# Petition for Writ of Certiorari — Steigman v. Danese

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1131

## Text

xq Bayes Court, U.S
FILED

No. 9-447 11 APR 17 9G

OFFICE OF THE CLERK
In THE

Supreme Court of the United States
OcTOBER TERM, 1994

HELENE A. STEIGMAN and Mary D. ERwin,
as personal representative of the
Estate of Elizabeth D. Droze,

. Petitioners,

Doris DANESE, FLORIDA NATIONAL BANK, as co-personal
representative of the Estate of Bernard L. Danese,
EsTHER BAKER, as co-personal representative of the
Estate of Bernard L. Danese, and BARBARA DANESE,

Respondents.

Petition for a Writ of Certiorari to the
District Court of Appeal of Florida, First District

PETITION FOR A WRIT OF CERTIORARI

Kurt H. DUNKLE *

JAMES M. MCLEAN

ROGERS, TOWERS, BAILEY,
JONES & GAY, P.A.

1301 Riverplace Boulevard

Suite 1500

Jacksonville, Florida 32207

(904) 398-3911

Attorneys for Petitioners
April 17, 1995 * Counsel of Record

WILSON - Epes PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

PAN 9 eA AAT ST .

ee —_—— ee

QUESTIONS PRESENTED

1. Whether a known or reasonably ascertainable credi-
tor of a decedent’s estate is provided the due process of
law required by the Fourteenth Amendment where (a)
the non-claim statute relied upon a bar to the creditor’s
claim against the estate does not provide, by its own
terms, for the provision of actual notice to known or
reasonably ascertainable creditors as required by this
Court’s opinions and (b) the creditor’s only knowledge
of the probate proceedings is obtained informally.

2. Whether this Court’s opinions in Mullane v. Cen-
tral Hanover Bank & Trust Co., 339 U.S. 306 (1950)
and Tulsa Professional Collection Services, Inc. v. Pope,
485 U.S. 478 (1988) authorize a state court to disregard
the principal established by this Court in Coe v. Armour
Fertilizer Works, 237 U.S. 413 (1915) and its progeny
that a statute relied upon as the basis of a deprivation
of property rights must, by its own terms, provide for
the giving of notice complying with Fourteenth Amend-
ment due process requirements so that informally obtained
actual knowledge of a pending statutory deprivation of
property rights is insufficient.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...0022..2.0.. n-ne eneoeene
RE IEP snctatacsorsipinatenninlonnerentecnniomeyencitieennanacennionennet
eT Nalciiddinecteihigarrindiciconnninenncineineanomemeimenneininnen

CONSTITUTIONAL PROVISIONS AND STATUTES
aie cieinstisavieansinipiniasieniinseiseccniinnnacimanensconee

STATeetes OF THE CASE. ...................-..11e-0sceesecsenseeee

REASONS FOR GRANTING THE WRIT .......w..

I. THE FLORIDA COURT OF APPEAL’S
HOLDING THAT PETITIONERS WERE AF-
FORDED SUFFICIENT DUE PROCESS OF
LAW BY VIRTUE OF THEIR ACTUAL
KNOWLEDGE OF THE OPENING OF THE
ESTATE CONFLICTS WITH DECISIONS OF
THIS COURT AS WELL AS WITH DEtl-
SIONS OF NUMEROUS FEDERAL CIRCUIT
COURTS OF APPEALS, FEDERAL DISTRICT
COURTS AND STATE COURTS OF LAST

II. THE FLORIDA COURT OF APPEAL MiIS-
INTERPRETED AND MISAPPLIED ThiS
COURT’S OPINIONS IN TULSA COLLEC-
TION SERVICES v. POPE, 485 U.S. 478 (1988)
AND MULLANE v. CENTRAL HANOVER
BANK & TRUST CO., 339 U.S. 306 (1950) IN
HOLDING THAT PETITIONERS’ ACTUAL
KNOWLEDGE OF THE OPENING OF THE
ESTATE SATISFIES DUE PROCESS RE-
ER

I iaiicerinrnsiioncacunipihinastonnieieshionvnntnistvsntinbienemenninenn

10

16
18
la

iv

TABLE OF AUTHORITIES
Cases Page

Baker v. Latham Sparrowbush Associates, 808
Ae: eR RS ee: ; Seen 12
Bowlin v. Deschutes County, 712 F. Supp. 803
(D. Or. 1988), aff'd, 918 F.2d 181 (9th Cir.

SD iansksscinsiscatuaieiibsieenndicdcaantathindinateiittiatabiniinnistodntinn 15
Chapman v. Pinellas County, 423 So. 2d 578 (Fla.

