Petition — West v. National Trust Co.

The National Trust Company, as personal representative

of the Estate of Albert C. West, deceased, and as

Trustee for Elizabeth C. West, under Article V of

the Will of Alfred C. West,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

PETER B. ATWOOD,

ATWOOD AND RICHMOND

1994 Thatch Palm Drive

Boca Raton, Florida 33432

(305) 368-0005

Attorneys for Petitioner

is

QUESTIONS PRESENTED

1. A CLAIM WAS TIMELY PRESENTED TO

THE PROBATE COURT OF COLLIER COUNTY,

FLORIDA BY PETITIONER HEREIN FOR THE

MONTHLY PAYMENT OF $300.00 UNDER THE

TERMS OF A PROPERTY SETTLEMENT

AGREEMENT INCORPORATED IN A DIVORCE

DECREE ENTERED ENTERED IN THE SUPERIOR

COURT OF COOK COUNTY, ILLINOIS AGAINST

ALFRED C. WEST, NOW DECEASED AND

REPRESENTED BY THE NATIONAL TRUST

COMPANY. THE CLAIM INCORPORATED THE

DECREE (INCLUDING THE PROPERTY

SETTLEMENT AGREEMENT) OF THE ILLINOS

COURT ENTERED OCTOBER 16, 1963. THE

PROPERTY SETTLEMENT AGREEMENT PROVIDED

_THAT THE MONTHLY SUM (DESCRIBED AS

NY AND SUPPORT”) SHALL BE PAID UNTIL

THE FIRST OF THE FOLLOWING EVENTS SHALL

THAT ALFRED PAY THE PREMIUMS AND

MAINTAIN A GROUP LIFE POLICY NAMING

FRANCES IRREVOCABLE BENEFIARY SO LONG

AS SUCH SUPPORT PAYMENTS ARE DUE UNDER

TERMS OF THE AGREEMENT. ALFRED LATER

LEFT HIS THEN EMPLOYMENT AND THUS THE

GROUP POLICY WAS NO LONGER EFFECTIVE AND,

IN SUCH CASE, THE AGREEMENT PROVIDED

“THAT ALL AMOUNTS DUE FOR ALIMONY AND

SUPPORT DUE FRANCES, UNDER THE TERMS —

OF THIS AGREEMENT, SHALL BECOME A LIEN

AGAINST ALFRED'S ESTATE.”

SECTION 733.7053) FLORIDA STATUTES

PROVIDES THAT CLAIMANT FILE AN

INDEPENDENT ACTION ON THE CLAIM WITHIN

30 DAYS AFTER THE FILING OF AN OBJECTION

TO THE CLAIM. NO SUCH ACTION WAS FILED

UNTIL SUBSEQUENT TO THE LOWER COURT'S

RULING AS TO THE 30 DAY LIMITATION. SECTION

95.11 FLORIDA STATUTES PROVIDES TIME

PERIODS WITHIN WHICH CERTAIN ACTIONS

SHALL BE COMMENCED. THUS, 20 YEARS ON

AN ACTION ON A JUDGMENT OR DECREE OF A

COURT OF RECORD IN THIS STATE [FLORIDA].

UNDER SUBSECTION (2) AN ACTION SHALL BE

COMMENCED WITHIN FIVE YEARS IN AN ACTION

ON A JUDGMENT. . . OR ANY COURT OF THE

UNITED STATES, ANY OTHER STATE OR

TERRITORY IN THE UNITED STATES, OR FOREIGN

COUNTRY.

THE DECEDENT WAS CURRENT IN HIS

PAYMENTS UP TO THE TIME OF HIS DEATH.

NATIONAL TRUST HAS NOT PAID A SINGLE DIME

ON THE ILLINOIS JUDGMENT.

THE QUESTION THUS PRESENTED IS: DID.

THE FLORIDA COURTS THAT IS, THE TRIAL

COURT, THE DISTRICT COURT OF APPEAL AND

THE SUPREME COURT OF FLORIDA ERR IN

* 2. ON THE FACTS STATED IN 1 PRECEDING,

J DOES A 30-DAY LIMITATION IN SECTION 783.7050

, FLORIDA STATUTES DENY DUE PROCESS OF LAW

CONTRARY TO THE 14th AMENDMENT TO THE

CONSTITUTION IN THAT THE PERIOD IS TOO

SHORT AS RESPECTS A FOREIGN JUDGMENT?

8. DOES SECTION 733.705(3) FLORIDA

| _ STATUTES APPLY TO A JUDGMENT OF A FOREIGN -

STATE IN VIEW OF SECTION 95.11 FLORIDA

2 STATUTES BEING A SPECIFIC STATUTE DEALING

WITH PERFECTING A JUDGMENT ON A FOREIGN

JUDGMENT?

4. DOES THE THE DISTRICT COURT OF

APPEAL AND THE SUPREME COURT OF FLORIDA

BY THE SIMPLE PROCESS OF AFFIRMING THE

COURTS BELOW WITHOUT OPINION FORECLOSE

REVIEW OF THE CONSTITUTIONAL ISSUE OF

FULL FAITH AND CREDIT GUARANTEED BY

CONSTITUTION?

PARTIES TO THE PROCEEDINGS

The rarties to this proceeding are Frances W.

West, Petitioner, and The National Trust Company as

personal representative of the Estate of Alfred C. West,

deceased, and as trustee for Elizabeth C. West as

_ described in the caption to this proceeding.

