Opposition Brief — Johnson v. Anderson

FILED

FFR 1 6 onno

fs)

iaptl CLERK

No. 99-1189 NL ORR

IN THE

Supreme Court of the Anited States

THERESSA RAINS JOHNSON,

Petitioner,

Vv.

ANN W. ANDERSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITE

STATES SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

Ralph V. Hadley, III, Esq.

Attorney for Respondent

SWANN, HADLEY & ALVAREZ, P.A.

1031 W. Morse Boulevard, Suite 270

Winter Park, FL 32789

(407) 647-2777

Wright Appellate Services 0202

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

QUESTION PRESENTED FOR REVIEW

Does a state probate statute, which states that no bona fide

purchaser of real property from an estate shall be required to

examine any proceedings before the order of sale, violate an

heir's right to due process as guaranteed by the Fifth and

Fourteenth Amendments?

ll

PARTIES TO THE PROCEEDING

All of the parties to this proceeding are set forth in the

caption.

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TABLE OF CONTENTS

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ARGUMENT - A STATE PROBATE STATUTE, WHICH

STATES THAT NO BONA FIDE PURCHASER OF REAL

PROPERTY FROM AN ESTATE SHALL BE REQUIRED

TO EXAMINE ANY PROCEEDINGS BEFORE THE

ORDER OF SALE, DOES NOT VIOLATE AN HEIR'S

RIGHT TO DUE PROCESS AS GUARANTEED BY THE

FIFTH AND FOURTEENTH AMENDMENTS ..............0...... 6

A. This Court should decline to consider this constitutional issue,

as it was not raised in the pleadings in the state court. ............. 6

B. The Statues of which the Petition complains represent a

constitutional exercise of the State's power with which this

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TABLE OF CITATIONS

Cases Cited:

Anderson v. Johnson, 732 So. 2d 423 (1999) ....ccccccesscceeeseseees l

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) .....ccccc000- 7

Irving Trust Co. v. Day, 314 U.S. 556, 562:(1942) .....cccccc000+ 8

Johnson v. Anderson, 744 So. 2d 454 (1999) ......ccccscccseeeseeeees ]

Labine v. Vincent, 401 U.S. 532, 536 (1971) ....cccccccsccseseeeeeees 9

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

FR Ee cachidtibidenciak tedteoniduindihéeiniedinana Ricasncakmiaeeintinn 8,9,10

Tulsa Professional Collection Services, Inc. v. Pope, 485

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Statutes

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OPINIONS BELOW

The opinion of the Supreme Court of Florida in Johnson v.

Anderson, Case No. 95,867, may be found at 744 So. 2d 454

(1999). The opinion of the Florida District Court of Appeal

in Anderson v. Johnson, Case No. 98-1781, may be found at

732 So. 2d 423 (1999).

STATEMENT OF JURISDICTION

This Court has jurisdiction over this proceeding under 28

U.S.C. 0 1257(a).

STATUTORY PROVISIONS INVOLVED

Fla. Stat. ) 733.613 (1999) (Personal representative's right

to sell real property) provides:

(1) | When a personal representative of a decedent

dying intestate, or whose testator has not con-

ferred upon him or her a power of sale or

whose testator has granted a power of sale but

his or her power is so limited by the will or by

operation of law that it cannot be conve-

niently exercised, shall consider that it is for

the best interest of the estate and of those in-

terested in it that real property be sold, the

personal representative may sell it at public or

private sale. No title shall pass until the sale is

(2)

authorized or confirmed by the court. Petition

for authorization or confirmation of sale shall

set forth the reasons for the sale, a description

of the property sold or to be sold, and the

price and terms of the sale. Except when in-

terested persons have joined in the petition for

sale of real property or have consented to the

sale, notice of the petition shall be given. No

bona fide purchaser shall be required to ex-

amine any proceedings before the order of

sale.

