Supreme Court of Florida
____________
No. SC13-2536
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CAROL ANN JONES, etc.,
Petitioner,
vs.
EDWARD I. GOLDEN, etc.,
Respondent.
[October 1, 2015]
CANADY, J.
In this case we consider the timeliness of a creditor’s claim against an estate
under Chapter 733, Florida Statutes. In particular, we address whether the claim of
a creditor who is not served with a copy of the notice to creditors but whose claim
is known or reasonably ascertainable is barred under section 733.702(1), Florida
Statutes (2006), if not filed within three months after the first publication of the
notice to creditors absent an extension, or whether the claim is timely if filed
within two years of the decedent’s death under section 733.710, Florida Statutes
(2006). We have for review Golden v. Jones, 126 So. 3d 390, 390 (Fla. 4th DCA
2013), in which the Fourth District Court of Appeal held “that if a known or
reasonably ascertainable creditor is never served with a copy of the notice to
creditors, the statute of limitations set forth in section 733.702(1), Florida Statutes,
never begins to run and the creditor’s claim is timely if it is filed within two years
of the decedent’s death.” The Fourth District certified that its decision is in direct
conflict with the decisions of the First and Second District Courts of Appeal in
Morgenthau v. Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009), and Lubee v. Adams,
77 So. 3d 882 (Fla. 2d DCA 2012), which held that even a reasonably ascertainable
creditor who was not served with a copy of the notice to creditors is required to file
a claim within three months after the first publication of the notice, unless the
creditor files a motion for an extension of time under section 733.702(3) within the
two-year period of repose set forth in section 733.710. We have jurisdiction. See
art. V, § 3(b)(4), Fla. Const.
Because we conclude that the limitations periods prescribed in section
733.702(1) are not applicable to known or reasonably ascertainable creditors who
are never served with a copy of the notice to creditors and that the claims of such
creditors are timely if filed within two years of the decedent’s death under section
733.710, we approve the decision of the Fourth District in Golden and disapprove
the decisions of the First and Second Districts in Morgenthau and Lubee.
I. BACKGROUND
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Harry Jones died in February 2007 and his estate was opened in April 2007.
In June 2007, a notice to creditors was published as required by section 733.2121,
Florida Statutes (2006), but neither Harry’s ex-wife, Katherine Jones, nor her
guardian1 were ever served with a copy of the notice. In January 2009, however,
less than two years after Harry’s death, the guardian of Katherine Jones filed a
statement of claim in the probate court. The statement of claim asserted that
Harry’s estate owed Katherine money based on a marital settlement agreement
executed in 2002. After Katherine died in 2010, Edward Golden was appointed as
the curator of her estate.
In 2012, Golden filed in the probate court a “Petition for Order Declaring
Statement of Claim Timely Filed and/or For Enlargement of Time to File
Statement of Claim, Nunc Pro Tunc.” Essentially, Golden claimed that
Katherine’s guardianship was a known or reasonably ascertainable creditor of
Harry’s estate. Carol Jones, the personal representative of Harry’s estate and the
Petitioner before this Court, filed a response to Golden’s petition asserting that
Katherine was not a reasonably ascertainable creditor of Harry’s estate and that her
guardian’s claim was time-barred under sections 733.702 and 733.710. After a
hearing on the petition, the probate court entered an order striking the guardian’s
1. In 2008, a guardian was court appointed for Katherine Jones because she
was adjudicated to lack capacity.
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2009 claim as untimely under sections 733.702, 733.710, on the authority of the
decisions of the First and Second District Courts in Morgenthau and Lubee.
On appeal, Golden argued that because the notice to creditors was not
properly served on Katherine, a known or reasonably ascertainable creditor, the
three-month limitations period set forth in section 733.702(1) never began to run,
and the claims of Katherine’s guardianship could only be barred by the two-year
statute of repose in section 733.710. The Fourth District agreed with Golden,
concluding that the probate court erred “in determining that the claim was untimely
without first determining whether Katherine was a known or reasonably
ascertainable creditor.” Golden, 126 So. 3d at 391, 393-94. The district court
reversed and remanded the case to the probate court to determine whether
Katherine or her guardianship was a known or reasonably ascertainable creditor.