ARTICLE IV, SECTION 1 OF THE UNITED STATES |

Order of Supreme Court of Florida dismissing appeal .

Order of Supreme Court of Florida denying Motion

to Transfer cause from District ourt of Appeal,

Constitutional and Statutory Provisions Involved .

Reasons for Granting the Writ .................

TABLE OF CONTENTS (Continued)

Appendix Appendix Page

Order of Supreme Court of Florida dismissing appeal .

Order of Supreme Court of Florida Denying Motion

to Transfer cause from District Court eee

Second District, to Supreme Court

Order of October 12, 1982 of trial court

with prejudice Complaint on foreign judgment .

Order of January 6, 1983 of trial court denying

claimant's (Petitioner herein) petition for extension

the cre ee e e ee

“eee 2 2

Reply (of Petitioner herein) to Defendant's Motion

WW

————ͤ ee

TABLE OF AUTHORITIES

4 Aldrich v. Aldrich et al,

5 —TT,, a Oe:

a Bosich v. Skermetti et al,

2 (Miss. S. Ct. 1927) 112 80.385858 I

5 Buchman u State Board of Accountancy,

2 280 80.2 694 (975) . 12

Ss Department of Administration et al v.

re Mallory A. Horne,

> 269 So.2d 659 (9%). 111

Krestaff u Krestaff,

79 Ul. App. 2d 170 (1967)...............,... 8

Lewis Marine Supply, Inc. v. Hurt,

857 So.2d 252 (Dist. Ct. of App.

Fourth Dist. 1978) ....................-. 911

Mackenzie v. Hillsborough County, a

Morris v. Jones, % 2

Director of Insurance of Illinois, ee

V 6. 7. 8. 11

— os 2

> 1

* * 0 8 4

TABLE OF AUTHORITIES (Continued)

Cases

Roche u McDonald,”

275 U.S. 449 (1928)

Southern Bell Telephone & Telegraph Co. u

Woodstock, Inc.,

34 Ill. App. 3d 86 (1975) .

Union National Bank v. Lamb,

337 U.S. 38 (1949)

United Yacht Brokers, Inc. v. Gillespie,

(DCA 4, 1977) 353 So.2d 574

Watkins u Conway

385 U.S. 189

Winland v. Winland,

416 So.2d 520 (DCA 2 1982)

STATUTES

Florida Statutes:

§733.70K(3) ....................,. 2,8, 4, 5, 6, 7, 8. 12

AA.

4

1 ‚U—U—U dũũñ : 2 2 2 Fees

e 3

eee e y ;

TABLE OF AUTHORITIES (Continued)

Florida Rules of Appellate Procedure:

Rule 9.030(aX1XAXii) and (aX2XA Mii)

At Appendix ...............

United States:

28 U.S.C. §1257(3) ...............

At Appendix ...............

CONSTITUTIONAL PROVISION

United States:

Article IV, Section 1

At Appendix

Fourteenth Amendment

At Appendix

Florida:

Article v. Section 3 (b) (1) and (83).

a Petitioner

The National Trust Company, etc.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

The Petitioner, Frances W. West, respectfully

requests that a Writ of Certiorari be issued to review

ä 88

— —

‘ 2» — 423

r * 2

Nr ;

‘os the-foreign judgment after the 30-day period of

limitation

contained in section 733.7053) Florida Statutes

had expired.

The decision of the Supreme Court dismissing the

appeal for discretionary review on the ground that it

had no jurisdiction because the District Court of Appeal

“did not declare invalid a State Statute or a provision

of the State Constitution” was entered December 6,

1983 and on December 30, 1983 a motion filed by Petitioner

herein was treated as a motion for reinstatement and

was denied.

JURISDICTION

The Supreme Court of Florida dismissed the appeal

for discretionary review without opinion on December

6, 1983 and on December 30, 1983 denied a motion,

treated as a motion for reinstatement. These orders

appear in the appendix at pp. 1, 3. The Petitition for a

Writ of Certiorari was filed within 90 days of that date.

Court’s jurisdiction is invoked under 28 U.S.C. section

1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article IV, Section 1 of the United States Constitution

providing that each State shall give full faith and credit

to the judicial proceedings of every other State. net

Fourteenth Amendment to the United States ee

Florida Statutes:

§733.705K(3) providing a 30-day period within which

an independent action may be filed after an objection

has been filed on a claim in the probate court. App. p.

11.

§95.11 Limitations other than for the recovery of

real property,

(1) Within 20 years.—An action on a judgment or

decree of a court of record in this State.

2) Within five years

(a) An action on a judgment or decree of aay

court, not of record, of this state or any court of the

United States, any other state or terzitory in the United

States, or a foreign country.

Article V, Section 3 of the Florida Constitution,

subsection (b) Jurisdiction— The Supreme Court:

CONCISE STATEMENT OF THE CASE

Alfred C. West now deceased and Frances W. West

(petitioner herein) both then resident in the State of

Illinois were divorced by decree of the Superior Court

of Cook County, Illinois (now the Circuit Court of Cook

County) entered on or about October 16, 1963. Both

parties were present and represented by independent

counsel. Prior to the entry of the decree, a property

settlement agreement was entered into which became

a part of the decree, providing for the payment by

Alfred C. West of $300 per month to Mrs. West beginning

August 31, 1962, the date of the agreement, and thereafter

until the first to occur of (1) Frances W. West's

and (2) the death of Frances W. West. Neither such

event has happened. Further, as part of said decree,

Mr. West (the deceased) agreed to keep in force

group life insur: ice policy on his life in the amount

$40,000, and in the event he shal! become ineligible

maintain the policy, any amounts due Mrs. West under

the agreement shall become a lien on his estate. The

‘monthly support payments were paid regularly by the

decedent, the last of such payments being made on

July 1, 1981. Mr. West died July 9, 1981.