When a decedent's will confers specific power

to sell or mortgage real property or a general

power to sell any asset of the estate, the per-

sonal representative may sell, mortgage, or

lease, without authorization or confirmation

of court, any real property of the estate or any

interest therein for cash or credit, or for part

cash and part credit, and with or without secu-

rity for unpaid balances. The sale, mortgage,

or lease need not be justified by a showing of

necessity, and the sale pursuant to power of

sale shall be valid.

3

Fla. Stat. 0 733.614 (1999) (Powers and duties of successor

personal representative) states:

A successor personal representative has the

same power and duty as the original personal

representative to complete the administration

and distribution of the estate as expeditiously

as possible, but he or she shall not exercise

any power made personal to the personal rep-

resentative named in the will.

STATEMENT OF THE CASE

Procedural History

The Petitioner Theressa Rains Johnson brought an action

for partition against the Respondent Ann W. Anderson in the

| Circuit Court for Marion County, Florida (Case No. 98-

. 1781). Anderson counterclaimed to quiet title to the prop-

erty, which she had purchased from the estate of Edward

Williams pursuant to a conveyance executed in conformance

with 0733.613, Florida Statutes (1996). After a nonjury trial,

the court declared the statute unconstitutional and ruled that

B Johnson owned an undivided 20 percent interest in the prop-

erty. The court appointed commissioners “to make partition

4

or make a finding to the Court that the property is indivisi-

ble" and denied Anderson's counterclaim.

Anderson appealed to the Florida District Court of Appeal,

Fifth District. In an opinion filed April 23, 1999, the court

reversed the partition order. It found no basis for declaring

0733.613 unconstitutional and concluded that Anderson had

taken title to the real property pursuant to a probate court or-

der on which, by statute, she was entitled to rely. The court

denied Johnson's Motion for Rehearing in an order dated

May 20, 1999. In an order filed October 22, 1999, the Su-

preme Court of Florida denied to accept jurisdiction and de-

nied Anderson's Petition for Review. It stated that it would

not entertain a Motion for Rehearing.

Johnson then filed this Petition for Writ of Certiorari in

this Court on January 18, 2000.

Facts

The real property in question was owned by Edward Wil-

liams, who died in 1960. He was survived by several chil-

dren, including Davis Williams. Although probate

proceedings were begun, the estate of Edward Williams was

closed without a final disposition of the real property.

Davis Williams died testate in October, 1995. His step-

daughter Theressa Rains Johnson, the Respondent, was his

5

sole survivor and sole named beneficiary. In November,

1995, the will of Davis Williams was filed with the Clerk of

the Circuit Court for safekeeping, although a petition to ad-

mit the will to probate was not filed at that time.

In early 1996, Bert Coleman, acting on behalf of the heirs

of Edward Williams, entered into a contract to sell the prop-

erty to Anderson. In March, 1996, Johnson informed Cole-

man that she wanted her interest in the land to build a home.

Coleman then petitioned the Probate Court to reopen the

Edward Williams estate for a determination of heirs and the

appointment of a successor personal representative. Johnson

was not given any notice of the petition. In an order dated

June 5, 1996, the Probate Court reopened the estate, ap-

pointed Coleman as successor personal representative, and

determined the heirs of Edward Williams. Johnson was not

listed as an heir. The court also authorized the sale of the

real property to Anderson. She took title to the property on

June 28, 1996, pursuant to a deed from Coleman. Coleman

directed the closing agent to send a check to Johnson for her

interest, but she rejected it.

In August, 1996, Johnson filed a petition to admit the will

of Davis Williams to probate and to amend the order deter-

mining heirs and authorizing the sale of the property. An-

derson did not receive notice of this action. The Probate

Court ruled, by order dated February 4, 1997, that Coleman

lacked authority to sell the interest of the estate of Davis

Williams in the property and that the conveyance to Ander-

son excluded that interest.

