Brogan v. Mullins, 84-243

Citation452 So.2d 940
Decision Date24 May 1984
Docket NumberNo. 84-243,84-243
PartiesPauline BROGAN, Personal Representative of the Estate of Jimmy Kenneth Rainey, Deceased, Petitioner, v. Terri Joyce Rainey MULLINS, Jimmy Kenneth Rainey, Jr., and Margaret Dell Rainey-Moore, Respondents.
CourtCourt of Appeal of Florida (US)

Edwin D. Davis, II, South Daytona, for petitioner.

William N. Gambert, Daytona Beach, for respondents.

COBB, Judge.

The petitioner, Pauline Brogan, as personal representative of the Estate of Jimmy Kenneth Rainey, deceased, seeks a writ of certiorari (alternatively, a writ of prohibition) to review an order of the trial court rendered on January 18, 1984. The record before us shows that the respondents, children of the decedent by a prior marriage, filed separate statements of claim against his estate on November 1, 1982. They failed to file an action on these claims against the estate until December 5, 1983, thereby running afoul of the applicable statute of limitations, section 733.709, Florida Statutes (1981). 1

The estate raised the issue of the statute of limitations and the trial court conducted a hearing thereon on January 10, 1984. At that hearing the attorney for the claimants, respondents herein, contended that there had been continuing negotiations with counsel for the estate but not fraudulent misrepresentations. The evidence was uncontroverted that the personal representative did not authorize or negotiate a settlement at any time. Counsel for the claimants merely asserted that, in good faith, he expected the claims to be settled and that was why no court action had been filed within the limitation of one year. At the conclusion of the evidentiary hearing, the trial court denied the motion to dismiss and set the case for trial on the merits of the claims.

The respondents relied primarily on three cases in their argument to the trial court relating to the statute of limitations: State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950); Capital Bank v. Schuler, 421 So.2d 633 (Fla. 3d DCA 1982); and Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). These cases clearly do not support the respondents' position that mere negotiations, absent fraud or misrepresentation inducing reliance, toll the running of a statute of limitations. More to the point is Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), which rejected the continuing treatment doctrine (analogous to continuing negotiations).

This petitioner, understandably uncertain of his procedural remedy for review, has sought alternative relief via certiorari or prohibition. 2 Since the former is discretionary, 3 we first consider the latter. The petitioner cites to no authority in civil case law to support invocation of the remedy of prohibition where the trial court erroneously rejects an affirmative defense based on an applicable statute of limitations. Previously, we have held that prohibition is a proper appellate remedy when the state seeks to prosecute a criminal case after the statute of limitations has expired. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA), review denied, 389 So.2d 1108 (Fla.1980). Prior Florida Supreme Court cases support that conclusion. See Reino v. State, 352 So.2d 853 (Fla.1977) and State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974).

Justice Alderman, in his special concurrence in Sherrod v. Franza, 427 So.2d 161 (Fla.1983), persuasively sets forth the rationale for rejecting prohibition as an available remedy in cases wherein the trial judge rules on a factual issue; in that case, whether or not the speedy trial rule entitled the defendant to discharge. Nevertheless, the majority held otherwise. There is no logical distinction in regard to jurisdiction (hence, prohibition) between a civil court and a criminal court after expiration of an applicable statute of limitations. If prohibition lies in one case, it must lie in the other.

We therefore issue the writ of prohibition and direct the dismissal of the Respondents' various petitions for payment of claim. 4

WRIT GRANTED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

It is claimed that grievous judicial error occurred in this case when the personal representative of an estate orally urged the trial judge to summarily apply a statute of limitations (§ 733.709, Fla.Stat. (1981)) and to summarily deny a petition for payment of claims against an estate and the trial court entered a non-final order declining to summarily deny the petition and ordering the petition and claims to be set for a final hearing. The personal representative seeks review of the non-final order by an extraordinary remedy of either prohibition or certiorari.

PROHIBITION: The basic question in every prohibition case is one of jurisdiction and a writ of prohibition should not issue if the inferior tribunal has the requisite jurisdiction although it may have committed or is about to commit reversible error. 1

Prohibition is an extraordinary remedy that is concerned with the jurisdiction of the trial court to act and should not be used to circumvent the rule limiting appeals of non-final orders. 2 When a trial court has subject matter jurisdiction and that jurisdiction has been properly invoked and perfected over the person of the defendant or the res involved in the suit by proper service of proper process, the trial court does not lose jurisdiction because of any ruling it makes whether that ruling is correct or not. 3 Neither the running of a statute of limitations nor an erroneous ruling relating thereto deprive a trial court of jurisdiction. Insofar as legal practice and procedure is concerned the statute of limitations is merely an affirmative defense and whether it is asserted or not or whether the trial court correctly or incorrectly refuses to rely on it to summarily deny a petition for payment of a claim in an estate, the jurisdiction of the court is not involved or affected.

