Third District Court of Appeal

State of Florida 

Opinion filed August 31, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-2021

Lower Tribunal No. 20-4641

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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 and Eric 

Salvatore Giunta (Hollywood), for appellant.

Solomon Appeals, Mediation & Arbitration, and Donna Greenspan 

Solomon (Ft. Lauderdale), for appellee.

Before SCALES, LINDSEY and LOBREE, JJ. 

SCALES, J.
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Appellant Eva Maria Anderson, the decedent’s step-granddaughter,

appeals two orders of the probate court: (i) a September 8, 2021 order 

determining the homestead status of the residence of decedent Mario 

Quintero (“September 8 order”); and (ii) a January 11, 2022 order that denied 

both Anderson’s Florida Rule of Civil Procedure 1.540(b) motion to vacate 

the September 8 order and Anderson’s motion to strike the personal 

representative’s statement regarding creditors (“January 11 order”). 

Because Anderson challenges only that portion of the September 8 order 

that merely reiterates an intestacy determination made in a prior order that 

was not timely appealed, we affirm the September 8 order, and dismiss, for 

lack of jurisdiction, Anderson’s appeal of the reiterated intestacy finding. We 

affirm that portion of the January 11 order denying Anderson’s rule 1.540(b)

motion. We lack jurisdiction to adjudicate, and therefore, also dismiss that 

portion of Anderson’s appeal of the January 11 order that denied Anderson’s 

motion to strike the personal representative’s statement regarding creditors.

I. Relevant Background

Mario Quintero died on October 16, 2020. On November 19, 2020, one 

of Quintero’s daughters, Maria McGowan, filed a petition for administration 

of Quintero’s estate, seeking appointment as the estate’s personal 

representative. Four days later, on November 23, 2020, Anderson filed a 
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purported will, claiming it to be Quintero’s will. This will is not fully dated, 

showing only the year 2017, and is not witnessed, although it is signed and

notarized.1 Anderson then filed her petition to establish a lost or destroyed 

will, alleging that the document she had earlier filed was Quintero’s will, and 

that Quintero had signed it on October 26, 2017, before two people identified 

by Anderson as having witnessed Quintero’s signature. McGowan filed an 

objection to Anderson’s petition. The probate court ultimately appointed 

McGowan as the personal representative, the two witnesses were deposed, 

and, on July 16, 2021, Anderson filed an amended petition for lost or 

destroyed will, attaching the transcripts of the two witnesses’ depositions. 

On August 11, 2021, the probate court conducted an evidentiary 

hearing on Anderson’s amended petition, and, on August 17, 2021, it

rendered an order adjudicating Anderson’s amended petition. (“August 17 

order”). The operative portion of the August 17 order reads as follows: “1. 

The Amended Petition for Establishment and Probate of Lost or Destroyed 

Will . . . is hereby DENIED without prejudice. 2. The probate case shall 

1 As the probate court observed, though, the notary stamp shows an April 

30, 2022 expiration. The partial 2017 execution date, therefore, is 

problematic because a notary commission lasts only four years. See §

117.01(1), Fla. Stat. (2017).
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proceed intestate.” Anderson did not appeal, nor did she seek rehearing of, 

the August 17 order. 

On August 6, 2021, the personal representative filed a petition in the 

probate court seeking a determination that Quintero’s residence was his 

homestead. On August 23, 2021, the personal representative filed a 

statement regarding creditors in which the personal representative identified 

no creditors of the estate. On September 15, 2021, the personal 

representative filed a petition for discharge to which Anderson, the next day, 

filed an objection. 

The probate court rendered the challenged September 8 order2 in 

which the probate court specifically identified the issue being adjudicated by 

the order as the personal representative’s petition “for an order determining 

homestead status of real property.” While this September 8 order determined 

only that the subject property was the decedent’s homestead, the order 

reiterated the determination the probate court had made earlier – in its 

August 17 order – that the decedent died intestate. Specifically, the 

September 8 order provides: “1. The decedent died intestate and was 

domiciled in Miami-Dade County, Florida.”

2 Our record does not reflect a hearing date related to the September 8 order.
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Anderson appealed this September 8 order on October 8, 2021, and, 

on October 12, 2021, Anderson also filed in the probate court a Florida Rule

of Civil Procedure 1.540 motion seeking to vacate the portion of the 

September 8 order reciting that the decedent had died intestate. This motion 

also sought to strike the personal representative’s statement regarding 

creditors (“October 12 motion”). We relinquished jurisdiction to allow the 

probate court to adjudicate the October 12 motion. On December 23, 2021, 

the probate court conducted a hearing on Anderson’s October 12 motion 

and, subsequently, entered the unelaborated January 11 order denying this

motion. Anderson then amended her appeal also to challenge the January 

11 order.

II. Analysis

A. The appeal of the September 8 order and that portion of the January 

11 order denying Anderson’s rule 1.540(b) motion.

While Anderson’s amended notice of appeal identifies the challenged 

order as the September 8 order that determined the decedent’s property as 

homestead, Anderson's principal argument on appeal is that the probate

court erred when, in its August 17 order, it denied Anderson’s amended 

petition for lost or destroyed will and, concomitantly, found that the decedent 

died intestate.
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The August 17 order, though, was an appealable final order. Fla. R. 

App. P. 9.170(b)(3).3 Anderson neither sought rehearing of, nor did she 

appeal, the August 17 order. Because Anderson did not appeal the August 

17 order, we lack appellate jurisdiction to review the probate court’s intestacy 

determination contained in that order. Cordero v. Washington Mut. Bank, 241 

So. 3d 967, 968 (Fla. 3d DCA 2018).