Mr. West died a resident of Naples, Florida.

is not required to spell out ita basis for the objection. ©

On July 24, 1981 counsel for National Trust Company

(National), the personal representative of the Estate of

Alfred C. West. sent a letter to all children of Mr. West

(the sole beneliiaries under his Will) explaining the

claim for alimony. On November 20, 1981, a proposed

settle was offered requiring Mrs. West’s signature. A

reply to this was made by counsel for Mrs. West on

November 23, 1981. The offer of November 20, 1981

was mailed on November 23, 1981 to Mrs. West at her

then address in Palm Springs, California. On January

29, 1982, counsel for National made certain inquiries as

to the purport of Mrs. West's claim for support under

the property settlement agreement and asserted for

the first time, the language of §733.705(3) Florida Statutes

and asserted that the claim was barred, but they

nevertheless wanted to settle the matter. This was

replied to on February 5, 1982 mentioning that the

reference to §733.705K(3) was inappropriate in view of

the many conversations and correspondence on her

claim.

On March 2, 1982, a formal offer in compromise of

the claim for support was filed in the probate proceedings.

An objection to the offer was mailed to the clerk of the

probate division of the Circuit Court on March 10, 1982

together with notice to all in dig parties. On May

7, 1982 without any with.counsel for Mrs.

West, the offer in compromise was withdrawn and on

June 28, 1982 an order was entered by the Probate

Division of the Circuit Court approving the withdrawal.

No mention was made that a hearing was set for June

21, 1982 on the pleadings relating to the offer. Before

the order of June 28, 1982 was signed, counsel for Mrs.

West was informed of the order of withdrawal and suit

r 1 — af 1 * ie . * . ey . pri wy

4 . Sr N N Paes ..* : ee 5 7 a

Vane ee eae „ 1 N

was filed on the Illinois judgment on June 21, 1982.

This action was dismissed with prejudice on September

30, 1982 because not filed within 30 days of the filing of

an objection to the claim. Appendix 5 In Mrs. West's

reply to the motion to dismiss the complaint, the opening

paragraph of the Reply made appropriate reference to

the constitutional argument that the Illinois judgment

was entitled to the full faith and credit under Article

IV, Section of the United States Constitution, citing

Morris v. Jones, Director of Insurance of Illinois 349

US.545, 67 S. Ct. 451 (1947). App. 9 Subsequently a petition

to extend the time for filing an independent action

agaiust the estate was filed in the Circuit Court for

Collier County, Florida and denied on January 6, 1983.

Petitioner's petition for an extension of time within

which to file an independent action on the foreign

judgment, and then in the Supreme Court of Florida in

dismissing the application for discretionary review for

lack of jurisdiction, also without opinion. App. 1.

REASONS FOR GRANTING THE WRIT

It seems utterly incongruous to require one to file.

an action on a judgment already rendered to prove a

claim in an estate proceeding, especially where there

can be no collateral attack the judgment or to which

the estate could not possibly have an objection—the

parties having participated in the Illinois proceedings

resulting in the decree and the property settlement

agreement made part of the decree, and the court

having general jurisdiction over the subject matter.

As stated in Morris u Jones, 329 U.S.545, 554, 67

S.CT. 451,457 (1947),

“The single point of our decision is that the

nature and amount of petitioner's claim has

been conclusively determined by the Missouri

judgment and may not be relitigated in the

There the liquidator as did the probate court in

this proceeding declined to

a . 7 7 *

a ny,

22 wi *

72 P

eet

AEN STA:

.

*

action must to be sensibly construed, apply to a claim

not based on an already existing judgment. In this

case, Mr. West was current in his payments (some call

it “alimony,” but it really is a payment under the property

settlement agreement. Eight days after the last payment

he died. There was no occasion to ‘ile the foreign judgment

in Florida under the “Registration of Foreign Support

Orders” §88.321, .345, 351 and .371 Florida Statutes

(App. 14) as he was current in his payments and there

was no indication that he was about to die or that

National as his executor (called “personal representative”

in Florida) would totally ignore the foreign decree of

which it had full knowledge, there being no problem of

finances as the inventory in the estate indicated it had

a value of $1,000,000 or more. Mrs. West's claim was

peanuts in any valuation of the estate. Thus, National's

harrassment in this case in any historical review of the

case is difficult to understand. Aldrich u Aldrich et al.

378 U.S. 540 (1964).

As respects the limitation in §733.705(3) of the

Florida probate code of thirty days to file an independent

action on the claim, this Court in the Morris u Jones

case, supra, observed:

“It is no more important that the suit on the

underlying claim could not be maintained in

Illinois after the liquidator had been appointed

than the fact that a statute of limitations of

the State of the forum might have barred it.”

