# Petition for Writ of Certiorari — Crosson v. Conlee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1054

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2120%3A1. Public record. Not legal advice.