Petition for Writ of Certiorari — Crosson v. Conlee

iy g ~ ] 9 8 6 ) Office oT ~~" US.

Case Number FEB 6 1985

ALEXANDER L. STEVAS.

CLERK |

IN THE wi

SUPREME COURT OF CHE UNITED STATES

OCTOBER TERM 1984

CHARLES W. CROSSON, JR.,

Petitioner

VS

WENDELL F. CONLEE,

EXECUTOR OF THE ESTATE

OF

E. DOUGLAS VIA, deceased,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Robert F. Rider, Esquire

Suite 910, Dominion Bank Bldg.

213 South Jefferson Street

Roanoke, Virginia, 24011

(703) 343-0816

Attorney for Petitioner,

Charles W. Crosson, Jr.

February, 1985

QUESTION PRESENTED

Whether a Virginia judgment, proper

in all respects, against a Florida

Executor may properly be reversed, and

the exercise of federal jurisdiction over

the claim denied because Florida laws may

protect the probate estate from enfor-

cement of the judgment in Florida?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED. .... 2... i

TABLE OF CONTENTS - e ° - e na - . « ii

TABLE OF AUTHORITIES. ...... . iii

OPINIONS BELOW. . . © «© «© «© «© «© « « 3

WUMBMUEGEAGMs 6 6 8s 8 © 8 8 eo ew 8 3

STATEMENT OF CASE . 2. « «© «© «© «© « « 4-8

REASONS FOR GRANTING WRIT... :; .« 9-18

CONCLUSION. . « «© «© «© © © © © © «© «@ 19

APPENDIX A - Opinion of the United

States Court of Appeals for

the Fourth Circuit (October

4, 1984) 2. «© «© «© «© © © «© «© © eAH1=30

APPENDIX B - Memorandum Opinion and

Order of the United States

District Court for the Western

District of Virginia, Roanoke

Division (September 27, 1983).B-1-14

APPENDIX C - Order of United States

Court of Appeals for the Fourth

Circuit Denying Petition for

Rehearing and Suggestions for

Rehearing en banc (November 8,

1984) . «© «© © © © © © ww ew ew) CH lLH2

APPENDIX D - Affidavit of Wendell

F. Conlee (October 26, 1982). D-1-3

whip

TABLE OF AUTHORITIES

Cases

PAGE

Brooks v. National Bank of Topeka,

251 F2nd 37 (8th Cir. 1958) 12

Crosson, v. Conlee 745 F2d 896,

903, (1984) . e 7 . * « eo 9, il, 14, 17

Markham v. Allen, 326 U. S. 490,

56 &. Ct. 290- 9O Ge 23560

(1946). _ _ e . o . . . _ _ . . - . 13

Propost v. Fisher, 313 F2d 248

(GER Cir. 1L9GZ} « « « © «© « 0 bGy Lig 42

Statutes

Section 733.702, Florida Statutes

1982 . . e . > o o . + . oe —- _ * 6

Other Authorities

Restatement (Second) of Conflict of

Laws §85 (1971) J o © J _ e _ . _ . 14

-iii-

Case Number

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

CHARLES W. CROSSON, JR.,

Petitioner

VS

WENDELL F. CONLEE,

EXECUTOR OF THE ESTATE

OF

E. DOUGLAS VIA, deceased,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

To The Honorable, The Chief Justice and

Associate Justices of the Supreme Court

of the United States:

Charles W. Crosson, Jr., the

Petitioner herein, prays that a Writ of

Certiorari issue to review the judgment

of the United States Court ot Appeais for

the Fourth Circuit entered in the above-

entitled case on October 4, 1984.

cei tn NOR a

OPINIONS BELOW

The unreported Memorandum Opinion

and Order of the United States District

Court for the Western District of

Virginia, which was entered on September

27, 1983, is attached to the Petition as

Appendix B. The opinion of the United

States Court of Appeals for the Fourth

Circuit, attached as Appendix A, is

reported at 745 F.2d 896 (1984) No.

83-2035 (4th Cir., decided October 4,

1984).

JURISDICTION

The original judgment of the Fourth

Circuit was entered on October 4, 1984.

Timely petitions for rehearing and

Suggestions for rehearing en banc were

filed on October 17, 1984 and denied by

the Fourth Circuit in an Order dated

November 8, 1984. (Copy of Order

-3-

(A

attached as Appendix C). The juris-

diction of this Court is invoked under 28

U.S.C. §1254 (1).

STATEMENT OF THE CASE

This is an action brought by Charles

W. Crosson, Jr., a Virginia resident,

against Wendell] F. Conlee, Executor of

the Estate of E. Douglas Via, deceased,

a resident of Florida, pursuant to 28

U.S.C. $1332 (8) (i).

Charles W. Crosson, Jr., was

employed by the Defendant's decedent on

Or about September, 1978 as a manufac-

turers' representative for the Defendant

decedent's organization, a sole proprie-

torship located in Roanoke, Virginia. As

a condition and inducement for

Plaintiff's acceptance of the employment,

E. Dougias Via promised that the obliga-

tions and benefits of the business would

be assumed by the Plaintiff after

December, 1980. Throughout 1979 and 1980

the business was almost singularly

carried on by the Plaintiff since the

Defendant's decedent had moved to

Florida, with only occassional visits to

Roanoke. At the end of 1980, Plaintiff

sought assurance from E. Douglas Via that

control of the business would transter

pursuant to their contract which had been

entered into and performed in Virginia.

E. Douglas Via did not respond, except to

refuse acknowledgement of the previous

contract for assumption of the business

by the Plaintiff.

E. Douglas Via died on May 5, 1982,

in Florida where he then resided. The

Defendant duly qualified as the Executor

of Via's estate on May 28, 1982. The

Plaintiff's complaint was filed on July

2, 1982, in the United States District

Court for the Western District of

Virginia against the Defendant in his

Capacity as the personal representative

of E. Douglas Via, deceased.

The Defendant, through counsel,

filed his Motion to Dismiss and Answer on

July 29, 1982. Other than a general

denial, the Defendant pled "the appli-

cable statute of limitations" in

response. However, he did not raise the

nonclaim statute of Florida as an affir-

mative defense. The Defendant did raise

the issue of failure to comply with the

Florida nonclaim statute in a summary

judgment motion in December, 1982+, In

lsection 733.702, Florida statutes 1982,

provides, in part as follows:

No claim or demand against the

Decedent's estate, that arose before

the death of the Decedent, shall be

binding on the estate unless a claim

therefor is filed in the Probate

Court within three months from the

time of the first publication of the

Notice of Administration.

essence, the Defendant contended that the

Plaintiff was precluded from pursuit and

attaining a judgment in a Federal

District Court in Virginia, applying

Virginia law, in that he had failed to

comply with a Florida probate statute.