Id. at 394. The district court further instructed that if the probate court determined
that Katherine or her guardianship was indeed a known or reasonably ascertainable
creditor, then the “claim was timely, as it was filed prior to the earlier of 30 days
after service of notice to creditors (which never occurred) or two years after the
decedent’s death.” Id. at 393-94. The Fourth District recognized that the decisions
of the First District in Lubee and the Second District in Morgenthau both reached
contrary conclusions and certified conflict with those cases. Id.
II. ANALYSIS
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The question before the Court is one of statutory interpretation, which is subject to
de novo review. BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287,
289 (Fla. 2003). In the analysis that follows, we examine the relevant statutes and
discuss the conflicting district court decisions. We then resolve the conflict by
approving the reasoning of the Fourth District in Golden and concluding that
claims of known or reasonably ascertainable creditors of an estate who were not
served with a copy of the notice to creditors are timely if filed within two years of
the decedent’s death.
A. Relevant Statutes
Three sections of the Florida Probate Code are relevant to our resolution of
the conflict presented. Section 733.2121 outlines the duty of a personal
representative to publish a notice to creditors of the pending administration of an
estate and to serve a copy of the notice to creditors on known or reasonably
ascertainable creditors. It provides, in relevant part:
(1) Unless creditors’ claims are otherwise barred by s. 733.710,
the personal representative shall promptly publish a notice to
creditors. The notice shall contain the name of the decedent, the file
number of the estate, the designation and address of the court in which
the proceedings are pending, the name and address of the personal
representative, the name and address of the personal representative’s
attorney, and the date of first publication. The notice shall state that
creditors must file claims against the estate with the court during the
time periods set forth in s. 733.702, or be forever barred.
(2) Publication shall be once a week for 2 consecutive weeks,
in a newspaper published in the county where the estate is
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administered or, if there is no newspaper published in the county, in a
newspaper of general circulation in that county.
(3)(a) The personal representative shall promptly make a
diligent search to determine the names and addresses of creditors of
the decedent who are reasonably ascertainable, even if the claims are
unmatured, contingent, or unliquidated, and shall promptly serve a
copy of the notice on those creditors. Impracticable and extended
searches are not required. Service is not required on any creditor who
has filed a claim as provided in this part, whose claim has been paid in
full, or whose claim is listed in a personal representative’s timely filed
proof of claim.
....
(4) Claims are barred as provided in ss. 733.702 and 733.710.
§ 733.2121, Fla. Stat. (2006); see also Fla. Prob. R. 5.241(a) (“[T]he personal
representative shall promptly publish a notice to creditors and serve a copy of the
notice on all creditors of the decedent who are reasonably ascertainable.”).
Section 773.702 provides, in relevant part:
(1) [N]o claim or demand against the decedent’s estate . . . is
binding on the estate . . . unless filed in the probate proceeding on or
before the later of the date that is 3 months after the time of the first
publication of the notice to creditors or, as to any creditor required to
be served with a copy of the notice to creditors, 30 days after the date
of service on the creditor . . . .
....
(3) Any claim not timely filed as provided in this section is
barred even though no objection to the claim is filed unless the court
extends the time in which the claim may be filed. An extension may
be granted only upon grounds of fraud, estoppel, or insufficient notice
of the claims period.
....
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(6) Nothing in this section shall extend the limitations period
set forth in s. 733.710.
§ 733.702, Fla. Stat. (2006) (emphasis added).
Section 733.710 provides, in relevant part:
(1) Notwithstanding any other provision of the code, 2 years
after the death of a person, neither the decedent’s estate, the personal
representative, if any, nor the beneficiaries shall be liable for any
claim or cause of action against the decedent, whether or not letters of
administration have been issued, except as provided in this section.
(2) This section shall not apply to a creditor who has filed a
claim pursuant to s. 733.702 within 2 years after the person’s death,
and whose claim has not been paid or otherwise disposed of pursuant
to s. 733.705.
