KEITH M. OLENEK, APPELLANT,
v.
MARGUERITE A. BENNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANN M. KOCH, DECEASED, ET AL., APPELLEE
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In this appeal from dismissal of a claim against a decedent's estate, the Florida District Court of Appeal held that section 733.702's claims filing deadline is a statute of limitations rather than a jurisdictional requirement, and that the estate was estopped from invoking it where the estate's attorney accepted service and agreed to answer after the estate was substituted as defendant.
The trial court erred in dismissing the complaint. Section 733.702 is a statute of limitations, not a jurisdictional requirement, and therefore may be waived or subject to estoppel. The estate was estopped from asserting the statute as a defense because its attorney accepted service of the complaint after substitution and agreed to file an answer, creating estoppel through fairness and equity.
[1] A statute of limitations, unlike a jurisdictional statute, may be waived or be the subject of estoppel.
[2] An estate may be estopped from asserting a statute of limitations defense when the estate's attorney accepts service of a complaint and agrees to file an answer.
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Join FLexlaw to unlock all legal intelligence“In Barnett Bank v. Estate of Read, 493 So.2d 447 (Fla.1986), our supreme court held that this statute is not a jurisdictional statute but a statute of limitation. The significance of that in this case is that the estate can waive or be estopped from asserting a statute of limitation; not so a jurisdictional statute.”
Establishes the critical distinction that the claims deadline is subject to waiver and estoppel
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Join FLexlaw to unlock all legal intelligenceA complaint was filed against a decedent's estate after the estate was substituted for the now-deceased defendant. The estate's attorney accepted serv…
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DAUKSCH, Judge.
This is an appeal from a dismissal under section 733.702, Florida Statutes (1985). That statute provides:
733.702 Limitations on presentation of claims.—
(1) No claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, or liquidated or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the decedent, is binding on the estate, on the personal representative, or on any beneficiary unless presented:
(a) Within 3 months from the time of the first publication of the notice of administration, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. The personal representative may settle in full any claim without the necessity of the claim being filed when the settlement has been approved by the beneficiaries adversely affected according to the priorities provided in this code and when the settlement is made within the statutory time for filing claims; or he may file a proof of claim of all claims he has paid or intends to pay.
In Barnett Bank v. Estate of Read, 493 So. 2d 447 (Fla.1986), our supreme court held that this statute is not a jurisdictional statute but a statute of limitation. The significance of that in this case is that the estate can waive or be estopped from asserting a statute of limitation; not so a jurisdictional statute.
Under the facts of this case both waiver and estoppel are present so the court erred in dismissing the complaint. Because the attorney for the estate accepted service of the complaint, after the substitution of the estate for the now-deceased defendant, and agreed to file an answer to the complaint, the estate is estopped from later claiming a right to have the complaint dismissed. The complaint was served within three months of first publication of the notice of administration, although no specific claim under the statute, section 733.702, was filed in the probate division. Fairness and equity dictate that the estate is estopped from raising the statute as a defense. Barnett supra.
Because we find estoppel to be applicable we see no need to discuss the other, also valid, reasons for permitting appellant to proceed against the estate.
The order of dismissal is reversed and this cause remanded for further proceedings.
REVERSED AND REMANDED.
COWART and DANIEL, JJ., concur.
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Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)…ile Mutual Ins. Co., 573 So. 2d 1049, 1050 (Fla. 4th DCA 1991) (”[W]e believe the evidence is such that the doctrine of equitable estoppel applies preventing State Auto from resorting to the statute of limitations as a defense.”); Olenek v. Bennett, 537 So. 2d 160, 161 (Fla. 5th DCA 1989) ("Fairness and equity dictate that the estate is estopped from raising the statute [of limitations] as a defense.”); Martin v. Monroe County, 518 So. 2d 934, 935 (Fla. 3rd DCA 1987) ("We hold that when the [Department] ackno…
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David R. MAY Ad Litem of the Estate of Oscar T. Bradley v. Ill. Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000)…er setting forth the relevant terms of section 733.702, we referred to Barnett Bank and stated, “While known as a statute of nonclaim, [section 733.702] is nevertheless a statute of limitations.” Spohr, 589 So. 2d at 227; see also Olenek v. Bennett, 537 So. 2d 160, 161 (Fla. 5th DCA 1989) (citing Barnett Bank for the proposition that section 733.702, Florida Statutes (1985), was a statute of limitations). We then proceeded to determine that (1) the plaintiffs in the case were required to file a statement of c…
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Fla. Dep't of Health & Rehabilitative Servs. v. S.A.P., 835 So. 2d 1091 (Fla. 2002)…Auto. Mut. Ins. Co., 573 So. 2d 1049, 1050 (Fla. 4th DCA 1991) (“[W]e believe the evidence is such that the doctrine of equitable estoppel applies preventing State Auto from resorting to the statute of limitations as a defense.”); Olenek v. Bennett, 537 So. 2d 160, 161 (Fla. 5th DCA 1989) ("Fairness and equity dictate that the estate is estopped from raising the statute [of limitations] as a defense.”); Martin v. Monroe County, 518 So. 2d 934, 935 (Fla. 3rd DCA 1987) (“We hold that when the [department] ackno…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barnett Bank OF Palm Beach Cnty. v. Est. OF Leon Henry Read, Jr., 493 So. 2d 447 (Fla. 1986)