Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P.

• Decision Date: 15 May 1996
• Docket Number: No. 94-3175,94-3175
• Citation: 673 So.2d 163
• Parties: 21 Fla. L. Weekly D1166 COMERICA BANK & TRUST, F.S.B., Personal Representative of the Estate of Jeanne Kiefer, Appellant, v. SDI OPERATING PARTNERS, L.P., a Delaware limited partnership, Appellee.
• Court: Florida District Court of Appeals

Page 163

673 So.2d 163

21 Fla. L. Weekly D1166

COMERICA BANK & TRUST, F.S.B., Personal Representative of the Estate of Jeanne Kiefer, Appellant, v. SDI OPERATING PARTNERS, L.P., a Delaware limited partnership, Appellee.

No. 94-3175.

District Court of Appeal of Florida Fourth District.

May 15, 1996.

Jay R. Dingledy of Schottenstein, Zox & Dunn Co., L.P.A., Columbus, Ohio, for appellant.

Jose O. Diaz and Carla L. Brown of Honigman Miller Schwartz and Cohn, West Palm Beach, for appellee.

FARMER, Judge.

The issue emerging from this appeal is whether section 733.710, Florida Statutes (1991), is a statute of repose, thus barring the claim in suit, or an ordinary statute of limitations empowering the probate judge to extend the time for filing the claim. We conclude that the statute states an absolute bar--akin to a statute of repose--that the court lacks the power to avoid. It follows that the claim here is barred for untimeliness.

The claim in suit arises from alleged environmental pollution of land once owned by, in part, the decedent, who died on June 20, 1992. First publication of notice of administration was made on September 12, 1992. In August 1993, or more than a year after her death, the current owner of the allegedly contaminated land commenced an action in a Michigan court against several defendants, including decedent or her estate and SDI Operating Partners (claimant), for damages and other relief. The owner entered into a settlement with SDI in November 1993 and assigned to SDI all of its causes of action against the other defendants, including the claim against decedent.

On June 13, 1994, SDI was substituted for the original plaintiff in the Michigan action and 3 days later served the personal representative (PR) for decedent's estate with a copy of an amended complaint. On June 21, 1994, the PR filed a motion in the Michigan court to dismiss the estate from the action on grounds of lack of jurisdiction, and the Michigan judge granted that motion on August 5, 1994.

In August 1994, the PR sent SDI notice that it should file a claim in the probate estate. The notice also stated, however, that the failure of SDI to file a claim within 2 years from decedent's death barred it from any claim against the estate, the beneficiaries or the PR. On September 27, 1994, SDI filed a petition to enlarge the time for filing its claim, which the probate court granted over the PR's objection that section 733.710 unavoidably barred the claim as untimely. Thence this appeal.

Section 733.710 was part of a package of amendments to the Probate Code that the legislature adopted in 1989 in obvious response to the United States Supreme Court's decision in Tulsa Professional Collection Services Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). See § 9, ch. 89-340, Laws of Fla. Pope had invalidated on due process grounds a host of statutes of limitations ¹ around the country dealing with the filing of claims in decedents' estates.

In the course of the opinion in Pope, Justice O'Connor drew a distinction for due process purposes between statutes of limitations that are "self-executing," like statutes of repose which are effective by their very terms; and statutes of limitations where "private parties make use of state procedures with the overt, significant assistance of state officials." 485 U.S. at 486, 108 S.Ct. at 1345. The self executing statutes do not implicate any due process problem, 485 U.S. at 486-87, 108 S.Ct. at 1346, but those that involve significant state participation in their assertion and vindication implicate the protections of the due process clause. 485 U.S. at 487, 108 S.Ct. at 1346. As the court further explained:

"The State's interest in a self-executing statute of limitations is in providing repose for potential defendants and in avoiding stale claims. The State has no role to play beyond enactment of the limitations period."

