Third District Court of Appeal
State of Florida
Opinion filed October 21, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D23-1545
Lower Tribunal No. 21-2070-CP-02
E.M.A., et al.,
Appellants,
vs.
In Re: Estate of Malcolm Joel Dorman, et al.,
Appellees.
No. 3D24-2322
Lower Tribunal No. 21-2070-CP-02
Melissa Azrack, etc.,
Appellant,
vs.
John M. McDonald, etc.,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jose Luis Fernandez and Jorge E. Cueto, Judges.
The Ferraro Law Firm, P.A., and Leslie B. Rothenberg; Barry S. Franklin & Associates, P.A., and Barry S. Franklin, for appellants.
Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Bruce A. Katzen, Lauren Fallick and Madeleine E. Gross; Lawson Huck Gonzalez, PLLC, and Alan Lawson, Paul C. Huck, Jr., Samuel J. Salario, Jr., Jason Gonzalez, and Jessica Slatten and Robert E. Minchin III (Tallahassee), for appellees.
Before GORDO, LOBREE and BOKOR, JJ.
BOKOR, J.
In these related appeals, appellant Melissa Azrack, on behalf of a
minor child (E.M.A., the nominal appellant in the related proceeding),
challenges a final judgment in a probate proceeding determining the
homestead status of a decedent’s property, as well as post-judgment orders
denying her motions to vacate or reconsider that judgment.1 She does not
challenge the homestead determination itself, but rather the court’s threshold
finding that the decedent was not the father of her child and thus that the
child could have no entitlement to the alleged homestead in any event.
Because this framing is fatal to Azrack’s appeal of the paternity portion of the
judgment, we are constrained to affirm on that issue. To the extent Azrack
1
This opinion addresses two appeals consolidated for the purposes of traveling together (3D23-1545 and 3D24-2322) and arising from the same lower court case, 21-2070-CP-02. Because the arguments are functionally identical, we refer to appellants collectively as “Azrack.”
2
appeals the portion of the judgment that purportedly applies to Azrack
individually, we conclude that such issue is moot and we therefore dismiss.
We also dismiss to the extent she attempts to appeal unauthorized postjudgment orders.
I
The decedent, Malcolm Dorman, died in March 2021. His personal
representative, John McDonald, petitioned for administration of Dorman’s
estate, including his multiple homes. Prior to his death, Dorman had
attempted to conceive a child with Azrack via a sperm donor agreement, and
in 2017, Azrack gave birth to a daughter, E.M.A. That agreement expressly
provided that Azrack would be the only intended parent of any resultant child
and that Dorman surrendered any parental rights he may retain.
Nonetheless, Dorman still represented himself as being the child’s biological
father in his will and on various occasions prior to his death. Dorman’s will
also made several specific devises to E.M.A. and a trust for which the child
was a beneficiary.
After his death, Azrack filed the underlying petition to determine the
homestead status of one of Dorman’s properties, located at 443 Ocean
Boulevard, Golden Beach, Florida, alleging that Dorman intended to devise
this property to his trust for benefit of E.M.A. She filed and litigated this
3
petition in her capacity “as parent, natural guardian and next friend” of E.M.A.
McDonald, on behalf of the Estate, argued in opposition that the property
was not Dorman’s homestead, but in any event, Dorman was neither the
legal nor biological parent of E.M.A., so the child could take no benefit from
the homestead determination.
The final judgment on Azrack’s petition was predicated on two
independent conclusions. The court initially evaluated the evidence of the
child’s paternity and found that Dorman was neither the legal nor biological
parent of E.M.A., as the sperm donor agreement was valid and precluded
his retaining any rights as legal parent, and Azrack had not presented
sufficient evidence to demonstrate that Dorman was the biological father or
had otherwise acknowledged paternity. So the court found that the child was
not Dorman’s heir for homestead purposes. The court alternatively found that
even if the child were Dorman’s, the Golden Beach property was not
Dorman’s protected homestead, so the child would not benefit from the
property in any case. The court thus entered judgment in favor of the Estate
and against Azrack, “individually, as parent, next friend, guardian, and
guardian of the property of E.M.A.”