Ss Mie: RN SEED: suscstisectascpuntcnsthcbvieenhsintioninitedotibalidanis 14
Coe v. Armour Fertilizer Works, 237 U.S. 413

3 RSRESRERR eee a piedalitincae ioacdidialil 11, 12, 18, 15, 17
Cugat v. Cugat, 228 P.2d 31 (Cal. Dist. Ct. App.

TTI \asssksccnishensiiatcig tiled dasielbinachssiteieesdiiieihdiea-daindanainicedicakelehdasions 13

Farnow v. Department 1 of Eighth Judicial Dis-
trict Court in and for Clark County, 178 P.2d

SU ME IIIEED: Sickiciteabsinistisinsienicitieseaienadadlaieemiie 13
Fry's Food Stores of Arizona, Inc. v. CBM of Ari-
zona, Inc., 636 F. Supp. 168 (D. Ariz. 1986)...... 13

Goldlawr, Inc. v. Heiman, 288 F.2d 579 (2nd Cir.
1961), rev'd on other grounds, 369 U.S. 463

I ici troche cee dnc ail 12
In re Estate of Danese, 601 So. 2d 570 (Fla. Dist.

is As IER tiecccoscenscrinsshaiieebbictieeninimiieancnenbehigninibibinchaenies 7
In re Estate of Sutherland, 593 N.E.2d 955 (Til.

BR I MI sechictsncetsideik ences asiactadacenliakinsandiibcadaieicnaaanis 15
Katz v. Ke Nam Kim, 379 F. Supp. 65 (D. Haw.

ATTEN, sins siceheniccsccpessicicaphacetihin bieseiladevesttibibmalcibapadatchi tana aaa 13

Leab v. Streit, 584 F. Supp. 748 (S.D.N.Y. 1984).. 13
Merco Construction Engineers, Inc. v. Los Angeles
Unified School District of Los Angeles County,

79 Cal. Rptr. 23 (Cal. Dist. Ct. App. 1969) ........ 13
Morris v. Morris, 759 S.W.2d 707 (Tex. App. j
BD ik iceth saints scdactscsiccctninacelin cctdnlonnsthiges baaadhad seine 13
Michelson v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 709 F. Supp. 1279 (S.D.N.Y. 1989)... 13 |

Mullane v. Central Hanover Bank and Trust Com-

pany, 389 U.S. 306 (1949) .................s...cccece-e0s 8, 9, 16, 17
North Carolina Electric Membership Corporation
v. White, 722 F. Supp. 1814 (D.S.C. 1989) ........ 13

Pulaski County v. Commercial National Bank,
14 S.W3d SSB (Ark. 1966) 2n.. nn. .cccncnce...s.s..-s 13

Vv

TABLE OF AUTHORITIES—Continued
Page

Rose v. K.K. Masutoku Toy Factory Co., 597 F.2d

Se I Sa SITE. alisenetasiiicstieccstnidiicninianadbinorontinenes 12
Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991)... 6,7
Steigman v. Danese, 502 So. 2d 463 (Fla. Dist. Ct.

SI, TEED dieses sihcapiaideecaticicaseharsinedialicinaamitseesanabialadtembapiidians 6
Sterling v. Environmental Control Board of the

City of New York, 793 F.2d 52 (2nd Cir. 1986),

cert. denied, 479 U.S. 987 (1986) ......................... 12,17
Thames v. Jackson, 598 So. 2d 121 (Fla. Dist. Ct.

Be FE aisiiitiakirdccssnbetnhatsconninaicnicanackeniniipihanaaaaan 7
Tulsa Professional Collection Services v. Pope, 485

ik a Bene rewnrse eee aula 7,8, 10, 16, 17
United States v. Raines, 362 U.S. 17 (1960) .......... 15
Watkins v. Dodson, 68 N.W.2d 508 (Neb. 1955) .... 13
Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976) .......... 15
Wuchter v. Pizzutti, 276 U.S. 13 (1928) ................. 12

Constitutions, Statutes and Rules

US. Comat. amie. ALY, § 2 .....-..-..2nccccccerecseoccvenvers 2
Sl, a Ste II I srrcsontsisssnipnietesnnionnieipatenonnoiadngeiinc 10

ks EG, BT Te CRO D cccerciverecetoecsnstinnnnntiimmannanin 2

IN THE
Supreme Court of the United States

OCTOBER TERM, 1994

No.

HELENE A. STEIGMAN and Mary D. ERwin,
as personal representative of the
Estate of Elizabeth D. Droze,
Petitioners,

v.

Doris DANESE, FLORIDA NATIONAL BANK, as co-personal
representative of the Estate of Bernard L. Danese,
ESTHER BAKER, aS co-personal representative of the
Estate of Bernard L. Danese, and BARBARA DANESE,

Respondents.

Petition for a Writ of Certiorari to the
District Court of Appeal of Florida, First District

PETITION FOR A WRIT OF CERTIORARI

The Petitioners, Helene A. Steigman and Mary D.
Erwin, respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the District Court
of Appeal of Florida, First District, entered in the above
proceedings on July 29, 1994, with a denial of discre-
tionary jurisdiction entered by the Florida Supreme Court
on January 18, 1995.

