DOROTHY W. KLINGENSMITH, APPELLANT,
v.
FERD AND GLADYS ALPERT JEWISH FAMILY, ET AL., APPELLEES

Fla. 4th DCA | 2008-11-19
No. 4D08-499
WARNER and DAMOORGIAN, JJ., concur.
997 So. 2d 436 Florida District Court of Appeal, Fourth District (2008) Positive Treatment
Cited by 6 cases

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Synopsis

Dorothy Klingensmith appealed an order allowing the Jewish Family & Children's Service (AJFCS) to file a petition for administration of her deceased daughter's estate. The appellate court dismissed the appeal for lack of jurisdiction, finding that the trial court's order merely allowed AJFCS to file a petition but did not finally determine whether AJFCS qualified as an 'interested person' under Florida probate law.


Holding

The court held that it lacked jurisdiction to hear the appeal because the trial court's order was not final. The order permitted AJFCS to file a petition but did not finally determine whether AJFCS qualified as an interested person under the Probate Code, so judicial labor on that issue remained incomplete.


Headnotes

[1] An order in a probate matter is not immediately appealable unless it finally determines a right or obligation of an interested person.

[2] A trial court's order finding that a party has standing to file a petition for administration does not constitute a final determination of that party's status as an inter…

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Key Quotes

“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.”

Establishes the standard for appealability of probate orders under Rule 9.110(a)(2).

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Facts & Procedural History

Gloria Herman died intestate on September 2, 2007. AJFCS had previously served as guardian of Herman's person and property, though at her death it was…

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Opinion of the Court
MAY, J.

MAY, J.

Our jurisdiction to review the trial court’s order in this probate matter is called into question in this appeal. Dorothy Klingensmith, the mother of Gloria Herman, appeals an order that permitted the Ferd and Gladys Alpert Jewish Family & Children’s Service of Palm Beach County, Inc. (AJFCS) to file a petition for administration of Herman’s estate. We do not reach the merits of the appeal because we have no jurisdiction. We therefore dismiss the appeal.

At one time, AJFCS had been the guardian of Herman’s person and proper ty. At the time of Herman’s death, AJFCS was guardian only of her property. Herman died intestate on September 2, 2007. Prior to her death, Herman had filed suit against AJFCS for breach of fiduciary duty, negligence, and gross negligence.

Five days after Herman’s death, AJFCS filed, under oath, a caveat by interested person other than creditor, specifying its interest as that of “the former Plenary Guardian of the Person and Property of Gloria Herman.” The following month, AJFCS filed a petition for administration, this time specifying its interest as “Guardian of decedent, pursuant to F.S. 733.301(2).”

The decedent’s mother, Dorothy Klin-gensmith also filed a petition for administration, specifying her interest as the sole heir of her daughter. In reply, AJFCS filed: (1) a motion to compel depositions; (2) an amended answer to Klingensmith’s petition; and (3) a second amended petition for administration. Klingensmith moved to strike all three pleadings.

In its order, the trial court found that AJFCS had standing to file the second amended petition and its amended answer to Klingensmith’s petition, and to engage in motion practice and discovery. The court then granted AJFCS’ motion to compel depositions, allowed it to file its second amended petition, and denied Klingen-smith’s motions to strike. It is from this order that Klingensmith appeals.

In its initial brief, Klingensmith relies on Florida Rule of Appellate Procedure 9.110(a)(2) and its committee note as authorization for this appeal. “Florida Rule of Appellate Procedure 9.110(a)(2) authorizes appellate review ‘of orders entered in probate ... matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.’ ” Dempsey v. Dempsey, 899 So. 2d 1272, 1273 (Fla. 2d DCA 2005) (omission in original). The committee note states: “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.” Rule 9.110(a)(2), Fla. R.App. P. cmt. Klingensmith suggests that the court’s finding that AJFCS had standing to “file” the petition is in essence a finding that AJFCS is an interested person under the probate code. We disagree.

Significantly, the committee note explains that the 1996 amendment to the rule “does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.” Walters v. Edwards, 700 So. 2d 434, 435 n. 1 (Fla. 4th DCA 1997). In fact, the amendment “has been viewed as strengthening the requirement of finality.” Delgado v. Estate of Garriga, 870 So. 2d 912, 913 (Fla. 3d DCA 2004).

Here, the trial court did not finally determine whether AJFCS was an interested person1 and therefore able to petition for administration. Rather, the trial court found only that AJFCS had standing to “file” a petition for administration. The order on appeal does not therefore put an end to all judicial labor on the issue of whether AJFCS is an interested person under the Probate Code. It is not final and we are without jurisdiction.

Appeal dismissed.

WARNER and DAMOORGIAN, JJ., concur. . The Probate Code provides that "[a]ny interested person may petition for administration.” § 733.202, Fla. Stat. (2007).

"Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person.... The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

§ 731.201(23), Fla. Stat. (2007).


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Citator

Cited By

  • Rust v. Cora L. Brown & Fed. Ins. Co., 13 So. 3d 1105 (Fla. 4th DCA 2009)
    …1996 amendment to the rule ‘does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ ” Klingensmith v. Ferd, & Gladys Alpert Jewish Family, 997 So. 2d 436, 437 (Fla. 4th DCA 2008) (quoting Walters v. Edwards, 700 So. 2d 434, 435 n. 1 (Fla. 4th DCA 1997)). An order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party. White Palms…
  • Maercks v. Maercks, 272 So. 3d 485 (Fla. 3d DCA 2019)
    …provides that such arguments or issues “will need to be further litigated.” The Order, therefore, does not terminate judicial labor or provide finality as to any issue or party in this case. See Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436 (Fla. 4th DCA 2008); Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005). Nevertheless, Appellant contends that we have jurisdiction because the Order determines “a petition or motion to revoke probate of a will.” Fla. R. App. P. 9.170(b)(2).…
  • …r.”); Ruffin v. Kingswood E. Condo. Ass’n, 719 So. 2d 951, 952 (Fla. 4th DCA 1998) (“It is well settled that lack of subject matter jurisdiction may be raised sua sponte by an appellate court.”); Klingensmith v. Ferd & Gladys Alpert Jewish Fam., 997 So. 2d 436, 436 (Fla. 4th DCA 2008) (“We do not reach the merits of the appeal because we have no jurisdiction.”). Dismissed. FORST, KLINGENSMITH and ARTAU, JJ., concur. * * * Not final until disposition of timely filed mot…

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