Reino v. State, 352 So.2d 853 (Fla.1977), involved a petition for writ of prohibition in the Supreme Court of Florida and the issue of whether first degree murder offenses committed between the date the United States Supreme Court effectively struck down the death penalty and the date the Florida legislature reenacted the death penalty were capital crimes not subject to the statute of limitations or noncapital crimes subject to the two year statute of limitations in criminal cases. The supreme court predicated its jurisdiction on article V, section 3(b)(4), Florida Constitution, 1972. At that time that subsection of the constitution authorized the supreme court to "issue writs of prohibition to courts and commissions in causes within the jurisdiction of the supreme court to review" and the review of criminal "capital" cases was peculiarly within that language. 4 Since Reino this particular subsection of the constitution was revised in the 1980 amendment to the constitution and is now section 3(b)(7). The change in the language may or may not be relevant here. Of course, district courts of appeal have jurisdiction to issue writs of prohibition. 5 However, the question here is not one of jurisdiction of the court but the propriety of the remedy. This involves the proper scope of the remedy of prohibition. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980), review denied, 389 So.2d 1108 (Fla.1980), cited Reino broadly for the proposition that when the State seeks to prosecute after the statute of limitations has expired, the proper method to prevent the prosecution is by prohibition. In this case the majority extends Reino and Carcaise to a ruling involving a statute of limitations in a civil probate case. This is another example of a court considering a substantive issue of law without specifically and adequately considering the procedural propriety of the remedy presenting that issue, then other courts citing the first case as authority for a correct application of the remedy. A case such as Reino should not be cited as authority for propriety of the remedy because it is only an example where the remedy was used and the propriety of the remedy was not explicitly considered by the court. However, Carcaise does not cite Reino as merely an example but as authority and from it extracts a principle that is broader than the facts of Reino but not broad enough to include this civil case. Similarly the majority opinion in this case extends the broad principle stated in Carcaise far beyond the facts in Carcaise and completely out of the criminal field and into the civil field. Stating that there is no logical distinction in regard to jurisdiction between a civil court and a criminal court, the majority opinion uses a case involving the peculiar jurisdiction of the Florida Supreme Court to review a capital case (Reino ) to rationalize, and implicitly hold, that prohibition is a proper remedy to obtain review in a district court of appeal of a trial court's non-final order in a probate case declining to summarily deny a creditor's claim against an estate as against an oral assertion by the personal representative of a statute of limitations when the personal representative is free to assert the statute of limitations as an affirmative defense (Fla.R.Civ.P. 1.110(d)) and to take a direct appeal from a final judgment.

It is true that the Florida Supreme Court has extended the remedy of prohibition to situations beyond its historical definition 6 but until that court explicitly extends and approves of the use of the extraordinary remedy of prohibition by the district courts of appeal to review non-final orders declining to summarily deny claims as against assertions of statutes of limitations in civil actions or amends Florida Rule of Appellate Procedure 9.130(a)(3), which restricts review of such non-final orders, this court should not do so.

That the...

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12 cases
  • Allan and Conrad v. University of Cent. Fl.
    • United States
    • Court of Appeal of Florida (US)
    • July 27, 2007
    ...to review a trial court order which rejects an affirmative defense based on the applicable statute of limitations. In Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984), this court issued a writ of prohibition after determining that the trial court erroneously rejected an affirmative defe......
  • Raziano v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 1993
    ...negotiations to settle do not ordinarily estop a defendant from later asserting a limitations defense. See, e.g., Brogan v. Mullins, 452 So.2d 940, 941 (Fla.App. 5 Dist.1984); Huth v. B.P. Oil, Inc., 555 F.Supp. 191, 194-95 (D.Md.1983). So, we decline to extend equitable tolling to cover ca......
  • MacDonald v. McIver, 87-1822
    • United States
    • Court of Appeal of Florida (US)
    • November 6, 1987
    ...conclusion that relief via prohibition is authorized in this situation. Public Health Trust of Dade County v. Knuck; Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984); contra, Bondurant v. Geeker, 499 So.2d 909 (Fla. 1st DCA 1986) 1. The petition for writ of prohibition is granted and th......
  • Thigpin v. Sun Bank of Ocala, 84-568
    • United States
    • Court of Appeal of Florida (US)
    • September 20, 1984
    ...and the issue is never reviewed.4 See Industrial Tractor Company v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984).5 See Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984). ...
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