E.M.A., ET AL.

v.

IN RE: ESTATE OF MALCOLM JOEL DORMAN, ET AL.

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

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 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

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.

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 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 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.”

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 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.