THE RULINGS BELOW

In trial, before a jury, in the

United States District Court for the

Western District of Virginia held on

February 24 and 25, 1983, a verdict was

returned in favor of the Plaintiff. In

an opinion (Appendix B) by the Honorable

Jackson F. Kiser, the Defendant's Motion

for Judgment notwithstanding the Verdict

was overruled and judgment on the verdict

was entered on September 27, 1983.

Judge Kiser ruled that Virginia law

controlled in the case before the bar and

that the Florida nonclaim statute was a

Statute of limitations, not to be given

extraterritorial effect in Virginia.

Additionally, the Court felt that the

Defendant would be barred from raising a

defense of the nonclaim statute on a

waiver/estoppel theory. (Appendix B at

B-10) The Court of Appeals disagreed.

The United States Court of Appeals for

the Fourth Circuit reversed the decision

of the Federal District Court and

remanded with directions. The ruling by

the Court of Appeals, after supplemental

briefs by the parties, found existence of

jurisdiction over the subject matter not

wanting. However, the Court announced

that although the federal district court

in Virginia had jurisdiction over the

controversy and subject matter, it should

have declined jurisdiction under the

principle that: "a State will not exer-

cise judicial jurisdiction if it cannot

provide appropriate relief." Restatement

(2nd) of Conflicts of Laws §85 (1971).

-8-

REASONS FOR GRANTING THE WRIT

l

Certiorari Should Be Granted to

Resolve Conflicts Among the Lower Courts.

Virginia, being both the situs of

the contract action and the forum state,

is not barred from maintenance of the

present action since no extraterritorial

effect is to be given the Florida

nonclaim statute. While stating "(Wje

are not granting the Florida statute any

extraterritorial application in Virginia,

but only recognizing the effect that sta-

tute will have on enforcement of this

claim", Crosson v. Conlee 745 F2d 896,

903, (1984), the Court of Appeals

misapprehends its application. By

refusing to grant recognition of the

Florida nonclaim statute the natural con-

sequence woulda be to let stand the

judgment of Virginia. However, by mere

announcement that extraterritorial effect

is not relevant to its consideration, the

Court of Appeals has avoided deciding in

favor of the Plaintiff on principles pre-

viously announced.

In Propst v. Fisher, 313 F2d 248

(6th Cir. 1963), the Court of Appeals was

faced with an identical situation. "The

sole question in this appeal is whether

the failure of the Plaintiffs to comply

with an Indiana statute requiring the

filing of their claims against a

Decedent's estate in the Probate Court

barred them from maintaining the present

actions for wrongful death against the

Administrator of the Indiana decedent in

the United States District Court in

Michigan where the accident occurred and

the Plaintiffs and their Decedent's

resided." Id, p. 245, 249. The Court in

holding that the claims were not barred

#10-

went on to say: "We are not concerned at

this time as to how or in what manner

Plaintiffs can satisfy their judgments if

they obtained them. We think it will be

time enough to determine the force and

effect of the Indiana nonclaim statute

whenever Plaintiffs seek to satisfy

their claims out of assets of the

Decedent's estate within the jurisdiction

of the Indiana Courts." Id. p. 249, 250.

The only distinction between the case

cited and the one at bar is that the

former grew out of tort and the latter

contract. The United States Court of

Appeals for the Fourth Circuit states

that cases such as Propst “typically

involved claims which might be satified

through insurance. .. at or through

assets located in the forum state. ..."

Crosson, 745 F2d 896, 903, (1984).

However, nowhere in Propst was this

eit

interpretation announced. The Court in

Propst made no distinction as to where

assets were to be found. Indeed, the

only reference to insurance was to note

that the defense was handled by the

insurance carrier. "We do not base cur

decision in this case upon the avaiiabi-

lity of the liability insurance to pro-

tect the estate against loss. The cases

heretofore cited from other jurisdic-

tions, based upon a Similar question, did

not rely upon the availability of

insurance." Brooks v. National Bank of

Topeka, 251 F2nd 37 (8th Cir. 1958) In

addressing the issue of enforceedility,

the Court noted that "[i]f the Plaintiff

should hereafter assert any rights

against the Kansas estate, it will be for

the Kansas court to determine the effect

it will give the Kansas nonclaim

Statute." Id, at 44.

|

_ ee rrrrrrrr—r—~—é“ENSSSSNNCNCititi‘(CSSNSS

In citing the case of Markham v.

Allen, 326 U.S. 490, 66 S. Ct. 296, 90 L

Ed. 256 (1946), the Court of Appeals

sought to bolster its argument. However,

upon a closer reading of the case, it is

announced therein that a federal court

"may exercise its jurisdiction to adjudi-

cate rights in such property where the

final judgment does not undertake to

interfere with the state court's

possession save to the extent that the

state court is bound by the judgment to

recognize the right adjudicated by the

federal court." Id, at 494,

In arriving at a decision based on

the principle that the court cannot pro-

vide relief, the Court of Appeals has

ignored the cases cited above. In each,

the courts were not concerned with the

ability of the plaintiffs to satisfy

their judgments since that was not an

ol3q

issue. In the case of Crosson, at no

time was an issue of enforceability

raised. At no time was the issue

addressed by counsel, as was the issue of

jurisdiction requested by the Court of

Appeals in a Supplemental brief by the

parties.

II

The Court's Reliance on Restatement

(Second) of Conflict of Laws §85 (1971)

is Misapprehended.

A thorough reading of Comments a and

b which expound on the above cited prin-

ciple of law reveals a concern by a state

to “entertain suit on a foreign cause of

action if it feels that it cannot do

justice to the parties by reason of its

inability to provide appropriate relief."

Id, 256. In the instant case, we are

dealing with a local cause of action. A

contract was entered into and performed

-14-

in Virginia while both parties were sub-

ject to its laws and jurisdiction.

Plaintiff would be thoroughly incon-

venienced and, perhaps, without requi-

sites for suit, were he required to bring

this action in the State of Florida. To

announce, as did the Court of Appeals,

that the Plaintiff would be unable to

reach assets in Florida because of the

nonclaim statute is without Support. No

consideration has been given and no cir-

cumstance addressed in this case which

lays foundation for the court's opinion.

The Court of Appeals has assumed facts

and law, not before it, nor fully deve-

loped, in order to reach a decision that

is contrary to that of the other cir-

cuits.