Citing Christmas u Russell, 5 Wall. 290, 18

epee plop toon nis se

eee,

alimony and did not reserve jurisdiction for later

consideration of this question must be given full faith

and credit under the United States Constitution Article

IV, section 1 and does not authorize the Illinois court to

modify the Nevada decree and award alimony. The

finality and effect of the Nevada decree are determined

by the law of Nevada. And, in Illinois the Illinois Appellate

Court upheld the trial court’s refusal to permit a foreign

judgment debtor to assert defenses to the foreign.

judgment in Illinois: Southern Bell Telephone & Telegraph

Co. u Woodstock, Inc. 34 Tll.App.3d 86 (1975). In Winland

u Winland, 416 So.2d 520 (District Court of Appeal

Second District) 1982, an Ohio 1972 support order was

barred by Florida's statute of limitations or laches, but

a 1981 Ohio order for arrearages based on the 1972

order was not barred and must be given full faith and

credit under the U.S. Constitution.

In a case somewhat similar to the present proceeding,

a suit was filed to enforce a contract for the redemption

of stock. The complaint was dismissed because it did

not allege compliance with the probate claims statute.

On appeal, the Florida District Court of Appeal, Fourth

cc

with the probate elaims statute was not

EEC

not appear to come within the purview of the probate

claim statute of Florida. Lewis Marine Supply, Inc. u

Hurt, 357 So.2d 252 (District Court of Appeal, Fourth

District) 1978. In the present situtation, Petitioner here

has filed a separate action in the Federal District Court,

Southern District of Florida at Miami. Florida in docket

No.82-2087 CIV-ALH to enforce the lien against the

estate of Mr. West and his children as sole heirs of his

estate. All amounts due under the property settlement

agreement are a lien against the estate of Mr. West.

Concise Statement ‘of the Case, herein at page 4.

Numerous defenses to this claim have been raised

including defenses to the merits of the judgment in

Illinois. These are now pending on cross motions for

summary judgment. We submit that a proceeding to ö

enforce the lien is not within the purview of the probate

code of Florida. So, also, as held by this Court in Union

National Bank u Lamb, 337 U.S.38 (1949) where a Colorado

judgment obtained in 1927 was revived in 1945. Suit

was then brought in Missouri on the revived judgment

in Colorado. The Supreme Court of Missouri though

asssuming the judgment was valid in Colorado, refused

to enforce it because the original judgment under *

Missouri's law could not have been revived in 1945. a

The Missouri Supreme held that the lex fori governs a

the limitations of actions and that the Full Faith and

Credit Clause of the Constitution, Article IV, Section 1,

did not require Missouri to recognize Colorado’s more

lenient policy of revival of Judgments. This Court held ‘ee

that Roche u McDonald, 275 US.449 (1928) was dispositive a

of the case stating that,

. . . once the court of the sister State had

jurisdiction over the parties and of the subject

matter its judgment was valid and could not

be impeached in che State of the forum, even LG

though it could not have been obtained there.” 3

The fact that Florida judgments have a twenty-

year period of limitation for their effectiveness under

§95.11 Florida Statutes (App. 12) as against a five-year

potest for lc ge judgments does not present an

8 *

4

1

:

be

b. 7

<5

* A“

~

u Conway,

2 . . 0 " x?

a5 18. .* a period Hay

1 > Say 4

;

a? 9

——

6

N

a

which an action on a foreign judgment may be commenced

must be reasonable: Bosich u Skermetti et al, (Miss.

S8. Ct. 1927) 112 80.385. Apart from the argument that

the 30-day limitation of §733.705(3) Florida Statutes

does not apply in this case in view of Morris u Jones,

supra, and Lewis Marine Supply, Inc. u Hurt, supra, a

30-day limitation is patently too short in the case of a

foreign judgment when applied in a probate proceeding.

It contravenes the due process clause of the Fourteenth |

Amendment to the Constitution of the United States.

Finally, we inquire — How can the State of Florida

foreclose a constitutional question simply because the

trial court, the District Court of Appeal and finally the

Supreme Court of Fiorida do not directly pass upon the

constitutional question raised at the outset of the case

ot Cn eerie peels Sant Aan BS ee

The Florida Constitution, Article 5, Section 3(bX1)

provides in part for the jurisdiction of the Supreme

Court and states that the Supreme Court: “Shall hear

appeals from . . . decisions of district courts of appeal

declaring invalid a state statute or a provision of the

state constitution.

.

“3 May review any decision of a district court of appeal

that expressly construes a provision of the state or

federal constitution, or . . .” Appendix page 18.

Rule 9.030 Rules of Appellate Procedure, confirms

these constitutional provisions. Appendix p. 20.

&..

ie

N as *

5

1

4

=

W

a

a

*

a

The decisions of the trial courts in the consolidated

cases on appeal to the District Court of Appeals

necessarily held, without so deciding, the Constitutionality

of §733.70K(3) and the applicablity of Article IV, section

1 of the United States Constitution. This, it may have

determined was without merit, or perhaps they just

didn’t want to put it in writing.

In Department of Administration et al v. Mallory

A. Horne et al, Supreme Court of Florida, 269 So.2d

659 (1972) that Court held that where a trial court

necessarily passed directly upon the validity of a state

statute, an appeal would lie directly to the Supreme

Court of Florida. So also held in United Yacht Brokers,

Inc. v. Gillespie (DCA 4) 353 So.2d 574 (1977).

