New Appellate Rule for Probate and Guardianship Proceedings
Florida Rule of Appellate Procedure 9.170, titled “Appeal Proceedings in Probate and Guardianship Cases,” took effect on January 1, 2012.1 The new rule gives clarity to the often cloudy issue of when an order in probate or guardianship is or is not appealable. Rule 9.170 provides a nonexclusive list of 24 types of appealable orders in probate and guardianship proceedings.
Origins of Confusion on Finality in Probate and Guardianship
The usual test for determining whether an order is a final and appealable order under Florida Rule of Appellate Procedure 9.110 is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.”2 Probate proceedings frequently involve many interested persons and many kinds of property. As such, a probate proceeding is unique in that the lower court may enter more than one “final” order between “directly affected” parties before the probate proceeding is fully concluded.3 Before enactment of the new rule, Florida Rule of Appellate Procedure 9.110(a)(2) provided that the procedures used in Rule 9.110 would apply to proceedings that sought “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.”4
A Call for Clarity
While the rule seemed clear as written, it was difficult to apply. For example, the district courts of appeal were in conflict over whether an order granting a claimant an extension of time to file a claim or an independent action could be an order that “finally determin[ed] a right or obligation” under Rule 9.110(a)(2).5 Even though such an order could be addressed on appeal at the conclusion of the independent action, estate assets would nonetheless have to be spent, and parties who did not take part in the independent action would be affected. In Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004), Judge Cope highlighted the lack of clarity in the prior rule as to defining which sorts of orders in probate proceedings were appealable. He suggested: “Perhaps there should be further study of this problem with a view toward developing a rule further defining what constitutes a final order in a probate appeal. It appears wasteful to allow piecemeal appeals, one before and the other after the adversary action.”6
The court in Delgado followed the First District in holding that the trial court’s order granting extensions of time to a claimant to file an independent claim and to the personal representative and a beneficiary to object to the claim constituted final appealable orders.7 It noted its reluctance to do so. “If we were writing on a clean slate, we would hold that the orders now under review are non-final, non-appealable orders.”8 The new rule resolves the ambiguity identified by Judge Cope by specifying that these types of orders are in the class of appealable orders that “finally determine[ ] a right or obligation.”9
The Proposed Solution
The Appellate Court Rules Committee studied how other states determine whether certain types of probate and guardianship orders are appealable and the types of orders that are final and appealable under Florida case law.10 The two primary areas of debate for the committee were 1) whether the new rule would list specific types of orders that finally determine a right or obligation; and 2) whether such a list would be nonexclusive.11 Supporters of a nonexclusive list contended that it was impossible to list every conceivable final order that a court of equity might issue and emphasized the appellate courts’ need to maintain discretion to determine which orders were final. Those opposed to a nonexclusive list reasoned that an exclusive list would provide more clarity while still affording parties the ability to take up a nonfinal appeal or petition for writ of certiorari as a precautionary measure. Ultimately, the committee voted to keep a nonexclusive list. The new rule proposed by the committee sought to clarify existing law, not to change it.12
The Current Rule and Areas for Vigilance
Rule 9.170 provides a nonexclusive list of orders rendered in probate and guardianship cases that finally determine a right or obligation and are, thus, appealable. The list includes orders that:
1) determine a petition or motion to revoke letters of administration or letters of guardianship;
2) determine a petition or motion to revoke probate of a will;
3) determine a petition for probate of a lost or destroyed will;
4) grant or deny a petition for administration pursuant to F.S. §733.2123;
5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;
6) remove or refuse to remove a fiduciary;
7) refuse to appoint a personal representative or guardian;
8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;
9) determine a motion or petition to restore capacity or rights of a ward;
10) determine a petition to approve the settlement of minors’ claim;
11) determine apportionment or contribution of estate taxes;
12) determine an estate’s interest in any property;
13) determine exempt property, family allowance, or the homestead status of real property;
14) authorize or confirm a sale of real or personal property by a personal representative;
15) make distributions to any beneficiary;
16) determine amount and order contribution in satisfaction of elective share;
17) determine a motion or petition for enlargement of time to file a claim against an estate;
18) determine a motion or petition to strike an objection to a claim against an estate;
19) determine a motion or petition to extend the time to file an objection to a claim against an estate;
20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;
21) settle an account of a personal representative, guardian, or other fiduciary;
22) discharge a fiduciary or the fiduciary’s surety;
23) award attorneys’ fees or costs; or
24) approve a settlement agreement on any of the matters listed above or authorizing a compromise pursuant to F.S. §733.708.
The new rule also provides the parties may elect to prepare an appendix or to rely on the usual, clerk-prepared record on appeal under Rule 9.200.13 Especially in a probate proceeding, where the record may be voluminous and contain many matters unrelated to the appeal of a specific order, an appendix may prove advantageous for highlighting the most critical documents for the appellate court’s consideration.