OPINION BELOW

The opinion of the District Court of Appeal of Florida
is reported at 641 So. 2d 423, and is reprinted in the
appendix hereto, pp. 2a-9a, infra.

2

JURISDICTION

The judgment of the District Court of Appeal of
Florida (pp. 2a-9a, infra), was entered on July 29, 1994
reversing the order of the Circuit Court, Fourth Judicial
Circuit, in and for Duval County Florida dated March
23, 1993 granting Petitioners’ Petition for Revocation of
Orders of Discharge of Personal Representative to Con-
duct Further Administration of the Estate (pp. 30a-32a,
infra). The District Court of Appeal denied Petitioners’
timely Petition for Rehearing or, in the Alternative, Cer-
tification on September 15, 1994 (p. 33a, infra). There-
after, on January 18, 1995 the Florida Supreme Court
entered its Order denying discretionary review. The juris-
diction of this Court is invoked under 28 U.S.C. § 1257
(a).

CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED

U.S. Const. amend. XIV, § 1.

All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.

Fla. Stat. § 733.702 (1983).

(1) No claim or demand against the decedent’s estate
that arose before the death of the decedent, including
claims of the state and any of its subdivisions, whether
due or not, direct or contingent, or liquidated or un-
liquidated; no claim for funeral or burial expenses; no
claim for personal property in the possession of the per-
sonal representative; and no claim for damages, includ-
ing, but not limited to, an action founded on fraud or

3

other wrongful act or omission of the decedent, shall be
binding on the estate, on the personal representative, or
on any beneficiary unless presented:

(a) Within 3 months from the time of the first publi-
cation of the notice of administration, even though the
personal representative has recognized the claim or de-
mand by paying a part of it or interest on it or otherwise.
The personal representative may settle in full any claim
without the necessity of the claim being filed when the
settlement has been approved by the beneficiaries ad-
versely affected according to the priorities provided in
this code and when the settlement is made within the
statutory time for filing claims; or he may file a proof
of claim of all claims he has paid or intends to pay.

(b) Within 3 years after the decedent’s death, if notice
of administration has not been published.

(2) No cause of action heretofore or hereafter accru-
ing, including, but not limited to, an action founded upon
fraud or other wrongful act or omission, shall survive the
death of the 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 manner
provided in this part and within the time limited.

(3) Nothing in this section affects or prevents:

(a) A proceeding to enforce any mortgage, security
interest, or other lien on property of the decedent.

(b) To the limits of casualty insurance protection
only, any proceeding to establish liability of the decedent
or the personal representative for which he is protected
by the casualty insurance.

(c) The filing of a claim by the Department of Reve-
nue subsequent to the expiration of 3 months from the
publication of the notice of administration as provided
in paragraph (1)(a), provided it does so file within 30
days after the filing of the inventory by the personal
representative.

4

STATEMENT OF THE CASE

Petitioners seek review by this Court of an opinion of
the District Court of Appeal of Florida, First District (the
“Florida Court of Appeal”) reversing an order entered
by the Circuit Court, Fourth Judicial Circuit, in and for
Duval County, Florida (the “Probate Court”) reopening
the estate of Bernard L. Danese (the “Estate”) for fur-
ther administration to allow Petitioners to continue prose-
cution of a civil action against the Estate.’ See pp. 2a-
9a, infra.

Publication of the first notice of administration of the
Estate began on November 19, 1984. (R.6). On De-
cember 21, 1994, John Cattano, attorney for Petitioners,
filed a civil action against the Estate. (PX-6). Peti-
tioners alleged in their complaint that Bernard L. Danese
fraudulently procured for himself and his brothers Peti-
tioners’ interest in certain real property located in Duval
County, Florida. (PX-6). Service of process in the civil
action was perfected upon Florida National Bank, as
personal representative of the Estate, on January 2, 1985,
which was within the three month non-claim period speci-

1The record on appeal which was before the Florida Court of
Appeal consisted of two separately paginated volumes. The first
volume, numbered pages 1 through 57, consists of proceedings
before the Probate Court through September 17, 1991. References
to this volume of the record on appeal will be reflected by the
letter “R” followed by the Clerk’s page designation (R. ).
The second volume, numbered 1 through 158, consists of proceedings
before the Probate Court and the Florida Court of Appeal from
October 21, 1991 through May 7, 1993. References to this portion
of the record on appeal will be referenced by the letter “F” fol-
lowed by the Clerk’s page designation (F. ). There was also
a transcript of an evidentiary hearing before the Probate Court
held on April 19, 1991 which was included as part of the record
on appeal under separate cover. References to pages of this tran-
script will be referenced by the letter “E” followed by the appropri-
ate page of the transcript (E. ), with refernces to the Peti-
tioners’ and Respondents’ exhibits filed in evidence at the hearing
reflected as “PX. ——-” and “RX. ——,” respectively.

