Jones v. Sun Bank/Miami, NA

609 So. 2d 98, 1992 WL 348351
CourtDistrict Court of Appeal of Florida
DecidedNovember 24, 1992
Docket91-2847
StatusPublished
Cited by6 cases

This text of 609 So. 2d 98 (Jones v. Sun Bank/Miami, NA) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Sun Bank/Miami, NA, 609 So. 2d 98, 1992 WL 348351 (Fla. Ct. App. 1992).

Opinion

609 So.2d 98 (1992)

Jane A. JONES, Appellant,
v.
SUN BANK/MIAMI, N.A., and Howard F. Ullman, as Co-Administrator of the Estate of Richard E. Thomi, Deceased, Appellees.

No. 91-2847.

District Court of Appeal of Florida, Third District.

November 24, 1992.

*99 Spriggs & Johnson and Rick Johnson, Friedlander & Mattox, Tallahassee, for appellant.

Ullman & Ullman and Steven J. Glueck, North Miami Beach, Cooper & Wolfe and Sharon Wolfe, Miami, for appellees.

Before BARKDULL, HUBBART and FERGUSON, JJ.

BARKDULL, Judge.

This is an appeal from a final order striking the statement of claim filed by Jane A. Jones against the estate of Richard E. Thoni. Said order reads in part as follows:

"This cause came before the Court for hearing on the Motion of Co-Administrators of the Estate of RICHARD E. THONI, Deceased, to Strike Statement of Claim of Jane A. Jones as Untimely. The Court heard argument of counsel, testimony of the witnesses, both live and by deposition, examined the documents admitted into evidence, reviewed the Trial Memoranda submitted by the Co-Administrators and the Claimant and is otherwise fully advised in the premises and proceedings. Accordingly, the Court makes the following finding of facts and conclusions of law:

FINDINGS OF FACT

"1. ON OR ABOUT DECEMBER 16, 1985, RICHARD E. THONI ("the Deceased") entered into a Contract for Sale and Purchase with Gold Key Development Company, Inc. for the sale of a parcel of property, together with improvements in the nature of a gasoline station, in Panama City, Florida, ("The Parcel").

"2. On March 10, 1986, the transaction closed and The Deceased, by Warranty Deed, conveyed The Parcel to JANE A. JONES (hereinafter referred to as "Claimant").

"3. Claimant, by her own volition chose not to be represented by legal counsel in connection with the transaction and, instead, allowed the title company to undertake the legal responsibility for the settlement and closing of the transaction.

"4. Soon after the closing, Claimant and The Deceased had one telephone conversation, wherein Claimant inquired regarding the well and pump on the Premises.

"5. The next contact between Claimant and the Deceased occurred on or about June 9, 1986, when The Deceased mailed a letter to Claimant, which Claimant received, indicating that the Deceased and the Department of Environmental Regulation had entered into a consent judgment in 1981 regarding procedures to be followed to avoid delivery of the wrong type of gasoline or fuel into consumers' vehicles and that the consent judgment required subsequent owners to be notified and to implement the procedure. (Claimant's Exhibit 7).

"6. There was no further contact between Claimant and the Deceased or anyone on the Deceased's behalf until April, 1989 when Claimant telephoned the Deceased, spoke to Dorothy Thoni and advised that she needed to speak to the Deceased to determine whether there were any underground tanks on the Premises.

*100 "7. The Deceased did not return the telephone call and consequently, Claimant placed a second telephone call to the Thoni residence and advised the gentleman who answered the telephone that she needed to speak to the Deceased to determine whether there were any underground tanks at the Premises.

"8. Not receiving a return telephone call, Claimant sent a letter to the Deceased during April, 1989, advising that she had purchased the Premises in 1986 and that she needed to know whether there were any underground tanks on the premises. (Claimant's Exhibit 6).

"9. Dorothy Thoni, on behalf of the Deceased, typed on the bottom of the April, 1989 letter: `All the tanks were aboveground. Richard E. Thoni, 4/28/89.' The response was mailed to and received by the Claimant.

"10. While there was no competent testimony or evidence supporting Claimant's allegation of environmental contamination at the Premises, Claimant testified that beginning no later than April, 1989, she believed that there was environmental contamination at the premises.

"11. Dorothy Thoni by deposition, testified that there was no known contamination at the Premises at the time of sale to the Claimant.

"12. Claimant testified that she did not have the Premises tested for contamination prior to the closing.

"13. Notwithstanding that Claimant, at all times relevant herein, had both the address and telephone number of the Deceased and Dorothy Thoni, at no time did Claimant advise, attempt to advise or even intimate to the Deceased or anyone on his behalf, her belief that there was environmental contamination at the premises for which she intended to hold the Deceased liable.

"14. The Deceased, RICHARD E. THONI, died on August 15, 1989.

"15. Notice of Administration was first published on August 29, 1989 and consequently the claims bar date was November 29, 1989.

"16. On or about April 28, 1990 Dorothy Thoni was served with a Summons and Complaint in an action filed by the Claimant against the Deceased in the 14th Circuit Court of Bay County, Florida, on or about March 15, 1990, seeking damages for breach of contract, breach of warranties and fraud for alleged environmental contamination to the premises. (Exhibit to Statement of Claim of Jane Jones.)

"17. On or about May 21, 1990, after learning that RICHARD E. THONI was deceased, Claimant filed a Statement of Claim with this Court.

"18. The Co-Administrators served their Motion to Strike Statement of Claim of Jane A. Jones on January 14, 1991.

"19. At no time prior to or at the hearing on the Motion to Strike, did the Claimant file a written motion for an order enlarging Claimant's time to file her Statement of Claim, nor has Claimant filed a written reply to the Motion to Strike Claim.

"20. The Claimant also failed to move ore tenus at the hearing on the Motion to Strike, for an order enlarging time to file her Statement of Claim.

CONCLUSIONS OF LAW

"1. Sec. 733.702 F.S. provides that a claim against a decedent is barred unless a statement of claim is filed within three (3) months of the date of the first publication of the Notice of Administration, required pursuant to Sec. 733.212 F.S.

"2. The Co-Administrators' Motion to Strike, together with a review the record demonstrate that the Statement of Claim filed by Claimant is untimely as it was filed subsequent to the claims bar date of November 29, 1989 which is three (3) months following the August 29, 1989 date of first publication of the Notice of Administration in this estate.

"3. The Court has the authority to extend the time for filing claims past the bar date in accordance with Sec. 733.702(3).

"4. As the Co-Administrators demonstrated that the Claim was untimely, the burden shifted to the Claimant to seek an *101 order enlarging the time to file her claim, either by filing a written motion or a written reply to the Motion to Strike. Barnett Bank of Palm Beach County v. Estate of Read, 493 So.2d 447 (Fla. 1986) citing Picchione v. Asti, 354 So.2d 954 (Fla. 3d DCA 1978).

"5. The Co-Administrators' moved ore tenus for the Court to dispense with any further hearing and for the entry of an order that the claim was time-barred due to the failure of the Claimant to file a motion or response requesting an enlargement of time to file her claim.

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Cite This Page — Counsel Stack

Bluebook (online)
609 So. 2d 98, 1992 WL 348351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-sun-bankmiami-na-fladistctapp-1992.