Margaret M. Finnegan, as Executor of the Estate of Ellen Donlon (“Appellant”) filed a motion for rehearing in the Fourth District Court of Appeal of Florida (“Fourth DCA”) on the basis that they “overlooked Florida Probate Rule 5.025, which specifically states that Florida Rule of Civil Procedure 1.525 is inapplicable in adversary probate proceedings.” Rule 5.025(d)(2) was amended in 2011 “to insure that an award of attorneys’ fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather...
In a June 2013 guardianship proceeding, Janie Sykes-Kennedy (“Kennedy”) was appointed limited guardian of her sister, Lillie S. White (“White”), due to the court finding White to be incapacitated. The court found that White had senile dementia and was not capable of exercising her right to contract, to manage property, to make any gift or disposition of property, to sue and defend lawsuits, to consent to medical treatment, or to make decisions about her social environment or other social aspects of her life.
Earlier this month, in what could turn out to be a staunch change in Florida Trust law, the Fourth District Court of Appeal of Florida (4th DCA) held in Minassian v. Rachins, 2014 WL 6775296 (Fla. 4th DCA 2014), any ambiguities in a trust agreement can be shifted from the courts to the trust’s “trust protector,” thereby privatizing the dispute-resolution and modification process from the courts, to private actors. In the instant case, litigation ensued within a family trust between what unfortunately occurs too often, a dispute between...
Last week in a case involving the term of art, “interested persons,” the Fourth District Court of Appeal (4th DCA) in Rudolph v. Rosecan, 2014 WL 6674749 (Fla. 4th DCA 2014) agreed with the trial court and determined that a ward’s mother had no status as an “interested person” for purposes of annual accounting or other guardianship financial matters that had been established for which the mother was not the guardian. The 4th DCA agreed with the guardian and father in that next of kin are not entitled to inspect or review annual...
In a decision this week, the Third District Court of Appeal of Florida (“3d DCA”) in Stockinger v. Zeilberger, 2014 WL 6465244 (Fla. 3d DCA 2014) dismissed a petition for certiorari to quash a probate court order that stated the petitioner’s claims could not proceed because they were unavailable to be deposed. As in all other aspects of law, a grant of such petition requires the condition precedent of irreparable harm to be present. If the party seeking review does not demonstrate that it will suffer material injury of an irreparable...
In an opinion released this week regarding a motion to dismiss by the Circuit Court in Palm Beach County, the Fourth District Court of Appeal of Florida (“4th DCA”) in Kozinski v. Stabenow, 2014 Fla. App. LEXIS 18086 (Fla. 4th DCA 2014), reversed the order denying the motion to dismiss, and held that an order imposing a refund or surcharge against a fiduciary, and the immediate return of money to a trust or probate estate as a result of a breach of fiduciary duty was tantamount to a judgment for damages and therefore required personal service on the...
Earlier this month in Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 2014 Fla. App. LEXIS 17033 (Fla. 2d DCA 2014), the Second District Court of Appeal of Florida (“2d DCA”) ruled that a trial court erred and found that an appraisal was mandatory under the language of the insurance policy because the policy’s “retained rights” provision did not violate any statutory law or public policy. Furthermore, the 2d DCA held that the insurer had a right to an appraisal because there was a dispute as to the loss and not as to the coverage under...
In Jilco, Inc. v. MRG of S. Fla., Inc., 2014 Fla. App. LEXIS 16800 (Fla. 4th DCA 2014), a case decided last week by the Fourth District Court of Appeal of Florida ("4th DCA"), the Court held that within Florida statute and civil procedure, a settlement agreement can exist between two parties even if not approved by the trial court. Where the parties enter into a settlement agreement, the settlement bars discovery regarding settled matters no longer at issue in the litigation. An order compelling discovery while the settlement agreement...
Earlier this month in an opinion filed by the Third District Court of Appeal of Florida (“3d DCA”), Kritchman v. Wolk, 2014 Fla. App. LEXIS 15266 (Fla. 3d DCA 2014) illustrated that trust language should always be as explicit and narrow as possible. Although affirming a breach of trust by the co-trustee’s and awarding the plaintiff damages, the 3d DCA reversed in part a judgment and held that a promise of an indeterminate amount for an indeterminate number of years of graduate school, commencing at an indeterminate time, ran afoul the Statute...
A garnishment is a legal order for collecting a monetary judgment on behalf of a plaintiff from a defendant. The money can come directly from the defendant, or from a third party, namely a bank. In Florida, banks receive writs of garnishment every day. In these instances, the bank normally answers the writ, and the account holder gets a chance to respond. But, a recent case in the Fourth District Court of Appeal of Florida (“4th DCA”) tackled a question of when the money in the account does not actually belong...
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