Indeed, the court's decision is tan-

tamount to requiring a Plaintiff to

prove, as a prerequisite to the obtaining

=)$-

|

of a valid judgment, that there are

assets from which to satisfy the

judgment. This writer is unaware of any

such requirement in American jurispru-

dence.

II!

The Florida Nonclaim Statute Works a

Harsh, Unfair and Unjust Result When the

Spirit of Its Pronouncement Has Been Met.

Although the Plaintiff did not

strictly comply with the requisites set

forth by the Florida nonclaim statute,

his Complaint, filed and served on the

executor of Via's estate, contained all

information dealing with Crosson's claim

against Via. It was, perhaps, more

detailed and informative than a claim

Ordinarily lodged with an Executor. Mr.

Conlee was in the same position vis-a-

vis, Crosson's complaint as he would have

-~16-

=_— Ss

AOR ek AS TR Te, ST ee, eS

stmebantild baile os atvene ae

ini CRS Ra RRA satbilht CM Riled PALND 84S

been had a claim been filed. The

Complaint was filed and served within the

three-month period called for by the

applicable statute. The Court of Appeais

suggests that the decision of the

District Court threatens "to needlessly

deter a prudent executor from final

disposition of the estate." Crosson, 745

F2d 896, 903. Yet, all of the pleadings

filed and evidence taken indicate that

the Plaintiff, except for filing a

complaint in lieu of filing a claim,

complied in spirit and purpose to satisfy

the requirement of allowing an orderly

disposition of the estate. There was no

evidence offered or suggested that admin-

istration of the estate was concluded

and would, thus, work an injustice or

hardship on other creditors, or heirs, if

any. Indeed, the only claim filed within

the three-month period against the estate

#l]7<

et Ore 9A ARR IP

of E. Douglas Via was by Toale Brothers

Funeral Home in the amount of $813.04.

(Appendix D)

Clearly, given all the potential

stumbling blocks in the way of success-

fully concluding a right and just claim

against a party who contracted in

Virginia for the services of Charles W.

Crosson, Jr., it would be contrary to

justice, common sense, and fair play to

deny a judgment on the merits to Charles

W. Crosson, Jr., who, by filing a

Complaint as opposed to a "claim" against

the personal representative of E. Douglas

Via, has met what requirement was sought

by the statute of Florida.

=18-

CONCLUSION

WHEREFORE, your Petitioner, Charles W.

Crosson, Jr., respectfully prays that a Writ

of Certiorari be granted. Should this Court

decline to grant this petition for a writ of

certiorari on the issue of conflict in deci-

sions in the lower courts, Petitioner

respectfully urges that the Court correct

the clear injustice caused by the Fourth

Circuit's irregular and erroneous proceeding

in this case. Petitioner specifically urges

that this Court summarily grant this peti-

tion for writ of certiorari without requir-

ing further briefing and reverse and remand

the decision of the Fourth Circuit for modi-

fications so that the Petitioner is awarded

the full amount of his adjudicated damages.

full itted,

Robert F. Rider

Suite 910, Dominion Bank Bldg.

213 So. Jefferson Street

Roanoke, Virginia 24011

(703) 343-0816

Attorney for Petitioner

Charles W. Crosson, Jr.

February, 1985

-19=

Case Number

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

CHARLES W. CROSSON, JR.,

Petitioner

VS

WENDELL F. CONLEE,

EXECUTOR OF THE ESTATE

OF

E. DOUGLAS VIA, deceased,

Respondent

APPENDICES A, B, C, D

Robert F. Rider, Esquire

Suite 910, Dominion Bank Bldg.

213 South Jefferson Street

Roanoke, Virginia, 24011

(703) 343-0816

Attorney for Petitioner,

Charles W. Crosson, Jr.

February, 1985

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-2035

Charles W. Crosson, Jr., Appellee,

-versus-

Wendell F. Conlee, the Executor

of the Estate of E. Douglas Via,

Deceased, Appellant.

Appeal from the United States District

Court for the Western District of

Virginia, at Roanoke. Jackson L. Kiser,

District Judge. (C/A 82-0462-R)

Argued: May 10, 1984.

Decided: October 4, 1984

Before RUSSELL and CHAPMAN, Circuit

Judges, and HAYNSWORTH, Senior Circuit

Judge.

William B. Hopkins, Jr. (P. Brent Brown,

Martin, Hopkins, Lemon and Carter, P.C.

on brief) for Appellant; Robert F. Rider

for Appellee.

RUSSELL, CIRCUIT JUDGE:

This action is brought by Charles W.

Crosson, Jr., plaintitf/appellee, against

Wendell F. Conlee, the executor of the

estate of E. Douglas Via, defendant/

appellant, alleging breach of a contract

of employment entered into by Crosson and

Via. Subject matter jurisdiction rests

on diversity of citizenship, 28 U.S.C. §

1332(a)(1), plaintiff Crosson being a

resident of Virginia, while defendant

Conlee is a Florida attorney appointed

under Florida law as personal represen-

tative for E. Douglas Via, a resident of

Florida at the time of his death. The

principal issues before us are, first,

whether the federal district court in

Virginia had personal jurisdiction over

defendant where no property of the estate

of the decedent was located in Virginia,

and second, whether plaintiff's claim

against the executor is barred due to

noncompliance with Florida's nonclaim

Statute, not having been presented to the

Florida probate court within three months

of the first publication of notice of

administration. The case was tried

before a jury, which rendered a verdict

for plaintiff in the amount of

$20,296.46. Defendant moved for judgment

n.o.v., which the district court denied,

entering judgment on the verdict. Defen-

dant appeals, and we reverse.

I

The pertinent facts are not subject

to dispute. Plaintiff's complaint

alleged that he was employed in September

1978 as a manufacturer's representative

for Via's business, a sole proprietorship

located in Roanoke, Virginia, A con-

dition of plaintiff's acceptance of

employment was that Via would retire from

the business at the close of 1980, and

plaintiff would then assume control.

During 1979 and 1980 the business was

effectively carried on by plaintiff, Via

having moved from Virginia to Florida,

making only occasional visits to Roanoke.

Via refused to honor his agreement to

retire at the end of 1980, and also with-

held commissions due to plaintiff in 1981

under the terms of his contract of

employment. Plaintiff has asserted

without contest that the contract was

entered into in Virginia.

Via died on May 5, 1982 in the State

of Florida, where he was then a resident

and domiciled. All of Via's property,

real and personal, was located in Florida

at the time of his death and remains

there. Defendant qualified as the per-

sonal representative of Via's estate in

the Probate Division of the Circuit Court

for Sarasota County, Florida on May 28,

oni ete ee a ie: een a

1982. Notice of administration of the

estate was first published on May 3l.

