Klem v. Espejo-Norton, No. 3D06-3080.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSchwartz
Citation983 So.2d 1235
PartiesNancy KLEM, Appellant, v. Jane Elizabeth ESPEJO-NORTON, Appellee.
Docket NumberNo. 3D06-3080.
Decision Date25 June 2008
983 So.2d 1235
Nancy KLEM, Appellant,
Jane Elizabeth ESPEJO-NORTON, Appellee.
No. 3D06-3080.
District Court of Appeal of Florida, Third District.
June 25, 2008.

[983 So.2d 1236]

Sheldon Zipkin, North Miami Beach, for appellant.

Elizabeth K. Russo, Miami, for appellee.

Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

This is an appeal from a final judgment from the Miami-Dade circuit court which imposed a constructive trust on a Broward County fund representing the one-half of the testatrix's estate left to the plaintiff by her godmother, but which she did not receive from the probate of that estate in Miami-Dade County because she was not found prior to the closing of the estate. See Espejo-Norton v. Estate of Merry, 869 So.2d 1255 (Fla. 3d DCA 2004) (affirming order refusing to reopen estate). The supporting facts and the rationale which supports the relief granted below are set out in the specially concurring opinion in Espejo-Norton:

[In][t]his ... fascinating case ... one of the two goddaughters who were the named residual devisees of the testatrix's $400,000.00-plus estate turned up several years after the estate had been closed, after she had quite erroneously been declared dead by the circuit court, and after all the proceeds had been distributed to the other devisee. Because, insofar as the record shows, diligent, although futile, efforts had been expended to find her, ... with affirmance of the order before us denying her motion to reopen the estate [is in order]. See Estate of Bateman, 290 So.2d 528 (Fla. 3d DCA 1974); Phillips v. Ball, 1960 OK 145, 358 P.2d 193 (Okla.1960).

It should be pointed out, however, a separate action may now be successfully maintained against the other devisee to impose a constructive trust upon the half of the estate that that devisee received, but which in law and equity belongs to the appellant. As the Restatement says:

§ 126. Rights of Intended Payee or Grantee. Business Transaction.

(1) Where a person has paid money or transferred property to another in the erroneous belief, induced by a mistake of fact, that he owed a duty to the other so to do, whereas such duty was owed to a third person, the transferee, unless a bona fide purchaser, is under a duty of restitution to the third party.

* * *


2. A, administrator of B's estate, pays money out of the assets of the estate to C, B's brother, whom both A and C believe to be B's sole relative. Later D, B's son and next of kin, believed to be dead, appears. D is entitled to restitution from C. (e.s.)

983 So.2d 1237

Restatement (First) of Restitution § 126 comment c (1937). Accord Phillips, 1960 OK at 145, 358 P.2d at 193; Hewitt v. Hewitt, 17 F.2d 716 (9th Cir.1927); 31 Am.Jur.2d Executors and Administrators § 964 (2003). See also Kramer v. Freedman, 272 So.2d 195 (Fla. 3d DCA 1973) (constructive trust imposed on beneficiaries although direct attack on validity of will in probate court failed), cert. discharged, 295 So.2d 97 (Fla.1973).

Espejo-Norton, 869 So.2d at 1256 (footnote omitted). This is the "separate action [which was indeed] successfully maintained" below. Id. We affirm.

The only issue raised by the appellant which deserves discussion, though not reversal, concerns the power of the lower tribunal to enter the judgment under review. While we agree that the court did not acquire in personam jurisdiction over Dr. Espejo-Norton's godsister,1 the appellant, it is clear that the court did have quasi in rem authority over the estate assets, which had been distributed by the Miami-Dade court and then placed intact by Ms. Klem in a brokerage account in Coral Springs, Broward County. This was the effect in Escudero v. Hasbun, 689 So.2d 1144, 1146 n. 3 (Fla. 3d DCA 1997), in which a Miami-Dade County court was held to have properly acquired jurisdiction over funds which had been wrongfully taken from the proceeds of a Miami-Dade County certificate of deposit, and deposited in a bank in Broward County. We follow that holding in this case.

