Public Health Trust of Dade County v. Kempster

• Decision Date: 01 November 1983
• Docket Number: No. 82-2440,82-2440
• Parties: The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, Appellant, v. James S. KEMPSTER, Personal Representative of the Estate of Nancy Kempster, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 1023

439 So.2d 1023

The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, Appellant, v. James S. KEMPSTER, Personal Representative of the Estate of Nancy Kempster, Deceased, Appellee.

No. 82-2440.

District Court of Appeal of Florida, Third District.

Nov. 1, 1983.

Robert A. Ginsburg, Dade County Atty., and Eric K. Gressman, Asst. County Atty., for appellant.

Ralph F. Miles, Hialeah, for appellee.

Before HUBBART and NESBITT and JORGENSON, JJ.

PER CURIAM.

The order under review is reversed upon a holding that: (a) the said order, in effect, modifies a final order of distribution in a probate proceeding, (b) the said order was entered in response to a petition for reimbursement of funeral expenses filed by the personal representative of the estate herein, which petition was untimely as a motion for rehearing under Fla.R.P. & G.P. 5.020(d) and was not a motion to vacate under Fla.R.Civ.P. 1.540(b) as the civil rules of procedure were never invoked in this case, see Fla.R.P. & G.P. 5.025(b); and (c) the trial court, accordingly, had no authority to enter said order. Shelby Mutual Insurance Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); Fidelity & Casualty Co. of New York v. Palomino, 394 So.2d 448 (Fla. 3d DCA), pet. for review denied, 402 So.2d 609 (Fla.1981); Al Springer Roofing Co. v. Flagler Federal Savings & Loan Ass'n of Miami, 357 So.2d 478, 479 (Fla. 3d DCA 1978).

Reversed and remanded with directions to vacate the order under review.