485 U.S. at 486, 108 S.Ct. at 1345.

The pertinent provisions of the statute in question state:

"733.710 Limitations on claims against estates.--

(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent's estate, the personal representative (if any), nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

(2) This section shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person's death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.

(3) This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien." [e.s.]

Section 733.710 is found in part VII of chapter 733, entitled "Creditors' Claims." Also found in part VII is section 733.702, Florida Statutes (1991). Section 733.702(1) states in part:

"(1) If not barred by s. 733.710, no claim or demand against the decedent's estate that arose before the death of the decedent, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, or liquidated or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the decedent, is binding on the estate, on the personal representative, or on any beneficiary unless filed within the later of 3 months after the time of the first publication of the notice of administration or, as to any creditor required to be served with a copy of the notice of administration, 30 days after the date of service of such copy of the notice on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise."

The introductory adverbial phrase in section 733.702(1), "[i]f not barred by s. 733.710," means that the 2-year period of section 733.710 is paramount over the limitations period in section 733.702(1). Reading the two sections together, it appears that section 733.702 fixes the basic time frame for filing of claims in decedent's estates being probated in Florida, but section 733.710 sets an absolute deadline beyond which no claim may be entertained.

Knowing the effect of the Pope decision, it seems inescapable that the legislative intent for section 733.710 was to create a self-executing period of repose--without significant action by the state itself, it must be noted--for all claims after the lapse of the 2-year period. In its own terms, it takes precedence over all other provisions in the probate code. At the same time, the text is formulated to extinguish any liability that the estate, the beneficiaries or the PR might have had for any claim or cause of action against the decedent. Hence, rather than merely fixing a period of time in which to file claims, as section 733.702 does, in reality it creates an immunity from liability arising from the lapse of the period stated. The only exception to section 733.710's immunity from liability is found within its own subsection (2), which exempts from the bar of subsection (1) claims that were actually filed within the 2 year period but as to which the PR has failed to make payment or file an objection. ²

We also take note of section 733.702(3), which states that:

"[a]ny claim not timely filed as provided in this section is barred even though no objection to the claim is filed on the grounds of timeliness or otherwise unless the court extends the time in which the claim may be filed." [e.s.] It is apparent that section 733.702(3) is unlike an ordinary statute of limitations ³ in that it contains express language barring untimely claims without any necessity for the PR to object to the tardiness in filing. At the same time, this subsection also contains authority for the probate court to extend the nonclaim period of section 733.702(1). ⁴ The claimant must show fraud, estoppel or insufficient notice to empower the probate court to grant the extension. But the legislature was careful to add in section 733.702(5) that "nothing in this section shall extend the limitations period set forth in s. 733.710." There is no extension provision, moreover, in section 733.710. In fact, there is no authority anywhere in the probate code to extend the 2-year period of section 733.710.

Reading the limited grant of extension authority in section 733.702(3) to enlarge the section 733.710 period of repose would be contrary to the structure and text of part VII of the probate code. Enlarging the repose period would also frustrate the obvious purpose underlying section 733.710 to provide an absolute bar date on the estate's liability for claims in decedent's estates being probated in Florida. Paradoxically, it would tend to make section 733.710 all but indistinguishable from section 733.702.

There is a fundamental difference between ordinary statutes of limitations, on the one hand, and statutes of repose or jurisdictional nonclaim statutes, on the other. As the court noted in Barnett Bank v. Estate of Read, 493 So.2d 447, 448 (Fla.1986), ordinary statutes of limitations are mere affirmative defenses for the opponent of the claim to plead and prove, while jurisdictional statutes of nonclaim operate to bar untimely claims without any action by the opponent and deprive the court of the power to adjudicate them.

It was not always true about section 733.702 that it was merely an ordinary limitations period. Before 1984, the text lacked any provision that an untimely claim was barred without any court order. Therefore, in Read, the court held that the pre-1984 version of section 733.702 was an ordinary statute of limitations. In ...