IN RE ESTATE OF ROBERT P. MCLARTY, DECEASED. PAN AMERICAN BANK OF ORLANDO, ORLANDO, N.A., APPELLANT,
v.
NANCY J. MCLARTY, INDIVIDUALLY AND AS ADMINISTRATOR AD LITEM OF THE ESTATE OF ROBERT P. MCLARTY, DECEASED, APPELLEE
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Pan American Bank sought relief from a probate court order denying removal of the estate's personal representative, claiming newly discovered evidence. The Florida appellate court affirmed the denial, finding the bank failed to meet the strict requirements for either Rule 1.540 relief or common law writ of error coram nobis because the evidence had been in counsel's possession for months before the hearing.
The court held that Rule 1.540 relief was not available because actions to remove a personal representative are not adversary proceedings to which the Rules of Civil Procedure apply in probate matters. Additionally, the common law writ of error coram nobis was unavailable because the appellant failed to demonstrate that ordinary and reasonable care was exercised to discover the facts before judgment, as the evidence had been in counsel's possession for months.
[1] The Florida Rules of Civil Procedure apply in probate proceedings only as provided by the Probate and Guardianship Rules, and are generally applicable only in adversary p…
[2] An action to remove the personal representative of an estate is not an adversary proceeding to which the Rules of Civil Procedure are automatically made applicable.
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“the "newly discovered evidence" reposed in a file in the possession of counsel for appellant for some five months prior to the initial hearing and, as far as we can tell, at all pertinent times thereafter”
Establishes that the bank's counsel possessed the evidence long before the hearing, defeating the diligence requirement for relief.
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Join FLexlaw to unlock all legal intelligencePan American Bank filed a motion under Rule 1.540 (or alternatively a petition for writ of error coram nobis) seeking relief from a October 2, 1980 or…
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HERSEY, Judge.
On the basis of newly discovered evidence, appellant, by motion under Rule 1.540, Florida Rules of Civil Procedure, or in the alternative by petition for a common law writ of error coram nobis, unsuccessfully sought relief in the probate division from an order entered some months earlier by that court. This appeal followed. The record discloses that the “newly discovered evidence” reposed in a file in the possession of counsel for appellant for some five months prior to the initial hearing and, as far as we can tell, at all pertinent times thereafter. The order in the original action was entered on October 2, 1980. The petition for relief was filed nine months later. The order of October 2,1980 arose out of a probate proceeding on a petition to remove the personal representative of the estate.
Rule 1.540, specifically, and the Florida Rules of Civil Procedure, generally, apply in probate proceedings only as provided in the Probate and Guardianship Rules. Fla.R.P. & G.P. 5.010.
Pursuant to Rule 5.025(b)(2), the Rules of Civil Procedure are applicable in probate and guardianship matters only in adversary proceedings. Action to remove the personal representative of an estate is not an adversary proceeding to which the Rules of Civil Procedure are made applicable nor did the lower tribunal enter an order determining the matter to be an adversary proceeding. Fla.R.P. & G.P. 5.025.
Accordingly relief was not available under Rule 1.540, Florida Rules of Civil Procedure.
The office of the writ of error coram nobis is to bring to the attention of the court, for correction, an error of fact— one not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment challenged.
Lamb v. State, 91 Fla. 396, 107 So. 535, 538 (1926). See also State v. Woods, 400 So. 2d 456 (Fla.1981). To establish the sufficiency of an application for a writ of error coram nobis the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented entry of the judgment. Id. Further, it must be shown that the party seeking relief (and his counsel) exercised ordinary and reasonable care and diligence to discover all facts pertinent to the issue tried but could not have known of or ascertained the “new” facts before judgment was rendered or a motion for new trial made. Lamb, 107 So. at 535. Appellant’s petition falls far short of these requirements.
Accordingly, we need not and therefore do not determine whether a writ of error coram nobis, abolished by Rule 1.540, Florida Rules of Civil Procedure, remains a viable vehicle for review in probate proceedings to which the civil rules do not apply.
AFFIRMED.
DOWNEY and ANSTEAD, JJ., concur.
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Saundra D. Jones-Bishop v. Est. OF Catherine B. Sweeney, 27 So. 3d 176 (Fla. 5th DCA 2010)…8] a rule 1.540(b)(4)3 motion. The law provides that a rule 1.540(b)(4) motion may be brought in a probate proceeding where the circumstances warrant it. See Bostwick v. Cowan’s Estate, 326 So. 2d 454 (Fla. 1st DCA 1976); cf. In re McLarty’s Estate, 421 So. 2d 811 (Fla. 4th DCA 1982). However, in the instant case, there was no legal basis for the trial court to set aside the order of summary administration entered August 26, 2006, as the order was not void as asserted by the Appellee. Therefore, we remand to…
Authorities Cited
- Lamb v. State, 91 Fla. 396 (Fla. 1926)
- State v. Woods, 400 So. 2d 456 (Fla. 1981)