Brake v. Murphy

District Court of Appeal of Florida

Brake v. Murphy

573 So. 2d 424, 1991 Fla. App. LEXIS 599, 1991 WL 7856

CourtDistrict Court of Appeal of Florida

DecidedJanuary 29, 1991

DocketNo. 90-2723

StatusPublished

Cited by2 cases

This text of 573 So. 2d 424 (Brake v. Murphy) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brake v. Murphy, 573 So. 2d 424, 1991 Fla. App. LEXIS 599, 1991 WL 7856 (Fla. Ct. App. 1991).

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Opinion

ON MOTION TO DISMISS

COPE, Judge.

As the record before us indicates that the proceeding below was conducted as an adversary proceeding pursuant to Florida Probate Rule 5.025, it was governed by the Florida Rules of Civil Procedure. Id. 5.025(d)(2). Appellant's timely motion for rehearing was authorized under Rule 1.530, Florida Rules of Civil Procedure, and suspended rendition of the final order until the motion was disposed of. Fla.R.App.P. 9.020(g). The appeal is timely.

Contrary to appellees’ assumption, the result would be the same in nonadversary proceedings. Since 1981, Florida Probate Rule 5.020(d) has authorized a motion for rehearing of any order or judgment. Id.; see In re Florida Rules of Probate and Guardianship Procedure, 387 So.2d 949 (Fla.1980); In re Estate of Beeman, 391 So.2d 276, 279 & n. 1 (Fla. 4th DCA 1980). A timely motion under Rule 5.020(d) suspends rendition of the order to which it is directed. Fla.R.App.P. 9.020(g). The authority relied on by appellee, In re Estate of Crissey, 286 So.2d 585 (Fla. 4th DCA 1973), was based entirely on the fact that the pre-1981 probate and guardianship rules did not authorize motions for rehearing. In view of the 1981 amendment, Cris-sey is no longer good law.

Motion to dismiss denied.

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ON MOTION TO DISMISS

COPE, Judge.

As the record before us indicates that the proceeding below was conducted as an adversary proceeding pursuant to Florida Probate Rule 5.025, it was governed by the Florida Rules of Civil Procedure. Id. 5.025(d)(2). Appellant's timely motion for rehearing was authorized under Rule 1.530, Florida Rules of Civil Procedure, and suspended rendition of the final order until the motion was disposed of. Fla.R.App.P. 9.020(g). The appeal is timely.

Contrary to appellees’ assumption, the result would be the same in nonadversary proceedings. Since 1981, Florida Probate Rule 5.020(d) has authorized a motion for rehearing of any order or judgment. Id.; see In re Florida Rules of Probate and Guardianship Procedure, 387 So.2d 949 (Fla.1980); In re Estate of Beeman, 391 So.2d 276, 279 & n. 1 (Fla. 4th DCA 1980). A timely motion under Rule 5.020(d) suspends rendition of the order to which it is directed. Fla.R.App.P. 9.020(g). The authority relied on by appellee, In re Estate of Crissey, 286 So.2d 585 (Fla. 4th DCA 1973), was based entirely on the fact that the pre-1981 probate and guardianship rules did not authorize motions for rehearing. In view of the 1981 amendment, Cris-sey is no longer good law.

Motion to dismiss denied.

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573 So. 2d 424, 1991 Fla. App. LEXIS 599, 1991 WL 7856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brake-v-murphy-fladistctapp-1991.

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