§ 733.710, Fla. Stat. (2006).
We have held that section 733.702 is a statute of limitations and that section
733.710 is a jurisdictional statute of nonclaim, which cannot be waived or
extended. May v. Illinois Nat. Ins. Co., 771 So. 2d 1143, 1150 (Fla. 2000).
B. Morgenthau and Lubee
In Morgenthau, the personal representative of the decedent’s estate
published a notice to creditors in a newspaper in March 2008, informing possible
creditors of the estate that they had three months from the date of the first
publication in which to file any claims outstanding against the estate. 26 So. 3d at
629. In April 2009, Morgenthau filed a statement of claim alleging that he was the
holder of an outstanding note executed by the decedent and that the personal
representative was aware of the amount due to Morgenthau. Id. The probate court
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struck the claim as untimely because it was not filed within three months of the
first publication of the notice to creditors. Id. at 629-30.
On appeal, the First District found that even if Morgenthau was a known or
reasonably ascertainable creditor of the estate who was therefore entitled to receive
actual notice by service, because he was not served with a copy of the notice, he
was required to file his claim within the three-month window following the first
publication of the notice. Id. at 632 (“[T]he claim was untimely as appellant did
not receive actual notice of the claim and was, thus, a creditor who fell in the three
month filing window following publication.”). The district court stated that once
Morgenthau’s claim fell outside the three-month window, it could only be
considered if Morgenthau had requested and been granted an extension of time by
the probate court. Id. Because Morgenthau filed only a statement of claim and did
not seek an extension of time in which to file that claim, the district court
concluded that “the probate court was bound by the relevant statutes to deny the
claim.” Id.
In Lubee, the decedent died in December 2006, and the notice to creditors
was first published in November 2007. 77 So. 3d at 883. More than one year after
the first publication, Lubee filed a statement of claim in the probate court. Id.
Lubee asserted that because he was a readily ascertainable creditor entitled to be
served with a copy of the notice to creditors, he was only required to file his claim
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within thirty days after service of the notice under section 733.702(1) or within two
years of the decedent’s death under section 733.10. According to Lubee, because
he was never served with a copy of the notice to creditors, his claim was timely
filed within two years of the decedent’s death. Id.
The Second District disagreed and concluded that Lubee’s claim was
untimely because it was filed outside of the three-month window. The Second
District concluded that whether Lubee was a reasonably ascertainable creditor or
not was immaterial. The court explained:
Because a notice to creditors was published on November 16,
2007, creditors not entitled to actual notice were required to file their
claims on or before February 16, 2008. See § 733.702(1). Creditors
who were served with the notice to creditors were required to file their
claims within thirty days following service. See id. Because he was
not served with a copy of the notice to creditors, Mr. Lubee was
required to file his claim in the probate proceeding within the three-
month window following publication. Alternatively, Mr. Lubee could
seek an extension from the probate court pursuant to section
733.702(3) within the two-year window of section 733.710. See
Morgenthau v. Estate of Andzel, 26 So. 3d 628, 632 (Fla. 1st DCA
2009); cf. Miller v. Estate of Baer, 837 So. 2d 448, 449 (Fla. 4th DCA
2002) (affirming order enforcing claim against estate where creditor
failed to file claim within three-month window of section 733.702(1)
but did file motion for extension of time within two-year window of
section 733.710). It is undisputed that he did neither. Mr. Lubee’s
filing of his claim in the probate proceeding within two years of the
decedent’s death did not amount to a request for an extension of time
and did not otherwise comply with the requirements of section
733.702. Mr. Lubee’s claim in the probate proceeding was untimely
and therefore barred. As a result, the issue of whether or not Mr.
Lubee was a readily ascertainable creditor was immaterial[.]
Id. at 883-84 (emphasis added).
