Florida probate litigators know that the appeals process to a will challenge or other litigation matter or inheritance lawsuit is unique, with special rules and time frames. Wouldn’t you want a probate litigation law firm Florida who has a board certified appellate lawyer on board? Many people who are involved in estate litigation may not understand all the appellate lingo or legal mumble jumbo. What is a writ or prohibition and why should a Florida trust lawyer, or heir at law, beneficiary or someone involved in a Palm Beach probate care? Well, a recent, November 25, 2015appeals court opinion, not a probate case, from Florida’s 3rd District Court of Appeal, tells you a lot about what a writ of prohibition is at the appeals court level, and why this appellate tool may be able to assist your probate lawsuit case at the probate court Delray Beach or the trial level. Here is a copy of this recent 3rd DCA appeal opinion:http://www.3dca.flcourts.org/Opinions/3D15-2065.pdf
What is a writ of prohibition in Florida trials and appeals?
- You can read the case of Kidwell v. Kidwell, 40 Fla. L. Weekly D 2649, Case No. 3D15-2065
- In this divorce or family law Florida case, the former husband sought a writ of prohibition at the 3rd DCA, challenging a final judgment at the trial level
- What?
- A final judgment is appealed to correct mistakes of law
- Why did this petitioner file a petition for a writ of prohibition?
How can a writ of prohibition help you in your estate litigation Florida case?
- The issuance of a writ of prohibition is an extraordinary measure and ought to be used only in very narrow circumstances
- A writ of prohibition is preventive and not corrective
- The purpose of such a writ in the Florida appeals process, and indeed in the trial process, such as during a will contest Delray Beach, Florida, is to prevent the doing of something, NOT to compel the undoing of something already done
- A writ of prohibition cannot be used to revoke an order already entered
- But what about jurisdiction to this petition to seek a writ of prohibition
- See Florida Rules of Appellate Procedure 9.040(c) about whether this was timely filed or not and read rule 9.110(b)
- In some instances, if you file the wrong “thing” in the appeals court, the court will treat it as the “right” thing, but you still have to get the time frame correct
- Don’t blow the 30 day deadline time limit
- In this recent case, the petitioner was pro se, or acting on his own behalf
- And while leniency, and some appeals lawyers Florida might also say “understanding” or “help”, may be given to a pro se litigant who is representing himself on appeal, they still have to follow the rules of procedure
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