Are orders awarding trustee fees subject to appeal?

Greene v. Borsky, --- So.2d ----, 2007 WL 2119215 (Fla. 4th DCA Jul 25, 2007)

Whether a particular type of order is subject to appeal can have a huge impact on how a case is litigated.  In this case, the issue was whether a trial court's order permitting trustees to pay their legal fees with assets of the trust was subject to appeal.  The 4th DCA said YES.  Thankfully!

Here's how the 4th DCA explained it's ruling:

The orders in this case are appealable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Rule 9.130(a)(3)(C)(ii) provides that appealable non-final orders include those that determine “the right to immediate possession of property .” This Court has previously held that a sum of money is property to which Rule 9.130(a)(3)(C)(ii) can apply. In Florida Discount Properties, Inc. v. Windermere Condominium, Inc., 763 So.2d 1084 (Fla. 4th DCA 1999), a lessor filed a motion to have disputed rent paid into the registry of the court. Id. at 1084. The trial court denied the motion, and the lessor appealed. Id. On appeal, this Court concluded that the order was an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), because it determined “the right to immediate possession of property, i.e., the rent payments.” Id. Likewise, in the present case, the trial court orders determined the right to immediate possession of property, here trust assets to be used by trustees to pay for attorney's fees and witness fees expended in defense of the trust. As such, we conclude that this Court possesses jurisdiction over this appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and affirm in all respects without further comment.

Careful readers of this blog will recognize the name of one of the attorneys on the winning side of the linked-to case: Amy B. Beller of Miller & O'Neill, P.L.  (see here for prior post).  Well done Amy.

Order appointing successor trustee is NOT a final order subject to appeal

Fach v. Brown Bros. Harriman Trust Co. of Florida, 949 So.2d 260 (Fla. 4th DCA Feb 07, 2007)

The issue explicitly addressed by the linked-to opinion is relatively simple: is an order appointing a successor trustee a final appealable order?  The 4th DCA held it is not:

In this consolidated appeal, Barbara A. Fach and her daughter Lauren K. Cain appeal two non-final orders denying, without hearing, their emergency motions for relief from orders, filed pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The orders from which they sought relief were entered in an adversarial proceeding in which the probate court appointed U.S. Trust as the successor trustee to Brown Brothers Harriman Trust Company on an emergency basis in two separate cases. The appellees argue that this court lacks jurisdiction because the orders from which the appellants sought relief in the probate court were not final orders, and thereby not subject to Rule 1.540. We agree and dismiss the appeal.

What was really driving this appeal? .  .  .  VENUE!

Although never stated in the linked-to opinion, I think the real issue driving this appeal was venue.  Appointing a new corporate trustee may result in the trust's "principal place of administration" changing to the location of the new corporate trustee's "usual place of business" (736.0108), which in turn may result in a change of venue for trust litigation purposes (736.0204) (see here for real life example).

With this background in mind, the following excerpt from the linked-to opinion now makes sense:

At oral argument, the appellants essentially agreed that this appeal was taken to insure that the trial court had left certain issues open for consideration. In fact, in this case the probate court specifically asked whether it could appoint U.S. Trust as successor trustee and leave the situs of the trust in Palm Beach County, without prejudice to addressing the latter issue at a subsequent hearing. The court then dictated its order to counsel, again reiterating that the appointment was without prejudice to addressing the situs of the trust at a later time.

Court says NO to appeal of spousal-elective-share order

Trenchard v. Gray, --- So.2d ----, 2007 WL 837294 (Fla. 2d DCA Mar 21, 2007)

In Dempsey v. Dempsey (a 2005 opinion I wrote about here) the 2d DCA ruled on when elective share orders are subject to appeal.  Under Florida Probate Rule 5.360, determining the elective share is a two-step process:

  • First, the trial court must rule on the issue of entitlement (Rule 5.360(c)).
  • Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)). 
Step one is a non-final, non-appealable order.  Step two is an appealable order.


Based on the same rationale, the 2d DCA dismissed an appeal of a step-one elective share order in the linked-to opinion.  The following excerpt from Judge Silberman's concurring opinion does a good job of explaining - again - the 2d DCA's approach to elective-share-order appeals:

Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray's claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court's order finds that the decedent's interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent's interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).


The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court's order is nonfinal and nonappealable. See Dempsey, 899 So.2d 1272.

Court to Trustee: go hire a lawyer!

