One of the decedent’s two sons claimed his father owed him over $50,000 when he passed away. To collect on this debt son filed a creditor claim against his father’s estate. Other brother objected, which triggered the obligation under F.S. 733.705 to file an “independent action” to adjudicate the claim. The creditor-brother, who also happened to be his father’s personal representative, had apparently gotten comfortable in the probate division, because he filed his independent action as an adversary proceeding in the circuit court’s probate division, rather than filing a new complaint in the circuit court’s civil division. According to local Administrative Order 6.102–9/08, that was a mistake.
So how do you fix this mistake? Do you transfer the improperly filed claim or dismiss it? The probate judge dismissed it. Wrong answer says the 4th DCA, the case should have been transferred, here’s why:
The single question we answer is whether the trial court should have transferred the case to the civil division. The answer is yes.
In 2008, the chief judge of the Fifteenth Circuit signed Administrative Order 6.102–9/08, which declared that “independent actions” be filed in the civil division. The personal representative filed the claims in the wrong division, and he could not re-file his petition in the civil division because the statutory thirty-day period expired. See § 733.705(5), Fla. Stat. (2011). His only viable options were to have his claim transferred or to obtain an extension of time. The trial court denied him both.
We have previously acknowledged that, in a situation where a complaint should have been filed in the probate division, the court should not dismiss the case solely because it was filed in the wrong division. Grossman v. Selewacz, 417 So.2d 728, 730 (Fla. 4th DCA 1982) (citing In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977)). “[W]hile the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court’s jurisdiction, and cases filed in the wrong division should be transferred to the proper division.” Id.
While the personal representative did not file a motion to transfer, he did argue that transfer was the correct remedy.
As the Third District explained:
In the instant case the [trial] court did not consider the question of transfer, and there is nothing in the record to show that it was requested to do so. Nevertheless, we feel that in construing the rule to produce a just result (as we conceive it our duty to do) it is necessary for us to hold that the court should transfer rather than dismiss the cause.
Gross v. Franklin, 387 So.2d 1046, 1048 (Fla. 3d DCA 1980) (emphasis added).
The trial court erred in not transferring the personal representative’s petition to the civil division.
In this case the 4th DCA addresses the same basic issue covered by the 3d DCA in its Kates opinion. Bottom line, all circuit court judges have the same inherent authority; it doesn’t matter if your judge’s deciding a will contest, adjudicating a murder trial, or enforcing an alimony claim: same authority. If you’re convinced a claim’s being litigated in the wrong division of the right circuit court (in other words, you’re not challenging venue or the circuit court’s subject matter jurisdiction), what you need to do is have the case transferred to the correct division — NOT move for dismissal. At its core this is an administrative-convenience argument, not a jurisdictional or venue challenge.