Sampson Farm Limited Partnership v. Parmenter, 238 So.3d 387 (Fla. 3d DCA January 17, 2018)

Non-resident parties can’t be pulled into Florida litigation if they don’t have the kind of “minimum contacts” with this state necessary to satisfy our long-arm statute requirements under F.S. 48.193, and the constitutional due process requirements articulated by our supreme court in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). This is basic stuff.

So what’s the problem?

Unfortunately, the less than artfully drafted language of Probate Code section 731.301(2) muddies the water on what should be an obvious point. According to this statue, in “a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate.”

Does this mean the rules for personal jurisdiction are different in “a probate proceeding”? NO! And it’s not just me that says so; according to this legislative White Paper, the Real Property, Probate and Trust Law Section of The Florida Bar agrees. Here’s an excerpt:

By statute, probate proceedings are in rem, meaning that the court has jurisdiction over the will, if any, the tangible and intangible assets of the decedent’s estate (wherever located), and real estate located in Florida, all without the necessity of any original process. F.S. 731.105; Also see In re: Estate of Williamson, 95 So.2d 244 (Fla. 1957). Service by formal notice is one method of complying with due process requirements necessary to invoke the court’s in rem jurisdiction over those receiving the notice to the extent of their interest in the estate. Even without addition of the phrase, “in a probate proceeding,” the statute is easily read to be addressing only a means of notice to persons subject to the court’s in rem jurisdiction that is calculated to effect due process over those receiving the notice.

Formal notice is not judicial process, and is not the equivalent of a summons. …

Personal jurisdiction is neither contemplated nor required in a majority of adversary proceedings in probate. Of those specific adversary proceedings listed in Probate Rule 5.025(a) that require service of formal notice, only surcharge of a personal representative or guardian requires in personam jurisdiction, and those fiduciaries have submitted to the court’s personal jurisdiction by instituting or participating in the court proceedings. See Payette v. Clark, 559 So.2d 630 (2d DCA 1990) (filing of a petition for administration subjects the personal representative to in personam jurisdiction “for all purposes related to the administration”).

Thus the formal notice procedure was never intended to be a method of obtaining personal jurisdiction over persons having an interest in the probate estate. In Re Estate of Black, 528 So.2d 1316 (Fla. 2d DCA 1988); In Re Estate of Vernon, 608 So.2d 510 (Fla. 4th DCA 1992). Formal notice is a method of service of notice to a person subject to the court’s in rem jurisdiction. It is not a summons or judicial process that confers in personam jurisdiction over the recipient.

To avoid future confusion a statutory clarification was introduced earlier this year in SB 1154 as part of a wide-ranging bundle of Probate Code revisions. Under this bill, the following sentence would have been added to the end of F.S. 731.301(2):

Formal notice is not sufficient to invoke the court’s personal jurisdiction over the person receiving formal notice.

SB 1154 died in committee. Until we have a legislative fix we’ll need to rely on common sense and appellate court guidance to get us to the right answer. Fortunately, that’s exactly what the 3d DCA serves up in this case.

Is probate different? NO

In the linked-to case above a Florida personal representative filed an adversary probate petition requesting a declaratory ruling as to the estate’s ownership interest in a Massachusetts limited partnership (LP). The LP owns and operates a working farm in Massachusetts. The LP has no contacts with Florida.

The LP filed a motion to dismiss for lack of personal jurisdiction, challenging the lack of factual allegations providing a basis for personal jurisdiction under either F.S. 48.193 or our constitutional due process requirements. The personal representative persuaded the probate judge none of that mattered “because of the special nature of probate.” (What?!)

Wrong answer says the 3d DCA. Here’s why:

[In Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So.2d 702 (Fla. 3d DCA 1988), receded from on other grounds by C.A.T. LLC. v. Island Developers, Ltd., 827 So.2d 373, 374 (Fla. 3d DCA 2002) (en banc)], this Court found that section 731.301(1) was not “a shorthand method of subjecting all potential litigants to the jurisdiction of the probate court.” Id. While recognizing that personal representatives have a duty to marshal estate assets with dispatch, this Court concluded that duty “does not empower a personal representative to enforce contract rights against a foreign corporation where jurisdiction has not been obtained.” Id. at 706.

Moreover, it is well established—both generally, and specifically with regard to adversary actions arising out of probate—that a pleading must make the requisite allegations of personal jurisdiction. … Thus, even if [the LP] fell within the scope of section 731.301(1)’s notice provision, [the personal representative] failed to provide any evidence of [the LP’s] minimal contacts with Florida sufficient to meet the constitutional due process requirements necessary to exercise personal jurisdiction over it.

And because the facts matter, the 3d DCA went out of its way to explain that even if the personal representative had followed the established rules for pleading personal jurisdiction, the result would have been the same based on the LP’s lack of minimum contacts with Florida.

 Because [the personal representative] failed to establish a basis for the exercise of long-arm jurisdiction under section 48.193, we need not address the issue of minimum contacts and constitutional due process. It is clear, however, that with respect to this second prong, the record contains no evidence that [the LP] has engaged in any business in Florida, bought or sold property in Florida, or engaged in any other contact with Florida such that [the LP] could reasonably expect to be haled into court here. Indeed, the record shows that the petition was served on [the LP’s] registered agent in Massachusetts. Based on the record here, exercise of personal jurisdiction would “offend ‘traditional notions of fair play and substantial justice.'” Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).