Plaintiff filed his complaint in the

United States District Court for the

Western District of Virginia against

defendant in his capacity as executor on

July 2, 1982, but failed to file any

claims with the Probate Court in Florida

within three months of the publication of

notice of administration.

Defendant generally pled the

"applicable statute of limitations" as a

bar in his answer of July 29, 1982, but

did not specifically raise the issue of

the nonclaim statute unm*il he moved for

Summary judgment in December 1982, after

the three-month period had elapsed.

II

Personal jurisdiction over defendant

is asserted on the basis of the Virginia

long-arm statute, Va. Code, §§ 8.01-328

ae

to 330, and Fed. R. Civ. P. 4(d)(7) and

4(e), which authorize extraterritorial

service of process in accordance with the

laws of the state in which the district

court is held. Va. Code § 8.01-328.1

(A)(1) confers personal jurisdiction on

the Virginia courts as to a cause of

action arising from a “person's...

{[t]ransacting any business in this

Commonwealth.“ The statute expressly

defines "person" to include "an indivi-

dual, his executor, administrator, or

other personal representative," Va. Code

§ 8.91-328, thereby bringing defendant

within its ambit.

This jurisdictional question is

complicated, however, by the old Virginia

common law rule that an executor or ad-

ministrator is not subject to suit ina

State other than that of his appointment,

unless he brings into or collects from

the state assets of the decedent's

estate. Sylvania Industrial Corp. v.

Lilienfeld's Estate, 132 F.2d 887, 890

(4th Cir. 1943); Fugate v. Moore, 86 Va.

1045, 11 S.E. 1063 (1890). In Sylvania,

we recognized that Virginia law is

controlling on whether a foreign executor

is subject to suit in a federal court in

Virginia, 132 F.2d at 890, and applied

the rule of Fugate in holding that the

defendant, a foreign executrix, could be

sued in federal court there because

Virginia was the situs of corporate stock

belonging to the estate. Id. at 891.

Here, however, no assets of the estate of

Via are found bas Virginia, so that the

exception to the prohibition against

Suing a foreign executor in Fugate and

Sylvania cannot be met. The issue, then,

is whether the common law prohibition

against such a suit as this has been

removed by the enactment of the Virginia

long-arm statute in 1964.

Sylvania explained the Virginia rule

thus:

"The reason that a foreign executor

is not ordinarily subject to suit is

that a grant of administration has

no legal operation outside the state

from whose jurisdiction it is

derived. [citation omitted] The

exception recognized by the Virginia

decisions is based upon the right of

the state to protect local creditors

with respect to the property of the

decedent found or brought within the

State. As to such property, the

power of the state can be asserted

without regard to the powers granted

the executor by the foreign state."

132 F. 2d at 891. Likewise, the comments

to Restatement (Second) of Conflict of

Laws § 358 (1971) indicate that the judi-

cial reluctance to entertain suits

against foreign executors is not

necessarily due to a want of jurisdic-

tion, but because “the courts have deemed

themselves incompetent to entertain the

Suit in the absence of statute," since a

foreign executor holds the assets of the

estate subject to the direction of the

appointing court. Comment b. The rule

permitting Suit against a foreign execu-

tor where assets lie within the forum

State is predicated on the state's in rem

jurisdiction over property within its own

territory. Comment c.

Sylvania was decided two years

before the revolution in personal juris-

diction wrought by the Supreme Court's

enunciation of the "minimum contacts" due

process doctrine in International Shoe

Co. v. Washington. 326 U.S. 310, 316

(1945). A suit such as that before us

falls within the permissible limits of

due process, being “based on a contract

which had substantial connections with"

the forum state, Virginia. McGee v.

International Life Insurance Co., 355

U.S. 220, 223 (1957). We conclude that

A-9

the facts of this case also come within

the "transacting business" clause of the

Virginia long-arm statute. There can be

no doubt that personal jurisdiction could

have been obtained over Via during his

lifetime, as he had operated a business

in Virginia and entered into a contract -

with plaintiff concerning that business

in Virginia. As the Virginia Supreme

Court and this Circuit have repeatedly

held, the long-arm statute represents a

deliberate and conscious effort by the

Virginia legislature to assert jurisdic-

tion over nonresident defendants to the

extent permitted by due process. Brown

v. American Broadcasting Co., Inc., 704

F.2d 1296, 1301 (4th Cir. 1983); Peanut

Corp. of America v. Hollywood Brands,

Inc., 696 F.2d 3ll, 313 (4th Cir. 1982);

John G. Kolbe, Inc. v. Chromodern Chair

Co., 211 Va. 736, 180 S.E.2d 664, 667

(1971); Carmichael v. Snyder, 209 Va.

451, 164 S.E. 2d 703, 707 (1968). The

Virginia Supreme Court has not yet

addressed the issue before us, but we are

convinced that it would recognize, as we

do now, that the enactment of the

Virginia long-arm statute in 1964, over

two decades after Sylvania, considerably

broadened the scope of personal jurisdic-

tion in Virginia and superseded the rule

of Fugate and Sylvania.? That common law

doctrine, with its focus on the location

of property, was more suited to the

narrow concept of personal jurisdiction

embodied in Pennoyer v. Neff, 95 U.S. 714

(1877). By defining persons subject to

the statute to include an executor, the

legislature necessarily rejected the

. Even after International Shoe, the

common law rule as expressed in Sylvania

remained in force in jurisdictions that

had not yet expanded personal jurisdic-

tion by statute. See, e.g. Callwood v.

Virgin Islands National Bank, 221 F.2d

770, 778 (3d Cir. 1955) (Virgin Islands).

A-11

* 7 a ie a SS

te din

possibility that personal jurisdiction

might disappear with the fortuitous death

of an individual defendant.* A finding

of personal jurisdiction here is in

accord with the rule expressed in

Restatement (Second) of Conflict of Laws

§ 358 (hereinafter Restatement):

"An action may be maintained against

a foreign executor or administrator

upon a claim against the decedent

when the local law of the forum

authorizes suit in the state against

the executor or administrator and

"(a) suit could have been main-

tained within the state against

the decedent during his life-

time because of the existence

of a basis of jurisdiction

Other than mere physical

presence."

Virginia law continues to make provi-

sion for appointment of a local admi-

nistrator solely for purpose of

prosecution of a personal injury or

wrongful death action against the estate

of a nonresident decedent, where the

cause of action arose in Virginia. Va.

Code § 64.1-75.1. Presumably this

recognizes that in many tort actions the

decedent will have no connection with

Virginia other than mere physical pre-

sence at the time of his death.

