Johnson v. Estate of Fraedrich

• Court: Florida District Court of Appeals
• Writing for the Court: MILLS
• Citation: Johnson v. Estate of Fraedrich, 472 So.2d 1266, 10 Fla. L. Weekly 1657 (Fla. App. 1985)
• Decision Date: 03 July 1985
• Docket Number: No. BE-140,BE-140
• Parties: 10 Fla. L. Weekly 1657 Elaine JOHNSON and George Johnson, Appellants, v. ESTATE OF Cleo J. FRAEDRICH, deceased, Appellee.

Page 1266

472 So.2d 1266

10 Fla. L. Weekly 1657

Elaine JOHNSON and George Johnson, Appellants, v. ESTATE OF Cleo J. FRAEDRICH, deceased, Appellee.

No. BE-140.

District Court of Appeal of Florida First District.

July 3, 1985.

Rehearing Denied Aug. 12, 1985.

Granville C. Burgess of Burgess, Wood & Poole, Fernandina Beach, for appellants.

Bruce W. Robinson of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.

MILLS, Judge.

Johnson appeals from a final order denying her motion for extension of time to file an independent action against Fraedrich's estate for injuries sustained in an automobile accident. We affirm.

In October 1983, Fraedrich, a resident of Nassau County, Florida, was involved in an automobile accident with Johnson, an Illinois resident, in Iowa. Fraedrich died the next day from injuries sustained in the accident. Johnson was also injured. Johnson retained an Illinois attorney, Fazioli, to prosecute her claim against Fraedrich's estate for those injuries.

In December 1983, Fraedrich's brother was appointed personal representative of her estate, and received letters of administration in Nassau County. Notice of administration was properly published on 14 and 21 December 1983. On 8 March 1984, Fazioli filed a claim in the estate on Johnson's behalf for $500,000. Objection to this claim was timely made by Thomas Brown, attorney for the personal representative, pursuant to Section 733.705(2), Florida Statutes (1983). Copies of the objection were mailed by certified mail to Johnson and Fazioli. Both had received the objection by 15 March 1984, as evidenced by certified mail receipts.

Pursuant to Section 733.705(3), Florida Statutes (1983), Johnson had 30 days from this date of service in which to bring an independent action on her claim, or until 14 April 1984. No such claim was filed. However, the statute provides that "[f]or good cause, the court may extend the time ... for filing an action or proceeding after objection is filed." Johnson filed her motion requesting this extension on 3 August 1984, approximately four months after expiration of the statutory deadline.

The motion stated two grounds purporting to show good cause for Johnson's failure to meet the statutory deadline: (1) Fazioli was "lulled" into ignoring the time limitation by his settlement negotiations with an attorney for the estate's insurance company, Hayek, and (2) the objection had been overlooked by Fazioli because it had arrived during his involvement with a major trial in another action. He first became aware of his failure to file suit on 10 July 1984.

Fazioli submitted his affidavit in support of the motion, stating that he had refrained from filing an independent action based on Hayek's telephonic assurances that the insurance company planned to file a federal interpleader action against the estate. Hayek filed an opposing affidavit that he had never informed Fazioli of a definite intention to file such a suit, nor had he suggested that Fazioli could therefore ignore the statute. It was after this affidavit that Fazioli filed a motion alleging for the first time that the original objection had been improperly made by the personal representative's attorney and not the personal representative himself.

On 26 November 1984, the trial court denied both motions, finding that the attorney's signature on the objection was sufficient and that Johnson had shown no good cause for the delay in filing the motion for extension.

We agree that the attorney's signature on the objection was sufficient to satisfy the statutory provision that a "personal representative or other interested person" may file objections to claims. Johnson argues that these are terms of art, the definitions of which the personal representative's attorney does not meet. See Section 731.201(21) and (25), Florida Statutes (1983). However, an attorney is generally viewed as the agent of his client. Epperson v. Rupp, 157 So.2d 537 (Fla. 3d DCA 1963). An act done by an agent on behalf of the principal within the scope of the agency is not the act of the agent but of the person by whose direction it is done. 2 Fla.Jur.2d Agency and Employment § 1. The Epperson court used this agency theory to approve the action of a personal representative's...