FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

 Case No. 5D22-1369

LT Case Nos. 2019-CP-058938

 2011-CP-053637

 2012-CP-024994

_____________________________

GEORGE DORA, as Personal 

Representative of the ESTATE OF 

MARY ROSE MORRISON, the

surviving spouse of PAUL 

DOUGLAS MORRISON, and as CoTrustee of the MARY ROSE AND

DOUGLAS MORRISON FAMILY 

TRUST, et al. 

Appellants, 

v. 

MARC MORRISON, as Co-Trustee 

of the MARY ROSE AND DOUGLAS 

MORRISON FAMILY TRUST, U/A/D 

10/05/2007, JULIE MORRISON 

POIRIER, et al.

Appellees.

_____________________________

On appeal from the Circuit Court for Brevard County. 

Morgan Laur Reinman, Judge. 

Jennifer Kerkhoff, St. Petersburg, for Appellant, George 

Dora. 

Laurel A. Nugent, Rockledge, for Appellants, Lauren 

Johnson, Alexis Johnson, and Christopher Johnson. 
2

Alec Russell, of Gray Robinson, P.A., Melbourne, for Appellee,

Marc Morrison. 

R. Lee McElroy, of Downey McElroy, P.A., Palm Beach Gardens,

for Appellee, Gould Cooksey Fennell, PLLC.

Matthew G. Hawk, of Sugarman Law, LLP, Atlanta, GA., for 

Appellee, Julie Morrison Poirier. 

March 8, 2024

KILBANE, J.

George Dora (“Trustee Dora”), as personal representative of 

Mary Rose Morrison’s estate and co-trustee of the Mary Rose and 

Douglas Morrison Family Trust (“Family Trust”), and Lauren, 

Alexis, and Christopher Johnson (collectively “Appellants”), 

appeal an order granting Marc Morrison’s (“Trustee Morrison”), as 

co-trustee of the Family Trust, motions to strike petition to 

determine homestead status of real property.1 On appeal, 

Appellants argue, inter alia, that the trial court erred because the 

Florida Rules of Civil Procedure do not apply in non-adversary

probate proceedings. We find that Appellants are judicially 

estopped from asserting this argument. However, Appellants also 

argue that the motions to strike were procedurally deficient. We 

agree and reverse.

Facts

In 2011, Mary Rose and Paul Douglas Morrison, a married 

couple, passed away. They both had adult children from previous 

marriages, and together they owned residential property in 

Melbourne, Florida (“the Subject Property”). Years prior to their 

1 Julie Morrison Poirier and Gould Cooksey Fennell, PLLC, 

are parties to this appeal along with Trustee Morrison and are 

collectively referred to as “Appellees.”
3

death, they transferred title of the Subject Property to the Family 

Trust.

In 2013, Trustee Morrison and Trustee Dora, as co-trustees of 

the Family Trust, filed a verified complaint for partition and sale 

of the Subject Property in lieu of partition. The trial court entered 

a final order granting the co-trustees’ uncontested motion for 

partition and sale in lieu of partition and approved the sale of the 

Subject Property.

In 2021, Mary Rose Morrison’s adult children–Lauren, Alexis, 

and Christopher Johnson–filed petitions to determine homestead 

status of the Subject Property. They essentially argued that 

Florida’s homestead protections were improperly applied to the 

Subject Property because it was still owned as tenancy by the 

entireties property. Trustee Dora joined the proceedings, as 

personal representative of Mary Rose Morrison’s estate and cotrustee of the Family Trust, on the side of the Johnsons.

Trustee Morrison filed motions to strike the petitions to 

determine homestead status of real property or for more definite 

statement. The motions to strike did not identify which rule of 

civil procedure authorized their filing but argued various reasons 

why the petitions should be stricken including res judicata, 

collateral estoppel, lack of standing, lack of jurisdiction, and 

statute of limitations. The motions to strike were not verified or 

supported by an affidavit.