A-12

The Massachusetts Supreme Judicial

Court has addressed an analogous

Situation in Saporita v. Litner. 371

Mass. 607, 358 N.E. 2d 809 (1976). In

Saporita, the plaintiff sought to recover

against the defendant executor on a

contract for services performed for the

testator in Massachusetts. The testator,

however, had left no assets in

Massachusetts, and the executor had been

appointed by a Connecticut probate court.

The executor relied on the general rule

that in Massachusetts a foreign executor

was not subject to suit in the state

courts. Effectively rejecting the common

law rule in favor of a due process analy-

sis, the Supreme Judicial Court held that

because the testator had sufficient

“minimum contacts" with Massachusetts to

permit the exercise of personal jurisdic-

tion under International Shoe, there

existed "no sound reason why the general

rule granting immunity to foreign execu-

tors snould shield the defendant from

Suit in Massachusetts, where the parties

lived and worked, where they made the

contract, where they intended the

contract to be performed, and where the

plaintiff had carried out her part of the

contract," 358 N.E.2d at 816, absent any

showing that the exercise of jurisdiction

would unduly interfere with proceedings

in the Connecticut probate court. > See

also Eubank Heights Apartments, Inc.

v. Lebow. 615 F.2d 571 (lst Cir. 1980),

finding under the authority of Saporita

that a Texas state court could obtain

jurisdiction under the Texas long-arm

statute.

3 The Massachusetts long-arm statute,

like Virginia's, is generally applicable

to executors, administrators or other

personal representatives. Mass. Gen.

Laws Ann., ch. 223A, § 1. See Saporita,

358 N.E.2d at 814-15 n.5.

A-14

a

rime A ee bor eee Aaa genta hn be tow

i 2 th chante te SCNT a BI AEE ns Woe EEN ol Sela ea ME eee ea hee

over a Massachusetts executrix, despite

the absence of any assets in Texas.

noceebiuints we hold that personal

jurisdiction was properly obtained over

defendant, a Florida executor, under the

Virginia long-arm statute, not-

withstanding the absence of any assets of

the decedent's estate in Virginia. We

next consider the effect of the Florida

nonclaim statute. ‘

IIl.

Fla. Stat. Ann. § 733.702 provides

in relevant part:

"(1) No claim or demand against the

decedent's estate, that arose

before the death of the dece-

dent .. . Shall be binding on

the estate, on the personal

representative, or any benefi-

ciary, unless presented:

' In Saporita, the executor also

attempted to defend on the basis of the

Connecticut nonclaim statute, Conn. Gen.

Stat. § 45-205, but the court ruled that

the issue was not properly before it,

because the statute had not been pleaded

below. 358 N.E.2d at 816.

A-15

"“(a) Within three months from the

time of the first publication

of the notice of administra-

tion, even though the personal

representative has recognized

the claim or demand by paying a

part of it, or interest on it,

Or otherwise ....”"

A claim is presented by filing a

written statement with the clerk of the

Probate Court in the county in which the

executor qualified. Fla. Stat. Ann. §

733.703. Filing of a suit against the

executor does not satisfy the presentment

requirement of the nonclaim statute.

See A. R. Douglass Inc. v. McRainey. 102

Fla. 1141, 137 So 157, 159 (1931).>

Following McRainey, the Florida

legislature amended the nonclaim sta-

tute in 1945 to permit the filing of a

lawsuit against a decedent's personal

representative to act as a substitute

for filing a claim in the appropriate

probate court. Fla. Stat. Ann. §

733.16(1)(a). See Wimpfheimer v.

Goldsmith, 298 A.2d 778, 781 (Del. Ch.

1972); McCord v. Smith, 43 So2d 704,

707 (Fla. 1949). In 1976, the Florida

legislature amended and recodified the

nonclaim statute as the present Fla.

Stat. Ann. § 733.702, omitting this

A-16

The Florida courts have consistently

held that the nonclaim statute is appli-

cable against nonresident claimants as

well as residents. McCord v. Smith, 43

So2d 704, 707 (Fla. 1949); Brooks v.

Federal Land Bank of Columbia. 106 Fla.

412, 143 So. 749, 752 (1932). The

“cardinal purpose of the statute... is

to facilitate an orderly and expeditious

settlement of estates," McCord, 43 So2d

at 708, a purpose which could hardly be

served if claims in other states were

exception to the presentment require-

ment. Under established principles of

Statutory interpretation, it is pre-

sumed that the legislature was fami-

liar with the existing law and

judicial construction of former law

when it amended the nonclaim statute,

see Williams v. Jones, 326 So,2d 425,

435 (Fla. 1975), appeal dismissed, 429

U.S. 803 (1976), and that where the

legislature amended a statute by

omitting words, it intended the sta-

tute to have a different meaning from

that previously accorded. See

Capella v. City of Gainesville. 377

So2d 658, 660 (Fla. 1979).

allowed to go unadjudicated for years,

postponing conclusion of the administra-

tion of the estate indefinitely. See

Brooks, 143 So. at 753. Although the

nonclaim statute bears some similarity to

a statute of limitations, in that it pre-

vents the “enforcement of stale demands,"

McCord, 43 So.2d at 708, it is “not

wholly such," Brooks, 143 So. at 753.

Florida's statute has been described by

One court as substantive rather than pro-

cedural, Wimpfheimer v. Goldsmith, 298

A.2d 778, 780 (Del. Ch. 1972), and there

is authority for the view that nonclaim

Statutes are jurisdictional, so that

unless complied with, a claim against the

estate cannot be allowed. 31 Am. Jur.

2d Executors and Administrators § 291

(1967). See also 34 C.J.S. Executors

and Administrators § 422 (1942).

Plaintiff asserts that the nonclaim

Statute cannot bar his claim from being

A-18

heard in a federal district court in

Virginia, and that the longer Virginia

statute of limitations allowing five

years for suit on a written contract and

three years on an oral contract, Va. Code

§ 8.01-246,°

is applicable rather than

the nonclaim statute. Virginia allows

Suit to be brought against a personal

representative for any contract with his

decedent, Va. Code § 64.1-144, and

although Virginia has a procedure for

presentation of creditors' claims against

an estate being administered in Virginia,

Va. Code § 64.1-i71, Virginia apparently

has no nonclaim statute comparable to

Florida's.

Although it is not entirely clear from

the record whether the contract bet-

ween plaintiff and Via was oral or

written, the district court found that

certain documents exchanged by the

parties to the contract overcame a

statute of frauds challenge, and that

ruling is not appealed.

A-19

As our subject matter jurisdiction

in this case rests on diversity of citi-

zenship, we are required to give effect

to an applicable state statute limiting

the period within which recovery may be

had, Guaranty Trust Co. v. York, 326 U.S.

