Maercks v. Maercks

272 So. 3d 485

• Court: District Court of Appeal of Florida
• Decided: April 3, 2019
• Docket: 18-0458
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 3, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-458 Lower Tribunal No. 14-547 ________________

Rian A. Maercks, Appellant,

vs.

Arin B. Maercks, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant.

Law Offices of Mendez & Mendez, P.A., and Sergio L. Mendez and Daniel J. Mendez, for appellee.

Before EMAS, C.J., and LOGUE and HENDON, JJ.

ON MOTION TO DISMISS

LOGUE, J. This appeal arises from a probate matter. Decedent Nita Maercks executed a

will that was admitted to probate. She also executed another document regarding

the distribution of her assets. Appellee Arin B. Maercks, one of the three children

who are beneficiaries under the will and who is the personal representative,

petitioned to have the second document admitted to probate as a codicil even

though he had not included it initially. The trial court granted the motion and

admitted the document as a codicil. In its order doing so, the trial court stated:

By entering this Order, the Court does not make any rulings of fact or law, as it applies to the content of the [Codicil] . . . , the legal positions of the parties, or the effect of the Codicil on the Order entered in this case. Any such arguments will need to be further litigated by the parties. The Court simply rules on the admission of the Codicil which was executed on November 16, 2013, to probate.

(Emphases added). Rian A. Maercks, one of the three beneficiaries, timely

appealed. Appellee moved to dismiss the appeal for lack of jurisdiction.

Appellant contends we have jurisdiction under Florida Rule of Appellate

Procedure 9.170(b)(2), (12) & (13). This rule provides a non-exclusive list of

probate orders that are appealable because they “finally determine a right or

obligation of an interested person.” Rule 9.170(b).

At the outset, we note that the order under review does not “finally

determine a right or obligation of an interested person.” To the contrary, it

expressly states that it “simply rules on the admission of the Codicil.” In so doing,

2 the order itself explicitly states that it “does not make any ruling of fact or law, as

it applies to the content of the Document . . . , the legal positions of the parties, or

the effect of the Codicil on the other Orders entered in this case.” Indeed, the Order

expressly contemplates additional judicial labor: it provides that such arguments or

issues “will need to be further litigated.” The Order, therefore, does not terminate

judicial labor or provide finality as to any issue or party in this case. See

Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436 (Fla. 4th

DCA 2008); Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005).

Nevertheless, Appellant contends that we have jurisdiction because the

Order determines “a petition or motion to revoke probate of a will.” Fla. R. App. P.

9.170(b)(2). Notably, no such petition or motion was ever filed in the probate court

proceedings. And, the plain language contained in the Order clearly states that the

Order does not rule on other orders entered in the case.

Next, Appellant argues that we have jurisdiction because the Order

determines “an estate’s interest in any property.” Fla. R. App. P. 9.170(b)(12).

However, the Order merely admits the codicil to probate; the legal effect of which

will be determined after the parties further litigate the issues. It therefore cannot be

said to rule on any estate’s interest in any property.

Finally, Appellant submits that we have jurisdiction because the Order

determines “exempt property, family allowance, or the homestead status of real

3 property.” Fla. R. App. P. 9.170(b)(13). Appellant claims that the Order has the

legal effect of determining a homestead status. Essentially, Appellant insists that

the Order undoes a previously entered order which determined the homestead

status of the home left by Decedent and converts that homestead to conform to the

time-sharing plan contained in the Codicil. But the Order plainly states that it does

not decide on such issues or overrule any other order entered in the case.

Dismissed.