The District Court of Appeal for the Second District

in Mackenzie u Hillsborough County, 280 So.2d 694

(1973) held that where constitutional questions were

involved, the cause would be transferred to the Supreme

Court. A motion to this effect was filed in the Florida

Supreme Court was denied, also without opinion.

Appendix 2.

In Buchman u State Board of Accountancy, G. Ct. Fla

1972) 262 Fla. 198, the Court held that were the District

Court necessarily determined that assertion of

unconstitutionality was without merit, it effectively.

passed upon the constitutionality of the state statute

so as to provide jurisdiction in this Court [the Florida

Supreme Court].

In Picchione u Asti, (DCA Third 1978) 354 So.2d

954, the Court held that had plaintiff raised question ass

to constitutionality of limitations statute on presentation 3 5

of claims against decedent's estate, proper appeal would

have been to Supreme Court rather than District Court

of Appeal. Admittedly, these cases construe the

: constitution of Florida before its amendment in 1980 as

3 set forth above. However, the decisions are quite apposite

in the light of the present constitutional provisions

about “expressly declares” and “expressly construes.”

CONCLUSION

It apparently is the policy of Florida to require

claimants to prove their claims in independent actions

in the circuit court (not in the probate court) and not to

accept the judgments of sister States as an adjudication

of the existence and amount of such judgment. This is

evidenced by counsel for National during the course of

the constitutional question raised in his interposition

of defenses to the merits of the judgment, as by asserting

that the judgment did not survive the decedent's life,

or that alimony terminated on his death. Such a policy,

when applied to sister state judgments, is, we submit,

in direct conflict with the federal Constitution, Article

IV, Section 1, and the decisions of this Court.

The question involved in this case is substantial,

involving as it does the rights of Petitioner to the

financial protection which the 1963 judgment afforded

her and the intention of the decedent to protect her in

the event of his death by the property settlement

agreement. These rights were callously disregarded

by National, indeed contemptuous of her rights. The

here asserted are far reaching and of great

importance and interest all over the United States and

will decide a question that is bound to arise again and

is bound to come sooner or later before the Supreme

Court of the United States.

trey,

IN THE SUPREME COURT OF FLORIDA

TUESDAY, DECEMBER 6, 1983 3

CASE NO. 64,587 3

District Court of Appeal, l

2d Distriet — Nos. 82-2482 7

‘

FRANCES W. WEST, ’

Appellant,

ad

ng

tn

vs.

} ;

THE NATIONAL TRUST COMPANY, ETC.,

Appeilee.

It appearing to the Court that the District Court

of Appeal, Second District, did not declare invalid a

State Statute or a provision of the State Constitution,

jurisdiction

is established on proper motion filed within fifteen (15)

*

Ac

3(b) (1), Florida Constitution.

Cc

ec: Hon. William A. Haddad, Clerk

Hon. William J. Reagan, Clerk

Hon. William J. Nelson, Judge

Hon. Charles T. Carlton, Judge

Peter B. Atwood, Esquire

Thomas B. Garlick, Esquire

of Harter, Secrest & Emery

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

days from the data of this order. See Article V, Section

IN THE SUPREME COURT OF FLORIDA

FRIDAY, DECEMBER 30, 1983

CASE NO. 64,587

District Court of Appeal,

2d District — Nos. 82-2432

63-44

FRANCES W. WEST,

Appellant,

vs.

THE NATIONAL TRUST COMPANY, ETC.,

Appellee,

On consideration of the Motion to consider appeal

to District Court of Appeal as improvidently filed and

to transfer cause from District Court Appeal, Second

District, to the Supreme Court of Florida, and the

Sesponte thereto,

IT IS ORDERED by the Court that said motion is

8 treated as a motion for reinstatement and is hereby

20 denied. ö

3 :

1 C :

ce: Hon. William A. Haddad, Clerk ‘a

; Hon. William J. Reagan, Clerk i.

: Hon. William J. Nelson, Judge

‘ Hon. Charles T. Carlton, Judge

| Peter B. Atwood, Esquire

a Thomas B. Garlick, Esquire 0 9

and Timothy R. Parry, Esquire 5

of Harter, Secrest & Emery 5

A True Copy

e

[Filed 10-12, 1982

IN THE CIRCUIT COURT OF THE TWENTIETH

JUDICIAL CIRCUIT

COLLIER COUNTY, FLORIDA

CIVIL ACTION

CASE NO. 82-1172-CA01

FRANCES W. WEST

Plaintiff

vs.

THE NATIONAL TRUST COMPANY as Personal

Representative of the Estate of Alfred C. West,

Deceased and Trustee for Elizabeth Carpenter West

under Article V of the Will of Alfred C. West, Deceased

Defendant

ORDER AND JUDGMENT

DISMISSING COMPLAINT WITH PREJUDICE

This cause came on to be heard on September 13,

1982, on the motion of the Defendant to dismiss the

complaint of the Plaintiff, with prejudice, upon the

ground that the Plaintiff has failed to comply with the

limitation of time provided for the commencement of

this action pursuant to Florida Statute 733.705, and the

Court having read the Motion to Dismiss of the Defendant

and the Affadavit and Exhibits annexed thereto, and

the Reply to Defendant's Motion submitted by the

App. 5

Plaintiff, and the Exhibit annexed thereto, and having

heard arguments of counsel, and being otherwise fully

advised in the premises, it is

ORDERED AND ADJUDGED, that the motion of

the Defendant be and it is hereby granted, and it is

further

ORDERED AND ADJUDGED, tat the Complaint

of the Plaintiff be and it is hereby dismissed, with

prejudice.