5

fied by Florida Statutes, Section 733.702 (1983). (PX-
10; E.49). On May 15, 1985, Petitioners filed a Notice
of Civil Action in the Probate Court file. (R.7).

Prior to filing the civil action, Mr. Cattano wrote a
letter to the Estate’s sole beneficiary, Doris B. Danese.
Mr. Cattano’s letter, dated November 2, 1984, read as
follows:

Re: Distribution of Real Property in Estate—
Bernard Danese.

Dear Mrs. Danese:

We represent Helene (McCall) Steigman regard-
ing the distribution of your late husband’s estate.
Mrs. Steigman is particularly interested in the real
property known as The Danese Homestead located in
Mandarin. As I am sure you know, this property is
the subject of various and questionable conveyances
over the years. At this point, we are merely attempt-
ing to ascertain the potential distribution of this
property from your husband’s estate so that the vari-
ous Danese family members can be fully apprised.

At present, we are under the impression that no
estate or any file whatsoever has been opened in the
Probate Court of Duval County, Florida. We would
appreciate it greatly if you could please contact me
regarding this matter, or give this letter to your attor-
ney for an appropriate informational response. I will
be looking forward to hearing from you in the very
near future.

(PX.4). Mr. Cattano’s letter was forwarded by Doris
B. Danese to counsel for the personal representative.
(E.48). Upon receipt of Mr. Cattano’s letter, counsel
for the personal representative wrote a responsive letter
dated November 15, 1984 which read as follows:

Re: Estate of Bernard L. Danese.

Dear John:

We represent the Florida National Bank, as per-
sonal representative of the above estate. We have

6

been forwarded your letter to Mrs. Danese, dated
November 2, 1984, regarding the estate. We are un-
aware of any right that Mrs. Steigman may claim as
beneficiary or otherwise.

(PX.5). After the personal representative was served
with process in the civil action, counsel for the personal
representative telephoned Mr. Cattano to discuss the liti-
gation. (E.49-50).

Despite the pendency of the civil action, the Probate
Court entered an order closing the Estate on January 23,
1986. (R.17). The Estate was briefly reopened for fur-
ther administration due to the discovery of new assets
on May 22, 1989 and closed again on September 21,
1989. (R.21, 28). The attorneys for the personal repre-
sentative did not make the Probate Court aware of the
pendency of the civil action in seeking either order clos-
ing the Estate. (R.48; p. 28a, infra). Thus, neither
Petitioners nor their attorneys received notice of either
petition to close the Estate or of the further administra-
tion of the Estate. (R.48; p. 28a, infra).

On December 15, 1990, Petitioners filed a petition to
reopen the Estate based upon the pendency of the civil
action. (R.29). The Probate Court entered an order
reopening the Estate, holding that the pending civil ac-
tion represented an incomplete aspect of the administra-
tion of the Estate. (R.49; pp. 28a-29a, infra). The
Estate appealed the Probate Court’s order. (R.50).
While that appeal was pending, the Florida Supreme
Court, in Spohr v. Berryman, 589 So. 2d 225 (Fla.
1991), held that the institution of a civil action does
not constitute the filing of a claim in an estate as con-
templated by the Florida non-claim statute, Florida Stat-
utes, Section 733.702. In so holding, the Florida Su-
preme Court disapproved Steigman v. Danese, 502 So. 2d
463 (Fla. Dist. Ct. App. 1987) (pp. 10a-24a, infra),
wherein the Florida Court of Appeal previously held that
Petitioners’ filing of the civil action amounted to a timely

RE eo een

7

filed claim in compliance with Section 733.702 (1983).
Spohr, 589 So. 2d at 229. On the authority of Spohr,
the Florida Court of Appeal vacated the Probate Court’s
order reopening the Estate and remanded for reconsidera-
tion in light of Spohr. In re Estate of Danese, 601
So. 2d 570, 571 (Fla. Dist. Ct. App. 1992) (pp. 25a-
26a, infra).

On September 28, 1992, the Estate filed its Motion
for Entry of Order Pursuant to Mandate of First Dis-
trict Court of Appeal requesting that the Probate Court
apply Spohr and deny Petitioners’ motion to reopen the
Estate. (F.7). The Probate Court denied the Estate’s
motion and entered a second order granting Petitioners’
motion to reopen the Estate. (F.149; pp. 30a-32a, infra).
The Probate Court based its ruling on Thames v. Jack-
son, 598 So. 2d 121 (Fla. Dist. Ct. App. 1992), wherein
the Florida Court of Appeal held that Florida Statutes,
Section 733.702 (1985) * violated the due process clause
of the Fourteenth Amendment due to its failure to pro-
vide for the giving of actual notice to known or reason-
ably ascertainable creditors. Thames, 598 So. 2d at 124-
125. Specifically, the Probate Court held that:

In Thames, the First District Court of Appeal held
that the version of Florida Statutes, Section 733.702,
applicable under the facts of the instant case violated
due process of law. Id. at 125. The Thames holding
was in conformity with the holding of the United
States Supreme Court in Tulsa Professional Collec-
tion Services, Inc. v. Pope, 485 U.S. 478 (1988).
Thus, the version of Section 733.702, which Re-
spondents assert as a bar to Petitioners’ status as
claimants in the estate is unconstitutional and “can-
not, standing alone, operate as a bar to appellant’s
claim.” Thames, 598 So. 2d at 125.