As Escudero indicates, the fact that the res in question is not within the Eleventh Circuit makes no difference. This is because the issue, properly considered, is not one of subject matter jurisdiction, which may not be waived. To the contrary, it is clear that the court has "subject matter jurisdiction" over a claim to establish a constructive trust. See Beta Real Corp. v. Graham, 839 So.2d 890, 892 (Fla. 3d DCA 2003); VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956, 957 (Fla. 4th DCA 2000) ("Although the exclusive jurisdiction of a circuit court to foreclose a lien on property in that circuit has been loosely referred to as subject matter jurisdiction, that is a misnomer. Subject matter jurisdiction means `the power of the court to adjudicate the class of cases to which the particular case belongs.' The Broward circuit court has jurisdiction over mechanic lien foreclosures and, accordingly, did not lack subject matter jurisdiction over that count." (quoting Crill v. State Road Dep't, 96 Fla. 110, 117 So. 795, 798 (1928))) (citations omitted), review denied, 790 So.2d 1111 (Fla.2001); Escudero, 689 So.2d at 1144. Rather, it involves a question of "territorial jurisdiction," as it is sometimes called in this context, which may be waived by a failure properly to assert it below, as it was in this case. See World Vacation Travel, S.A. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (territorial jurisdiction

983 So.2d 1238

may be waived by contract), review denied, 821 So.2d 292 (Fla.2002); Jordan v. Guar. Pest Control, Inc., 292 Ala. 601, 298 So.2d 244 (1974) (concluding that territorial jurisdiction may be waived); Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753, 755-56 (1990) (noting difference among subject matter, territorial and notice jurisdictions and concluding that only subject matter jurisdiction may not be waived); Gordon v. Commonwealth, 38 Va.App. 818, 568 S.E.2d 452 (2002) (territorial jurisdiction may be waived); State v. Randle, 252 Wis.2d 743, 647 N.W.2d 324, 329 n. 4 (Wis. Ct.App.2002) (observing that territorial jurisdiction is "an incident of personal jurisdiction that can be waived"), review denied, 254 Wis.2d 262, 648 N.W.2d 477 (2002); see also Bush v. State, 945 So.2d 1207, 1211 (Fla.2006) (observing that all state circuit courts have jurisdiction to issue writs of mandamus no matter where respondent is located); Lane v. State, 388 So.2d 1022, 1027 (Fla.1980) (agreeing that "`[t]he sovereign power of the State exists whether the venue is properly laid in one county or another so long as the appropriate venue is within the territorial jurisdiction of the State'" (quoting State v. Baldwin, 305 A.2d 555, 558 (Me.1973))) (emphasis added); Bucacci v. Boutin, 933 So.2d 580, 587 (Fla. 3d DCA 2006) (noting recognition "that equitable lien claims may be brought in this district, even though the suit affects land not within the territorial jurisdiction of the court"); Spector v. Old Town Key West Dev., Ltd., 567 So.2d 1017 (Fla. 3d DCA 1990) (holding that court has jurisdiction to regulate affairs of corporation with principal place of business in other circuit), review denied, 577 So.2d 1327 (Fla.1991); Schwartz v. Capital City Nat'l Bank, 365 So.2d 181 (Fla. 1st DCA 1978) (stating that authority of court which enters judgment extends to execution proceedings on debtor's property in different circuit); Tower Credit Corp. v. State, 187 So.2d 923 (Fla. 4th DCA 1966) (observing that scope of Florida circuit court jurisdiction extends to entire state); but cf. Citibank, N.A. v. Klein, 396 So.2d 763, 764 (Fla. 3d DCA 1981). See generally McGowin v. McGowin, 122 Fla. 394, 165 So. 274 (1936); State v. Ostergard, 360 So.2d 414, 414 (Fla.1978) (Adkins, J., concurring specially); 21 C.J.S. Courts § 112 (2006); 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3801 at 13 (3d ed. 2007); Judge Scott Stephens, Florida's Third Species of Jurisdiction, 82 Fla. Bar J. 11 (March 2008).

In this critical respect, the issue is like several related others which are often loosely referred to as involving strictly "jurisdictional" question of unwaivable subject matter, but in fact do not. See Fla. Dep't of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1287 (Fla.2004) (home venue privilege requiring case against state agency to be brought in headquarters' county subject to specific exception of waiver); VL Orlando Bldg. Corp., 762 So.2d at 957 (court has jurisdiction to transfer action to county of affected realty); In re Dalton's Estate, 246 So.2d 612 (Fla. 3d DCA 1971) (doctrine that only court of county of testatrix's domicile has "jurisdiction" over estate subject to waiver by delay), cert. denied, 252 So.2d 800 (Fla. 1971); Pastor v. Pastor, 929 So.2d 576 (Fla....

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