5D07-717 Fernandez-Fox v. Lindsay

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-717

Case Date: 01/14/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

ROBERTA FERNANDEZ-FOX, Appellant, v. ESTATE OF DAVID P. LINDSAY, DECEASED, Appellee. ________________________________/ Opinion filed January 18, 2008 Appeal from the Circuit Court for Seminole County, Kenneth R. Lester, Jr., Judge. Teresa N. Phillips and Alexander S. Douglas, II, of Pohl & Short, P.A., Winter Park, for Appellant. Craig Corbett and James B. Byrne, of Law Office of James B. Byrne, Jr., P.A., Longwood, for Appellee, Vivienne Titus. Mark A. Reyes, Sanford, for Appellee, Estate of David P. Lindsay. PLEUS, J. Roberta Fernandez-Fox appeals a trial court order denying her petition for an extension of time to file an independent action against the estate of David P. Lindsay. Fox argues that the trial court erred in finding that a motion to strike was the same as an objection and, because the trial court's order was premised on this finding , reversal is required. We agree and reverse. Case No. 5D07-717

Fox and Lindsay owned a duplex as tenants in common and attempted to change title to a joint tenancy with right of survivorship. Although they endorsed

mortgage documents with the designation JTWROS following their signatures, the change was never made in the public record. In August 2003, before they could make the proper changes, Lindsay died and left a will devising his estate to his stepson, stepdaughter-in-law, Vivienne Titus, and their children. In August 2005, Fox filed a petition for administration. Additionally, Fox made several claims against the estate for storage fees, funeral expenses, and various claims involving the maintenance of the duplex she co-owned with Lindsay. Thereafter, Titus filed a motion to strike Fox's claims. Fox responded by filing an action against Titus and the estate to quiet title in the duplex. Titus' motion to strike Fox's claims was denied by the trial court. In November 2005, Mark Reyes was appointed personal representative. He filed objections to Fox's claims nine months after his appointment, in September 2006. In accordance with Florida law, Fox petitioned the court for an extension of time to file an independent action in response to Reyes' objections. Upon considering the petition, the court determined that Titus' original motion to strike was an objection and Fox's claims were barred for not filing an independent action within thirty days of Titus' motion to strike. After denial of a motion for reconsideration, this appeal followed. Fox argues that the trial court incorrectly ruled that a motion to strike and an objection are the same. Because the trial court's ruling is based on interpretation of the Florida Probate Code and Florida Probate Rules, this Court's standard of review is de

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novo. See, e.g., Pinellas County v. City of Largo, 964 So. 2d 847, 851 (Fla. 2d DCA 2007). Section 733.705(2), Florida Statutes, provides, in pertinent part: [A] personal representative or other interested person may file a written objection to a claim. If an objection is filed, the person serving it shall serve a copy of the objection as provided by the Florida Probate Rules. The failure to serve a copy of the objection constitutes an abandonment of the objection. (Emphasis added). Subsection (5) provides that the claimant has "30 days from the date of service of an objection within which to bri ng an independent action on the claim."

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