IN RE THE ESTATE OF RICHARD KLOTZ, DECEASED. JOAN ELAINE CREPEAU, APPELLANT,
v.
RUTH PIKE, APPELLEE

Fla. 5th DCA | 1981-02-18
Nos. 79-113, 79-263
DAUKSCH, C. J. and COWART, J., concur.
394 So. 2d 509 Florida District Court of Appeal, Fifth District (1981) Positive Treatment
Cited by 4 cases

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Synopsis

An estate representative appealed an order granting a probate claimant's petition to enforce payment of a negligence claim against the estate. The Florida appellate court dismissed the appeal as premature because the order did not clearly determine liability—it merely granted the claimant a hearing to present her case—and the underlying civil suit was already pending to resolve that liability issue.


Holding

The appeal is premature and is dismissed sua sponte. The order does not appear to determine liability in favor of the claimant; rather, it grants a hearing for the claimant to present her case, with the actual liability determination likely to occur in the pending civil suit.


Headnotes

[1] An appeal under Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, is premature if the order appealed does not clearly determine liability in favor of a party…

[2] A claim against an estate is contingent if liability depends upon a future event that may or may not occur.

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Key Quotes

“A contingent claim such as that of appellant against an estate is one where the liability depends upon some future event which may or may not happen (i. e. in the the case sub judice, whether appellant prevails in her suit in the civil division) and, which, therefore, makes it wholly uncertain whether there ever will be liability.”

Establishes that Pike's claim was contingent because her right to recover depended on the outcome of the pending civil suit.

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Facts & Procedural History

Richard Klotz was killed in a 1978 automobile accident; passenger Ruth Pike was injured and subsequently sued Klotz's estate for negligence. Pike file…

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Opinion of the Court
FRANK D. UPCHURCH, Jr., Judge.

FRANK D. UPCHURCH, Jr., Judge.

Appellant, pursuant to rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, appeals an order granting a probate claimant’s petition to enforce payment of her claim. We dismiss sua sponte.

On April 29, 1978, Richard Klotz was killed and passenger Ruth Pike, appellee, was injured in an automobile accident which resulted from the alleged negligent operation of a motor vehicle driven by Klotz. On March 2, 1979, appellee instituted suit against appellant who was personal representative of the estate. Four days later, appellee filed a statement of claim against the Klotz estate. Appellant did not file a timely objection to the claim as provided in section 733.705, Florida Statutes (1979). Under this statute, appellant had four months from the first publication of notice of administration (January 14, 1979), within which to file an objection and this period expired on May 14,1979.1 Appellant did, however, file an answer in the civil suit which denied liability.

On July 24,1979, appellee filed a petition to enforce payment alleging that the claim was due and not contingent. Appellant responded to the petition alleging the existence of the suit. Copies of the pleadings were attached to the response.

The court, on August 22, 1979, entered the order appealed which provided:

[T]hat the claimant’s petition to enforce statement of her claim be and the same is hereby granted and an independent hearing shall be held wherein the claimant shall present her case in support of her claim.

The question we consider is whether an appeal will lie from this order. The instant claim was clearly contingent as appellee well knew. This is reflected by institution of suit even before filing her claim. In In re Estate of Shaw, 340 So. 2d 491, 492 (Fla.3d DCA 1976),2 the court declared:

A contingent claim such as that of appellant against an estate is one where the liability depends upon some future event which may or may not happen (i. e. in the the case sub judice, whether appellant prevails in her suit in the civil division) and, which, therefore, makes it wholly uncertain whether there ever will be liability.

We can only speculate as to whether the “independent hearing” specified in the order is the same as the “independent action” required by the statute 733.705(3), Florida Statutes (1979). The order also does not reflect whether the court intended only the question of damages to be determined in that hearing or whether the question of liability was also to be resolved.

The purpose of an objection as stated in Unger v. Hessen, 373 So. 2d 954 (Fla.3d DCA 1979), is to shorten the time within which a proceeding must be commenced. Therefore the requirement that appellant file an objection was an empty exercise and would accomplish nothing because the suit which the objection would precipitate was already in progress.

Appellant has brought this appeal under Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, which provides for review of non-final orders which determine liability in favor of a party seeking affirmative relief. While the parties, by their actions, have obviously concluded that liability has been determined, this does not appear from the record or the order appealed. The trial court may very well have intended the “independent hearing,” referred to in the order, to be the trial of the suit now in progress in which liability is in issue.

Therefore, we conclude that the appeal is premature and dismiss sua sponte.

DAUKSCH, C. J. and COWART, J., concur. . On August 21, 1979, appellant did file an objection to the claim and subsequently moved the court for an extension of time to permit the objection to be filed. The court denied this request. The time limitation prescribed in section 733.705(2), Florida Statutes (1979), for the filing of objections to claims may be relaxed upon a showing of “good cause.” Section 733.-705(3). See In re Estate of Sale, 227 So. 2d 199 (Fla. 1969); In re Estate of Dudley, 374 So. 2d 1111 (Fla. 4th DCA 1979). Here appellant has failed to produce facts establishing “good cause” which would have justified an extension.

. A timely objection had been filed in the cited case.


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Citator

Cited By

  • …ded) (citations omitted), quoting American Sur. Co. of N.Y. v. Murphy, 151 Fla. 151, 9 So. 2d 355, 357 (1942). See also Spohr v. Berryman, 589 So. 2d 225 (Fla.1991); Jones v. Sun Bank/Miami, N.A, 609 So. 2d 98 (Fla. 3d DCA 1992); In re Klotz Estate, 394 So. 2d 509 (Fla. 5th DCA 1981); In re Shaw’s Estate, 340 So. 2d 491 (Fla. 3d DCA 1976). The Supreme Court, recognizing the burden which actual notice places on estate administration, stated: Nor do we consider it unreasonable for the State to dispense with m…
  • Shessel v. Est. OF Mary Edith Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991)
    …— in which her estate was substituted as a party defendant and which indeed had gone to a judgment which is presently on appeal — fully satisfied that requirement. In re Estate of Brown, 421 So. 2d 752 (Fla. 4th DCA 1982); see In re Estate of Klotz, 394 So. 2d 509 (Fla. 5th DCA 1981); Cloer v. Shawver, 177 So. 2d 691 (Fla. 1st DCA 1965); see also Scutieri v. Estate of Revitz, 510 So. 2d 1003 (Fla. 3d DCA 1987), review denied, 519 So. 2d 986 (Fla.1988).…

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