Prior to the hearing on Trustee Morrison’s motions to strike, 

Appellants moved to consolidate the probate cases with three 

pending trust cases pursuant to Florida Rule of Civil Procedure 

1.270. Two of the pending trust cases were filed in the circuit civil 

division. The motion to consolidate was contested but ultimately

granted.

Subsequently, the trial court held a hearing on Trustee 

Morrison’s motions to strike, the transcript of which is not 

provided on appeal. The court granted the motions and struck the 

petitions in their entirety. The court found, inter alia, that the 

property was not held as tenancy by the entireties, the facts 

alleged did not support a finding that the Subject Property did not 
4

constitute protected homestead, and the petitioners were 

otherwise time barred and lacked standing. The court’s order did 

not mention any rule of civil procedure, and it made no indication 

that the pleadings were a sham.

Analysis

A. Judicial Estoppel

When analyzing a probate case, “[t]he characterization of the 

proceedings is critically important for it determines which rules of 

court shall govern.” In re Est. of Brown, 310 So. 3d 1131, 1132 (Fla. 

2d DCA 2021) (quoting In re Beeman’s Est., 391 So. 2d 276, 278 

(Fla. 4th DCA 1980)). “[R]ule 5.080(a) identifies rules of civil 

procedure that are applicable to all probate proceedings. Those 

rules pertain primarily to discovery, subpoenas, and depositions.” 

Id. (citing Fla. Prob. R. 5.080(a)). Rule 1.270, Consolidation; 

Separate Trials, is not one of the rules of civil procedure

enumerated in probate rule 5.080(a). Aside from rule 1.525, for 

the remainder of the rules of civil procedure to apply in probate

cases, the proceeding must either be a listed adversary proceeding 

or declared an adversary proceeding. See Fla. Prob. R. 5.025.

Here, the underlying petitions are two petitions to determine 

homestead status of real property. Such a petition is not a listed 

adversary proceeding. See Fla. Prob. R. 5.025(a). Consequently, 

the proceedings needed to be declared adversary in order for the 

rules of civil procedure not listed in probate rule 5.080(a) to apply. 

Such a declaration did not occur.

However, beginning with the motion to consolidate, the

parties carried on as if the proceedings were adversary. While an 

appellate court will not ordinarily apply the adversary proceeding 

label for the first time on appeal, an exception exists in cases of 

waiver or estoppel. In re Beeman’s Est., 391 So. 2d at 278. Here, 

the doctrine of judicial estoppel prevents Appellants from now 

taking the position that the rules of civil procedure should not have 

applied to the motions to strike.

“Judicial estoppel provides that ‘[o]ne who assumes a 

particular position or theory in a case is judicially estopped in a 
5

later phase of that same case, or in another case, from asserting 

any other or inconsistent position toward the same parties and 

subject matter.’” Whittingham v. HSBC Bank USA, NA as Tr. for 

Holders of Deutsche Alt-A Sec. Mortg. Loan Tr., Series 2007-OA1, 

275 So. 3d 850, 852 (Fla. 5th DCA 2019) (alteration in original) 

(quoting In re Adoption of D.P.P., 158 So. 3d 633, 639 (Fla. 5th 

DCA 2014)). In Florida, there are four elements to judicial 

estoppel:

[1] A claim or position successfully maintained in a

former action or judicial proceeding [2] bars a party from

making a completely inconsistent claim or taking a

clearly conflicting position . . ., [3] to the prejudice of the

adverse party, [4] where the parties are the same in both

actions, subject to the “special fairness and policy

considerations” exception to the mutuality of parties

requirement.

Id. (alteration in original) (quoting Salazar-Abreu v. Walt Disney 

Parks & Resorts U.S., Inc., 277 So. 3d 629, 631 (Fla. 5th DCA 

2018)). “[J]udicial estoppel ‘protects the integrity of the judicial 

process and prevents parties from making a mockery of justice by 

inconsistent pleadings and playing fast and loose with the courts.’” 

Anfriany v. Deutsche Bank Nat’l Tr. Co. for Registered Holders of 

Argent Sec., Inc., Asset-Backed Pass-Through Certifs., Series 2005-

W4, 232 So. 3d 425, 427 (Fla. 4th DCA 2017) (quoting Grau v. 