(F.149-150; pp. 30a-3 1a, infra).

2 The pertinent portions of the 1983 version of Section 733.702
applicable under the facts of the instant case are identical to the
1985 version.

iii |

8

The Estate then appealed from this second order of
the Probate Court reopening the Estate. (F.152). The
Florida Court of Appeal held that the Probate Court
erred in granting Petitioners’ motion to reopen the Estate.
See pp. 2a-9a, infra. In so holding, the Florida Court of
Appeal reasoned that it did not violate due process to
apply Section 733.702 (1983) to bar Petitioners’ claim
against the Estate since, even if Petitioners were known
or reasonably ascertainable creditors, Petitioners had ac-
tual knowledge of the opening of the Estate. See pp.
6a-9a, infra. The court stated:

[T]he United States Supreme Court reiterated in
[Tulsa Professional Collection Services v. Pope, 485
U.S. 478 (1988)] what the Court had stated in Mul-
lane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which was
that “whether a particular method of notice is rea-
sonable depends on the particular circumstances.”
. . . [W]e are not persuaded that the Pope court
would have been sympathetic to appellees in the
present case. Although appellees had actual knowl-
edge of the opening of the estate at the time of its
opening, appellees did not file a claim in the estate.
Instead, appellees filed and served a civil complaint
naming the estate within the three-month nonclaim

period... . [A]ctual knowledge of the information
necessary to file a claim satisfies due process require-
ments.

See pp. 6a-8a, infra. Petitioners timely filed a Motion
for Rehearing or, in the Alternative, Certification wherein |
Petitioners argued that the Florida Court of Appeal ‘
overlooked or misconstrued controlling opinions of this
Court establishing that informal or extra-official notice,
not provided by the terms of the statute in question, was
insufficient to support a statutory deprivation of property
rights. (A.12). The 1983 version of Section 733.702,
unlike the current version, did not provide by its own
terms for notice, other than publication notice, to known
or reasonably ascertainable creditors. Fla. Stat. § 733.702

9

(1983). The Florida Court of Appeal denied this mo-
tion. See p. 33a, infra. Petitioners thereafter filed their
notice to invoke the discretionary jurisdiction of the
Florida Supreme Court on October 14, 1994. The Flor-
ida Supreme Court denied without opinion to exercise
its discretionary jurisdiction to review the opinion of
the Florida Court of Appeal by order dated January 18,
1995. See p. la, infra.

REASONS FOR GRANTING THE WRIT

The Florida Court of Appeal has disregarded this
Court’s unequivocal holdings that informally obtained
notice of the pendency of a statutorily authorized prop-
erty right deprivation, not required to be given by the
terms of the statute, does not satisfy Fourteenth Amend-
ment due process requirements. The consequences of
this erosion of due process protections reach far beyond
the immediate and significant injustice to Petitioners re-
sulting from the erroneous application of Florida Stat-
utes, Section 733.702 (1983) to bar their claim against
the Estate. Other probate claimants are certain to be
injuriously affected. Furthermore, because the Florida
Court of Appeal did not explicitly limit its reasoning
to Section 733.702, its opinion stands as authority for
the proposition that informally obtained knowledge of
the pendency of any statutory deprivation of property
rights satisfies due process requirements, regardless of
the source of that knowledge. The contexts in which
the court’s opinion will cause erroneous property right
deprivations thus are limitless absent reversal by this
Court. Compounding the necessity of plenary review
by this Court is the Florida Court of Appeal’s miscon-
struction and misapplication of this Court’s opinions in
Mullane v. Central Hanover Bank and Trust Company,
339 U.S. 306 (1949) and Tulsa Professional Collection
Services v. Pope, 485 U.S. 478 (1988), as authority for
its holding.

10

I. THE FLORIDA COURT OF APPEAL’S HOLDING
THAT PETITIONERS WERE AFFORDED SUFFI-
CIENT DUE PROCESS OF LAW BY VIRTUE OF
THEIR ACTUAL KNOWLEDGE OF THE OPENING
OF THE ESTATE CONFLICTS WITH DECISIONS
OF THIS COURT AS WELL AS WITH DECISIONS
OF NUMEROUS FEDERAL CIRCUIT COURTS OF
APPEALS, FEDERAL DISTRICT COURTS AND
STATE COURTS OF LAST RESORT.

