Hill v. Davis, — So.3d —-, 2010 WL 1347314 (Fla. 1st DCA March 31, 2010)
In civil litigation you usually have years to file your complaint: most statue of limitations periods fall within a range of 2 to 6 years. Not surprisingly, most civil litigators assume the same rules apply to probate litigation. Big mistake! In probate litigation your statute of limitations period can be as little 30 days, with the norm being 3 months. These ultra-short limitations periods are unforgiving traps for the unwary and – not surprisingly – a recurring topic on this blog [click here, here].
Personal Representative Disqualification Motions:
In this case, the issue was whether the 3-month statute of limitations period contained in F.S. 733.212(3) applied to personal-representative disqualification motions. In contested probate proceedings the party serving as personal representative has significant advantages. So knowing when the window of opportunity closes to file a disqualification motion is very important.
According to the 3d DCA in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004), a case I wrote about here, the answer is NO, this 3-month statute of limitations period does NOT apply. In the linked-to case above, the 1st DCA comes to the opposite conclusion, explicitly rejecting the 3d DCA’s ruling in Angelus and certifying a conflict between the DCAs.
[W]e disagree with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless. . . . The statute clearly states that interested persons such as appellant “must object to … the qualifications of the personal representative” within three months of the service of the notice of administration or such an objection is “forever barred.” A claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to “the qualifications of the personal representative” and should be subject to the clear and unambiguous provisions of section 733.212(3). . . . Contrary to the Third District’s decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections 733.304 and 733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section 733.212(3) to appellant’s claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section 733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period. This is not a situation where the factual basis for the claim of disqualification was concealed from appellant or arose after the three-month period had expired. Because appellant’s motions to disqualify appellee as personal representative were time barred under section 733.212(3), we affirm the trial court’s denial of the motions on that basis. We also certify conflict with Angelus.
If your client is contemplating a personal-representative disqualification motion, you have to assume the 3-month statute of limitations period contained in F.S. 733.212(3) applies (unless you’re in the 3d DCA). If your case is being litigated in a court that doesn’t fall under either the 1st DCA or the 3d DCA, you now have two different approaches you can argue depending on what side of the case you’re on.