MARLIN B. ARKY, EXECUTOR, PERSONAL REPRESENTATIVE OF THE ESTATE OF STEPHEN W. ARKY, DECEASED, APPELLANT,
v.
CONNIE J. HARRIS, SUPERINTENDENT, DIVISION OF SAVINGS & LOAN ASSOCIATIONS, STATE OF OHIO, APPELLEE
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The court affirmed a circuit judge's decision to extend the time for filing notice of an independent action in an estate proceeding, finding no abuse of discretion when the action was commenced timely in the same court and the personal representative had actual notice and agreed to accept service.
The court found no abuse of discretion. The circuit judge properly extended the filing deadline under the statute's 'good cause' provision, especially given that the independent action was filed timely in the same court and the personal representative had actual notice and consented to accept service.
[1] A circuit judge presiding in an estate matter does not abuse discretion by extending the time to file a notice of institution of an independent action when the action is…
[2] A court may extend the time for filing an independent action and its notice after an objection to a claim is filed, for good cause shown.
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Join FLexlaw to unlock all legal intelligence“We find no abuse of discretion by a circuit judge, who is presiding in an estate matter, extending the time to file the notice of institution of an independent action required by Section 733.705(3), Florida Statutes (Supp.1984), particularly when the independent action is commenced timely in the same court, and counsel for the personal representative had actual notice of the action within thirty days of the rejection of the claim and he agreed to accept service of the independent action.”
Establishes the core holding that the circuit judge did not abuse discretion in granting the extension under the specific circumstances.
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Join FLexlaw to unlock all legal intelligenceStephen W. Arky's estate was the subject of a claim that was rejected. A claimant attempted to institute an independent action but sought an extension…
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PER CURIAM.
We find no abuse of discretion by a circuit judge, who is presiding in an estate matter, extending the time to file the notice of institution of an independent action required by Section 733.705(3), Florida Statutes (Supp.1984),1 particularly when the independent action is commenced timely in the same court, and counsel for the personal representative had actual notice of the action within thirty days of the rejection of the claim and he agreed to accept service of the independent action. See and compare In Re Estate of Sale, 227 So. 2d 199 (Fla.1969); In Re Estate of Jeffries, 136 Fla. 410, 181 So. 833 (1938); Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986); In Re Estate of Oxford, 372 So. 2d 1129 (Fla. 2d DCA 1979); Mautner v. Loman, 353 So. 2d 632 (Fla. 3d DCA 1978); Turner v. Myers, 332 So. 2d 635 (Fla. 3d DCA 1976). Furthermore, the personal representative is required to file a notice when a civil action has been instituted by or against the personal representative in the estate matter. See Rule 5.065(a) Fla. R.P. & G.P.2 Therefore, the order under review is affirmed.3
Affirmed.
. The statute in part reads as follows:
"(3) The claimant is limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim and within which to file written notice of such action in the estate proceeding. For good cause, the court may extend the time for filing an objection to any claim or may extend the time for serving the objection, and may likewise extend the time for filing an action or proceeding, and filing notice of the action or proceeding, after objection is filed ...”
. The rule reads in part as follows:
"(a) Civil action. A personal representative and a guardian shall file a notice when a civil action has been instituted by or against the personal representative or the guardian...."
. This opinion is not to be construed as ruling on the necessity for any such notice when the independent action is pending in the same court, or whether the Legislature had the authority to enact Section 733.705(3), Florida Statutes (Supp.1984) providing for the independent notice. See in this connection Ricciardelli v. Faske, 505 So. 2d 487 (Fla. 3d DCA 1987).
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Dohnal v. Syndicated Offs. Sys., 506 So. 2d 1138 (Fla. 2d DCA 1987)…Goldman’s Estate, 79 So. 2d 846 (Fla.1955), to district court cases of In Re Estate of Oxford, Johnson v. Estate of Fraedrick, 472 So. 2d 1266 (Fla.3d DCA 1985), Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986), and Arky v. Harris, 504 So. 2d 813 (Fla. 3d DCA 1987). Each of these cases appears to turn on what the court determined was good cause, together with a consideration of the prejudice that an estate might suffer, and the amount of time that elapsed in filing the motion for extension o…
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In re Est. OF Victor Hammer v. James R. Knott Ad Litem of the Estate of Victor J. Hammer, 511 So. 2d 708 (Fla. 4th DCA 1987)…red two decisions which have raised serious reasons to question the correctness of Golden as authority for the proposition that dismissal would be proper in this case. See Ricciardelli v. Faske, 505 So. 2d 487 (Fla. 3d DCA 1987), and Arky v. Harris, 504 So. 2d 813 (Fla. 3d DCA 1987). Appellee next argues from Poincier v. State, Department of Health and Rehabilitative Services, 284 So. 2d 463 (Fla. 3d DCA 1973) that the civil court judge, as differentiated from the probate judge, cannot grant the extension of…
Authorities Cited
- In re Est. of J. B. Jeffries, 136 Fla. 410 (Fla. 1938)
- In re Est. of Henrietta S. Sale, 227 So. 2d 199 (Fla. 1969)
- R.W. Williams and Lois W. Mize v. The Est. OF Roy Levon Williams, 493 So. 2d 44 (Fla. 5th DCA 1986)
- Bruzzese v. State, 372 So. 2d 1129 (Fla. 4th DCA 1979)
- Ricciardelli v. Faske, 505 So. 2d 487 (Fla. 3d DCA 1987)
- Dorothea Chase Turner v. Myers, 332 So. 2d 635 (Fla. 3d DCA 1976)
- Mautner v. Loman, 353 So. 2d 632 (Fla. 3d DCA 1977)