NICHOLAS PICCHIONE, D/B/A NICHOLAS PICCHIONE & CO., APPELLANT,
v.
ROBERT ASTI, EARL DEMARIS AND DEMETRA DEMARIS, CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF ALFRED DEMARIS, DECEASED, APPELLEES
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Summary judgment for the estate was proper because the plaintiff failed to file a claim against the estate as required by statute and did not raise estoppel as a defense. The constitutionality of the statute could not be raised for the first time on appeal.
The plaintiff failed to file a claim against the estate of Alfred DeMaris within the statutory period. The plaintiff did not assert estoppel as a defe…
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[*955] PER CURIAM.
This is an appeal from a summary final judgment entered in an action against the estate of Alfred DeMaris upon the basis that the plaintiff was barred from proceeding with the action because of his failure to file a claim in the estate pursuant to Section 733.702, Florida Statutes (1975). The fact of the plaintiff’s failure was established on the record. The only suggested issue of fact is that the estate was estopped to assert the statute. See Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961). No reply upon the basis of estoppel was asserted. See Fla.R.Civ.P. 1.100. Plaintiff produced nothing in opposition to the motion for summary judgment. Therefore, summary judgment was properly entered.
A second point presented by appellant urges the unconstitutionality of Section 733.702, Florida Statutes (1975). The plaintiff did not challenge the constitutionality of the statute in the trial court and, therefore, cannot raise the question for the first time on this appeal. Sanford v. Rubin, 237 So. 2d 134 (Fla.1970).1
Affirmed.
. It is noted that if the constitutionality of the statute had been properly raised, the proper appeal would have been to the Supreme Court of Florida. See Art. V, § 3(b)(1), Fla.Const.
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David R. MAY Ad Litem of the Estate of Oscar T. Bradley v. Ill. Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000)…ely claims. The estate must file a motion to strike or other objection to an untimely claim. If the creditor wishes to raise the issue of estoppel or fraud he may file a reply pursuant to Florida Rule of Civil Procedure 1.100. See Picchione v. Asti, 354 So. 2d 954 (Fla. 3d DCA 1978). This procedure guarantees that claims such as fraud and estoppel are properly adjudicated. Barnett Bank, 493 So. 2d at 449. In light of such holding, we reinstated the probate court’s order requiring the personal representative…
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Barnett Bank OF Palm Beach Cnty. v. Est. OF Leon Henry Read, Jr., 493 So. 2d 447 (Fla. 1986)…is a statute of limitations which the estate waived by its failure to object. We hold that section 733.702 is a statute of limitations. Accord, Harbour House Properties, Inc. v. Estate of Stone, 443 So. 2d 136 (Fla. 3d DCA 1983); Picchione v. Asti, 354 So. 2d 954 (Fla. 3d DCA 1978); Stern v. First National Bank, 275 So. 2d 58 (Fla. 3d DCA 1973). Similarly, other cases have used the nonclaim terminology when referring to section 733.702 and its predecessors, but have treated the statute as a statute of limita…1 / 2
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Jones v. SUN Bank/Miami, N.A., 609 So. 2d 98 (Fla. 3d DCA 1992)…mant to seek an [*101] order enlarging the time to file her claim, either by filing a written motion or a written reply to the Motion to Strike. Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla.1986) citing Picchione v. Asti, 354 So. 2d 954 (Fla. 3d DCA 1978). “5. The Co-Administrators’ moved ore tenus for the Court to dispense with any further hearing and for the entry of an order that the claim was time-barred due to the failure of the Claimant to file a motion or response requestin…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961)