Stanton v. Kruse

• Decision Date: 16 December 1969
• Docket Number: No. 69--430,69--430
• Citation: 229 So.2d 657
• Parties: Frank STANTON, Appellant, v. Stanley KRUSE, Executor of the Estate of Harry Woolf, deceased; and Munroe Zeder Chrysler Plymouth, Inc., a Delaware corporation, Appellees.
• Court: Florida District Court of Appeals

Page 657

229 So.2d 657

Frank STANTON, Appellant, v. Stanley KRUSE, Executor of the Estate of Harry Woolf, deceased; and Munroe Zeder Chrysler Plymouth, Inc., a Delaware corporation, Appellees.

No. 69--430.

District Court of Appeal of Florida, Third District.

Dec. 16, 1969.

Rehearing Denied Jan. 20, 1970.

Paul L. Steiner, Miami Shores, Jeanne Heyward, Miami, for appellant.

Roth, Segal & Levine, Orlando, Richard L. Lapidus, Miami, for appellees.

Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

In 1966, an auto accident occurred involving appellant Stanton and Harry Woolf. At the time of the accident, Woolf was insured by National Service Fire Insurance Company. Stanton retained an attorney to represent him in his endeavor to recover damages arising from the accident.

Subsequently, Stanton's attorney communicated with Bernard Berman, the lawyer representing the insurance company. Berman also defended Woolf in municipal court on the traffic violation charges which arose out of the accident.

Meanwhile, Berman had filed a third party action for indemnification against appellee Munroe Zeder Chrysler Plymouth, Inc., ultimately obtaining a default judgment. Thereafter, Stanton's attorney embarked upon negotiations with Berman in regard to Stanton's claim. Both lawyers came to an understanding that Stanton's law suit would not be filed for various reasons not pertinent to this appeal.

Shortly after the occurrence of the above events, Woolf died, and his death was made known to Stanton and Stanton's attorney. Appellee Kruse was the executor of Woolf's estate and caused to be published the estate's first notice to creditors on October 6, 1967. Stanton's claim for damages arising out of the original auto accident was not filed against Woolf's estate until August 14, 1968, a date beyond the six months limitation period for claims against a decedent's estate. § 733.16(1) Fla.Stat., F.S.A. (1967).

Executor Kruse, defendant below, filed his motion to dismiss and answer raising a defense based on the limitation period. Plaintiff Stanton replied, alleging that the estate was estopped from asserting the statute on non-claim. At the hearing held on the parties' motions for summary judgment, it was established that the original attorney, Berman, who had represented the insurance company and Woolf individually, was not in any way representing the executor of the estate. There was additional evidence regarding the active roles played by this attorney in his negotiations with Stanton's lawyer. In his deposition, Berman revealed that he probably had requested Stanton's attorney to forebear from filing suit, although he had no specific recollection of such a request. The trial judge thereafter rejected Stanton's assertion that the estate was estopped from pleading the non-claim statute, and granted the defendant's motion for summary judgment. We find no reversible error in the action of the trial judge.

The two depositions filed in support of Stanton's reply, wherein he raised the affirmative defense of estoppel as to the non-claim statute, did not, when coupled with evidence submitted at the hearing...