New appellate rule for probate and guardianship proceedings.

• Author: Creed, Rebecca Bowen
• Position: Appellate Practice

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...