EHQF Trust v. S & A Capital Partners, Inc. , --- So.2d ----, 2007 WL 45838 (Fla. 4th DCA Jan 09, 2007)

I wrote here about a 2006 opinion out of the 5th DCA addressing Florida Rule of Probate Procedure 5.030(a), which, subject to limited exceptions, requires Florida guardians and personal representatives to be represented by counsel.  There's no such rule for Florida trustees.  However, the 4th DCA came to the same conclusion with respect to trustees based on the following rationale:

The notice of appeal filed by appellant, a trust, was not signed by an attorney licensed to practice law in Florida. Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. Curry v. Kilgore, 2004 UT App. 112 (Utah Ct.App.2004); Ziegler v. Nickel, 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 (Cal.2d 1998); Life Science Church v. Shawano County, 221 Wis.2d 331, 585 N.W.2d 625 (Wis.Ct.App.1998); Mahoning County Bar Ass'n v. Alexander, 79 Ohio St.3d 1220, 681 N.E.2d 934 (Ohio 1997); Beaudoin v. Kibbie, 905 P.2d 939 (Wyo.1995); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604 (Neb.1989); In re Ellis, 53 Haw. 23, 487 P.2d 286 (Haw.1971).

It is therefore ordered that this appeal will be dismissed unless appellant files an amended notice of appeal signed by an attorney licensed to practice law within twenty days of this order. This appeal is stayed pending compliance with this order.

Is there a better way to manage an irrational litigant in probate?

Simpson v. In re Estate of Norton, 2007 WL 397463 (Fla. 3d DCA Feb 07, 2007)

The most frustrating probate litigant has to be the irrational adversary.  Not because this type of adversary is more apt to win, but because this type of adversary is more apt to make everyone waste a lot of time and money using the court system to force compliance with existing black letter law every step of the way.  The last sentence of the linked-to opinion gives you a hint of what type of litigant Ms. Simpson is:

[T]his is not the proper forum in which to litigate Simpson's numerous complaints about her three former attorneys and we decline to address those issues.

What's most striking about the linked-to opinion is that although the three orders at issue all cover mundane administrative decisions that all appear to be common sense rulings by a thoughtful probate judge -- an irrational litigant was able to cause unnecessary delay and expense by exploiting the expansive appellate rules applicable to probate proceedings.  Two of the orders on appeal were entered in April of 2006, the third in July of 2006.  The appellate decision upholding those rulings wasn't published until February of 2007: that's 7 months of needless delay!?  If you read the opinion it sounds like the estate's attorney did everything right.  Is there a better way to manage this type of irrational litigant?  I have to admit that in this case I can't think of one.  Sure, you can always move for sanctions, but that doesn't put a stop to the delaying tactics and the irrational litigant will probably brush off the threat of sanctions anyway.

In terms of guidance for future litigants, the following line from the linked-to opinion probably says it best:

[D]issatisfaction with the administration of a probate estate unaccompanied by any legal basis as to how the trial court abused its discretion is not grounds for an appeal.

Denial of Motion to Dismiss Is NOT an Appealable Order

Somogyi v. Nevai, __ So.2d __ (Fla. 4th DCA Feb 22, 2006)

In the probate context it is not unusual to have multiple orders entered prior to completion of the estate administration that are subject to appeal under Florida Probate Rule 5.100 and Florida Rule of Appellate Procedure 9.110(a)(2). The Committee Note for the 1996 amendment to Florida Rule of Appellate Procedure 9.110(a)(2) recognizes this reality, and addresses it head on, stating in part as follows:

The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. 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.

So every time the probate court issues an order, the attorney needs to immediately ask him or herself whether that order is subject to appeal under the special rule applicable to probate proceedings. The answer is not always clear (when in doubt, the prudent approach is to file the appeal and let the appeallate court determine the issue). In this case the question was whether an order denying a motion to dismiss was subject to appeal. The Fourth DCA said NO in the following one-paragraph opinion:

PER CURIAM.

We grant appellee's motion to dismiss this appeal for lack of jurisdiction. The "Order Denying Motion to Dismiss Petition for Revocation of Portions of Will and Related Relief" does not finally determine a right or obligation of an interested person under Fla. R.App. P. 9.110(a)(2), where it merely denies a motion to dismiss and does not revoke the probate of the will. See Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).
Dismissed.

Getting Paid for Appellate Work

In re Estate of Wejanowski, __ So.2d __ (Fla. 2d DCA February 15, 2006)

It's not unusual for a personal representative to seek explicit prior approval from the probate judge when contemplating some sort of litigation involving the estate - even is such authority is not required. This type of pre-approval is sought pursuant to F.S. § 733.602(2), which removes liability for any act of administration of the state if the act was "authorized" at the time.

This case is an example of what can go wrong when asking a probate judge for prior approval. You may not like the answer you get. Here the personal representative filed a motion with the probate court seeking approval of costs and fees associated with prosecuting an appeal of a wrongful-death judgment pending against the estate.