There is no question that Florida Statutes, Section
733.702 (1983) did not provide for the giving of actual
notice, by mail or otherwise, to known or otherwise
ascertainable creditors * as required by this Court’s opin-
ion in Tulsa Professional Collection Services v. Pope,
485 U.S. 478 (1988). Nonetheless, the Florida Court
of Appeal held that Section 733.702 could be applied
constitutionally to bar Petitioners’ claim against the
Estate because:

[T]he Florida Supreme Court, in enacting Rule
5.495 *, and this court in Thames, implicitly recog-
nized that actual knowledge of the information neces-
sary to timely file a claim satisfies due process re-

3 An additional argument made by Respondents before the Florida
Court of Appeal was that Petitioners were not known or reasonably
ascertainable creditors. As a result of its ruling on the effect
of Petitioners’ knowledge of the opening of the Estate, the Florida
Court of Appeal never reached this issue. See pp. 6a-9a, infra.

4 Florida Rules of Probate Procedure, Rule 5.495, effective Janu-
ary 1, 1989, was promulgated by the Florida Supreme Court in
response to this Court’s decision in Pope and provided for an
extension of time in which to file a claim for a creditor who was
known to the personal representative, but was not served with a
copy of the notice of administration. See p. 7a n.1, infra. Rule
5.495 was repealed effective October 1, 1991, in view of an amend-
ment to Section 733.702 providing for an extension of time to file
a claim. Jd. Rule 5.495 required that the creditor seeking an
extension of time make a verified statement that the creditor did
not have actual knowledge of those matters required to be set
forth in the notice of administration during the period allowed for
filing claims. 7d.

11

quirements. It is undisputed that [Petitioners] in the
instant case had actual knowledge of the opening of
the estate.

See pp. 8a-9a, infra. The Florida Court of Appeal so
held despite Petitioners’ insistence in their Answer Brief,
at oral argument and on motion for rehearing that con-
trolling opinions of this Court, including Coe v. Armour
Fertilizer Works, 237 U.S. 413 (1915), establish that
Petitioners’ actual knowledge of the opening of the Estate
can not cure the fatal due process defect resulting from
the failure of Section 733.702 (1983) to require the
giving of actual notice to known or reasonably ascertain-
able creditors.

In Coe, this Court held violative of Fourteenth Amend-
ment due process guarantees a Florida statute that pro-
vided for execution against a stockholder of a debtor
corporation without notice. /d. at 422-23. In reaching
this holding, the Court noted that the argument had been
made that:

[Pjlaintiff in error is not within that class [which
may justly complain]; he in fact learned of the execu-
tion before his property was sold or even his posses-
sion was disturbed, and he had an opportunity for a
hearing in the present proceeding as to all questions
upon which his liability depended.

Id. at 424. In rejecting this argument, this Court stated
the rule as follows:

Nor can extra-official or casual notice . . . be deemed
a substantial substitute for the due process of law
that the Constitution requires. ... “{[I]t is not

enough that [one who is the subject of an imminent
property right deprivation] may by chance have no-
tice, or that they may as a matter of favor have a
hearing. The law must require notice to them...
The soundness of this doctrine has repeatedly been
recognized by this Court. ... “[I]f the statute did
not provide for notice in any form, it is not material

9

12

that as a matter of grace or favor notice may have
been given of the [pending property deprivation]. It
is not what notice, uncalled for by the statute, [that
was] received in a particular case that is material,
but the question is whether any notice is provided for
by the statute”... . “[T]his notice must be provided
as an essential part of the statutory provision, and
not awarded as a mere matter of favor or grace.”
... “[{T]he right of a citizen to due process of law
must rest upon a basis more substantial than favor
or discretion.” ... “[{T]he law itself must save the
parties’ rights... .”

Id. at 424-25. This Court subsequently reaffirmed this
bedrock principal of Fourteenth Amendment jurisrru-
dence in Wuchter v. Pizzutti, 276 U.S. 13 (1928),
wherein this Court held that notice received other than
under the terms of the statute in question “[nJot having
been directed by the statute . .. can not .. . supply
constitutional validity to the statute or to service under
it.” Id. at 24 (citing Coe v. Armour Fertilizer Works,
237 U.S. 413, 424-25 (1915), and other opinions of this
Court).

That Coe, Wuchter and the other opinions of this
Court upon which they rely are controlling precedent is
confirmed by the fact that this Court has never explicitly
overruled, retreated from, or even questioned the relevant
portions of these holdings. The binding nature of these
opinions is acknowledged by numerous opinions of fed-
eral courts of appeals and district courts which cite them
as authority for the principal that actual knowledge can-
not cure the failure of a statute to require constitutionally
sufficient notice. See, e.g., Sterling v. Environmental
Control Board of the City of New York, 793 F.2d 52,
58 n.4. (2nd Cir. 1986), cert. denied, 479 U.S. 987
(1986); Rose v. K.K. Masutoku Toy Factory Co., 597
F.2d 215, 219 (10th Cir. 1979); Goldlawr, Inc. v.
Heiman, 288 F.2d 579, 582 (2nd Cir. 1961), rev’d on
other grounds, 369 U.S. 463 (1962); Baker v. Latham

