November 7, 2018

Bresky Law Obtains Order Denying Discretionary Review of Probate Matter in Florida Supreme Court

October 25, 2018*

Bresky Law recently assisted an elderly client in obtaining dismissal of a trustee’s attempt to take a probate proceeding to the Florida Supreme Court.

Our client was the beneficiary of a decedent’s will and trust. The Trustee initiated the probate case as personal representative of the estate. Our client later initiated a separate trust case alleging breach of the trust. The Trustee appealed to the Fourth District Court of Appeal (“DCA”) from a non-final ruling in our client’s favor in the probate proceeding.

We obtained dismissal of the appeal on the grounds that the appeals court lacked jurisdiction. 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 a writ. We also requested and obtained entitlement to appellate attorney’s fees pursuant to the applicable statutes.

The Trustee initiated a proceeding in the Florida Supreme Court by filing a Notice to Invoke Discretionary Jurisdiction, in which the Trustee claimed the existence of “conflict jurisdiction” based on conflict with decisions of other DCAs. The Trustee eventually filed its jurisdictional brief as required by Florida Rule of Appellate Procedure 9.120(d).

We prepared and filed the Respondent’s Brief on Jurisdiction, noting that the Trustee improperly argued the merits of the appeal instead of keeping the jurisdictional brief “limited solely to the issue of the supreme court’s jurisdiction” as required by rule. We explained that the Trustee could not establish conflict jurisdiction based on the Fourth DCA’s unelaborated order of dismissal. We explained that even if the Trustee could establish conflict based on such an order, the Trustee failed to establish that the Fourth DCA’s Dismissal Order conflicted with an opinion of another DCA or the Florida Supreme Court. We also requested attorney’s fees for the Florida Supreme Court proceeding.

The Florida Supreme Court issued an Order declining to accept jurisdiction and denying the petition for review. The Court also awarded our client $2,500.00 in attorney’s fees for the Florida Supreme Court proceeding. This favorable order for our client should end the appellate proceedings, and established our client’s entitlement to an amount certain for attorney’s fees for the Florida Supreme Court proceeding.

* Not final until disposition of any timely filed motion for rehearing.