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In Golden, the Fourth District rejected the analyses in Morgenthau and
Lubee, finding the decisions inconsistent with the plain language of section
733.702(1), which allows a known or reasonably ascertainable creditor to file a
claim against an estate “on or before the later of the date that is 3 months after the
time of the first publication of the notice to creditors or . . . 30 days after the date
of service on the creditor.” The court instead followed Fourth District precedent
established in In re Estate of Puzzo, 637 So. 2d 26 (Fla. 4th DCA 1994), in which
the court stated:
Due process considerations require that Appellants be furnished
notice so that they can determine that the time for filing claims has
commenced. However, regardless of whether or not the claimants had
actual notice, section 733.702(1), Florida Statutes, does not bar the
claim of a creditor required to be served with a copy of the notice of
administration, unless barred by section 733.710, until the later of the
3-month period following publication or 30 days after service of
notice on the creditor. The latter period had not begun to run at the
time Appellants’ claims were filed.
We remand for the trial court to determine as to which of
Appellant[s’] claims they were known or ascertainable creditors. Any
such claims, though filed after the 3-month period, should not have
been stricken as untimely if filed prior to the earlier of 30 days after
service of notice of administration or 2 years after the decedent’s
death.
Golden, 126 So. 3d at 392 (alteration in original) (quoting Puzzo, 637 So. 2d at
27).
The Fourth District concluded that the probate court should have determined
whether Katherine or her guardianship was a known or reasonably ascertainable
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creditor prior to determining the timeliness of her guardian’s claim, and if she or
the guardianship was a known or reasonably ascertainable creditor, then the claim
“though filed after the 3-month period, should not have been stricken as untimely
if filed prior to the earlier of 30 days after service of notice of administration or 2
years after the decedent’s death.” Id. (quoting Puzzo, 637 So. 2d at 27).
C. Resolving the Conflict
Section 733.702(1), Florida Statutes, provides two distinct and different
limitations periods for the filing of claims against an estate: one for creditors
“required to be served with a copy of the notice to creditors,” i.e., known or
reasonably ascertainable creditors, and a second for unknown and not reasonably
ascertainable creditors (hereinafter “unknown creditors”). The limitations period
applicable to unknown creditors, set forth in section 733.702(1), begins to run upon
publication of the notice to creditors and ends three months after the date of the
first publication.
Creditors who are known or reasonably ascertainable need not rely on
publication for notice of the pending administration of an estate. Section
733.2121(3)(a) requires a personal representative to “promptly serve a copy of the
notice” on those creditors who are known or reasonably ascertainable after a
diligent search. The limitations period applicable to known or reasonably
ascertainable creditors does not begin to run until service is perfected. Once
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served with a copy of the notice, a known or reasonably ascertainable creditor must
file any claim within the later of “3 months after the time of the first publication of
the notice to creditors or . . . 30 days after the date of service on the creditor . . . .”
§ 733.702(1), Fla. Stat.
Under the plain language of section 733.702(1), where a known or
reasonably ascertainable creditor is never served with a copy of the notice to
creditors, the applicable limitations period never begins to run and cannot bar that
creditor’s claim. “[A]s to any creditor required to be served with a copy of the
notice to creditors,” the limitations period can only be triggered by “service on the
creditor” of the required notice. § 733.702(1), Fla. Stat. A known or reasonably
ascertainable creditor is absolved from the limitations of section 733.702(1) by
virtue of the fact that the personal representative failed to serve the creditor with
the required notice. The only instance in which a known or reasonably
ascertainable creditor is required to file any claims before the expiration of the
three-month window after publication of the notice is where the last day of the
three-month window occurs more than thirty days after service of the required
notice.
Accordingly, if a known or reasonably ascertainable creditor is not served
with a copy of the notice, section 733.702(1) does not govern the timeliness of that
creditor’s claims. Instead, the claims of such a creditor are only barred if not filed
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within the two-year period of repose set forth in section 733.710. Thus, the claim
of a known or reasonably ascertainable creditor who was never served with a copy
of the notice to creditors is timely if filed within two years of the decedent’s death.