WRENS ~~

13

Sparrowbush Associates, 808 F. Supp. 981, 888
(S.D.N.Y. 1992); North Carolina Electric Membership
Corporation v. White, 722 F. Supp. 1314, 1328 n.17
(D.S.C. 1989); Michelson v. Merrill Lynch, Pierce, Fen-
ner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y.
1989); Fry’s Food Stores of Arizona, Inc. v. CBM of
Arizona, Inc., 636 F. Supp. 168, 171 (D. Ariz. 1986);
Leab v. Streit, 584 F. Supp. 748, 758 n.11 (S.D.N.Y.
1984); Katz v. Ke Nam Kim, 379 F. Supp. 65, 67 (D.
Haw. 197+).

Likewise, numerous state courts recognize the principle
established by Coe and its progeny that application of a
statute which does not provide for constitutionally suff-
cient notice is not rendered constitutional simply because
one learns of the proceedings in some other way. See,
e.g., Pulaski County v. Commercial National Bank, 194
S.W.2d 883, 886-888 (Ark. 1946); Cugat v. Cugat, 228
P.2d 31, 32 (Cal. Dist. Ct. App. 1951); Merco Con-
struction Engineers, Inc. v. Los Angeles Unified School
District of Los Angeles County, 79 Cal. Rptr. 23, 31-32
(Cal. Dist. Ct. App. 1969); Watkins v. Dodson, 68
N.W.2d 508, 513 (Neb. 1955); Farnow v. Department
1 of Eighth Judicial District Court in and for Clark
County, 178 P.2d 371 (Nev. 1947); Morris v. Morris,
759 S.W.2d 707, 710 (Tex. App. 1988).

There is conflict between the opinion of the Florida
Court of Appeal and the overwhelming weight of au-
thority set forth above that extra-official notice not re-
quired by the terms of a statute is insufficient. This con-
flict is both direct and irreconcilable. No factual differ-
ence between the instant case and Coe and its progeny
can be discerned which explains the Florida Court of
Appeal’s failure to declare Petitioners’ actual knowledge
insufficient to render application of Section 733.702
(1983) to bar Petitioners’ claim against the Estate con-
stitutional. Rather than attempt the impossible task of
distinguishing Coe and its progeny, which was the center

14

piece of Petitioners’ argument on the merits and on mo-
tion for rehearing, the Florida Court of Appeal’s opinion
simply fails to acknowledge the existence of this binding
authority.

The immediate effect of this error on Petitioners is the
loss of their right to pursue against the Estate their
claim that they were defrauded by the deceased into con-
veying to the deceased and his brothers their interest in
a parcel of real property with a significant market value.
However, the mischief resulting from the Florida Court
of Appeal’s opinion will not be limited to the destruc-
tion of the Petitioners’ claim against the Estate. The
same issue undoubtedly will arise as to other claimants
to whom the 1983 version of Section 733.702 is poten-
tially applicable. Indeed, all of the trial courts in Florida
are bound to follow the Florida Court of Appeal’s opin-
ion. Chapman v. Pinellas County, 423 So. 2d 378 (Fla.
Dist. Ct. App. 1982). As a result of this opinion, trial
courts throughout Florida will face the dilemma of con-
forming to the erroneous holding of the Florida Court
of Appeal at the price of disregarding this Court’s
precedents.

Further, the Florida Court of Appeal’s opinion threat-
ens to contaminate the entire body of case law concern-
ing statutory property right deprivation. The Florida
Court of Appeal did not explicitly limit its reasoning to
the facts of the case before the court. If informal know!-
edge, rather than statutorily required actual notice, of an
imminent barring of a claim against a probate estate is
sufficient for due process purposes, there is no reason
why such informally obtained knowledge would not suf-
fice whenever any property is taken on the authority of
law.

No court outside of Florida has yet to cite the instant
opinion as authority for the proposition that a statute
need not require constitutionally sufficient notice by its
own terms where there is actual knowledge of the pend-

sa Ec NET Ce BERN

15

ing property right deprivation. However, at least one
state court, one federal court of appeals and one district
court have independently reached such an erroneous
holding. See Wiren v. Eide, 542 F.2d 757, 762 (9th Cir.
1976); Bowlin v. Deschutes County, 712 F. Supp. 803,
807 (D. Or. 1988), aff'd, 918 F.2d 181 (9th Cir.
1990); In re Estate of Sutherland, 593 N.E.2d 955, 960-
61 (Ill. App. Ct. 1992).* The instant opinion will pro-
vide additional authority for other courts to depart from
this Court’s holdings. No purpose can be served by
allowing further confusion to develop as a result of the
Florida Court of Appeal’s opinion. Thus, it is critical
that this Court grant plenary review of the instant case
to arrest any further erosion of the fundamental due proc-
ess protections declared in Coe and its progeny.