Provident Life & Accident Ins. Co., 899 So. 2d 396, 400 (Fla. 4th 

DCA 2005)).2 

2 We note that application of the doctrine of judicial estoppel 

may be invoked at the discretion of the court because it is 

“intended to prevent ‘improper use of judicial machinery.’” See

New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting

Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980)); see 

also Davis v. District of Columbia, 925 F.3d 1240, 1256 (D.C. Cir. 

2019) (“[T]he doctrine is not only a defense; because it also protects 

the integrity of the judicial process, a court may invoke judicial 

estoppel ‘at its discretion.’” (quoting New Hampshire, 532 U.S. at 

750)).
6

In their motion for rehearing and on appeal, Appellants argue 

that motions to strike were not permissible below because the 

proceedings were non-adversary probate proceedings. Typically, 

Appellants would be correct, and that argument would carry the 

day. Neither of the proceedings in which the motions were filed 

had been declared adversary and there is no similar probate rule 

under which Appellees could have been traveling. See In re Est. of 

Brown, 310 So. 3d at 1132 (finding rule 1.420(a), providing for 

voluntary dismissal of actions, inapplicable to non-adversary 

probate proceeding); In re Est. of Arroyo v. Infinity Indem. Ins. Co., 

211 So. 3d 240, 244–46 (Fla. 3d DCA 2017) (finding probate court 

erred and abused discretion when it improperly applied rule 1.230, 

providing for interventions, to non-adversary probate proceeding). 

However, this position is inconsistent with Appellants’ successful 

motion to consolidate pursuant to rule 1.270, a rule which also does

not apply in non-adversary proceedings. See Fla. Prob. R. 5.080(a).

Appellants urged the trial court to consolidate probate cases 

with circuit civil cases pursuant to rule 1.270. Appellants pursued 

consolidation for both discovery and trial, detailing the scathing 

nature of the litigation between and among the several parties 

involved here, over the opposition of Appellees, who relied on rule 

1.270 to support their own position against consolidation for trial 

purposes. Once Appellants were granted their consolidation 

request in toto and only after having their petitions stricken did 

Appellants contest the applicability of the rules of civil procedure

on rehearing, which was then noticeably filed pursuant to probate 

rule 5.020(d).

As such, Appellants would gain an unfair advantage derived 

from a clearly conflicting position asserted for the first time at 

rehearing if not judicially estopped. See Anfriany, 232 So. 3d at

428 (explaining that prejudice occurs when “the party seeking to 

assert an inconsistent position would derive an unfair advantage 

or impose an unfair detriment on the opposing party if not 

estopped” (quoting Grau, 899 So. 2d at 400)). This conduct is the

“playing fast and loose with the courts” judicial estoppel is 

designed to prevent. Up until the motion for rehearing, the parties 

acted as though this was an adversary probate proceeding, so we 

review the propriety of the motions to strike pursuant to the rules 
7

of civil procedure as though these were adversary probate 

proceedings.

B. Motions to Strike

A lower court’s ruling on a motion to strike is reviewed for an 

abuse of discretion. Belson v. Miller, 314 So. 3d 525, 527 (Fla. 3d 

DCA 2020) (citing Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So. 

2d 942, 944 (Fla. 5th DCA 2005)). “Because striking a pleading is 

an extreme measure, it is disfavored in the law.” Bridge, 910 So. 

2d at 944 (citing Yunger v. Oliver, 803 So. 2d 884, 886 (Fla. 5th 

DCA 2002)).3

Florida Rules of Civil Procedure 1.150 and 1.140(f) address

motions to strike. Rule 1.150 exists for the purpose of striking a 

“sham pleading.” See Fla. R. Civ. P. 1.150. Under rule 1.150(b), a 

“motion to strike shall be verified and shall set forth fully the facts 

on which the movant relies and may be supported by affidavit.” A

motion to strike filed pursuant to rule 1.140(f) is used to strike 

redundant, immaterial, impertinent, or scandalous matter from 

any pleading, and it contains no verification requirement. See Fla. 

