Third District Court of Appeal State of Florida
Opinion filed January 31, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0054 Lower Tribunal No. 20-4641 ________________
Eva Maria Anderson, Appellant,
vs.
In Re: Estate of Mario Quintero, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge.
Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for appellant.
Solomon Appeals, Mediation & Arbitration, and Donna Greenspan Solomon (Fort Lauderdale), for appellee.
Before FERNANDEZ, SCALES and MILLER, JJ.
SCALES, J. Appellant Eva Maria Anderson appeals two probate court orders 1 that
effectively denied Anderson’s successive attempt to have the probate court
consider a document as a lost will. We affirm because the probate court
correctly concluded that our holding in Anderson v. Estate of Quintero, 374
So. 3d 67 (Fla. 3d DCA 2022) (“Anderson I”) precluded Anderson’s
successive attempt to have the document probated.
I. Relevant Factual Background
In November 2020, Anderson filed in the probate court a petition
seeking to establish that a document presented to the probate court was a
lost will (the “Lost Will”). On August 17, 2021, the probate court entered an
order (“August 17th order”) determining that the Lost Will was invalid. 2 Based
on this finding of invalidity, the probate court also concluded in its August
17th order that the probate case would proceed as if the decedent had died
intestate. Anderson did not appeal this August 17th order but, instead,
appealed that portion of a September 8, 2021 homestead determination
order that merely reiterated the August 17th order’s intestacy finding.
1 The orders are a December 8, 2022 order granting the personal representative of the appellee Estate of Mario Quintero’s (the “Estate”) motion to preclude the taking of depositions and a December 14, 2022 order denying Anderson’s renewed petition to establish a lost will. 2 The probate court found that the Lost Will, allegedly signed by the decedent, was not witnessed and bore a defective notarization.
2 Characterizing the August 17th order as an appealable final order, we
determined, in Anderson I, that we lacked jurisdiction to adjudicate
Anderson’s attempted untimely appeal of the intestacy finding which had
been reiterated in the September 8, 2021 homestead determination order,
but which initially was the basis of the August 17th order. Anderson I, 374
So. 3d at 69.
After our Anderson I opinion issued on August 31, 2021, Anderson
filed, on September 7, 2022, a Florida Rule of Civil Procedure 1.540(b)(2)
motion3 seeking to vacate the reiterated intestacy finding contained in the
September 8, 2021 order. Anderson’s rule 1.540(b)(2) motion asserted that
the intestacy finding should be vacated because Anderson had new
evidence to indicate that the Lost Will had been properly signed, witnessed,
and notarized. Anderson then filed an October 13, 2021 renewed petition to
establish what Anderson characterized as a second lost will (the “renewed
petition”). This so-called second lost will, appended to Anderson’s renewed
3 A proceeding to establish a lost or destroyed or later discovered will is considered an adversary proceeding under the Florida Probate rules. See Fla. Prob. R. 5.025(a). As such, the Florida Rules of Civil Procedure, including rule 1.540(b)(2), are applicable to the proceedings. See Fla. Prob. R. 5.025(d)(2). Rule 1.540(b) authorizes a trial court to vacate a final judgment upon the movant’s showing of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing[.]” Fla. R. Civ. P. 1.540(b)(2)
3 petition, though, is identical to the Lost Will that Anderson had initially
presented to the probate court in November 2020, and which the probate
court, in its August 17th order, had determined was invalid.
Then, on November 3, 2022, as an apparent amendment to her
renewed petition, Anderson filed with the trial court a second version of the
so-called second lost will. This second version again contained the same
testamentary provisions as the Lost Will, but in this version both the
decedent’s signature and the improper notarization were removed. On
November 18, 2022, Anderson filed notices seeking to take two depositions
to elicit testimony that, presumably, would validate the so-called second lost
will. On that same day, the Estate filed a motion for protective order arguing
that, in light of our Anderson I opinion, Anderson had no basis for continuing
her attempts to intervene in the probate matter.