5 Both Wiren and Bowlin are based upon the assumption that this
Court’s opinion in United States v. Raines, 362 U.S. 17 (1960)
represented an implicit abrogation of Coe and its progeny. These
courts base this assumption upon a misinterpretation of the Raines
Sourt’s statement that “fo]ne to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that it might also be taken as applying to other persons or other
siuations in which its application might be unconstitutional.” Id.
at 21. This is merely a reiteration of the general rule against
third party standing as to constitutional issues, which principal
predates both Raines and Coe. Indeed, the Coe Court clearly was
cognizant of the general rule that one may not assert that a
statute is unconstitutional as applied to someone else when the
Court rejected the argument that the plaintiff in error was not
“within the class who may justly complain” because he had actual
knowledge of the pending property deprivation. Coe, 237 US.
at 423-24.

meh preemie

16

II. THE FLORIDA COURT OF APPEAL MISINTER-
PRETED AND MISAPPLIED THIS COURT'S OPIN-
IONS IN TULSA PROFESSIONAL COLLECTION
SERVICES v. POPE, 485 U.S. 478 (1988) AND MUL-
LANE v. CENTRAL HANOVER BANK & TRUST
CO., 339 U.S. 306 (1950) IN HOLDING THAT PETI-
TIONERS’ ACTUAL KNOWLEDGE OF THE OPEN-
ING OF THE ESTATE SATISFIES DUE PROCESS
REQUIREMENTS.

In support of its holding that Petitioners’ actual knowl-
edge of the pendency of probate proceedings satisfies
Fourteenth Amendment due process requirements, the
Florida Court of Appeal said:

[Tjhe United States Supreme Court reiterated in
Pope what the Court had stated in Mullane vy. Cen-
tral Hanover Bank & Trust Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950), which was that
“whether a particular method of notice is reasonable
depends on the particular circumstances.” ... [Wle
are not persuaded that the Pope court would have
been sympathetic to the appellees in the instant case.
Although appellees had actual knowledge of the
opening of the estate at the time of its opening, ap-
pellees did not file a claim in the estate. Instead,
appellees filed and served a civil complaint naming
the estate within the three month non-claim period.

See pp. 6a-7a, infra.

Thus, even though Section 733.702 (1983) did not
require constitutionally sufficient notice by its own terms, |
the Florida Court of Appeal cited Mullane and Pope as
authority for the proposition that due process require-
ments can be satisfied by actual knowledge. In so hold-
ing, the court failed to recognize that both Mullane and
Pope deal exclusively with the question of what sort of
notice is required to be given by the terms of a statute.°

6 A related issue argued in Petitioners’ Answer Brief before the
Florida Court of Appeal was whether Mullane renders all mail
notice constitutionally sufficient, or whether additional inquiry

sacacaaiieasitaiaiialiiiiiiiiitiiall

17

Neither case addressed explicitly or implicitly the further
question of whether informally obtained notice not re-
quired to be provided by the terms of a statute can serve
as a substitute for statutorily mandated notice. The
Florida Court of Appeal’s construction of Mullane and
Pope results in the implicit abrogation of Coe and its
progeny. There is no support within the opinions of this
Court for such a result. Indeed, Mullane and Coe are
entirely compatible and complementary holdings, each
addressing a distinct aspect of Fourteenth Amendment
notice requirements. Mullane establishes the method of
notice required. Coe requires that whatever notice is
sufficient under Mullane be required by the very terms
of the statute. See, e.g., Sterling v. Environmental Con-
trol Board of the City of New York, 793 F.2d 52, 56-58
and n.4 (2nd Cir. 1986) (finding that notice required
under ordinance as to violation of New York City’s sani-
tation code insufficient under Mullane and further finding
that this due process violation was not cured by extra-
statutory notice measures) (citing Wuchter v. Pizzutti,
276 US. 13 (1928) ).

The Florida Court of Appeal’s misconstruction and
misapplication of Mullane and Pope compounds the detri-
mental effect that its opinion will have on Fourteenth
Amendment due process jurisprudence. By holding that
this Court’s precedents support its holding, the Florida
Court of Appeal has multiplied the probability that its
holding will form the basis of similarly erroneous holdings
within Florida and throughout the Nation. Plenary con-
sideration of this case by the Court therefore is essential.

must be had as to the informational content of the mailed notice.
The Florida Court of Appeal did not explicitly address this issue
in their opinion. Petitioners request the right to raise this issue
to the extent permitted by the Court should plenary review be
granted.

18

CONCLUSION

For the foregoing reasons, Petitioners respectfully re-
quest that the Court grant this petition for certiorari.

April 17, 1995

Respectfully submitted,

KurRT H. DUNKLE *

JAMES M. MCLEAN

ROGERS, TOWERS, BAILEY,
JONES & GAY, P.A.

1301 Riverplace Boulevard

Suite 1500

Jacksonville, Florida 32207

(904) 398-3911

Attorneys for Petitioners

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1601%3A1. Public record. Not legal advice.