent, “there’s more than one way to skin a cat!” Had the Decedent met with an estate planning attorney, particularly one with a Medicaid background, then suitable arrangements could have been made.

[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A] Our colleagues in Criminal Court are sensitive to appellate issues, as are our colleagues in Civil Court. In contrast, I don’t see as much appellate activity in Probate, and I would encourage Probate attorneys to consider an appeal if warranted. I do recommend attending several CLE’s before filing your first notice of appeal, and if possible, your first (few) trips to the DCA should be as Appellee.