         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5291
                  _____________________________

IN RE: ESTATE OF LARRY BUNDA

    Petitioner.

                  _____________________________

Petition for Writ of Certiorari—Original Jurisdiction.

                          April 16, 2019

PER CURIAM.

     Petitioner Amelia Bunda challenges the trial court’s decision
to vacate sua sponte its Order for Summary Administration in the
probate case involving her father, Larry Bunda. We grant the
petition.

                                 I.

     This case involves competing claims to the same property: a
$273,100 insurance check made payable to the estate of Larry
Bunda (hereinafter “Bunda”) and HomeQ Servicing Corporation as
a loss payee on the decedent’s home insurance policy. In 2013, the
check was transmitted to the Division of Unclaimed Property
within the Department of Financial Services (DFS). HomeQ
subsequently transferred its right under the policy to Ocwen Loan
Servicing. In 2016, Bunda’s three children filed a Petition for
Summary Administration requesting one-half of the insurance
check proceeds. The trial court then issued an Order for Summary
Administration authorizing the requested distribution. Global
Discoveries Ltd. (Global) then filed a claim for the proceeds with
DFS on behalf of Bunda’s children.
      Not long after, Ocwen filed a competing claim for the proceeds
with DFS. In August 2017, DFS issued a Notice of Intent stating
that it was going to enter a Final Order approving Ocwen’s claim to
the funds. In October 2017, DFS sent a letter to the trial court that
had entered the order authorizing the distribution of insurance
proceeds to Bunda’s heirs, regarding its own decision to award the
insurance proceeds to Ocwen. DFS expressed concern over the
conflict between its decision and the trial court’s Order for
Summary Administration and suggested that Florida Rule of Civil
Procedure 1.540 provided a possible solution. DFS attached a copy
of its Notice of Intent to the letter and copied Global’s counsel.

     In November 2017, the trial court issued an order setting aside
the Order for Summary Administration noting that
“[a]bnormalities [had] been identified in the estate file” and that
the “matter may be set for hearing should the parties wish to be
heard.”

                                 II.

    In order to qualify for certiorari relief, a petitioner must
demonstrate that the order at issue caused material injury that
cannot be corrected on appeal and departed from the essential
requirements of the law. Nader v. Fla. Dep’t of Highway Safety &
Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).1

     The material injury element requires a showing of “irreparable
harm.” See Fla. Gas Transmission Co., LLC v. City of Tallahassee,
230 So. 3d 912, 914 (Fla. 1st DCA 2017). Bunda’s heirs argue that
without the Order for Summary Administration, they will lose their
inheritance. Specifically, they point to the requirement that any
individual claiming entitlement to a decedent’s unclaimed property
must submit to DFS “[a] certified copy of a probate court order,
certified by the clerk of court identifying the beneficiaries and the
proportional entitlement of each to the estate.” Fla. Admin. Code R.
69G-20.0022(3)(a)2. We agree. By vacating sua sponte its Order for
Summary Administration, the trial court took away the heirs’


    1  We have jurisdiction to grant certiorari relief. Art. V,
§ 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(3).
                                 2
ability to make a claim for the proceeds under this rule in pending
administrative proceedings, causing irreparable harm.

     Bunda’s heirs argue that the trial court departed from the
essential requirements of the law when it vacated the Order for
Summary Administration without any legal basis and without
adequate notice to be heard. Florida Rule of Civil Procedure 1.540
allows a trial court to grant relief from final judgments, decrees, or
orders under certain circumstances.2 Rule 1.540, however, only
permits a trial court to sua sponte set aside a final order in cases of
clerical mistake. Fla. R. Civ. P. 1.540(a). There was no clerical
mistake here. Thus, the trial court’s order must fall within the
ambit of Rule 1.540(b). Rule 1.540(b), however, requires that the
trial court act on a motion from a party. Here, no party moved the
trial court to exercise its authority under Rule 1.540(b). DFS
conceded that it was not a party to the trial court’s probate
proceedings, so its letter could not provide the basis for the order.

    Rule 1.540(b), in most cases, limits a trial court’s ability to set
aside a final order to no more than one year after the final order
has been entered. The Order for Summary Administration was
entered on September 26, 2016. The trial court set aside the order
on November 15, 2017, more than a year later.3 Therefore, even if
there had been a motion from a party, the trial court had no
authority to sua sponte set aside the Order for Summary
Administration more than a year after it was entered.

     Additionally, Bunda’s heirs were not given any notification
from the trial court that it was considering setting aside the Order
for Summary Administration. The requirement that a final order

    2  The order vacating summary administration simply stated
that the “cause came before the Court on its own motion [and that]
[a]bnormalities [were] identified in the estate file,” without
identifying authority for the action. However, the unsolicited letter
from DFS stated that Rule 1.540 “provides a possible to [sic]
remedy.”

    3 A final order may be vacated beyond one year when it is void
or has already been discharged, released, or satisfied. Fla. R. Civ.
P. 1.540(b). This exception does not apply here.
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can be vacated only on the motion of a party gives other parties
notice and the opportunity to be heard. See Bayview Loan Servicing
v. Dzidzovic, 249 So. 3d 1265, 1267 (Fla. 2d DCA 2018) (reversing
an order that vacated a final judgment pursuant to Rule 1.540(b)
without hearing, and noting that “[d]ue process mandates that in
any judicial proceeding, the litigants must be afforded the basic
elements of notice and opportunity to be heard” (quoting E.I.
DuPont De Nemours & Co. v. Lambert, 654 So. 2d 226, 228 (Fla. 2d
DCA 1995)). See also Austin v. Austin, 120 So. 3d 669, 674-75 (Fla.
1st DCA 2013) (holding that the same due process requirements are
necessary before a party is “divested of his or her property”).
Bunda’s heirs were deprived of this right. We find that this
constitutes a departure from the essential elements of the law.

                               III.

     Under these circumstances, the Order To Set Aside Order For
Summary Administration departed from the essential
requirements of the law causing irreparable harm. Accordingly, we
grant the petition for writ of certiorari and quash the order under
review.

    GRANTED.

BILBREY and WINOKUR, JJ., concur; JAY, J., dissents without
opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael Farrar, Aventura, for Amelia Bunda.

Josephine A. Schultz, Senior Attorney, and Janine B. Myrick,
Senior Attorney, Department of Financial Services, Tallahassee,
for Department of Financial Services; James H. Wyman of Hinshaw
& Culbertson, LLP, Coral Gables, for Ocwen Loan Servicing, Inc.

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