Rule 1.540 Only Allows Relief for Motions Filed Within a Year or Less

Posted on January 23, 2017

In Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016) Ernest Steele is the personal representative of his father’s estate. He appealed the trial court’s 2007 order determining the homestead status of property previously owned by his father.

In 2015 Steele’s sister Pansy Brown sought to vacate the 2007 homestead order claiming that it was incorrect and deprived her of an additional 1/15th vested interest in the property. Herman Steele died intestate in 1996, and was survived by his wife and five children. At the time, Mr. Steele owned and lived on 18 contiguous acers. After he died, his wife continued to live in the family home for years before the family agreed to probate Mr. Steele’s estate in 2006. The family was pressured to probate the estate after the State condemned a portion of the property in order to widen an existing road.  In 2006, Ernest Steele was the personal representative of his father’s estate filed four petitions in conjunction with the State’s taking of the land. Since Mr. Steele’s surviving wife and children, including Ms. Brown, waived service of all objections to the petitions and consented to the requested relief the trial court thus granted the petitions in 2007. The court sent copies of the orders to the beneficiaries via the postal service and the condemnation proceeds were distributed in accordance with the estate and family’s wishes. The family nor Ms. Brown sought a rehearing, challenged the issue, or appealed the orders.

In November 2015, Ms. Brown finally objected and filed a revocation of her 2007 waiver and consent. Ms. Brown additionally filed a verified petition to correct the 2007 order determining homestead status because she believed that the order should contain a description of the 18-acre property as homestead property rather than just the acer that was designated in the 2007 agreed upon petition and order. The trial court agreed with Ms. Brown and immediately set aside the 2007 homestead order while the parties entered into litigation.

The estate opposed this argument and appealed. The estate argued that the court had no basis to set aside the 2007 order determining homestead under Florida Rules of Civil Procedure 1.540. On the other hand, Ms. Brown asserts that the court did have authority under the same rule. The court agreed with the estate on this argument holding that there is not a sufficient basis to set aside the 2007 order for two reasons. First, under Rule 1.540(a) relief can be granted for clerical errors, which there are none in this case. Second, Rule 1.540(b)  Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. states “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.” Unfortunately, relief can only be granted under (1)-(3) if a motion is filed a year or less after the initial order. In our case, it was eight years before Ms. Brown opposed the order and sought relief.

Finally, the appellate court determined that the trial court did not have the inherent authority to set aside the 2007 homestead order as if it were a non-final order. Bettez v. City of Miami, 510 So.2d 1242, 1243 (Fla. 3d DCA 1987). The 2007 homestead order constituted an appealable, final and the rules consider probate orders to be appealable, final orders if they determine an interest persons. Any objection or appeal to the final order made in 2007 in which the court determined the boundaries of the homestead and the comparative interest of the Estate’s beneficiaries and additionally distributed proceeds from the condemnation proceedings had to be done in 2007, not eight years later. Leaving this issue open to review would “broadly upset the probate code’s goal of quickly and finally accomplishing the settlement of estates.”

“[I]n probate there can be a number of orders entered at different times on contested issues which finally determine the rights of interested persons. These adversary proceedings are like lawsuits, but can be concluded long before final discharge. Our appellate rules recognize this distinction for purposes of appeal. Florida Rule of Appellate Procedure 9.110(a)(2) allows final appeals to be taken “from orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” In re Estate of Clibbon, 735 So.2d 487, 489 (Fla. 4th DCA 1998)”

The appellate court thus concluded that “because the 2007 order determining homestead status constituted an appealable, final order, it could not be vacated in 2015 as a simple exercise of the trial court’s discretion, in the absence of establishing a Rule 1.540-based rationale for relief.” Therefore, the trial courts order vacating the 2007 order determining homestead status has been reversed.  

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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