Greer v. Estate of Smith, 75--1272

• Decision Date: 11 February 1977
• Docket Number: No. 75--1272,75--1272
• Citation: 342 So.2d 1007
• Parties: Jerry L. GREER, Appellant, v. ESTATE of Vivian Brown SMITH, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 1007

342 So.2d 1007

Jerry L. GREER, Appellant, v. ESTATE of Vivian Brown SMITH, Deceased, Appellee.

No. 75--1272.

District Court of Appeal of Florida, Fourth District.

Feb. 11, 1977.

James S. Theriac, III, of Wolfe, Kirschenbaum, Caruso & Mosley, P.A., Merritt Island, for appellant.

George Ritchie, Cocoa, for appellee.

SMITH, LARRY G., Associate Judge.

This is an appeal from a final order granting appellee's motion to dismiss appellant's complaint. The sole issue is whether the complaint was filed within the time allowed by Section 733.18(2), Florida Statutes (probate law) as it existed in January, 1975.

Appellant contends that he had three additional days to file suit under Rule 1.090(e) FRCP. Appellee contends that the rule does not apply. The trial court agreed with appellee's position, but for the reasons hereinafter stated we find this was reversible error.

Appellant first filed a claim against appellee's estate in the probate division. The personal representative filed an objection to the claim and complied with the statute by mailing a copy of the objection to appellant by registered mail on December 20, 1974. Copy of the objection was received by appellant on December 21, 1974, as evidenced by the return receipt bearing appellant's signature. Appellant, as plaintiff, then filed his complaint on January 23, 1975.

The statute, Section 733.18(2), at the time in question, allowed one calendar month from the date of service of the objection within which to file the appropriate suit. Appellant contends that since the objection was served by mail the provisions of Rule 1.090(e) FRCP would become operative, thus adding three days to the prescribed period of time allowed for filing suit. Obviously, unless the additional three day period does apply, appellant's complaint was not timely filed and was properly dismissed.

The statute, Section 733.18(2), at the time in question provided in part as follows:

. . . If objection is filed, the person filing it shall, forthwith, but not later than thirty days after same has been filed, serve a copy of such objection by Registered mail or personal service on the creditor or claimant to whose claim he objects . . .. A copy of the objection with appropriate certificate of service shall also be sent by ordinary mail to the attorney for the claimant, if his name and address appear on the claim . . . The creditor or claimant shall thereupon be limited to One calendar month from the date of such service within which to bring appropriate suit, action, or proceedings upon such claim or demand. The circuit judge for good cause shown may extend the time for filing objection to any claim or demand or the time for serving such objection, and may likewise for good cause shown extend the time for filing appropriate suit, action or proceedings upon any such claim after objection is filed; but in any of said instances, said extension of time shall be granted only after due notice of such application. No suit, action, or proceeding shall be brought against any personal representative after the time limited above . . . (Emphasis supplied.)

Rule 5.050, Florida Rules of Probate and Guardianship Procedure, as it existed in January 1975, specifically adopted Rule 1.090 FRCP, as seen from subparagraph (h) which read as follows:

Rule 5.050. Process; Notice; Time.

(h). The provisions of Rule 1.090 RCP shall apply in probate and guardianship proceedings.

Rule 1.090(e) FRCP is as follows:

(e) Additional Time After Service By Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

No useful purpose would be served by any attempt to further explore and expound upon what is 'procedural', and therefore subject to rules of practice adopted by the Supreme Court, and what is 'substantive', and therefore exclusively controlled by statute. This subject has been well covered by the Supreme Court of Florida. See In Re: Florida Rules of Criminal Procedure, Fla.1973, 272 So.2d 65, amended 272 So.2d 513; In Re: Clarification of Florida Rules of Civil Practice and Procedure, Fla.1973, 281 So.2d 204.

The case law of this state has already characterized Section 733.18(2) of the statutes as being one wherein 'the stated time limits operate as rules of judicial procedure'. In Re: Jeffries' Estate, 136 Fla. 410, 181 So. 833, 838 (1938); In Re: Goldman's Estate, Fla.1955, 79 So.2d 846; In Re: Kemp's Estate, Fla.App.1st 1965, 177 So.2d 757.

Judge Rawls, dissenting on other grounds in In Re: Kemp's Estate, supra, appropriately pointed out that the rule requiring filing of suit within a specified time after service of an objection is 'neither a nonclaim statute nor a statute of limitations', but is 'in effect a statutory rule of judicial proceeding'. (Opinion page 764).

Upon a reading of the statute and the rules together, considered in the light of the foregoing authorities, we have no difficulty in holding that Rule 1.090(e) must be deemed cumulative to the statutory procedure prescribing time limits for filing of suit after service of objection by mail. It should be noticed that we are not here dealing with service of Process, as in American Liberty Insurance Company v. Maddox, Fla.App.2d 1970, 238 So.2d 154. We have no quarrel with the Court's decision in that case which adhered to the rule that statutes governing service of process must be strictly complied with, rejecting a rule of procedure in conflict with the statute.

In this case the objection is simply a matter of notice between parties to the controversy, which is distinguishable from service of process. The rule and the statute do not conflict. Furthermore, we do not think it unreasonable for one accustomed to the operation of the rules to assume the applicability of the three day rule under the circumstances here existing. The statute itself contains inconsistent provisions for service. On the one hand, it requires service on the claimant by registered mail, or personal service, while on the other hand, it requires service upon the claimant's attorney by ordinary mail. The certificate of mailing appended to the executor's objection in this case shows service by...