DONE AND ORDERED, in Chambers at Naples,

Collier County, Florida, this 30 day of Sept., 1982.

/s/ William J. Nelson

HONORABLE WILLIAM J. NELSON

CIRCUIT JUDGE

[FILED JAN 6 ’83]

IN THE CIRCUIT COURT FOR

COLLIER COUNTY, FLORIDA

PROBATE DIVISION

CASE NO. 81-341-CP-02-CTC

IN RE:

ESTATE OF ALFRED C. WEST

ORDER

This cause came on to be heard on December 28,

1982 on the Petition of Frances W. West, Claimant, for

an Order extending her time to file suit on two claims

the Estate of Alfred C. West which were first

filed on July 21, 1981, and timely objected to by the

Personal Representative on November 5, 1981. The

Court having read the Petition of Frances W. West and

the Answer to Petition of The National Trust Company,

as Personal Representative of the Estate of Alfred C.

West, and having heard arguments of counsel, and

being otherwise fully advised, it is

ORDERED AND ADJUDGED, that Frances W.

West, Claimant, has failed to show “good cause” for an

awake

733.705, and it is further

ORDERED AND ADJUDGED, that the Petition

of Frances W. West be, and it is hereby, denied in all

respects.

DONE AND ORDERED, at Naples, Collier County, 4

Florida this 6th day of January, 1983.

/s/ Charles T. Carlton a

HON. CHARLES T. CARLTON a

Circuit Judge a

ce: Peter B. Atwood, Esq. *

William H. Myers, Esq. a

Joseph Harrison, Esq. 3

Thomas B. Garlick, Esq.

IN THE CIRCUIT COURT OF

THE TWENTIETH JUDICIAL CIRCUIT

COLLIER COUNTY, FLORIDA

Civil Action

Case No. 82-1172-CA01

FRANCES W. WEST

Plaintiff

vs

THE NATIONAL TRUST COMPANY, as Personal

Representative of the Estate of Alfred C. West,

Deceased and as Trustee for Elizabeth Carpenter

West under Article V of the Will of Alfred C. West,

Deceased

Defendant

Reply to Defendant’s Motion

to Dismiss Complaint.

General:

The Claim to which the Estate of Alfred C. West

(the Estate) has asked this Court to dismiss is based

upon an order of of the Circuit Court of Cook County,

Illinois in divorce proceedings. This decree, made a

part of the Complaint herein is entitled to the full faith

and credit of this Court under Article IV, section 1 of

the Constitution of the United F ae

obtained in 1963, and, as stated in M u James,

ae yee

1

R

Director of Insurance of Illinois (1947) 329 U.S. 545, 67

S.Ct. 451, 456,

„. . . That determination is final and conclusive in

in all courts. ‘Because there is a full faith and credit

clause a defendant may not a second time challenge the

validity of the plaintiff's right which has ripened into a

judgment.” (Citing cases?

“For the Full Faith and Credit Clause established

‘throughout the federal system and salutary principle

of the common law that a litigation once pursued to

judgment shall be as conclusive of the rights of the

parties in every other court as in that where the judgment

was rendered”. Id., 320 U.S. at page 439, 64 S.Ct. at

page 214, 88 L. Ed. 149, 150A.L.R. 413. And see Riley v.

New York Trust Co., 315 U.S. 343, 348, 349, 62 S.Ct.

608, 612, 86 L.Ed.885. The nature and amount of

petitioner’s claim may not, therefore, be challenged or

retried in the Illinois proceedings.”

„. . . In any event the Missouri judgment is res

judicata as to the nature and amount of petitioner's

claim as against all defenses which could have been

raised.” (Citing cases)

Florida Statutes:

733.705 Payment of and objection to claims

(1) No personal representative shall be compelled

to pay the debts of the decedent until after the expiration

of 4 months from the first publication of notice of

administration. If any person brings an action against

a personal representative within the 4 months on any

claim to which the personal representative has filed no

objection, the plaintiff shall not receive any costs or

attorneys’ fees if he prevails, nor shall the judgment

change the class of the claim for payment under this

code.

(2) On or before the expiration of 4 months from

the first publication of notice of administration, a personal

representative or other interested person may file a

written objection to any claim. An objection filed to an

unmatured claim matures it for the purpose of bringing

an action on it. If an objection is filed, the person filing

it shall serve a copy of the objection by registered or

certified mail to the address of the claimant as shown

on the claim or delivery to the claimant to whose claim

he objects or [the claimant’s] attorney of record, if any,

not later than 10 days after it has been filed, and also

on the personal representative if the objection is filed

by any interested person other than the personal

representative. Failure to serve a copy of the objection

constitutes an abandonment of the objection.

(3) The claimant shall be limited to 30 days from

the date of service of an objection within which to

bring an independent action upon the claim. For good

cause, the court may extend the time for filing an

App. 11

objection to any claim or the time for serving the

objection, and may likewise extend the time for filing

an action or proceeding after objection is filed. The

extension of time shall be granted only after notice. No

action or proceeding shall be brought against the personal

after the time limited above. If an objection

is filed to the claim of any creditor and an action is

brought by the creditor to establish his claim, a judgment

establishing the claim shall give it no priority over

claims of the same class to which it belongs.