R. Civ. P. 1.140(f).

Here, neither the motions to strike nor the trial court’s order 

identifies which rule of civil procedure authorized the court to 

strike the petitions.

4 Nonetheless, “rule 1.150 is the only rule that 

authorizes the striking of an entire pleading.” Bridge, 910 So. 2d 

at 945 (citing Decker v. Cnty. of Volusia, 698 So. 2d 650, 651 (Fla. 

3 Appellees argue that our review is precluded because 

Appellants failed to provide a transcript from the hearing below. 

Our review is not precluded despite the lack of a hearing 

transcript. See, e.g., Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 

1994) (“[T]he appellate court is authorized to reverse a judgment 

as a matter of law where an error of law is apparent on the face of 

the judgment.” (citing Casella v. Casella, 569 So. 2d 848, 849 (Fla. 

4th DCA 1990))).

4 The probate rules contain no parallel rules that would 

authorize a motion to strike.
8

5th DCA 1997)).

5 We previously rejected the argument that rule 

1.140(f) “provides a mechanism for striking a pleading that 

proposes to ‘re-hash’ prior issues, causes of action, or previously 

adjudicated arguments.” Id. The petitions in this case similarly 

sought to “re-hash” prior issues. Under these circumstances and 

because the motions sought to strike the entire pleading, they had 

to have been filed and subsequently granted pursuant to rule 

1.150, and verification was required. See id.; Fla. R. Civ. P. 

1.150(b).6

Moreover, the trial court’s order made several factual findings

without making a determination that the petitions were a sham. 

This is not the purpose of a hearing on a motion to strike. See

Bridge, 910 So. 2d at 944–45. “For a trial court ‘to justify the 

striking of a pleading for being sham or false it must be so 

undoubtedly false as not to be subject to a genuine issue of fact.’” 

Bornstein v. Marcus, 169 So. 3d 1239, 1242 (Fla. 4th DCA 2015) 

(quoting Meadows v. Edwards, 82 So. 2d 733, 735 (Fla. 1955)). 

“The fact that a court may perceive little prospect in the success of 

an alleged sham proceeding is not a sufficient ground to grant a 

motion to strike the pleading.” Gleman v. MWH Ams., Inc., 309 

So. 3d 681, 684 (Fla. 4th DCA 2021) (quoting Sunex Int’l Inc. v. 

Colson, 964 So. 2d 780, 782 (Fla. 4th DCA 2007)). And “[n]either 

5 Decker based its reasoning on the plain language of the 

applicable rules. See 698 So. 2d at 651 & n.1. Rule 1.150(a) states 

in pertinent part that “[i]f a party deems any pleading or part 

thereof filed by another party to be a sham, that party may move 

to strike the pleading or part thereof,” (emphasis added), while rule 

1.140(f) states that “[a] party may move to strike or the court may 

strike redundant, immaterial, impertinent, or scandalous matter 

from any pleading at any time.” (emphasis added).

6 We are aware of Varnadoe v. Union Planters Mortgage 

Corp., 898 So. 2d 992 (Fla. 5th DCA 2005). We question its 

viability but need not reach that issue here. In Varnadoe, the trial 

court expressly relied on rule 1.140(f), and this Court affirmed 

because “the entire pleadings were wholly irrelevant” to the cause 

of action. Id. at 993. Here, the trial court did not rely on rule 

1.140(f) and the pleadings were not wholly irrelevant.
9

the failure to include all the essential elements of a cause of action, 

the inclusion of redundant allegations, nor the frivolous nature of 

a pleading constitute sufficient grounds to strike a pleading in its 

entirety under the rule.” Bridge, 910 So. 2d at 944 (quoting Decker, 

698 So. 2d at 652).

Accordingly, we reverse the trial court’s order and remand for 

further proceedings. We do not reach the merits of any other issue 

raised on appeal and express no opinion regarding the merits of 

the petitions.

REVERSED AND REMANDED.

LAMBERT and SOUD, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________