Further, because the limitations periods in section 733.702 are inapplicable under
such circumstances, it is not necessary for the creditor to seek an extension of time
under section 733.702(3) since that section applies only to claims that are untimely
under section 733.702.
The decision of the First District in Morgenthau—on which the Second
District relied in Lubee—is based on a misinterpretation of the limitations
provisions in section 773.702(1).2 The First District interpreted that section in the
following manner:
Section 773.702(1) mandates a claim is untimely if it is filed
either (1) outside the three month window following publication to
creditors or (2) filed outside the 30 day window for responding to a
notice of claim if the creditor is a readily ascertainable creditor of the
estate entitled to actual notice of the claim.
Morgenthau, 26 So. 3d at 630 (emphasis added). Stated differently, Morgenthau
requires that to be timely, a claim must be filed both within the three-month
window after publication and within the thirty-day window after service of a copy
2. The Morgenthau court’s analysis may also have been hampered by the
fact that Morgenthau conceded that his claim was “untimely.” Morgenthau, 26 So.
3d at 630.
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of the notice. But that’s not what the statute says. As explained above, the plain
language of section 733.702 specifies that as to a known or reasonably
ascertainable creditor, a claim is timely if “filed in the probate proceeding on or
before the later of the date that is 3 months after the time of the first publication of
the notice to creditors or, as to any creditor required to be served with a copy of the
notice to creditors, 30 days after the date of service on the creditor.” § 733.702(1),
Fla. Stat. (emphasis added).
The interpretation adopted in Golden is in accord with the plain terms of the
statute. And it is also in accord with the requirements of due process. In Tulsa
Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489-91 (1988), the
United States Supreme Court held that where a creditor is known or reasonably
ascertainable, that creditor’s claim may not be barred merely by publication of the
notice to creditors. Noting that a claim against an estate is property subject to
protection by the Fourteenth Amendment, the Supreme Court weighed the
important state interests in regulating the timeliness of creditors’ claims against the
rights of those creditors to have their intangible interests in property protected by
the Fourteenth Amendment. Id. at 485. The Supreme Court determined that where
a time bar is self-executing—such as the two-year statute of repose in section
733.710—there is insufficient state action to implicate the Due Process Clause of
the Fourteenth Amendment. Id. at 485-87. However, where a time bar is triggered
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by legal proceedings—such as the limitations periods in section 733.702—there is
sufficient state action to implicate the Due Process Clause. Id. at 487-88. The
Court thus concluded that where there is sufficient state action and a creditor is
“known or ‘reasonably ascertainable,’ then the Due Process Clause requires that
[the creditor] be given ‘[n]otice by mail or other means as certain to ensure actual
notice.’ ” Id. at 491 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791,
800 (1983)).
A personal representative is therefore constitutionally obligated to provide
actual notice to known or reasonably ascertainable creditors and if the personal
representative fails to provide that notice, the creditors’ claims cannot be barred
except under section 733.710. The Fourth District’s decision in Golden properly
recognizes the duty of the personal representative to provide notice to known and
reasonably ascertainable creditors and the requirement of actual notice to satisfy
due process as to those creditors
III. CONCLUSION
For the reasons explained above, we conclude that claims of known or
reasonably ascertainable creditors of an estate who were not served with a copy of
the notice to creditors are timely if filed within two years of the decedent’s death.
Accordingly, we approve the decision of the Fourth District in Golden and
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disapprove the decisions of the First District in Lubee and the Second District in
Morgenthau.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Fourth District - Case No. 4D12-2094
(Broward County)
Robin Felicity Hazel of Hazel Law, P.A., Pembroke Pines, Florida,
for Petitioner
William H. Glasko of Golden Glasko & Associates, P.A., Miami, Florida,
for Respondent
Gerald Barnette Cope, Jr. of Akerman LLP, Miami, Florida; Kenneth Bradley Bell
and John Wesley Little, III of Gunster, West Palm Beach, Florida; and Robert W.
Goldman of Goldman Felcoski & Stone, Naples, Florida,
for Amicus Curiae The Real Property, Probate & Trust Law Section of The
Florida Bar
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