Law Offices of Robin Bresky Obtains Dismissal of Trustee’s Appeal for Lack of Jurisdiction
July 10, 2018*
The Law Offices of Robin Bresky recently assisted an elderly client in obtaining dismissal of an appeal of an order in a probate proceeding.
Our client was the beneficiary of a decedent’s will and trust. The Trustee initiated a probate case as the personal representative of the estate. Our client later initiated a trust case alleging breach of the trust. The trial judge in our client’s trust case stayed the trust case pending resolution of the personal representative/trustee’s probate case to avoid a waste of judicial resources and potential inconsistent rulings.
The trial judge in the probate case later rendered an order that: granted our client’s Motion to Advance Cause Under § 415.1115; granted our client’s Notice for Case Management Conference and set a timetable for the litigation; granted the Trustee’s request to dismiss our client’s Petition and gave our client five days to refile it; and denied the Trustee’s request for fees from our client and his trial counsel. The Trustee appealed.
We filed a motion in the appeals court requesting dismissal of the appeal and arguing that the appeals court lacked jurisdiction over the case. Specifically, we argued that the appealed order was not a final order, was not an appealable non-final order as specified in Florida Rule of Appellate Procedure 9.130, and was not appropriate for treatment as a petition for writ. We also requested appellate attorney’s fees pursuant to the applicable Florida probate and trust statutes.
The appellate court dismissed the Trustee’s appeal after reviewing our motion to dismiss and the Trustee’s Response. The appeals court cited case law indicating its determination that the order appealed was not a final order. The appeals court also granted our request for appellate attorney’s fees, and remanded to the trial court to set the amount of appellate attorney’s fees to be awarded.
We are pleased that this result ended the appellate proceeding in favor of our client and allows him to obtain his attorney’s fees for the proceeding.
* Not final until disposition of any timely filed motion for rehearing.