(4) No interest shall be paid by the personal

representative or allowed by the court on a claim until

the expiration of 4 calendar months from the first

publication of the notice of administration unless the

claim is founded on a written obligation of the decedent

providing for the payment of interest. Interest shall be

paid by the personal representative on written obligations

of the decedent providing for the payment of interest.

On all other claims, interest shall be allowed and paid

beginning 4 months from the first publication of the

notice of administration.

(5) The court may determine all issues concerning

claims or matters not requiring trial by jury.

95.11 luden 6 Mer then fer the seowvery ef vail

property

Actions other than for recovery of real property

shall be commenced as follows:

(1) Within twenty years.— An action on a judgment

or decree of a court of record in this state.

(2) Within five years.—

(a) An action on a judgment or decree of any

court, not of record, of this state or any court of the

United States, any other state or territory in the United

States, or a foreign country.

(b) A legal or equitable action on a contract,

obligation, or liability founded on a written instrument.

(c) An action to foreclose a mortgage.

(3) Within four years.—

(a) An action founded on negligence.

(b) An action relating to the determination of

paternity.

le) An action founded on the design, planning, or

construction of an improvement to real property, with

after the date of actual possession by the owner, the

date of the issuance of a certificate of occupancy, the

date of abandonment of construction if not completed,

or the date of completion or termination of the contract

between the professional engineer, registered architect,

or licensed contractor and his employer, whichever

date is latest.

(d) An action to recover public money or property

held by a public officer or employee, or former public

officer or employee, and obtained during, or as a result

of, his public office or employment.

le) An action for injury to a person founded on

the design, manufacture, distribution, or sale of personal

property that is

PART IV. REGISTRATION OF FOREIGN SUPPORT

ORDERS

88.321 Additional remedies

1. In general

A Uniform Reciprocal Enforcement of Support Act

order rendered pursuant to this chapter is not the

exclusive means in which outstanding child support

— may be collected. Op.Atty.Gen., 077-77, July

e . —Ä r ˙ vA

. N

88.345 Official to represent petitioner

If this state is acting either as a rendering or a

registering state, the prosecuting attorney upon the

request of the court or the Department of Health and

Rehabilitative Services shall represent the petitioner

in proceedings under this part.

Added by Laws 1979, c. 79-383, § 36, eff. Oct. 1, 1979.

88.351 Registration procedure; notice

(1) A petitioner seeking to register a foreign support

order in a circuit court of this state shall transmit to

the clerk of the circuit court:

(a) Three certified copies of the order with all

modifications thereof;

(b) One copy of the reciprocal enforcement of

support act of the state in which the order was made;

and

(c) A statement, verified and signed by the

petitioner, showing the post office address of the

petitioner, the last known place of residence and post

office address of the respondent, the amount of support

remaining unpaid, a description and the location of any

property of the respondent available upon execution,

and a list of the states in which the order is registered.

F

7

88.371 Effect of registration; enforcement procedure

(1) Upon registration, the registered foreign support

order shall be treated in the same manner as a support

order issued by a court of this state. It has the same

effect and is subject to the same procedures, defenses,

and proceedings for reopening, vacating, or staying as

a support order of this state and may be enforced and

satisfied in like manner.

(2) The respondent has 25 days after the mailing

of notice of the registration in which to petition the

court to vacate the registration or for other relief. If he

does not so petition, the registered support order is

confirmed.

(3) At the hearing to enforce the registered support

order, the respondent may present only matters that

would be available to him as defenses in an action to

enforce a foreign money judgment and matters concerning

a substantial change in the circumstances for the parties

relating to the obligation of support. If he shows to the

court that an appeal from the order is pending or will

be taken or that a stay of execution has been granted,

the court shall stay enforcement of the order until the

appeal is concluded, the time for appeal has expired, or

the order is vacated, upon satisfactory proof that the

respondent has furnished security for payment of the

support ordered as required by the rendering state. If

he shows to the court any ground upon which enforcement

of a support order of this state may be stayed, the

court shall stay enforcement of the order for an

appropriate period if the respondent furnishes the same

security for payment of the support ordered that is

required for a support order of this state.

App. 16

ae 2S

Amended by Laws 1979, e. 79-383, § 38, eff. Oct. 1, 1979.

Laws 1979, c. 79-383, amended chapter 88 to conform

upport

Reciprocal Enforcement of S

Act to the 1968 revised act.

the 1955 Uniform

Florida Constitution Article V.

SECTION 3. Supreme court.—

(a) ORGANIZATION. —The supreme court shall

consist of seven justices. Of the seven justices, each

appellate district shall have at least one justice elected

or appointed from the district to the supreme court

who is a resident of the district at the time of his

original appointment or election. Five justices shall

constitute a quorum. The concurrence of four justices

shall be necessary to a decision. When recusals for

cause would prohibit the court from convening because

of the requirements of this section, judges assigned to

temporary duty may be substituted for justices.

(b) JURISDICTION.—The supreme court:

(1) Shall hear appeals from final judgments of

trial courts imposing the death penalty and from decisions

of district courts of appeal declaring invalid a state

statute or a provision of the state constitution.

(2) When provided by general law, shall hear

appeals from final judgments entered in

for the validation of bonds or certificates of indebtedness

and shall review action of statewide agencies relating

to rates or service of utilities providing electric, gas, or

telephone service.