After Azrack directly appealed this judgment, she also brought a
motion to disqualify the trial judge, which was eventually granted in May
4
2024. Following the disqualification, Azrack moved to vacate the homestead
judgment, per Fla. R. Civ. P. 1.540(b), or to reconsider various evidentiary
findings underpinning it, per Fla. R. Gen. Prac. & Jud. Admin. 2.330(j). The
successor judge denied both motions, finding both that the motions were
unauthorized in a non-adversarial probate proceeding, and that Azrack had
not shown an entitlement to relief regardless. Azrack separately appealed
the omnibus order denying her post-judgment motions.
II
A
Initially, we agree with the Estate that we lack jurisdiction to consider
the second appeal (3D24-2322) because the post-judgment motions at issue
were unauthorized here. Orders on motions for reconsideration are non-final
and not reviewable separately from review of the final order. See Fla. R. App.
P. 9.130(a)(4). “Orders entered on an authorized and timely motion for relief
from judgment are reviewable,” but only where such motion is actually
“authorized.” Fla. R. App. P. 9.130(a)(5). Azrack claims her motion to vacate
the judgment was authorized under rule 1.540 and was thus appealable
under rule 9.130(a)(5). But the underlying proceeding is a probate case
governed by the Florida Probate Rules, which expressly state that “[t]he
Florida Rules of Civil Procedure apply only as provided” in the Probate Rules.
5
Fla. Prob. R. 5.010. Accordingly, we have held that “Florida Rule of Civil
Procedure 1.540 [is] not available in a non-adversary probate proceeding
because it was not provided for within the Florida Probate Rules.” In re Est.
of Arroyo v. Infinity Indem. Ins. Co., 211 So. 3d 240, 244 (Fla. 3d DCA 2017)
(citing Zayas-Hood v. Jusino, 44 So. 3d 626 (Fla. 1st DCA 2010)).
Azrack does not dispute that there was no declaration of adversary
proceeding below, nor has she proffered any authority suggesting that the
trial court was required to make such declaration here. See Fla. Prob. R.
5.025(c) (“The court may determine any proceeding to be an adversary
proceeding at any time.” (emphasis added)). Accordingly, the successor
judge correctly found that rule 1.540 was inapplicable, and Azrack’s motion
was unauthorized and unappealable. And to the extent Azrack alternatively
argues that our jurisdiction could be derived from Fla. R. App. P. 9.170, that
rule is also inapplicable to non-final orders. See Fla. R. App. P. 9.170(b)
(“Except for proceedings under rule 9.100 and rule 9.130(a), appeals of
orders rendered in probate and guardianship cases will be limited to orders
that finally determine a right or obligation of an interested person as defined
in the Florida Probate Code.” (emphasis added)); Giller v. Giller, 319 So. 3d
690, 691 (Fla. 3d DCA 2021) (dismissing as to probate court order that “is
not among the nonexclusive list of appealable probate orders enumerated in
6
the Rule” and did not “finally determine a right or obligation of an interested
person”).
Accordingly, finding no jurisdiction, we dismiss the appeal of the postjudgment orders on the motions to vacate and for reconsideration.
B
Next, we affirm to the extent Azrack challenges the paternity portion of
the judgment, as the outcome of the judgment rests on the unchallenged,
independent ground of the homestead determination. It is well-established
that when a trial court’s judgment is supported by the evidence or by an
alternative theory, we must affirm. See Dade Cnty. Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 645 (Fla. 1999). And when an appellant fails to
address an issue in its initial brief, that issue is waived on appeal. See, e.g.,
Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011). Accordingly, “[w]hen a
decision is based on more than one independent ground and the initial brief
challenges only one, we must affirm.” Mirlalda v. Mitchell, 423 So. 3d 951,
951 (Fla. 6th DCA 2025) (quotation omitted); see also Fla. Virtual Sch. v.
