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. 
2

Appellant Eva Maria Anderson appeals two probate court orders1 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.
3

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)
4

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. 
5

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 
6

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.
7

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.
8

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 
9

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.