3) May review any decision of a district court of

appeal thet expressly declares valid a state statute, or

that expressly construes a provision of the state or

federal constitution, or that expressly affects a class of

constitutional or state officers, or that expressly and

directly conflicts with a decision of another district

court of appeal or of the supreme court on the same

question of law.

(4) May review any decision of a district court of

appeal that passes upon a question certified by it to be

of great public importance, or that is certified by it to

be in direct conflict with a decision of another district

court of appeal.

(5) May review any order or judgment of a trial

court certified by the district court of appeal in which

an appeal is pending to be of great public importance,

or to have a great effect on the proper administration

of justice throughout the state, and certified to require

immediate resolution by the supreme court.

(6) May review a question of law certified by the

Supreme Court of the United States or a United States -

Court of Appeals which is determinative of the cause

and for which there is no controlling precedent of the

supreme court of Florida.

(7) May issue writs of prohibition to courts and

all writs necessary to the complete exercise of its

jurisdiction.

(8) May issue writs of mandamus and quo warranto

te state officers and state agencies.

(9) May, or any justice may, issue writs of habeas

corpus returnable before the supreme court or any

justice, a district court of appeal or any judge thereof,

or any circuit judge.

1

Rules of Appellate Procedure

Rule 9.030. Jurisdietion of Courts

(a) Jurisdietion of Supreme Court.

(1) Appeal Jurisdiction.

(A) The Supreme Court shall review, by appeal:

(i) final orders of courts imposing sentences of

death;

(ii) decisions of district courts of appeal declaring

invalid a state statute or a provision of the state

constitution.

(B) When provided by general law, the Supreme %

Court shall review: 1

(i) by appeal final orders entered in proceedings 2 ü

for the validation of bonds or certificates of

indebtedness; a

i) action of statewide agencies relatffig to rates

or service of utilities providing electric, gas or

telephone service.

(2) Discretionary Jurisdiction. The

discretionary jurisdiction of the Supreme Court may

be sought to review:

(A) decisions of district courts of appeal that:

(i) expressly declare valid a state statute;

wee

4

(ii) expressly construe a provision of the state

or federal constitution;

(iii) expressly affect a class of constitutional or

state officers;

(iv) expressly and directly conflict with a decision

of another district court of appeal or of the Supreme

Court on the same question of law;

(v) pass upon a question certified to be of great

public importance;

(vi) are certified to be in direct conflict with

decisions of other district courts of appeal;

(B) orders and judgments of trial courts certified

by the district court of appeal in which the appeal

is pending to require immediate resolution by the

Supreme Curt, and:

(i) to be of great public importance, or

(ii) to have a great effect on the proper

administration of justice;

(C) questions of law certified by the Supreme

Court of the United “States of a United States

Court of Appeals that are determinative of the

cause of action and for which there is no controlling

precedent of the Supreme Court of Florida.

(3) Original Jurisdiction. The Court

may issue writs of prohibition to courts and all writs

necessary to the complete exercise of its jurisdiction;

— — —

ote 2k hes

and may issue writs of mandamus and quo warranto to

state officers and state agencies. The Supreme Court

or any justice may issue writs of habeas corpus returnable

before the Supreme Court or any justice, a district

court of appeal or any judge thereof, or any circuit

judge.

(b) Jurisdiction of District Courts of Appeal.

(1) Appeal Jurisdiction. District courts of appeal

shall review, by appeal:

(A) final orders of trial courts not directly

reviewable by the Supreme Court or a circuit court;

B) nom final orders of circuit courts as prescribed

by Rule 9.130(aX3);

(C) administrative action when provided by

general law.

(2) Certiorari Jurisdiction. The certiorari

jurisdiction of district courts of appeal may be sought

to review: sh

(A) non-final orders of lower tribunals other

than as prescribed by Rule 9.130;

(B) final orders of circuit courts acting in their

review capacity.

(3) Original Jurisdiction. District courts of appeal

may issue writs of mandamus, prohibition, quo warranto,

common law certiorari and all writs necessary to the

complete exercise of the courts; jurisdiction; or any

Suey ery oe

? -

judge thereof may issue writs of habeas corpus returnable

before the court or any judge thereof, or before any

circuit judge within the territorial jurisdiction of the

court.

Constitution of the United States:

ARTICLE IV—STATES—RECIPROCAL RELATIONSHIP

BETWEEN STATES AND WITH UNITED STATES

Section 1. Full Faith and Credit shall be given

in each State to the public Acts, Records, and Judicial

Proceedings of every other State. And the Congress

may by general Laws prescribe the Manner in which

such Acts, Records and Proceedings shall be proved,

and the Effect thereof.

Amend. 14

AMENDMENT XIV—CITIZENSHIP; PRIVILEGES AND

IMMUNITIES; DUE PROCESS; EQUAL

PROTECTION; APPORTIONMENT OF REPRESEN-

TATION; DISQUALIFICATION OF OFFICERS;

PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any w

which shall abridge the privileges or

citizens of the United States; nor shall any State

any person of life, liberty, ate without due 2 Ag

x98

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

TITLE 28 U.S.C.

§ 1257. State courts; appeal; certiorari

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

i.

2.

3. By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a State statute is

drawn in question on the ground of its being repugnant

to the Constitution, treaties or laws of the United

States, or where any title, right, privilege or immunity

is specially set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States.