IN RE: Estate of Larry Bunda v. . , 268 So. 3d 255 ( 2019 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-5291
    _____________________________
    IN RE: ESTATE OF LARRY BUNDA
    Petitioner.
    _____________________________
    Petition for Writ of Certiorari—Original Jurisdiction.
    April 16, 2019
    PER CURIAM.
    Petitioner Amelia Bunda challenges the trial court’s decision
    to vacate sua sponte its Order for Summary Administration in the
    probate case involving her father, Larry Bunda. We grant the
    petition.
    I.
    This case involves competing claims to the same property: a
    $273,100 insurance check made payable to the estate of Larry
    Bunda (hereinafter “Bunda”) and HomeQ Servicing Corporation as
    a loss payee on the decedent’s home insurance policy. In 2013, the
    check was transmitted to the Division of Unclaimed Property
    within the Department of Financial Services (DFS). HomeQ
    subsequently transferred its right under the policy to Ocwen Loan
    Servicing. In 2016, Bunda’s three children filed a Petition for
    Summary Administration requesting one-half of the insurance
    check proceeds. The trial court then issued an Order for Summary
    Administration authorizing the requested distribution. Global
    Discoveries Ltd. (Global) then filed a claim for the proceeds with
    DFS on behalf of Bunda’s children.
    Not long after, Ocwen filed a competing claim for the proceeds
    with DFS. In August 2017, DFS issued a Notice of Intent stating
    that it was going to enter a Final Order approving Ocwen’s claim to
    the funds. In October 2017, DFS sent a letter to the trial court that
    had entered the order authorizing the distribution of insurance
    proceeds to Bunda’s heirs, regarding its own decision to award the
    insurance proceeds to Ocwen. DFS expressed concern over the
    conflict between its decision and the trial court’s Order for
    Summary Administration and suggested that Florida Rule of Civil
    Procedure 1.540 provided a possible solution. DFS attached a copy
    of its Notice of Intent to the letter and copied Global’s counsel.
    In November 2017, the trial court issued an order setting aside
    the Order for Summary Administration noting that
    “[a]bnormalities [had] been identified in the estate file” and that
    the “matter may be set for hearing should the parties wish to be
    heard.”
    II.
    In order to qualify for certiorari relief, a petitioner must
    demonstrate that the order at issue caused material injury that
    cannot be corrected on appeal and departed from the essential
    requirements of the law. Nader v. Fla. Dep’t of Highway Safety &
    Motor Vehicles, 
    87 So. 3d 712
    , 721 (Fla. 2012).1
    The material injury element requires a showing of “irreparable
    harm.” See Fla. Gas Transmission Co., LLC v. City of Tallahassee,
    
    230 So. 3d 912
    , 914 (Fla. 1st DCA 2017). Bunda’s heirs argue that
    without the Order for Summary Administration, they will lose their
    inheritance. Specifically, they point to the requirement that any
    individual claiming entitlement to a decedent’s unclaimed property
    must submit to DFS “[a] certified copy of a probate court order,
    certified by the clerk of court identifying the beneficiaries and the
    proportional entitlement of each to the estate.” Fla. Admin. Code R.
    69G-20.0022(3)(a)2. We agree. By vacating sua sponte its Order for
    Summary Administration, the trial court took away the heirs’
    1  We have jurisdiction to grant certiorari relief. Art. V,
    § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(3).
    2
    ability to make a claim for the proceeds under this rule in pending
    administrative proceedings, causing irreparable harm.
    Bunda’s heirs argue that the trial court departed from the
    essential requirements of the law when it vacated the Order for
    Summary Administration without any legal basis and without
    adequate notice to be heard. Florida Rule of Civil Procedure 1.540
    allows a trial court to grant relief from final judgments, decrees, or
    orders under certain circumstances.2 Rule 1.540, however, only
    permits a trial court to sua sponte set aside a final order in cases of
    clerical mistake. Fla. R. Civ. P. 1.540(a). There was no clerical
    mistake here. Thus, the trial court’s order must fall within the
    ambit of Rule 1.540(b). Rule 1.540(b), however, requires that the
    trial court act on a motion from a party. Here, no party moved the
    trial court to exercise its authority under Rule 1.540(b). DFS
    conceded that it was not a party to the trial court’s probate
    proceedings, so its letter could not provide the basis for the order.
    Rule 1.540(b), in most cases, limits a trial court’s ability to set
    aside a final order to no more than one year after the final order
    has been entered. The Order for Summary Administration was
    entered on September 26, 2016. The trial court set aside the order
    on November 15, 2017, more than a year later.3 Therefore, even if
    there had been a motion from a party, the trial court had no
    authority to sua sponte set aside the Order for Summary
    Administration more than a year after it was entered.
    Additionally, Bunda’s heirs were not given any notification
    from the trial court that it was considering setting aside the Order
    for Summary Administration. The requirement that a final order
    2  The order vacating summary administration simply stated
    that the “cause came before the Court on its own motion [and that]
    [a]bnormalities [were] identified in the estate file,” without
    identifying authority for the action. However, the unsolicited letter
    from DFS stated that Rule 1.540 “provides a possible to [sic]
    remedy.”
    3 A final order may be vacated beyond one year when it is void
    or has already been discharged, released, or satisfied. Fla. R. Civ.
    P. 1.540(b). This exception does not apply here.
    3
    can be vacated only on the motion of a party gives other parties
    notice and the opportunity to be heard. See Bayview Loan Servicing
    v. Dzidzovic, 
    249 So. 3d 1265
    , 1267 (Fla. 2d DCA 2018) (reversing
    an order that vacated a final judgment pursuant to Rule 1.540(b)
    without hearing, and noting that “[d]ue process mandates that in
    any judicial proceeding, the litigants must be afforded the basic
    elements of notice and opportunity to be heard” (quoting E.I.
    DuPont De Nemours & Co. v. Lambert, 
    654 So. 2d 226
    , 228 (Fla. 2d
    DCA 1995)). See also Austin v. Austin, 
    120 So. 3d 669
    , 674-75 (Fla.
    1st DCA 2013) (holding that the same due process requirements are
    necessary before a party is “divested of his or her property”).
    Bunda’s heirs were deprived of this right. We find that this
    constitutes a departure from the essential elements of the law.
    III.
    Under these circumstances, the Order To Set Aside Order For
    Summary Administration departed from the essential
    requirements of the law causing irreparable harm. Accordingly, we
    grant the petition for writ of certiorari and quash the order under
    review.
    GRANTED.
    BILBREY and WINOKUR, JJ., concur; JAY, J., dissents without
    opinion.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Michael Farrar, Aventura, for Amelia Bunda.
    Josephine A. Schultz, Senior Attorney, and Janine B. Myrick,
    Senior Attorney, Department of Financial Services, Tallahassee,
    for Department of Financial Services; James H. Wyman of Hinshaw
    & Culbertson, LLP, Coral Gables, for Ocwen Loan Servicing, Inc.
    4
    

Document Info

Docket Number: 17-5291

Citation Numbers: 268 So. 3d 255

Filed Date: 4/16/2019

Precedential Status: Precedential

Modified Date: 4/16/2019