Johnson then sued Anderson for partition; Anderson

counterclaimed to quiet title. The county circuit court, sit-

6

ting without a jury, ruled that Johnson owned an undivided

20 percent interest in the property and declared that Fla. Stat.

0733.613 was unconstitutional.

The Florida District Court of Appeal, Fifth District, held

that the trial court erred in finding the statute unconstitution-

al. Finding that Anderson had no knowledge of Johnson's

existence or of her claim, the court concluded that Anderson

was in no way at fault. Anderson's only notice of Johnson's

interest would have been constructive notice, stemming from

the recording of the will, which did not indicate to Anderson

that Johnson had refused to authorize the sale of her interest

in the property. The court concluded that Anderson was en-

titled to rely on the June 6, 1996, order of the Probate Court

that gave Coleman the right to sell the property.

ARGUMENT -A STATE PROBATE STATUTE, WHICH

STATES THAT NO BONA FIDE PURCHASER OF

REAL PROPERTY FROM AN ESTATE SHALL BE

REQUIRED TO EXAMINE ANY PROCEEDINGS

BEFORE THE ORDER OF SALE, DOES NOT

VIOLATE AN HEIR'S RIGHT TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND

FOURTEENTH AMENDMENTS

The Petitioner takes the position in this case that the Flor-

ida District Court of Appeal improperly reversed the trial

court's partition order in her favor and should have affirmed

the trial court's holding that Fla. Stat. [733.613 was uncon-

stitutional under the circumstances of this case. The Peti-

tioner's contentions are unsupported by the prior decisions of

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7

this Court, and her Petition should be denied for the follow-

ing reasons.

A. This Court should decline to consider this

constitutional issue, as it was not raised in the

pleadings in the state court.

The review of a state court decision by this Court may be

barred by a petitioner's failure to raise constitutional claims

in the state court. In Cardinale v. Louisiana, 394 U.S. 437,

438 (1969), this Court stated that "[it] was very early estab-

lished that the Court will not decide federal constitutional

issues raised here for the first time on review of state court

decisions."

Although the Florida trial court did consider the constitu-

tionality of Fla. Stat. 0733.613, the Petitioner never raised

this issue in her pleadings. In addition, the Petitioner seems

to have raised for the first time in her Petition to this Court

the issue of the constitutionality of Fla. Stat. 0733.614,

which provides that a successor personal representative of an

estate has the same power and duty as the original personal

representative.

In short, only now does the Petitioner seek to hang her hat,

jurisprudentially speaking, on the peg of unconstitutionality.

In that sense, she has raised the constitutionality issues here

for the first time, and this Court should decline to consider

them for that reason.

B. The statutes of which the Petition complains

represent a constitutional exercise of the State's

power with which this Court should not

interfere.

This Court has long recognized that nothing in the Con-

stitution forbids a state legislature from limiting, condition-

ing, or abolishing the power of testamentary disposition over

property within its jurisdiction. See Irving Trust Co. v. Day,

314 U.S. 556, 562 (1942). Due process requires, of course,

that a state action affecting property must generally be ac-

companied by notification of that action. In Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950), this Court observed:

An elementary and fundamental requirement

of due process in any proceeding which is to

be accorded finality is notice reasonable cal-

culated, under all circumstances, to apprise

interested parties of the pendency of the ac-

tion and afford them an opportunity to present

their objections.

Mullane cautioned, however, that "if with due regard for

the practicalities and peculiarities of the case these condi-

tions are reasonably met, the constitutional requirements are

satisfied." Id., at 314-15.

In applying the principles of Mullane in the years since

that decision was rendered, this Court has balanced the inter-

9

est of the State and the individual interest sought to be pro-

tected by the Fourteenth Amendment. See Tulsa Profes-

sional Collection Services, Inc. v. Pope, 485 U.S. 478, 484

(1988). The Court recognized that, as the State "undeniably

has a legitimate interest in the expeditious resolution of pro-

bate proceedings,” a State could reasonably conclude that the

swift settlement of estates is of considerable importance. Id.,

at 489.