On December 6, 2022, the trial court conducted a hearing on
Anderson’s renewed petition and the Estate’s motion for protective order
directed toward Anderson’s attempt to take depositions. On December 8,
2022, the probate court entered an order granting the Estate’s motion for
protective order. And on December 14, 2022, deeming our Anderson I
opinion “law of the case,” the probate court entered an order denying
Anderson’s renewed petition. Anderson timely appeals both of these orders.
4 Our record indicates that the probate court did not adjudicate
Anderson’s pending rule 1.540(b)(2) motion of September 7, 2022.
II. Analysis
At the outset, we note that the parties do not seem to disagree with
the general notion that our holding in Anderson I would not preclude a
proponent of a lost will – whether that proponent be Anderson or someone
else – from seeking to establish the validity of a will that is different from the
one invalidated in the probate court’s August 17th order. Indeed, a lost will
may be presented to the probate court at any time before the discharge of
an estate. See § 733.207, Fla. Stat. (2022) (“Any interested person may
establish the full and precise terms of a lost or destroyed will and offer the
will for probate.”); § 733.208, Fla. Stat. (2022) (“No will or codicil may be
offered after the testate or intestate estate has been completely administered
and the personal representative discharged”). According to our record, to
date, the estate has not been closed.
The parties’ disagreement is premised upon whether Florida’s “law of
the case” doctrine applies so as to preclude Anderson from seeking to have
the so-called second lost will probated. The problem with Anderson’s
argument is that, irrespective of Anderson’s characterization of the
documents, at no point did Anderson seek to have probated a will that
5 differed in any meaningful way from the Lost Will that the probate court
concluded was invalid in its August 17th order. Put another way, Anderson’s
renewed petition did not seek to have the trial court probate a different will
from the one she initially unsuccessfully sought to have probated. Rather,
Anderson’s renewed petition merely continued her quest to have the Lost
Will admitted to probate; her unadjudicated rule 1.540(b)(2) motion is based
on her alleged discovery of “new evidence” that, she asserts, would establish
the validity of the Lost Will. Anderson’s renewed petition attached to it the
exact same document that was attached to Anderson’s initial November
2020 petition; and then, in a second swing of the bat Anderson filed another
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Third District Court of Appeal State of Florida
Opinion filed January 31, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0054 Lower Tribunal No. 20-4641 ________________
Eva Maria Anderson, Appellant,
vs.
In Re: Estate of Mario Quintero, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge.
Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for appellant.
Solomon Appeals, Mediation & Arbitration, and Donna Greenspan Solomon (Fort Lauderdale), for appellee.
Before FERNANDEZ, SCALES and MILLER, JJ.
SCALES, J. Appellant Eva Maria Anderson appeals two probate court orders 1 that
effectively denied Anderson’s successive attempt to have the probate court
consider a document as a lost will. We affirm because the probate court
correctly concluded that our holding in Anderson v. Estate of Quintero, 374
So. 3d 67 (Fla. 3d DCA 2022) (“Anderson I”) precluded Anderson’s
successive attempt to have the document probated.
I. Relevant Factual Background
In November 2020, Anderson filed in the probate court a petition
seeking to establish that a document presented to the probate court was a
lost will (the “Lost Will”). On August 17, 2021, the probate court entered an
order (“August 17th order”) determining that the Lost Will was invalid. 2 Based
on this finding of invalidity, the probate court also concluded in its August
17th order that the probate case would proceed as if the decedent had died
intestate. Anderson did not appeal this August 17th order but, instead,
appealed that portion of a September 8, 2021 homestead determination
order that merely reiterated the August 17th order’s intestacy finding.
1 The orders are a December 8, 2022 order granting the personal representative of the appellee Estate of Mario Quintero’s (the “Estate”) motion to preclude the taking of depositions and a December 14, 2022 order denying Anderson’s renewed petition to establish a lost will. 2 The probate court found that the Lost Will, allegedly signed by the decedent, was not witnessed and bore a defective notarization.
2 Characterizing the August 17th order as an appealable final order, we
determined, in Anderson I, that we lacked jurisdiction to adjudicate
Anderson’s attempted untimely appeal of the intestacy finding which had
been reiterated in the September 8, 2021 homestead determination order,
but which initially was the basis of the August 17th order. Anderson I, 374
So. 3d at 69.
