Practice & Procedure

Subscribe to Practice & Procedure via RSS

Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed) Florida’s probate code and procedural rules are designed to cut off possible litigation as soon as possible . . . whenever possible. Used wisely by an experienced probate attorney, these statutory and procedural rules are a powerful shield. On the other hand, not focusing on these seemingly mundane details exposes an estate to all the potential delays, expenses and rancor inherent to litigation. In this case the estate was challenged on two fronts: petitions were filed seeking (1) removal of the personal representative and (2) revocation of the probate proceedings. Citrus County Judge Richard Howard denied both petitions on purely procedural grounds. In other words, the estate seemed to have successfully employed the “litigation shields” built into Florida’s probate code and procedural rules. On appeal, the Fifth DCA snatched both victories away from the estate.
Continue Reading “Specific Devisee” has standing to petition for removal of a personal representative until the moment he or she actually receives full payment; Florida Probate Rules fail to provide for service of Formal Notice on Minors

Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th…
Continue Reading Court says AHLA nursing home arbitration clause is “void as contrary to public policy”; and even if enforceable, a health care proxy lacks authority to bind an incapacitated nursing home patient to arbitrate claims

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff’s death is “suggested on the record.” Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate’s successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.
Continue Reading The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies

Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED) The key issue in this case was whether an interested person’s attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be “the attorney representing [the] interested person” for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 2004->Ch0731->Section%20301#0731.301″>731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required.
Continue Reading Formal Notice Can Be Served On An Attorney Who Has Never Appeared of Record.