99, 110 (1945), and we must follow the

conflict of laws rules of the forum

State, Virginia. Klaxon Co. v. Stentor

Co., 313 U.S. 487, 496 (1941). The

issue before us presents a conflict bet-

ween not merely two limitations periods,

between the functions of bodies of law,

that of contracts and that of estate

administration.

There is no question that, had this

Suit been brought while Via was alive,

the law of Virginia would have governed.

Virginia has long adhered to the tradi-

tional conflicts principle that the

“nature, validity and interpretation of

contracts are governed by the law of the

place where made, unless the contrary

appears to be the express intention of

the parties." Woodson v. Celina Mutual

Insurance Co.. 211 Va. 423, 177 S.E. 2d

619, 613 (1970), quoting C.I.T. Corp.

v. Guy, 170 Va. 16, 195 S.E. 659, 661

(1938). Accord, Poole v. Perkins, 126

Va. 331, 101 S.E. 240, 241 (1919). As

this suit can be seeking no more than to

establish the rights of plaintiff under

the contract, the federal courts having

no probate jurisdiction, Markham v.

Allen, 326 U.S. 490, 494 (1946), Byers

v. McAuley, 149 U.S. 608, 619 (1893),

Virginia law would still apply, including

the relevant statute of limitations for

Suit on a contract, even though the suit

is now igatnet the executor. As we have

discussed above, it is generally accepted

that an action may be brought against a

foreign executor if authorized by state

law and jurisdiction would have existed

to bring suit against the decedent in his

lifetime. Restatement § 358 and comment

d.

Our finding that the Virginia sta-

tute of limitations governs this action,

however, does not end our inquiry. We

have held that the traditional rule per-

mitting Suit against foreign executors

only where assets are found in the forum

State has been superseded with respect to

personal jurisdiction; it remains true,

nonetheless, that a judgment against a

foreign executor is only effective of its

own force "So far as it creates a claim

against things belonging to the decendent

which are situated in the state."

Restatement § 358 comment c, and no

assets are found in Virginia against

which the judgment might be enforced.

Psi ne de

The federal courts in Virginia have no

jurisdiction over the res of Via's

estate, located entirely in Florida, and

defendant executor is subject to suit

only in his representative capacity;

thus, the district court's judgment for

plaintiff cannot enable recovery in

itself. Though a judgment entered in

Virginia would not be subject to

challenge on the merits in Florida, under

the full faith and credit requirement of

the federal Constitution, Art. IV, § l,

see Markham, 326 U.S. at 494, McCord. 43

So.2d at 708, the claim would neverthe-

less have to be enforced in separate

Florida administration proceedings, in

common with all claims general creditors,

as stated in Restatement § 46) comment qd.

Since the Florida courts are required to

enforce their state's nonclaim statute

against nonresidents, under controlling

decisions of the state Supreme Court,

satisfaction of plaintiff's claim is

impossible regardless of its merits,

leaving the district court's judgment a

practical nullity. It is settled law that

enforceability and the effect to be given

a judgment against a nonresident executor

must be determined by the courts of the

state where probate proceedings are

pending. Brooks v. National Bank of

Topeka. 251 F.2d 37, 42 (8th Cir. 1958).

See Security Trust Co. v. Black River

National Bank, 187 U.S. 21l, 227 (1902);

Byers, 149 U.S. at 620; Yonley v.

Lavender, 88 U.S. (21 Wall.) 276, 279

(1894). A federal court has power to

entertain suits by creditors of an estate

to establish t*e’r claims, but only to

the extent that this does not “interfere

with the probate proceedings or assume

general jurisdiction of the probate or

control of the property in the custody of

the state court." Markham, 326 U.S. at

494,

We think that the unusual cir-

cumstances of this case merit application

of the principle that a court “will not

exercise judicial jurisdiction if it can-

not provide appropriate relief."

Restatement § 85. Although courts have

often allowed suits to be brought against

executors notwithstanding the har of a

nonclaim statute in another state, such

cases have typically involved claims

which might be satisfied through

insurance, see, e.g. Propst v. Fisher,

313 F.2d 248 (6th Cir. 1963); Brooks, 25l

F. at 37, or through assets located in

the forum state, Owens v. Estate of

Saville, 409 S.W.2d 660 (Mo. 1966), So

that the probate jurisdiction of the

other state would not necessarily be

disturbed. Cf. Swan v. Estate cf

Monette, 400 F.2d 274, 277 (Lay, J., con-

curring) (8th Cir. 1968) (denying claim

barred by nonclaim statute of forum

State). We are not granting the Florida

Statute any extraterritorial application

in Virginia, but only recognizing the

effect that statute will have on enfor-

cement of this claim. It would be futile

to allow plaintiffs to take claims such

as this against a nonresident executor to

trial on the merits and judgment, where

satisfaction of the judgment could only

be had from an estate which cannot be

reached due to the bar of a nonclaim sta-

tute in the state with probate jurisdic-

tion. In such circumstances, the

district court's judgment becomes no more

than an advisory inion, possibly

affording some moral vindication to the

plaintiff but nothing else, and

threatening to needlessly deter a pru-

dent executor from final disposition of

the estate. Subject matter and personal

jurisdiction are not wanting, but the

federal courts in Virginia are nonethe-

less powerless to aid plaintiff, given

the situs of the entire estate in Florida

and the Florida law as conclusively

determined by the state‘s highest court.

We hold that once defendant specifically

raised the bar of the Florida nonclaim

statute,’ and established that all the

assets of the estate were within the

exclusive probate jurisdiction of the

We perceive no basis for plaintiff's

contention that defendant waived the

nonclaim statute by failing to plead

it specifically in his answer as a

defense. At the time defendant filed

his answer, the three-month period of

the nonclaim statute had not yet run,

and the statute thus afforded no

defense; therefore, it could hardly

have been pleaded.

Florida courts, the district court should

have declined jurisdiction. ®

IV.

We do not agree with the district

court that defendant would be estopped

from raising the defense of the nonclaim

Statute in the Florida courts. Defendant,

it is true, did not specifically raise

the defense until after the three-month

filing period had passed, but that is the

Only resemblance this case bears to

Davis v. Evans. 132 So.2d 476 (Fla. Dist.