After our Anderson I opinion issued on August 31, 2021, Anderson
filed, on September 7, 2022, a Florida Rule of Civil Procedure 1.540(b)(2)
motion3 seeking to vacate the reiterated intestacy finding contained in the
September 8, 2021 order. Anderson’s rule 1.540(b)(2) motion asserted that
the intestacy finding should be vacated because Anderson had new
evidence to indicate that the Lost Will had been properly signed, witnessed,
and notarized. Anderson then filed an October 13, 2021 renewed petition to
establish what Anderson characterized as a second lost will (the “renewed
petition”). This so-called second lost will, appended to Anderson’s renewed
3 A proceeding to establish a lost or destroyed or later discovered will is considered an adversary proceeding under the Florida Probate rules. See Fla. Prob. R. 5.025(a). As such, the Florida Rules of Civil Procedure, including rule 1.540(b)(2), are applicable to the proceedings. See Fla. Prob. R. 5.025(d)(2). Rule 1.540(b) authorizes a trial court to vacate a final judgment upon the movant’s showing of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing[.]” Fla. R. Civ. P. 1.540(b)(2)
3 petition, though, is identical to the Lost Will that Anderson had initially
presented to the probate court in November 2020, and which the probate
court, in its August 17th order, had determined was invalid.
Then, on November 3, 2022, as an apparent amendment to her
renewed petition, Anderson filed with the trial court a second version of the
so-called second lost will. This second version again contained the same
testamentary provisions as the Lost Will, but in this version both the
decedent’s signature and the improper notarization were removed. On
November 18, 2022, Anderson filed notices seeking to take two depositions
to elicit testimony that, presumably, would validate the so-called second lost
will. On that same day, the Estate filed a motion for protective order arguing
that, in light of our Anderson I opinion, Anderson had no basis for continuing
her attempts to intervene in the probate matter.
On December 6, 2022, the trial court conducted a hearing on
Anderson’s renewed petition and the Estate’s motion for protective order
directed toward Anderson’s attempt to take depositions. On December 8,
2022, the probate court entered an order granting the Estate’s motion for
protective order. And on December 14, 2022, deeming our Anderson I
opinion “law of the case,” the probate court entered an order denying
Anderson’s renewed petition. Anderson timely appeals both of these orders.
4 Our record indicates that the probate court did not adjudicate
Anderson’s pending rule 1.540(b)(2) motion of September 7, 2022.
II. Analysis
At the outset, we note that the parties do not seem to disagree with
the general notion that our holding in Anderson I would not preclude a
proponent of a lost will – whether that proponent be Anderson or someone
else – from seeking to establish the validity of a will that is different from the
one invalidated in the probate court’s August 17th order. Indeed, a lost will
may be presented to the probate court at any time before the discharge of
an estate. See § 733.207, Fla. Stat. (2022) (“Any interested person may
establish the full and precise terms of a lost or destroyed will and offer the
will for probate.”); § 733.208, Fla. Stat. (2022) (“No will or codicil may be
offered after the testate or intestate estate has been completely administered
and the personal representative discharged”). According to our record, to
date, the estate has not been closed.
The parties’ disagreement is premised upon whether Florida’s “law of
the case” doctrine applies so as to preclude Anderson from seeking to have
the so-called second lost will probated. The problem with Anderson’s
argument is that, irrespective of Anderson’s characterization of the
documents, at no point did Anderson seek to have probated a will that
5 differed in any meaningful way from the Lost Will that the probate court
concluded was invalid in its August 17th order. Put another way, Anderson’s
renewed petition did not seek to have the trial court probate a different will
from the one she initially unsuccessfully sought to have probated. Rather,
Anderson’s renewed petition merely continued her quest to have the Lost
Will admitted to probate; her unadjudicated rule 1.540(b)(2) motion is based
on her alleged discovery of “new evidence” that, she asserts, would establish
the validity of the Lost Will. Anderson’s renewed petition attached to it the
exact same document that was attached to Anderson’s initial November
2020 petition; and then, in a second swing of the bat Anderson filed another
document that is substantially the same except for two scrubbed signatures.
