Winning a Florida Probate Appeal– lessons from February 17, 2016 4th DCA reversal of trial court

If you are involved in Florida probate litigation, most likely your estate attorneys have, as part of their litigation strategy, the Florida appeals process.  What if you win but the other side appeals your estate lawsuit? What if you lose: did you preserve the errors for appeal? In Palm Beach probate circles,Florida’s 4th District Court of Appeal handles the appeals in Broward, Palm Beach and Martin Counties for estate, trust, & guardianship appeals.  So, what can you learn from a recent, February 17, 2016 4th DCA appellate decision called Salituri v. Salituri?  Well, this is actually  not a probate case. It is a family law or divorce appeal Florida.  We all know that divorce law in Florida, and divorce trials, are often the subject of appeals, kind of like summary judgments:  they seem to always be the subject of a written appellate opinion.  So, here are a few things which you, a Florida estate lawyer, or a client who is in the middle of an estate lawsuit Boca Raton, can learn from this recent 4th DCA opinion, regarding a final judgment which was REVERSED and sent back down to the Broward County trial court.  Here is a copy of this 4th DCA, Florida, appeals decision:  http://4dca.org/opinions/Feb%202016/02-17-16/4D15-1258.op.pdf

What if the trial judge errors?

• Palm Beach probate attorneys who actually try cases like tortious interference with an expectancy or inheritance, or a will contest case, know that you have to try to anticipate an appeal
• Did you get your evidence in?  How do you get the medical records and doctors reports in to evidence if you claim that the Florida trust lawyer wrote a revocable trust for a Boynton Beach client when the client had dementia?
• Are you anticipating a hearsay objection to what your uncle said about his living trust or why he changed his will supposedly while he was in Hospice and suffering from Alzheimers?
• Here are a few things to learn from a recent Broward County appeal:

1. A trial court’s ruling can’t go beyond what was requested.  Generally, in a probate trial, you are limited to the relief which the plaintiff or petitioner seeks.  And you are limited to try the issues which are before the court.  In a related way, a trial court ,or a probate judge can’t issue an order granting relief not requested.   In this recent 4th DCA appeal involving divorce in Broward County, the court ruling went beyondanything requested in the pleadings and beyond the evidence presented at trial.  That is cause for reversal.  So, if you want to have a will challenged and declared void, or invalid, due to fraud in Florida, or maybe undue influence, that’s fine. File an action seeking a declaratory judgment in the West Palm Beach probate court, or in Palm Beach Gardens on PGA.  But, do you want a prior will or codicil, or amendment to a will reinstated?  Then ask your estate attorney Florida to request that relief in the probatepetition Delray Beach, or the answer which you file in the will challenge lawsuit.  You should also understand the doctrine of dependent relative revocation for Florida probate law.
2. A probate judge must make findings of fact on her or his own in a judgment or order.  In this appeal, the trial judge told the wife’s attorney to draft a final judgment making certain findings.  The judge asked the attorney to make findings of fact based on the trial evidence and testimony & then wondered if the lawyer’s notes were adequate or good. The 4th DCA cited the Florida Supreme Court case of Perlow v. Berg-Perlow, 875 So. 3d 383, 389 (Florida, 2004) in stating that the Florida Supreme Courtcondemns such a practice. A probate judge cannot create the appearance that he or she did not independently make factual findings and legal conclusions.  What does a probate judge do after a will challenge trial Florida or a trust lawsuit Palm Beach? Well she or he generally takes notes during the estate or inheritance trial ,and then may ask each side, each side, to submit proposed final judgments.  That’s helpful.  But in the end, the probate court must actually make the findings of fact and apply the law.  Atypical estate lawsuit order, or final judgment, after an undue influence Florida trial, for example, often has detailed findings of fact and conclusions of law.  What did the 4th DCA say in this divorce appeal?  The trial judge cannot ,and indeed should not, turn over the court’s fact finding responsibility to an attorney.

If you are a probate litigation law firm Florida, you may want to read this opinion and keep it in your probate or civil trial library.  Or your Florida appeals library.  If you are a Palm Beach or Ft. Lauderdale divorce attorney, then you should definitely read this opinion and understand why the trial court committed reversible error.