Susan M. Simmons, as Personal Representative, Etc. v. Mark A. Simmons, Etc.

• Court: District Court of Appeal of Florida
• Decided: April 15, 2026
• Docket: 3D2025-2193
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 15, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-2193 Lower Tribunal No. 23-CA-164-M ________________

Susan M. Simmons, as Personal Representative, etc., Appellant,

vs.

Mark A. Simmons, Appellee.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.

Stokes McMillan Antúnez Martinez-Lejarza P.A., and Juan C. Antúnez; Kula & Associates, P.A., and Elliot B. Kula and William D. Mueller, for appellant.

Rosenthal Rosenthal Rasco PLLC, and Eduardo I. Rasco and Marialejandra Portal, for appellee.

Before LOGUE, LINDSEY and BOKOR, JJ.

PER CURIAM. Affirmed. See Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505,

507–08 (Fla. 1992) (“First, the trial court must determine that the interest

asserted is appropriate to support intervention. Once the trial court

determines that the requisite interest exists, it must exercise its sound

discretion to determine whether to permit intervention. In deciding this

question the court should consider a number of factors, including the

derivation of the interest, any pertinent contractual language, the size of the

interest, the potential for conflicts or new issues, and any other relevant

circumstance.” (citation omitted)); Canakaris v. Canakaris, 382 So. 2d 1197,

1203 (Fla. 1980) (“Discretion . . . is abused when the judicial action is

arbitrary, fanciful, or unreasonable, which is another way of saying that

discretion is abused only where no reasonable man would take the view

adopted by the trial court. If reasonable men could differ as to the propriety

of the action taken by the trial court, then it cannot be said that the trial court

abused its discretion.” (quotation omitted)); Morgareidge v. Howey, 78 So.

14, 15 (Fla. 1918) (“It has generally been held that the interest which will

entitle a person to intervene under this provision must be in the matter in

litigation, and of such a direct and immediate character that the intervener

will either gain or lose by the direct legal operation and effect of the judgment.

In other words, the interest must be that created by a claim to the demand in

2 suit or some part thereof, or a claim to, or lien upon, the property or some

part thereof, which is the subject of litigation.” (quotation omitted)); Schilling

v. Herrera, 952 So. 2d 1231, 1236 (Fla. 3d DCA 2007) (explaining that

tortious interference with testamentary expectancy is an independent tort

and that collateral attacks on the validity of a will due to fraud are properly

raised in a probate proceeding when the alleged fraud was discovered before

probate).