Katherine Herman, Personal Representative for the Estate of Steve Allen Herman, a/k/a, etc. v. Nancy Herman Bennett ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2299
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KATHERINE HERMAN, Personal
Representative for the Estate of
Steve Allen Herman, a/k/a Steve
A. Herman,
Appellant,
v.
NANCY HERMAN BENNETT,
Appellee.
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On appeal from the Circuit Court for Alachua County.
Donna M. Keim, Judge.
July 23, 2019
LEWIS, J.
Appellant, Katherine Herman, appeals the trial court’s order
denying her petition for an order striking Appellee’s, Nancy
Herman Bennett’s, claim for being untimely filed. Because the
trial court erred in determining that Appellee’s claim was timely
filed under section 733.702(1), Florida Statutes (2017), we reverse.
BACKGROUND
Appellant was appointed as personal representative of the
estate of her deceased father, Steve Allen Herman, and filed a
petition to determine the beneficiary of an annuity contract. On
January 4, 2018, a notice to creditors was published. On April 5,
2018, Appellee, the decedent’s sister, filed an answer to the
petition and a statement of claim against the estate. Appellant, in
turn, filed a petition for an order striking untimely filed claim,
arguing that Appellee’s claim was barred under section 733.702,
Florida Statutes (2017), which provides that a claim against an
estate must be filed:
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[.]
Appellant contended that because the notice to creditors was first
duly published on January 4th, and Appellee was served a copy of
the notice by mail on January 21st, the time for filing any claims
expired on April 4th, rendering her April 5th claim time barred.
Appellee countered that her claim was timely filed because the
computation of the three-month period set forth in section
733.702(1) is governed by Florida Rule of Judicial Administration
2.514, pursuant to which the time period began the day after the
event triggering it and ended on April 5th.
The trial court found that it is unclear from the language of
section 733.702(1) if the three-month creditor’s claim period begins
to run on the first day of publication or the day after and, thus,
resorted to Florida Rule of Judicial Administration 2.514 for
guidance. Upon application of the rule, the court found that “the
3-month claims period began to run on January 5, 2018 and
expired on April 5, 2018. Therefore, the last day for any creditor to
file a claim against the estate . . . was April 5, 2018.” Accordingly,
the court denied the petition for an order striking untimely filed
claim and declared the cause adversarial. This appeal followed.
ANALYSIS
We review a trial court’s decision on a petition to strike a claim
against an estate as untimely for an abuse of discretion.
Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876, 879 (Fla. 4th DCA
2003); see also Morgenthau v. Estate of Andzel, 26 So. 3d 628, 630
(Fla. 1st DCA 2009), disapproved on other grounds by Jones v.
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Golden, 176 So. 3d 242 (Fla. 2015). However, the standard of
review is de novo to the extent the issue turns on statutory
interpretation. Morgenthau, 26 So. 3d at 630; see also W. Fla. Reg’l
Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012) (stating that
questions of statutory construction are reviewed de novo). The
polestar of statutory construction is legislative intent. See, 79 So.
3d at 8. To discern legislative intent, the court must first look to
the plain and obvious meaning of the statute’s text. Id. at 9. If the
statutory language is clear and unambiguous, the court must
apply that unequivocal meaning and may not resort to the rules of
statutory construction. Id. The court must give full effect to all
statutory provisions and avoid readings that would render a part
of a statute meaningless; additionally, the court may not construe
an unambiguous statute in a way that would extend, modify, or
limit its express terms or its reasonable and obvious implications.
Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla.
2011).
Section 733.702 is titled “Limitations on presentation of
claims” and provides in pertinent part as follows:
(1) If not barred by s. 733.710, 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 political subdivisions, even if the claims are
unmatured, contingent, 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 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, even though the personal
representative has recognized the claim or demand by
paying a part of it or interest on it or otherwise. . . .
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....
(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. . . .
§ 733.702, Fla. Stat. (2017) (emphasis added).
In the case before us, the pertinent facts are not in dispute
and the issue is whether the three-month limitations period of
section 733.702(1) begins to run on the date of the first publication
of the notice to creditors (as contended by Appellant) or on the day
after the date of the first publication (as argued by Appellee and
determined by the trial court). The resolution of the issue turns
on section 733.702(1)’s language of “the date that is 3 months after
the time of the first publication of the notice to creditors.”