The trial court denied the personal representative's motion without prejudice to resubmit the request at the conclusion of the appeal upon a showing of monetary benefit to the estate and ordered him not to expend estate funds for prosecution of the appeal, to include attorney's fees and costs.

The Second DCA reversed, essentially holding that a monetary benefit (i.e., prevailing party) standard was too high a bar for approval of fees and costs associated with an appeal, stating as follows:

Requiring [the personal representative] to show a monetary benefit to the estate before he is entitled to reimbursement for appellate expenses narrows the definition of "benefit to the estate" to an unworkable level in this appellate context. An appellate attorney has an ethical duty not to prosecute a baseless or frivolous appeal. Payment of appellate fees and costs cannot be contingent upon prevailing on appeal because neither party can guarantee the outcome. The true benefit to an estate provided by an appellate attorney is the presentation of a good-faith appeal and its ultimate resolution. Our system affords litigants the right to resolve disputes with due process, safeguarded by appellate review of the trial court's decisions. Cf. Brake v. Murphy, 693 So.2d 663 (Fla. 3d DCA 1997) (reversing an order that required the personal representative and her husband to post a bond in order to file further pleadings in a surcharge proceeding because the order violated the access to the courts provision and due process clause of the state constitution).

Probate litigator successfully spots substantive issues, but falls flat on civil procedure

Herskovitz v. Hershkovich, 2005 WL 2254003, 30 Fla. L. Weekly D2209 (Fla. 5th DCA Sept. 16, 2005) (Trial Court Affirmed)

This case is yet another example of why probate litigation can be especially challenging. Not only must counsel in these cases have the ability to quickly spot the often highly technical probate-law issues in play in the relatively short period of time permitted to challenge a will in probate, he or she must also be sufficiently knowledgeable in civil procedure and trial techniques to successfully venture into the litigation arena.

The decedent's surviving brother in this case challenged the validity of a second codicil to his brother's will (which completely cut him out of the estate) on the grounds that the two attesting witnesses to that codicil were unaware of the testamentary nature of the instrument they were signing. In other words, counsel for surviving brother correctly identified a substantive issue under Florida probate law that favored his client. Counsel made this argument when he successfully opposed a summary judgment motion filed by the surviving spouse. So far, so good. Unfortunately, counsel failed to make this argument again when the probate court conducted an evidentiary hearing on the matter . . . thereby waiving the issue on appeal. The Fifth District Court of Appeal summed up its ruling on this point as follows:

In [his memorandum opposing summary judgement, surviving brother] contended questions of fact existed as to whether the witnesses could authenticate the documents. Subsequently, the trial court denied [surviving spouse's] motion for summary judgment. Once the summary judgment was denied, it was incumbent upon [surviving brother] to present whatever arguments and documents he believed relevant to determining those questions of fact to the trial court at the evidentiary hearing. By failing to do so, he waived this issue for appellate review.

Wrongful Death Act: Decedent's Adult Children Have Standing to Object to Wrongful Death Action Settlement Terms and a Right to a Hearing on Their Objections

Brunson v. McKay, 2005 WL 1677939 (Fla. 2d DCA July 20, 2005) (Trial Court Reversed)

Polk County Judge Ronald A. Herring was apparently convinced that the decedent's adult children had a negligible interest, if any, in a $450,000 wrongful death action settled by the decedent's surviving spouse (who was also the sole personal representative of his estate). As such, when the children sought to object to the terms of the settlement agreement under Florida's Wrongful Death Act, the probate judge held that they lacked standing to do so and denied their request. On appeal, the surviving spouse argued that the probate judge's order was a non-appealable, non-final order. The surviving spouse also argued on appeal that even if the surviving adult children had standing to object, the probate judge was not required to give them a hearing on their timely objections because F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections.

Although the Second DCA clearly signaled that it was inclined to agree with the probate judge's assessment of the "merits" of the adult children's claims, on strict procedural grounds it ruled against the surviving spouse on all issues, holding as follows:

  • Citing Fla. R. App. P. 9.030(b)(1)(A) and 9.110(a)(2), the Second DCA ruled that the probate judge's order approving the settlement was an appealable, final order.
  • Noting that the probate judge had confused the issue of "standing" with the question of the "merits" of the adult children's claims, the Second DCA held that the adult children fell within the definition of "survivors" contained in F.S. § 768.18(1) of the Wrongful Death Act, and thus had standing as a matter of law to object to the terms of the settlement agreement.
  • Recognizing that F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections, the Second DCA nonetheless held that "routine practice under the Act requires one where there is an objection to a proposed settlement."

Order Determining Entitlement to the Elective Share Is Not Appealable

Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).

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