Baillargeon v. Sewell, — So.3d —-, 2010 WL 1727842 (Fla. 2d DCA Apr 30, 2010)
As a probate lawyer, you’re often the low man on the totem pole in cases involving large, complex matters. The firm representing the estate on the civil litigation side of the case could be (and often is) a large firm with hundreds of lawyers on the payroll, staffing your particular matter with a team of high-powered litigators. And then there’s the probate lawyer. Often a sole or small-firm practitioner, usually working the case alone or (at most), with the help of a single associate and a paralegal.
David vs. Goliath
This case is a prime example of the disproportionate impact a good probate lawyer can have on the course of events. The estate was on the receiving end of a $150 million class action claim. I have no idea how much cost and delay is involved in defending against this type of claim in the United States District Court for the Middle District of Florida (which is where it was being litigated), but I’m sure it’s huge. Undaunted, an alert probate lawyer spotted an opportunity to save the estate hundreds of thousands of dollars in legal defense fees by ending the case immediately in the probate court. Here’s how he did it:
Does Florida’s Probate Code permit the filing of class action claims against a decedent’s estate? 2d DCA says NO
Two creditors of the decedent filed a statement of claim in an estate administration proceeding on behalf of themselves and a class of persons similarly situated. The personal representative of the estate moved to strike the claim to the extent that it attempted to assert claims on behalf of persons other than the claimants. The probate judge disagreed, and let the class-action portion of the claim stand. On appeal the 2d DCA disagreed, ruling that Florida’s Probate Code does NOT permit the filing of class action claims against a decedent’s estate. Here’s why:
In [In re Estate of Gay, 294 So.2d 668 (Fla. 4th DCA 1974)], the Fourth District held that the filing of a class claim was inconsistent with the requirements of section 733.16, Florida Statutes (1971). Id. at 670. Section 733.16 appeared in the former Florida Probate Law. The Fourth District also said that the filing of a class claim was in conflict with the public policy of this state favoring the speedy administration of decedents’ estates. Id.
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Despite the Code’s comprehensive coverage of the administration of decedents’ estates in general and creditors’ claims in particular, it is silent on the subject of class claims. As we have already noted, the Fourth District’s decision in Gay is the only reported authority in Florida on the subject of the filing of class claims in probate. The Gay case was decided under the Florida Probate Law in 1974, more than thirty-five years ago. Thus it is pertinent to note “that the legislature is presumed to know the judicial constructions of a law when enacting a new version of that law.” Brannon v. Tampa Tribune, 711 So.2d 97, 100 (Fla. 1st DCA 1998) (citing Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806 (Fla.1964)). “Furthermore, the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version.” Id. (citing Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966)). Thus, in the absence of any reference to the filing of class claims in the Code either when it was enacted or in the multiple subsequent amendments to it, the legislature must be presumed to have adopted the Fourth District’s holding in Gay that class claims may not be filed in probate. Accordingly, we conclude that any change in the probate claims process to allow the filing of class claims must come from the legislature instead of through a judicial construction of the Code by this court that would be at odds with the Fourth District’s holding in Gay.
If a lawsuit is pending against the decedent when he died, do you still need to file a separate creditor claim against his estate? 2d DCA says YES
When the decedent died, he was one of several defendants named in a class action that was then pending in the United States District Court for the Middle District of Florida. Randolph Sewell and Daphne Sewell (the Sewells) had filed the class action on May 30, 2007, on behalf of themselves and all others similarly situated against a number of entities and individuals, including the decedent. After letters of administration were issued to the personal representative, she was promptly substituted as a party defendant in the pending action. The Sewells then filed a first amended class action complaint specifically naming the personal representative as a defendant.
On these facts the probate judge ruled that the filing of the claim was unnecessary because a federal action asserting the class claim was pending against the decedent at the time of his death and because the personal representative of the estate was promptly substituted as a party defendant in the federal action.
Strike two for the probate judge. On appeal the 2d DCA reversed him on this issue as well, holding that the probate judge’s ruling was based on old case law that no longer applied.
The circuit court’s rationale for accepting the Sewells’ argument that it was unnecessary to file a claim on behalf of the unidentified members of the class was as follows: “[T]he estate had notice … the action was pending when the [Decedent] died and the [Personal Representative] has been joined in the federal class [action].” However, the circuit court’s reliance on the decision in [In re Estate of Shaw, 340 So.2d 506 (Fla. 3d DCA 1976),] for this proposition was misplaced. In the Shaw case, the result was controlled by the former Florida Probate Law’s section 733.16, the predecessor to current section 733.702.
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[T]he exception for actions pending at the death of the decedent is no longer in effect, and Shaw and similar cases that applied the exception in section 733.16(1)(a) are no longer authoritative on this question. See Spohr v. Berryman, 589 So.2d 225, 228-29 (Fla.1991); Roberts v. Jassy, 436 So.2d 394, 395-96 (Fla. 2d DCA 1983); Am. & Foreign Ins. Co. v. Dimson, 645 So.2d 45, 47 (Fla. 4th DCA 1994); Lasater v. Leathers, 475 So.2d 1329, 1330 (Fla. 5th DCA 1985).
It follows that the filing of a claim on behalf of the unidentified members of the class was not made unnecessary by the pendency of the class action at the death of the decedent and the prompt substitution of the personal representative in the pending federal action. The circuit court erred in ruling to the contrary.