Grossman v. Selewacz, 81-1861
| Citation | 417 So.2d 728 |
| Decision Date | 14 July 1982 |
| Docket Number | No. 81-1861,81-1861 |
| Parties | Marton B. GROSSMAN and Leopold Cohen, Appellants, v. Emma J. SELEWACZ, individually and as Personal Representative of the Estate of William Selewacz, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Victor K. Rones and M. Mark Margulies, P. A., North Miami Beach, for appellants.
Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
Appellants, Grossman and Cohen, sued appellee, Ellen J. Selewacz, individually and as personal representative of the Estate of William Selewacz, deceased, seeking a declaration of their rights under an option agreement with the decedent.
Appellants' complaint alleges that they entered into an agreement with William Selewacz, the decedent, to purchase 20,400 shares of common stock in a named corporation at a price of ten cents per share. The option could be exercised by appellants if the corporation made a profit of $100,000 or more at any time within two years after commencement of operations. The option was to lapse if the corporation's profit did not amount to at least $100,000 in the first two years of operation.
William Selewacz died and thereafter the appellee notified appellants that individually and in her capacity as personal representative of her deceased husband's estate she was withdrawing the "offer" contained in the above mentioned option agreement. That letter precipitated this suit for declaratory relief to determine appellants' rights under the agreement.
The complaint alleges the agreement between appellants and William Selewacz; that William Selewacz was deceased; and that appellee was appointed personal representative of William's estate. It is further alleged that, although the option period does not expire until 1985, appellee, individually and as personal representative, has attempted to unilaterally terminate the contract. The appellee, in her dual capacity, moved to dismiss the complaint on grounds that 1) she was not a party to the agreement; 2) the court lacked jurisdiction; and 3) the claim is barred by the statute of non-claim. The trial court granted the motion to dismiss with leave to amend; however, appellants declined to amend.
The first point presented is that the trial court erred in granting the motion to dismiss for lack of jurisdiction because the complaint was filed in the civil division of the circuit court rather than the probate division. The order granting the motion to dismiss is silent as to the ground therefor. However, if the dismissal was based upon lack of jurisdiction because the suit was filed in the civil division instead of the probate division, the order would be erroneous. In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977). There we pointed out that, while the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court's jurisdiction, and cases filed in the wrong division should be transferred to the proper division. In any event, this being a suit for declaratory relief, it was properly filed in the civil division. There appellee could plead the statute of non-claim as a bar just as any other defendant might plead a statute of limitation.
In their second point appellants contend the trial court erred in granting the motion to dismiss based upon Section 733.702, the statute of non-claim, because said statute should have been pleaded as an affirmative defense rather than as a ground for a motion to dismiss. Unquestionably, defenses of this nature must be pleaded affirmatively unless they appear on the face of the complaint. See, e.g., Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973). H...
To continue reading
Request your trial
-
Malave v. Malave
...division, the court should not dismiss the case solely because it was filed in the wrong division." (citing Grossman v. Selewacz, 417 So.2d 728, 730 (Fla. 4th DCA 1982) )); Chanin, 111 So.3d at 293 ("Because the circuit court had jurisdiction, however, the court should not have dismissed th......
-
Steen and Berg Co. v. Berg
...Code jurisdictions holding that nonclaim provisions apply to claims arising from buy-sell agreements. See, e.g., Grossman v. Selewacz, 417 So.2d 728, 730 (Fla.App.1982) (nonclaim statute applied to plaintiffs' option agreement to purchase decedent's stock); Estate of Penzenik v. Penz Produc......
-
Estate of Levine, Matter of
...to make a will forecloses their participation as devisees in the estate property. As the court recognized in Grossman v. Selewacz, 417 So.2d 728, 730 (Fla.App.1982): "What appellants fail to realize is that the basis for the rule regarding specifically identifiable property being exempt fro......
-
Willie v. State
...to exercise the full power conferred on the circuit courts by the state. See, e.g., Kruckenberg v. Powell, supra; Grossman v. Selewacz, 417 So.2d 728 (Fla. 4th DCA 1982). For example, "[a] judge in the probate division or the juvenile division or the civil division or the criminal division ......