IN RE THE ESTATE OF JAMES RIHA, DECEASED. ELSIE SACHA RIHA, WIDOW OF JAMES RIHA, DECEASED, APPELLANT,
v.
DORIS MAE SUE HARDING, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES RIHA, DECEASED, APPELLEE
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This case addresses whether a trial court properly entered a nunc pro tunc order granting an extension of time to file suit against an estate. The appellate court reversed because the order was entered without a prior order to correct, making it ineffective.
A nunc pro tunc order cannot be entered to create an order where none existed before. The June 8, 1978 nunc pro tunc order was defective because there was no prior order to correct. The trial court erred in entering this order, which effectively denied the extension appellant needed.
[1] A nunc pro tunc order may be used to correct the record of an order actually made but entered incorrectly or not at all, but cannot be used to create a new order or chang…
[2] A trial court errs in entering a nunc pro tunc order when there is no prior order for it to correct.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A court may enter an order nunc pro tunc to correct the record of an order actually made, which was either entered incorrectly in the court records or not entered at all.”
Establishes the proper use of nunc pro tunc orders to correct existing orders in the record.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a notice of claim against the Estate of James Riha. The personal representative objected to the claim. Appellant petitioned for an ext…
The full statement of facts, procedural history, and disposition for this case are member content.
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OTT, Judge.
Appellant filed a notice of claim against the Estate of James Riha, deceased. Appel-lee/personal representative filed an objection to the claim. Appellant thereupon filed a petition to extend the time period for filing suit provided under § 733.18(2), Fla.Stat. (1973). Hearing on the petition for extension of time was held on May 15, 1978. The hearing was not recorded or transcribed. On June, 8, 1978 the court entered a written order nunc pro tunc to May 15, 1978, granting appellant an extension until June 1, 1978 to file suit. Motion for rehearing was denied and this appeal followed.
A court may enter an order nunc pro tunc to correct the record of an order actually made, which was either entered incorrectly in the court records or not entered at all. DeBaun v. Michael, 333 So. 2d 106 (Fla. 2d DCA 1976). However, when the court wholly omits an order or wishes to change it, the new order cannot be entered nunc pro tunc. Nichols v. Walton, 82 Fla. 385, 90 So. 157 (1921); 56 Am.Jur.2d, Motions § 44.
The record on appeal does not disclose the entry of an order Until that of June 8, 1978. There is no prior order for the June 8th order to correct nunc pro tunc. Unfortunately, the order of June 8th grants an extension of time which appellant is already precluded from using. Although the trial court determined that an extension was warranted, the defective order effectively denied such an extension. Under the circumstances we hold that the trial court erred in entering the nunc pro tunc order of June 8, 1978.
We are aware that the appellant had the burden of showing a substantial reason which constitutes a legal excuse. In re Goldman’s Estate, 79 So. 2d 846 (Fla.1955); Exchange National Bank of Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976). Since the record of the hearing is not before us on appeal, we must assume that the trial court correctly found good cause for granting appellant an extension. South Florida Apartment Association, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977); Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961).
The order appealed is reversed and the case remanded with direction that appellant be allowed 15 days within which to file suit.
BOARDMAN, Acting C. J., and SCHEB, J., concur.
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Walley v. Fla. Game & Fresh Water Fish Comm'n, 501 So. 2d 671 (Fla. 1st DCA 1987)…sued an order of expungement nunc pro tunc pursuant to section 893.14(2) in response to appellant’s motion. A nunc pro tunc order can relate back only to supply a record of something actually done or determined at the earlier time. Riha v. Harding, 369 So. 2d 404 (Fla. 2d DCA 1979). The record before us contains no evidence that in 1974 the circuit court ever issued an order of expungement or that a motion for expungement was ever filed. The November 19, 1974 nunc pro tunc order issued in February 1983 could…
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Hunter v. Hunter, 487 So. 2d 1160 (Fla. 5th DCA 1986)…with jurisdiction in the 1983 proceeding. The divestment of jurisdiction is a change in substance, and not merely a correction of an omission, and thus is not within the proper realm of a nunc pro tunc order. See De Baun, supra; In Re Rika’s Estate, 369 So. 2d 404 (Fla. 2d DCA 1979); Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978); McKibbin v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980). For the foregoing reasons, the order dismissing the petition for modification is reversed and this case is remanded to…
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Domingo Rodriguez, Jr. v. Palm Beach Cnty. Div. of Animal Care & Control, 988 So. 2d 738 (Fla. 4th DCA 2008)…hite v. Marine Transport Lines, Inc., 372 So. 2d 81, 84 (Fla.1979). A nunc pro tunc order may be used to correct the record of an order actually made, but perhaps entered “incorrectly in the court records or not entered at all.” In re Riha’s Estate, 369 So. 2d 404, 404 (Fla. 2d DCA 1979); see also Robinson v. Tootalian, 691 So. 2d 52, 52 n. 1 (Fla. 4th DCA 1997) (holding “[ojrders are entered nunc pro [*739] tunc generally for the purpose of making effective a judicial act previously taken which is not appare…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of Genevieve Lorraine Livingston Goldman v. Jensen, 79 So. 2d 846 (Fla. 1955)
- Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961)
- Morton C. Nichols v. Walton, 82 Fla. 385 (Fla. 1921)
- S. Fla. Apt. Ass'n, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977)
- De Baun v. Michael, 333 So. 2d 106 (Fla. 2d DCA 1976)
- Exch. Nat'l Bank OF Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976)