Parties should pay particular attention to the rule’s new provision for the scope of review.14 That provision provides:
The court may review any ruling or matter related to the order on appeal occurring before the filing of the notice of appeal, except any order that was appealable under this rule. Multiple orders that are separately appealable under [R]ule 9.170(b) may be reviewed by a single notice if the notice is timely filed as to each such order.15
Though the new rule did not seek to change how and when probate orders may be appealed under Florida law, Rule 9.170 does differ from the usual appellate rules governing final orders. In a typical appeal, Florida Rule of Appellate Procedure 9.110 allows the appellate court the discretion to review any interlocutory “ruling or matter occurring before filing of the notice” of appeal of the final order.16 And, with the exception of a partial final judgment that completely disposes of an entire case as to any party (which must be appealed within 30 days), subsection (k) of Rule 9.110 affords parties the right to seek immediate appellate review of a partial final judgment, or to await review on appeal from the final judgment in the entire case. In comparison, Rule 9.170(e) establishes that a probate order finally determining a right or obligation must be appealed within 30 days of rendition to be timely.17
Thus, when faced with a probate order that may finally determine a right or obligation — even though that particular order may not be specifically listed in the rule — practitioners are urged to file an appeal as a precautionary measure.18 Otherwise, the right to appeal that order may be waived.
The new rule improves access to courts by specifically delineating the kinds of orders from a probate or guardianship proceeding that are per se appealable. Any practitioner in probate and guardianship, however, should remain cautious. Consult Rule 9.170 whenever a probate or guardianship order is entered to determine whether that order may finally determine a right or obligation of an interested person.
1 Fla. R. App. P. 9.170; In re Amendments to the Florida Rules of Appellate Procedure, 84 So. 3d 192 (Fla. 2011).
2 S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974).
3 See Philip J. Padovano, Florida Appellate Practice §23:4 (2011).
4 See In re Amendments, 84 So. 3d at 194.
5 See In re Estate of Elliot, 798 So. 2d 13 (Fla. 1st DCA 2001) (holding the judicial labor of the probate court is complete at the point when the parties must resort to suit in another court or be forced to defend such an action in another court); Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004) (holding order granting an extension of time to file an independent action on a claim is a final appealable order); but see Estate of Lefkowitz v. Olsten Kimberly Qualitycare, 679 So. 2d 63 (Fla. 4th DCA 1996) (holding an order extending time to file a creditor’s claim was not a final appealable order).
6 Delgado, 870 So. 2d at 914 n.5.
7 Id. at 913-14.
8 Id. at 913.
9 Fla. R. App. P. 9.170(b).
10 Sean Kelley, Tom Karr & Peter Sachs, Crafting an Appellate Rule on Which Orders are Appealable in a Probate Proceeding?, Appellate Rule Project White Paper (2007), available at http://www.flprobatelitigation.com/Appellate%20Rule%20Project%20-%20White%20Paper(1).pdf.
11 Appellate Court Rules Committee, minutes of meeting at 8:30 a.m. (June 26, 2009).
13 Fla. R. App. P. 9.170(c).
14 Fla. R. App. P. 9.170(e).
15 Id. (emphasis added).
16 Fla. R. App. P.9.110( h).
17 Fla. R. App. P. 9.170(e).
18 See In re Estate of Schatz, 613 So. 2d 591 (Fla. 4th DCA 1993) (dismissing an appeal taken three months after the probate court entered an order determining a disputed question of ownership in a certificate of deposit because the order was final and appealable, and the appellate court no longer had jurisdiction after the 30 days for filing a notice of appeal had run); see also Arzuman v. Estate of Bin, 879 So. 2d 675 (Fla. 4th DCA 2994) (holding a claimant’s appeal of an order approving settlement was not timely when brought too late in the probate process). In Arzuman, the court recognized the harsh result of this rule, but explained the reasoning for it: “We are of course aware that, when we decide that an appellant should have appealed an earlier order, it can result in grave consequences. In probate cases, however, where the order of final discharge may not be entered for years after the opening of an estate, interim appeals of orders which finally determine rights or obligations are necessary for the orderly administration of the estate. If we were to review the order approving settlement at this late date, it is doubtful that any remedy would be available which would benefit claimant.” Id. at 676-77. Under the new rule, both an order determining an estate’s interest in any property and an order approving a settlement on matters listed in the rule are expressly final and appealable.
Fla. R. App. P. 9.170(b)(12), (24).
Rebecca Bowen Creed is a shareholder in the appellate boutique firm of Creed & Gowdy, P.A. She has handled many state and federal appeals in over 20 years of practice and is a board certified appellate specialist. Creed serves on the Executive Council of the Appellate Practice Section of The Florida Bar.
Jennifer Shoaf Richardson joined Creed & Gowdy, P.A., as an associate after serving for three years as a law clerk to Judges Peter D. Webster and Simone Marstiller of Florida’s First District Court of Appeal. She received her B.A., cum laude, from the University of Florida and her J.D., cum laude, from Florida Coastal School of Law.
This column is submitted on behalf of the Appellate Practice Section, Jack R. Reiter, chair; Kristin A. Norse, editor; and Chris McAdams, Brandon Christian, and Kristi Rothell, assistant editors.