5D05-333 Simpson v.Simpson

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2006 » 5D05-333 Simpson v.Simpson

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-333

Case Date: 02/13/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

MARK R. SIMPSON and ROBERT L. SIMPSON, Appellants, v. ESTATE OF H. JAMES SIMPSON, JR., etc., Appellee. ________________________________/ Opinion filed February 17, 2006 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge. Thomas P. Callan, G. Robertson Dilg, and Timothy A. Dix, of Thomas P. Callan, P. A., Orlando; Charles W. Sell of Shuffield Lowman, Orlando; and Thomas W. Brown of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellants. Marc L. Lubet and Lisa A. Franchina, Orlando, for Appellee. PLEUS, C.J. Mark Simpson and his father, Robert Simpson, appeal a final order discharging the personal representative, Anita Simpson, in the estate of James ("Jim") Simpson. They argue that the probate court abused its discretion in finding, in a prior order, that Mark was not a reasonably ascertainable creditor of Jim's estate. reverse. We agree and Case No. 5D05-333

Jim Simpson died on June 29, 2001. His wife and personal representative of his estate, Anita Simpson, filed her petition for administration on July 31, 2001. published notice of administration on September 11 and 18, 2001. On March 15, 2002, Jim and Anita's nephew, Mark Simpson, petitioned the probate court to allow him to file a late claim against Jim's estate. Mark alleged She

entitlement to 10.5 shares in the Mount Dora Groves Company, one of the Simpson family's citrus businesses, and asked the court to extend the time in which to file a claim on the grounds of fraud, estoppel and insufficient notice. Mark also filed an

independent action in the circuit court. That action is being held in abeyance pending resolution of this appeal. After an evidentiary hearing, the probate court concluded that Mark was not a reasonably ascertainable creditor of Jim's estate because his claim was that of a potential donee of an unexecuted gift, rather than that of one who is entitled to shares held in trust. Shortly thereafter, the court discharged Anita as the personal

representative and this appeal ensued. A probate court's determination of whether someone is a reasonably ascertainable claimant is subject to an abuse of discretion standard of review. See Miller v. Estate of Baer, 837 So. 2d 448, 450 (Fla. 4th DCA 2002). Section 733.701, Florida Statutes (2001) 1 requires the personal representative to serve notice of administration on known or reasonably ascertainable creditors of the estate. Due

process also requires that a known or reasonably ascertainable creditor be given notice

2

of the commencement of probate proceedings. Strulowitz v. Cadle Co., 839 So. 2d 876, 880 (Fla. 4th DCA 2003) (citing Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988)). If the personal representative fails to serve notice upon a known or reasonably ascertainable creditor, the creditor may seek an extension of time in which to file his claim based on fraud, estoppel or insufficient notice of the claims period.

Download 5D05-333 Simpson v.Simpson.pdf