Ct. App. 1961), on which plaintiff

Given our disposition of this issue,

we do not reach the question stressed

by the district court of whether the

Florida nonclaim statute is to be

treated as going only to the remedy or

to the right to recover, under Norman

v. Baldsin, 152 Va. 800, 148.S.E. 831

(1929). This matter would only arise

if Florida, rather than Virginia, were

the state of the “otherwise appli-

cable" substantive law, Restatement §

143, which we have found not to be the

case.

relies. In Davis, a negligence action

was brought against the decedent a month

before his death. The Florida nonclaim

Statute then in effect gave creditors

eight months from the date of the publi-

cation of notice of administration to

present their claims, and the requirement

was not satisfied by the pendency of a

Suit against the decedent at the time of

his death. The same attorneys repre-

sented the decedent and his executor, and

they allowed transactions to be carried

on between the parties during the eight-

month period in the decedent's name,

never informing the plaintiff that their

client had died. Only after the eight-

month period had run did the attorneys

give notice of the death, and raise the

nonclaim statute as a bar. The court

held that, assuming the plaintiff had no

knowledge of the death and that the exe-

cutor had knowledge of the pending suit

as the plaintiff averred, the executor

would be

nonclaim

So.2d at

The

case and

estopped from raising the

Statute as a matter of iaw. 132

482.

crucial distinction between this

Davis is that here, plaintiff

knew that Via had died when he filed his

Suit, as

he named the executor as defen-

dant in his complaint.

Accordingly, we reverse the judgment

of the district court and remand for

entry of judgment for defendant. ”

REVERSED AND REMANDED

WITH DIRECTIONS.

As our decision is predicated on the

factual assumption that the entire

estate is, as alleged by defendant,

within Florida, plaintiff is not pre-

judiced against having his judgment

reinstated should any assets actually

be discovered outside the jurisdiction

of the Florida courts from which the

judgment might be satisfied.

IN THE

FOR THE

CHARLES W.

Ve

WENDELL F.

of the Estate of E. Douglas

Via. deceased,

APPENDIX B

Clerk's Office U.S. Dist. Court

At ROANOKE, VA.

FILED

Sep 27 1983

Joyce F. Witt, Clerk

By: /s/ _D. Johns

Deputy Clerk

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

CROSSCN, JR.,

Plaintiff

Civil

Action No.

82-0462-R

ORDER

CONLEE, Executor

ee ee ee ee eee ee eee

Defendant

For the reasons stated in a

Memorandum Opinion filed this day, it is

ADJUDCED and ORDERED that Defendant's

Motion for Judgment Notwithstanding the

verdict shall be and hereby is DENIED.

B-1

It is FURTHER ORDERED that judgment be

entered on the verdict in favor of

Plaintiff in the amount of $20,296.46

plus interest at the Virginia judgment

rate of 12% running from February 25,

1983, the date the verdict was decided,

and the Plaintiff's taxable costs.

The Clerk is directed to strike this

case from the active docket of this Court

and to send certified copies of this

Order to all counse2l of record.

ENTER this 27th day of September

/s/ Jackson L. Kiser

United States District Court

A TRUE COPY, TESTE:

Joyce F. Witt, Clerk

By: /s/ _E. Holland

Deputy Clerk _

Clerk's Oftice U.S. Dist. Court

At ROANOKE, VA.

FILED

Sep 27 1983

Joyce F. Witt, Clerk

By: /s/ D. Johns

Deputy Clerk

IN THE UNITED STAT&S DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

CHARLES W. CROSSON, JR.,

Plaintiff

Civil

Action No.

82-0462-R

MEMORANDUM

OPINION

WENDELL F. CONLEE, Executor

of the Estate of E. Douglas

Via, deceased,

)

)

)

)

)

)

V. )

)

)

)

)

)

)

Defendant )

This matter is before the Court on

the Motion for Judgment Notwithstanding

the- Verdict pursuant to Rule 50(b) of the

Federal Rules of Civil Procedure brought

by Defendant Wendell F. Conlee, Executor

of the Estate of E. Douglas Via,

deceased.

The question presented in this case

is whether Plaintiff Charles W. Crosson,

Jr.'s claim against decedent's estate is

barred by Fla. Stat. Ann. § 733.70 which

provides for no claim against an estate

unless presented within three (3) months

of the first publication of the notice of

administra-tion. This issue having been

thoroughly briefed and argued by counsel,

I now DENY Defendant's Motion for

Judgment Notwith-standing the Verdict and

ENTER judgment on the verdict.

I.

At the outset, I address the

conflicts of law issue of whether the

Florida non-claim statute governs

Claim against decedent's estate. Ina

diversity case such as this, it is well-

established that a federal district court

applies the substantive law of the forum

state, Erie Railway Company v. Tompkins,

304 U.S. 64 (1938), including its

conflicts of law rules, Klaxon Co. ov

Stentor Electric Manufacturing Co., Inc.,

313 U.S. 487 (1941), and statutes of

limitations. Guaranty Trust Co. of New

York v. York. 326 U.S. 99 (1945).

Under recognized conflicts analysis,

the federal court sitting in Virginia

determines whether, according to Virginia

conflict of law rules, a foreign statute

such as the Florida non-claim provision

is classified as procedural or substan-

tive law. As a general rule in Virginia,

foreign statutes of limitations are con-

sidered merely procedural. For this

reason, the Virginia, not the foreign

Statute of limitations is usually

applied. Norman v. Baldwin. 152 Va.

800, 148 S.E. 831 (1929).

On the other hand, Virginia also

recognizes an exception to this general

rule when a right of action which did not

exist at common law is both given and

expressly limited by a foreign statute.

Norman v. Baldwin. 148 S.E. at 833-834.

There, a receiver of an insolvent North

Carolina bank sued to recover excess

individual liability from one of the

bank's Virginia stockholders. The appli-

cable North Carolina statute authorized a

receiver to sue stockholders within or

without the state to the extent of the

par value of their stock. That same sta-

tute went on to provide that such actions

must be brought within 10 years after an

assessment on the stock.

In reversing the lower court's

dismissal of the action, the Supreme

Court of Virginia reasoned that since the

foreign statute prescribed what right was

created, provided the remedy for its

enforcement, and limited the duration of

the statutory right, North Carolina's,

not Virginia's, statute of limitations

would govern the Virginia proceeding.

Thus, in light of Norman, the deter-

minative question here becomes whether

the Florida statute in controversy is to

be treated as a general statute of limi-

tations superseded by Virginia law or a

special statute of limitation which

controls regardless of the applicable

Virginia rule. In my opinion, the

Florida three month non-claim statute is

merely a general statute of limitations.

As I see it, in order for the Florida

Statute to fall within the exception

recognized by the Norman court. it must

expressly create and then limit a cause

of action much like the situation with a

wrongful death statute. In contrast,

since the Florida provision merely modi-

fies an existing right of action against

an estate recognized at common law, this

non-claim statute must be regarded as

procedural and accordingly held to be

inapplicable as a bar to Plaintiif's

claim.

