Shoulda Woulda Coulda: Avoiding Missed Deadlines to Appeal Orders Entered in Probate or Guardianship Cases

The Briefs, a publication of the Orange County Bar Association, May 2015 & Presentation to Osceola County Bar Association, May 2015

Possibly no type of civil case presents so many opportunities to appeal orders entered than probate and guardianship proceedings. In most civil cases, the question of whether to appeal arises only upon entry of a summary or final judgment. The rest of the case simply builds to one of those conclusions, with most orders entered along the way being non-final and non-appealable until entry of a judgment at the end.

Probate and guardianship cases, however, often involve a slew of discrete issues giving rise to various appealable orders, each relating to the decedent’s estate or ward’s person or property, but otherwise lacking interconnectedness. And the end of the case is often a long-time coming. Guardianship cases, in particular, can remain pending for years when the ward is permanently incapacitated but physically healthy.

As a result, lawyers involved in these cases do not enjoy the luxury of waiting until the conclusion of the case to consider whether and when to appeal. They must constantly be vigilant to the question of whether an order entered is “final” for purposes of appellate jurisdiction and deadlines.

The British humorist Douglas Adams, who wrote The Hitchhiker’s Guide to the Galaxy series, is quoted as saying: “I love deadlines. I like the whooshing sound they make as they fly by.”

No attorney wants to hear the fading “woosh” of a deadline to appeal that already flew by or to have to tell a client that such a deadline is “jurisdictional” and cannot be extended by either agreement of counsel or a court order. Thus, any attorney handling
probate or guardianship cases should become familiar with at least one Florida Rule of Appellate Procedure: rule 9.170.

Rule 9.170 became effective in January 2012. Prior to its enactment, a more general rule provided for appeals from “orders… that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”1 When applying that rule, the courts often used another phrase: “a party’s right of appeal arises when there is a termination of judicial labor on the issue involved
as to that party.”2 Over time, the wide variety of probate and guardianship orders that might fall in or out of that definition produced a significant body of case law. And, perhaps not surprisingly, its application produced conflicting decisions as to some types of orders. As a result, some counsel experienced the woe of missed deadlines, while others underwent the frustration of filing premature appeals out of an abundance of caution.

That history led the Probate and Trust Litigation Committee of The Florida Bar to conduct extensive research and produce a thorough, 38-page white paper on the issue of what constitutes an appealable, final order in probate and guardianship proceedings. On the basis of that work, the committee drafted a proposed version of new rule 9.170 and submitted it to the Appellate Court Rules Committee (ACRC) for its consideration. With some tweaks, the ACRC approved the proposed rule 9.170, and the Supreme Court of Florida adopted it in November 2011.

Similar to the prior rule, rule 9.170 provides for appeal of orders that “finally determine a right or obligation of an interested person.” But it takes an important step further and provides a list of 24 specific examples of such orders, as follows:

(b) …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 section 733.2123, Florida Statutes;
(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’ claims;
(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 in (1) – (23) or authorizing a compromise pursuant to section 733.708, Florida Statutes.

This list is invaluable to the attorney whose order plainly constitutes one of the enumerated types. He or she no longer needs to research the extensive body of case law that defines when an order “finally determine[s] a right or obligation of an interested person.” Rule 9.170 may be the first and only stop to make in the path to answering the question: Is this an appealable order?

But even if an order appears to fall within the list, the best practice would be to perform at least some brief research to determine
whether any court has discussed that particular subsection in recent case law. Such case law may reveal important nuances. For example, in the first appellate decision citing to the new rule, the First District held that an order determining the amount of an attorney’s fees award does not fall within subsection (b)(23), which lists orders that “award” attorneys’ fees.3 The First District noted that the fees were “awarded” in a prior order and were only “assessed” in the order sought to be appealed. (The good news for that appellant was that the court nonetheless treated the notice of appeal as invoking its review jurisdiction under Florida Rule of Appellate Procedure 9.400.)

It also should be noted that, while many of the types of orders listed in rule 9.170 are broadly described to both grants and denials
of certain motions, some are more limited. For example, the Fifth District held that an order denying a guardian’s motion for discharge
following the ward’s death was not appealable under rule 9.170, despite that subsection (b)(22) lists orders that “discharge a fiduciary.”4 Had the order granted the motion, it surely would have been appealable.

The same Fifth District decision teaches another lesson: Do not look solely to the title of the order to determine whether it falls
within rule 9.170. Instead, consider its substance. In that case, the order denying discharge also determined the ward’s sole ownership
of certain assets, against the guardian’s claim of joint ownership. Without specifically noting subsection (b)(12) of the rule (“orders that… determine an estate’s interest in any property”), the court held the order was appealable because of that ruling.5

If the order at issue does not clearly fall within the list, does that mean it is nonfinal and cannot be appealed? No, not necessarily. It is important to remember that rule 9.170 provides a non-exclusive list, prefaced by that important phrase “include, but are not limited to.” An order may not be described within the list but may still “finally determine a right or obligation of an interested person.”

Likewise, rule 9.170 specifically provides that rules 9.100 and 9.130 may still be applicable. Rule 9.100 concerns petitions for writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus (which, in English, translate to “call an appellate lawyer”). And rule 9.130 enumerates certain non-final orders that nonetheless can be immediately appealed.

Returning to rule 9.170, a significant ramification of subsection (e) should be noted. It 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.” This provision appears, on its face, to address what additional orders can be reviewed together with a final order on appeal. But remember that wooshing sound of a deadline passing by? The language of subsection (e) on which to focus is “except any order that was appealable under this rule.” That means, if an order entered more than 30 days prior fell within the scope of rule 9.170, it should have been appealed then. There is no second chance. This distinguishes orders under rule 9.170 from non-final orders under rule 9.130 and partial final judgments under rule 1.110, which may be appealed either within 30 days of rendition of the order or judgment, or later as part of an appeal from the final judgment in the case.

The most important lesson to take away from all of this is that each and every erroneous, adverse order entered in a probate or guardianship case should be immediately analyzed to determine whether it is appealable under rule 9.170. If so, it should be appealed within 30 days of its rendition, lest you hear that woosh pass you by.

1Fla. R. App. P. 9.100(a)(2) (1996-2011).
2E.g., Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436, 437 (Fla. 4th DCA 2008).
3Carrithers v. Cornett’s Spirit of Suwannee, 93 So. 3d 1240, 1241 (Fla. 1st DCA 2012).
4Karr v. Vitry, 135 So. 3d 372, n.1 (Fla. 5th DCA 2014).