Can You Appeal an Order Removing a Personal Representative for Breach When Damages Not Determined?

Probate cases are not simple winner-take-all trials, where a judge or jury determines whether someone is liable for something and awards damages.  Instead, probate matters tend to go on for extended periods of time, with trial courts issuing various rulings and judgments.  But only some orders can be appealed, depending, in part, on whether (i) the order is styled as a “judgment,” (2) whether the judicial labors on the matters are concluded, and (3) whether the type of order is on a list of orders in the Florida Rules of Appellate Procedure that can be immediately appealed.  Failure to appeal when an appeal is allowed may result in an inability to appeal the matter later.  As a consequence, when an order contains a mix of appealable and unappealable rulings, the best course of action is to appeal the whole order and let the appellate court sort out what is presently appealable.

In Gnaegy v. Morris, 3D22-2065 (3rd DCA 2023), the trial court removed a personal representative and trustee for breach of trust.  The trial court also determined that the personal representative and trustee was liable for damages.   The trial court reserved ruling on the determination of the amount of damages, and the appeal followed.  The appellate court sifted through the order, finding that parts were subject to appeal, and other parts were not so subject.

Appellee contends this appeal is premature, and that we lack jurisdiction because the order is nonfinal and nonappealable. Appellee is partially correct. This court has jurisdiction to review the order on appeal, but only that portion of the order removing Appellant as personal representative of the Estate and as trustee of the Revocable Trust. That aspect of the order is final and appealable pursuant to Florida Rule of Appellate Procedure 9.170(b):

Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:

(6) remove or refuse to remove a fiduciary;..

The Court continued:

This portion of the order did “finally determine a right or obligation of an interested person” by removing Appellant as a fiduciary. Cf. Jensen v. Est. of Gambidilla, 896 So.2d 917, 918 n. 1 (Fla. 4th DCA 2005) (“This court is without jurisdiction to address any procedural irregularities that led up to the order removing Jensen as the personal representative because she failed to timely appeal that order, which was a final, appealable order.”) (citing In re Odza’s Estate, 432 So.2d 740, 741 (Fla. 4th DCA 1983) (classifying an order removing a personal representative as a final, appealable order)); The Florida Bar, Removal of Personal Representative and Surcharge, LPC FL-CLE 9-1 (2023) (“The probate court’s decision on a petition for removal is deemed a final order and may be appealed as a matter of right to the appropriate district court of appeal, even before the estate administration is complete.”)

The remaining aspects of the order-granting summary judgment in favor of Appellee on her claims against Appellant, but reserving on the issue of damages, as well as granting entitlement to attorney’s fees and costs while reserving on amount-are nonfinal and nonappealable. See, e.g., Laptopplaza, Inc. v. Wells Fargo Bank, NA, 264 So.3d 1049, 1052 (Fla. 3D DCA 2019) (finding premature an order determining liability but reserving on damages: “[A]n order determining liability in favor of Appellee, but reserving the determination of the amounts of damages on the various causes of action alleged in the complaint for future proceedings was a non-final, non-appealable order under Florida Rule of Appellate Procedure 9.130(a)(3)”) (quotation omitted).

The Court affirmed the removal of the personal representative and trustee based on there being ample, competent and substantial evidence to support the ruling, and dismissed the remainder of the appeal as premature.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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