II.

Moreover, even if the Florida non-

Claim statute was held to be applicable

to Plaintiff's claim against decedent's

estate, Defendant would be barred from

raising this defense on a substantive

waiver/estoppel theory.

The pertinent chronology of events

is as follows:

May 5, 1982 - Death of E. Douglas

Via

May 31, 1982 - First Publication of

Notice of

Administration

July 2, 1982 - Complaint filed in

instant case

July 9, 1982 - Service of process

on Defendant

July 29, 1982- Motion to Dismiss

and Answer filed

by Defendant

Aug. 3l, 1982- 3 months period from

publication of

notice of admi-

nistration and tinal

date to file claim

against estate

expires

Dec. 6, 1982 - Defendant first

raises issue of

Plaintiff's failure

to timely comply

with three-month

provision of Fla.

Stat. Ann. § 733.702

Defendant executor had Knowledge of the

filing of this suit for over 1-1/2

months before the expiration of the

three-month period. Defendant, an

attorney who in all probability knew of

both the specific requirements of this

Florida non-claim provision and the fact

that Plaintiff's Virginia attorney had

not properly complied with the statute,

passively let that three-month period run

without objecting. It was not until

almost 5 months later, on December 6,

1982, that the issue of non-compliance

with the non-claim provision was first

raised.

Under Florida case law, Defendant's

conduct in this regard would serve as a

basis for estopping him from raising §

733.702 as a possible defense to

Plaintiff's claim. For example, in

Davis v. Evans, 132 S.2d 476 (Fla. Dist.

a ol

Ct. App. 1961), a case cited by

Plaintiff in his brief, a negligence

action was brought against Defendant's

One month before the date of his death.

The applicable nonclaim statute then

Operated as a bar to any claim against

the estate not filed within 8 months of

the first notice to creditors.

Defendant's attorneys concealed the fact

of decedent's death, continuing to treat

the action as if decedent was still alive

up until the expiration of the 8 months.

It was only then that Defendant raised

for the first time the defense that the

non-claim provision had not been properly

followed. Due to Plaintiff's failure to

inform Plaintiff of the death of decedent

and her corresponding failure to timely

file a claim against the estate, the

Davis court reversed the lower court's

entering of summary judgment for defen-

dant and remanded the case with direc-

tions to permit Plaintiff to plead the

affirmative defense of estoppel. See

also State Bank of Orlando & Trust Co.

v. Macy, 101 Fla. 140. 133 So. 876 (1931)

[administrator's payment of interest on

mortgage given by decedent, where

payments were made during the proscribed

One-year period from first notice to cre-

‘ditors, constitutes waiver of failure of

mortgagee to timely file claim).

Although the facts of the instant case

are not as egregious as those in Davis

and Macy, I feel that Defendant's conduct

of (1) letting the 1-1/2 months of the

non-claim period remaining after the

filing of this suit elapse and (2)

waiting almost 5 months after expiration

of the 3 month period before raising this

issue for the first time, would, under

applicable Florida case law, justify

barring Defendant's raising of the

Florida statute as a defense here.

In sum, I feel that under

established conflicts analysis, the

Florida non-claim statute being a proce-

dural statute, is inapplicable as a bar

to Plaintiff's claim. Furthermore,

Defendant's failure to timely raise the

non-compliance of the 3 month non-claim

Statute would, under applicable prin-

ciples of Florida waiver/estoppel law,

act to prohibit Defendant from using this

as a defense.

Accordingly, Defendant's Motion for

Judgment Notwithstanding the Verdict is

hereby DENIED and judgment is ENTERED on

the verdict.

The Clerk is directed to send cer-

tified copies of this Memorandum Opinion

to all counsel of record.

/s/ Jackson L. Kiser

United States District Judge

Defendant did generally plead the sta-

tute of limitations in his ‘answer, Dut

did not specifically raise the appli-

cability of the Florida non-claim sta-

tute until December 6, 1983.

A TRUE COPY, TESTEE:

Joyce F. Witt, Clerk

By /s/ E. Holland

Deputy Clerk

APPENDIX C

FILED

NOV 8 1984

U. S. Court of Appeals

Fourth Circuit

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 83-2035

Charles W. Crosson, Jr.,

Appellee,

versus

Wendell F. Conlee, etc.,

Appellant.

Appeal from the United States District

Court for the Western District of

Virginia, at Roanoke. Jackson L. Kiser,

District Judge.

The appellee's petition for

rehearing and suggestion for rehearing in

banc were submitted to this Court. As no

member of the Court requested 2 poll on

the suggestion for rehearing in banc, and

C-1

As the panel considered the petition

for rehearing and is of the opinion that

it should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

Entered at the direction of Judge

Russell, with the concurrence of Judge

Chapman and Judge Haynsworth.

For the Court,

JOHN M. GREACEN

CLERK

APPENDIX D

AFFIDAVIT

STATE OF FLORIDA

COUNTY OF SARASOTA

Before me, the undersigned Notary

Public, personally appeared WENDELL F.

CONLEE, who, being by me first duly

Sworn, deposes and says on oath as

follows: .

y

l. That he is the duly qualified

and acting personal representative of the

estate of Douglas Via, A/K/A Edwin D.

Via, deceased, being Estate No. 82-920 in

the Probate Division of the Circuit Court

in and for Sarasota County, Florida.

2 That he is a member of The

Florida Bar practicing law in Sarasota,

Florida.

ae That Section 733.702. Florida

Statutes 1982, provides as follows:

No claim or demand against the

decedent's estate, that arose

before the death of the dece-

dent, shall be binding on the

estate unless a claim therefor

is filed in the Probate Court

within three months from the

time of the first publication

of the notice of administra-

tion.

No cause of action shall sur-

vive the death of a person

against whom the claim may be

made, whether an action is

pending at the death of the

person or not, unless the claim

is filed in the Probate Court

within three months from the

time of the first publication

of the notice of administra-

tion.

4. That the first publication of

the notice of administration in said

estate occurred on May 3l, 1982.

5. That the only claim or demand

filed in said estate in the Probate Court

within three months from the time of the

first publication of the notice of admi-

nistration was Toale Brothers Funeral

Home in the amount of $813.04.

6. That Charles W. Crosson filed

no claim or demand in said estate in the

Probate Court within three months from

the time of the first publication of the

notice of administration.

/s/ Wendell F. Conlee

Wendell F. Conlee

Sworn to and subscribed before me

this 26th day of October, 1982.

/s/ Irene C. Prince

Notary Public

My Commission Expires: 10/28/85