Contrary to the trial court’s finding and Appellee’s argument,
the language of section 733.702(1) is clear and unambiguous: “the
date that is 3 months after the time of first publication” is the date
that is three calendar months after the date of first publication; it
is not the date that is three months after the day after the time of
first publication. See also Jones v. Golden, 176 So. 3d 242, 245,
(Fla. 2015) (reiterating that section 733.702(1) is a statute of
limitations and explaining that the three-month limitations period
“begins to run upon publication of the notice to creditors and ends
three months after the date of the first publication”); Spohr v.
Berryman, 589 So. 2d 225, 226 (Fla. 1991) (“The first publication
of the notice of administration . . . occurred on January 9, 1987.
Under section 733.702 . . ., this meant that claims against the
estate had to be filed by no later than April 9, 1987.”); Mack v.
Perri, 24 So. 3d 697, 697 (Fla. 1st DCA 2009) (“The time period
under section 733.702(1) runs from ‘the time of the first publication
of the notice to creditors.’”); In re Hill, 582 So. 2d 701, 702 (Fla. 1st
DCA 1991) (noting that where “the notice of administration was
published for the first time on September 28, 1988,” “[t]he section
733.702, Florida Statutes (1987), three-month period within which
estate creditors could file their claims expired on December 28,
1988 . . . .”); Coley v. Estate of Odom, 500 So. 2d 188, 189 (Fla. 1st
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DCA 1986) (“Notice to creditors of Odom’s estate was published
first on September 2, 1983. Under section 733.702(1)(a), Florida
Statutes (1985), creditors of Odom’s estate had a period of three
months or until December 2, 1983, to file claims.”); Lubee v.
Adams, 77 So. 3d 882, 883-84 (Fla. 2d DCA 2012), disapproved of
by Jones v. Golden, 176 So. 3d 242 (Fla. 2015) (“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).”); Miller v. Estate of
Baer, 837 So. 2d 448, 449 (Fla. 4th DCA 2002) (explaining that
where notice was published on December 4, 1996, creditors “had
until March 4, 1997, to file their claims or be time barred”); Estate
of Shearer ex rel. Shearer v. Agency for Health Care Admin., 737
So. 2d 1229, 1230-31 (Fla. 5th DCA 1999) (“Parties agree that
Notice of Administration is published [May 5, 1997], triggering the
3-month claims period under § 733.702. The 3-month period
expires August 5, 1997.”); In re Estate of Bartkowiak, 645 So. 2d
1082, 1083 (Fla. 3d DCA 1994) (“Notice of administration was
properly published July 11, 1990. The deadline for filing claims
was October 11, 1990.”).
As such, we find inapplicable rule 2.514, which provides in
part that “in computing time periods specified in any . . . statute
that does not specify a method of computing time,” “[w]hen the
period is stated in days or a longer unit of time,” “exclude the day
of the event that triggers the period.” Fla. R. Judicial Admin.
2.514(a)(1)(A) (2017). * Accordingly, we hold that the three-month
limitations period of section 733.702(1) begins to run on the day of
the first publication of the notice to creditors.
* Effective January 1, 2019, rule 2.514 was amended to read
in pertinent part that “[w]hen the period is stated in days or a
longer unit of time,” “begin counting from the next day that is not
a Saturday, Sunday, or legal holiday.” 2018 FLORIDA COURT
ORDER 0045 (C.O. 0045).
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Given that the notice to creditors was first published on
January 4th, the three-month limitations period ended on April
4th, rendering Appellee’s claim filed on April 5th untimely.
Therefore, we reverse the trial court’s order denying Appellant’s
petition for an order striking Appellee’s claim as untimely.
REVERSED.
ROBERTS and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jonathan S. Dean and Sarah C. Rummel of Dean and Dean, LLP,
Ocala, for Appellant.
Adam Rowe, David P. Grigaltchik, and Boris Galustov of
Grigaltchik & Galustov, P.A., Jacksonville, for Appellee.
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