In other words, Anderson’s successive efforts produced no second lost will.
Under the unique circumstances presented in this case, the trial court
correctly determined that this Court’s Anderson I holding4 – concluding that
the August 17th order was a final appealable order that Anderson had failed
to appeal – effectively precluded Anderson’s successive attempt to have the
Lost Will probated. Anderson’s second attempt was successive because,
essentially, she presented the same will to the trial court that she presented
the first time, i.e., a will that the probate court, in its August 17th order,
4 Anderson I, 374 So. 3d at 69.
6 concluded was invalid. This Court’s determination in Anderson I that we
lacked appellate jurisdiction to review this final August 17th order rendered
that order’s invalidity finding “law of the case.” See Danforth v. Danforth, 363
So. 3d 242, 243 n.1 (Fla. 6th DCA 2023).
Finally, to the extent that Anderson assigns error to the probate court
for not adjudicating her September 7, 2022 rule 1.540(b)(2) motion, we
conclude that this motion was untimely, and therefore not cognizable. As
mentioned above, Anderson’s September 7, 2022 rule 1.540(b)(2) motion
asserted that “new evidence” would validate the Lost Will that the probate
court’s August 17th order determined was invalid. For her rule 1.540(b)(2)
motion to be cognizable, though, it had to have been filed within one year of
the rendition of the August 17th order,5 that is, on or before August 16, 2022.
Anderson’s September 7, 2022 rule 1.540(b) motion was therefore untimely
and not cognizable. See Linares v. Bank of Am., N.A., 278 So. 3d 330, 332
(Fla. 3d DCA 2019).
To circumvent this, Anderson argues that it was the reiterated intestacy
finding – contained in the September 8, 2021 order – that her September 7,
2022 rule 1.540(b)(2) motion sought to vacate, and therefore her motion was
5 A rule 1.540(b)(2) motion, based on the discovery of new evidence, must be filed within one year of the rendition of the final judgment sought to be vacated. Fla. R. Civ. P. 1.540.
7 timely. But, as we held in Anderson I, the reiterated intestacy finding
contained in the September 8, 2021 order did not create a new window of
jurisdictional opportunity. Anderson I, 374 So. 3d at 70 (“We . . . reject
Anderson’s suggestion that, by reiterating the August 17 order’s intestacy
finding in its September 8 order, the probate court somehow re-opened an
appellate window to allow for an untimely appeal of the intestacy finding
contained in the August 17 order.”). Rule 1.540(b) allows a trial court, in very
narrow, strictly enumerated instances, to revisit findings and holdings
contained in final orders and judgments. Balmoral Condo. Ass’n v. Grimaldi,
107 So. 3d 1149, 1151 (Fla. 3d DCA 2013). We decline Anderson’s invitation
to expand the scope of rule 1.540(b) to allow a challenge to a finding or
holding that is a mere reiteration of a finding or holding initially contained in
a previous order.6
6 Without deciding the issue, we note that Anderson’s September 8, 2022 rule 1.540(b)(2) motion may not have been cognizable for yet another reason: it is successive. Perez v. Saima Grp. Corp., 347 So. 3d 421, 422 (Fla. 3d DCA 2022) (“We are compelled to dismiss the appeal because we lack appellate jurisdiction to review an order denying a successive rule 1.540(b) motion where, as here, the grounds asserted in the successive motion were known to the movant at the time the movant filed the first rule 1.540(b) motion.”). While this Court was considering Anderson I, Anderson asked that we relinquish jurisdiction to allow the probate court to adjudicate her first rule 1.540(b) motion, filed on October 12, 2021, which we did. On January 11, 2022, the probate court entered its order denying Anderson’s first rule 1.540(b) motion, and Anderson then amended her Anderson I notice
8 III. Conclusion
We conclude that the probate court did not err (i) by applying Florida’s
law of the case doctrine to deny Anderson’s renewed petition to establish a
lost will, and (ii) by not adjudicating Anderson’s September 7, 2022 rule
1.540(b)(2) motion.
Affirmed.
of appeal to include this order. We affirmed the probate court’s January 11, 2022 order in Anderson I. See Anderson I, 374 So. 3d at 70.