 Anderson argues that, notwithstanding rule 9.170(b)(3)’s clear and 

unambiguous language, the probate court's use of the term “without 

prejudice” in the August 17 order converted this otherwise appealable final 

order into a non-appealable, non-final order. Anderson suggests that due 

process considerations require us to review that portion of the September 8 

order that merely reiterated the August 17 order’s determination of 

Anderson’s amended petition to establish a lost or destroyed will. We 

disagree.

This is not a situation where the trial court dismissed a complaint 

without prejudice, giving the plaintiff leave to file an amended complaint. In 

3 Rule 9.170(b)(3) reads, in pertinent part, as follows: “[A]ppeals of orders 

rendered in probate . . . cases shall be limited to orders that finally determine 

a right or obligation of an interested person as defined in the Florida Probate 

Code. Orders that finally determine a right or obligation, include, but are not 

limited to, orders that . . . determine a petition for probate of a lost or 

destroyed will[.]” 
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this case, after conducting an evidentiary hearing on her amended petition,

the probate court adjudicated Anderson’s amended petition and denied it; no 

further judicial labor was required, and no leave to file a second amended 

petition either was requested by Anderson or granted by the probate court. 

The August 17 order’s “without prejudice” language did not subvert the 

finality of the order. See Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 

452 (Fla. 1st DCA 1993) (holding that the dismissal of an action “without 

prejudice” is final when “the intent of the order is to bring to an end the judicial 

labor in the action”); see also Franklin v. Bank of Am., N.A., 202 So. 3d 923,

926 (Fla. 1st DCA 2016) (observing that when “leave to amend” is not stated 

in an order, then “without prejudice” can indicate the end of judicial labor); 

Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286, 1288 (Fla. 4th DCA 

2004).4

We similarly 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. The issue 

before the probate court – resulting in the rendition of the September 8 order 

4 The probate court’s informal remark to Anderson’s counsel at the August 

11th hearing that Anderson could try to “find something else” did not 

transform the August 17 order into a non-final order.
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– was whether the decedent’s real property constituted his homestead; the 

September 8 order did not adjudicate the intestacy issue. We have been 

provided no authority that suggests the mere recitation of an adjudication

previously determined in an appealable final order revives the appellate 

review period of the previously adjudicated issue. Because the intestacy 

finding was determined in the August 17 order – an appealable final order 

that Anderson failed to appeal in a timely manner – we are without 

jurisdiction to review this reiterated intestacy determination.5 See Cordero,

241 So. 3d at 968 (“The appeal from the [subsequent] order, while timely on 

its face, is nevertheless without merit. . . . An untimely appeal of a prior order 

cannot be revived by obtaining a new order to the same effect as the original 

and then filing the notice of appeal within thirty days of that most recent 

order.”).

We, therefore, affirm the homestead determination of the September 

8 order, and dismiss, for lack of jurisdiction, that portion of Anderson’s appeal 

5 To be clear, the homestead determination contained in the September 8 

order is appealable under rule 9.170(b)(13), which expressly provides for 

appellate review of orders that determine the homestead status of real 

property. But, as we state above, Anderson’s appeal does not challenge the 

probate court’s determination that the decedent’s residence was homestead. 

Rather, Anderson’s appeal of the September 8 order is an ineffective and 

untimely backdoor challenge of the August 17 order denying her amended 

petition to establish a lost or destroyed will. 
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seeking review of the September 8 order’s mere recitation of the August 17 

order’s intestacy determination. 

As for that portion of the probate court’s January 11 order denying her 

rule 1.540(b) motion (contained in Anderson’s October 12 motion), 

Anderson’s arguments are the same as those made in her challenge to the 

September 8 order. Citing the due process concerns discussed above, 

Anderson argues that the trial court abused its discretion by not vacating that 

portion of the September 8 order that reiterated the August 17 order’s 

intestacy finding. For the reasons discussed above, we conclude that the 

trial court did not abuse its discretion6 by declining to vacate the portion of 

the September 8 order that reiterated the intestacy determination of the 

August 17 order.7

B. The appeal of that portion of the January 11 order denying Anderson’s 

motion to strike the personal representative’s statement regarding 

creditors

6 “The denial of a motion for relief from final judgment under Florida Rule of 

Civil Procedure 1.540(b) is reviewed for an abuse of discretion.” Noel v. 

James B. Nutter & Co., 232 So. 3d 1112, 1115 (Fla. 3d DCA 2017).

7 We express no opinion as to whether the probate court erred in entering 

the August 17 order, as the determinations made in this order are not before 

us.
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Finally, we dismiss for lack of jurisdiction Anderson’s appeal of the

portion of the January 11 order that denied her motion to strike the personal 

representative’s statement regarding creditors. The personal 

representative’s statement regarding creditors merely advised the probate 

court that a notice to creditors was published and that, to date, the personal 

representative had not yet identified creditors who had not filed a timely claim 

against the estate or had their claim included in the personal representative’s 

proof of claim. The probate court’s unelaborated January 11 order simply 

denied Anderson’s motion to strike the personal representative’s statement. 

The order did not determine with finality, per rule 9.170(b), “a right or 

obligation of an interested person as defined in the Florida Probate Code” 

and its subject matter is not included in rule 9.170(b)’s schedule of 

appealable probate orders. See N. Tr. Co. v. Abbott, 313 So. 3d 792, 795 

(Fla. 2d DCA 2021) (“Comparing the subject order to the litany of orders in 

rule 9.170(b), the subject order lacks what the other orders share in common 

– finality.”).

Affirmed in part, dismissed in part.