In short: In Goldman v. Lewin (Fla. 3d DCA 2013), an appeal from an order granting a motion to dismiss “with prejudice” a petition for intestate administration was dismissed. The order granted the motion but never actually dismissed the petition, so it wasn’t final. Related orders striking a petition to revoke a trust and in a guardianship were affirmed.
In probate, the question "can I appeal yet?" is often harder than the merits.
The Facts
The appellants challenged four Miami-Dade orders arising from related probate, trust, and guardianship cases. One granted the appellees’ motion to dismiss the appellants’ petition for intestate administration, stating it was "with prejudice." Others struck a petition to revoke a trust as a sham, entered summary judgment on that petition, and limited further notice in a guardianship.
The Decision
The Third District (June 19, 2013):
- Dismissed the appeal from the motion-to-dismiss order for lack of jurisdiction. An order that merely grants a motion to dismiss, without dismissing the petition, isn’t final, even if it says "with prejudice."
- Affirmed without discussion the orders on the trust petition and the guardianship notice.
Probate Finality Rules
Florida Rule of Appellate Procedure 9.170 lists orders in probate and guardianship cases that are appealable, including orders that finally determine a right or obligation of an interested person. Appeals must be filed within 30 days of rendition. File too early and the appeal is dismissed; file too late and it is lost.
Lessons
- Make sure the order says the petition is dismissed, not just that the motion is granted. Ask the court for a proper order if needed.
- Calendar the 30-day deadline from the order that actually disposes of the claim.
- In probate, check Rule 9.170 before assuming an order is or isn’t appealable.
Source: Goldman v. Lewin, No. 3D11-2189 (Fla. 3d DCA June 19, 2013).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Will Contest Dismissed: With or Without Prejudice? Appeal Rule | 3DCA
Go Deeper
- Florida Probate Alert: 30-Day Rule for Probate Appeals
- Florida Probate Appeals: The Rules, the Record, and the Reality
Frequently Asked Questions
Is an order granting a motion to dismiss appealable in Florida?
Not by itself. The order must actually dismiss the petition or complaint to be final.
What probate orders can be appealed in Florida?
Rule 9.170 lists them, including orders that finally determine a right or obligation of an interested person.
How long do I have to appeal a probate order?
30 days from rendition of the appealable order.
What happened in Goldman v. Lewin?
The Third District dismissed one appeal as premature and affirmed the other orders in 2013.
Talk to a Florida probate appeal lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate appeal lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