Calfee, 425 So. 3d 78, 83 (Fla. 6th DCA 2025) (affirming where appellant
“fails to address an independent ground . . . on which the trial court relied”).
Here, Azrack challenges the trial court’s finding that E.M.A. was neither
the legal nor biological child of the decedent, as well as various evidentiary
7
rulings underpinning those findings. But those findings were not made in a
vacuum. The crux of Azrack’s claim below, and the issue on appeal, is
entitlement to homestead property. And the failure to challenge the
homestead determination is fatal to that appeal. In this context, any
determination that Azrack failed to meet her burden to establish paternity is,
at most, harmless error not contributing to the outcome of the judgment. See,
e.g., Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (“To
test for harmless error, the beneficiary of the error has the burden to prove
that the error complained of did not contribute to the verdict. Alternatively
stated, the beneficiary of the error must prove that there is no reasonable
possibility that the error contributed to the verdict.”); Larkins v. Mendez, 363
So. 3d 140, 145 n.4 (Fla. 3d DCA 2023) (applying harmless error rule to legal
error in probate proceeding).
III
Last, Azrack claims that the trial court erred by entering judgment
against her in her individual capacity. Specifically, the judgment’s recitation
of facts described Azrack as the Petitioner, “individually, as parent, next
friend, guardian, and guardian of the property of E.M.A.,” and found the
Estate entitled to recover attorney fees and costs from said “Petitioner.”
8
To the extent the judgment purports to encompass Azrack individually,
we find no error. The record reflects that Azrack interjected herself into the
proceedings through personal-capacity filings in the underlying probate
case, seeking a determination of validity of the sperm donor agreement to
which she is a party. As this court has explained, a party to the contract is
“indispensable to any claim seeking . . . rescission.” Fireman’s Ins. Co. of
Newark, N.J. v. Vento, 586 So. 2d 89, 90 (Fla. 3d DCA 1991). Alternatively,
even if Azrack hadn’t interjected herself into the underlying proceedings, we
would dismiss this portion of the appeal as both moot and premature. The
order on appeal addresses E.M.A.’s entitlement to homestead property, an
issue which does not affect Azrack. See Guerrier v. LendingHome Funding
Corp., 348 So. 3d 577, 577 (Fla. 3d DCA 2020) (dismissing appeal “for lack
of standing because the order appealed does not pertain to Appellant or
affect Appellant’s rights in any manner”). And to the extent that there may be
some future event, such as potential personal liability for attorneys’ fees,
such a contingency is not before us because the mere entitlement to
attorneys’ fees is a nonfinal, nonappealable order that Azrack may not now
appeal in either her personal or representative capacity. See Acosta v. Tower
Hill Signature Ins. Co., 245 So. 3d 882, 883 (Fla. 3d DCA 2018) (“[W]e are
without jurisdiction to address the portion of the appeal relating to attorney’s
9
fees . . . . because no amount has been fixed by the trial court and the part
of the final judgment that finds entitlement thereto is not ripe for our review.”
(quoting Diaz v. Citizens Prop. Ins. Corp., 227 So. 3d 735, 736–37 (Fla. 3d
DCA 2017))).
IV
These appeals and related proceedings have been before the court for
years. The amount of motion practice, hearings, and legal work expended in
the underlying case and related appeals spawning from that matter is
extraordinary. But, at bottom, the trial court issued a thoughtful legal ruling
and finding of facts, determining the salient issues based on straightforward
application of contract terms, statutory principles, and an exhaustive review
of the relevant facts. We discern no error. So, for the reasons explained
above, we affirm as to the issues properly before us and dismiss the rest.
Affirmed in part, dismissed in part.
10