# Petition — West v. National Trust Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 959

## Text

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

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

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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.

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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,

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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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1250%3A1. Public record. Not legal advice.