This Court has on many occasions given deference to the

actions of the people of a State through their legislature to

regulate property rights. See, e.g., Labine v. Vincent, 401

U.S. 532, 536 (1971)(holding that the Louisiana statutory

intestate succession scheme is within the State's power to

establish rules for, inter alia, the disposition of property).

This Court has also recognized that the Federal Constitution

does not give it the power to overturn the State's choice of

rules merely because the Justices believe that they can pro-

vide better rules. Id., at 538. It is beyond question that a

State has the power to make laws for the distribution of

property that is within the State. Id., at 539. Under the cir-

cumstances of Pope, supra, this Court concluded that "there

is nothing in the vague generalities of the Equal Protection

and Due Process Clauses which empowers this Court to nul-

lify the deliberate choices of the elected representatives of

the people. ..." Id. at 540.

In Mullane, supra, a New York trust company had exclu-

sive management and control of a common trust fund estab-

lished by it under a state banking law to invest assets of

numerous small trusts of which it was trustee. The trust

company petitioned for a judicial settlement of accounts that

10

would be binding and conclusive as to any matter upon eve-

ryone having any interest in the common fund or in any par-

ticipating trust. Although the Court held that the

beneficiaries’ notice by publication, called for by the banking

statute, was inadequate under the circumstances, it stated

that, in general, it was not unreasonable

for the State to dispense with more certain

notice to those beneficiaries whose interests

are either conjectural or future or, although

they could be discovered, upon investigation,

do not in due course of business come to the

knowledge of the common trustee.

339 US. at 317.

The Court explained that the practical difficuities and

costs associated with notifying interested parties must be

considered, because

such impracticable and extended searches are

not required in the name of due process. . . .

These are practical matters in which we

should be reluctant to disturb he judgment of

the state authorities.

Id. at 317-18.

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11

If, as Mullane urges, this Court will give "due regard for

the practicalities and peculiarities of the case," then it will

decline to interfere with Florida's probate scheme that would

appear, on the face of it, to be intended to achieve two im-

portant public policy objectives: (1) to encourage the timely

and efficient settlement of estates; and (2) to facilitate the

marketability of real property passing from an estate by per-

mitting a bona fide purchaser to rely on the order of sale

without having to examine the proceedings that were held

before the issuance of that order.

Chaos would likely ensue if every party wishing to pur-

chase real property from an estate were required to go behind

the order of sale to conduct an exhaustive search of the pro-

bate and real property records to determine whether the per-

sonal representative who is offering the property for sale was

properly authorized to do so

The circumstances of this case clearly demonstrate why

the probate statute of which Johnson complains is necessary.

Anderson could not have been expected to have discovered

the existence of Johnson and of her claim on the real estate

without an unduly lengthy, impractical, and expensive search

of the probate and real property records. Section 733.613

offers the reassurance that is necessary to insure that pro-

spective purchasers of real property from personal represen-

tatives of estates will not be scared away by the expense,

difficulty, and uncertainty associated with verifying for

themselves that nothing was amiss in the settlement of the

estate, the appointment of the personal representative, and

12

the manner in which the personal representative carried out

his or her duties.

In short, a prospective purchaser is entitled to accept at

face value the order of sale authorizing the disposition of the

estate's property. That this may present difficulties for a

particular heir in a highly unusual set of circumstances is un-

fortunate, but it does not justify eliminating a procedure that

serves the vast majority of the population, heirs and bona

fide purchasers alike, well.

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CONCLUSION

The Respondent respectfully requests that this Court deny

the Petition for Writ of Certiorari for the reasons stated

y above.

Respectfully submitted,

RALPH V. HADLEY, III, ESQUIRE

Swann, Hadley & Alverez, P.A.

Attorney for Respondent

1031 W. Morse Boulevard

Winter Park, Florida 32789

(407) 647-2157