Opposition Brief — Steigman v. Danese

No. 94-1711 FIL

: sine MAY 7 1995 |

In The OFFICE OF THE ricoy

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.

ee * ee

On Petition For A Writ Of Certiorari

To The District Court Of Appeal

Of Florida, First District

r

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

—— —__—_—_——- ¢ —— ——_______—_

DANA G. Braprorp, II

(Counsel of Record)

BAUMER, BRADFoRD & Watters, P.A.

50 North Laura Street, Suite 2200

Jacksonville, Florida 32201

(904) 358-2222

and

Cray B. Tousey, Jr.

FisHer, Tousey, Leas & Batt

2600 Independent Square

Jacksonville, Florida 32202

(904) 356-2600

Attorneys for Respondent

&

- *

RULE 29.1 STATEMENT OF

PARENT CORPORATIONS AND SUBSIDIARIES

The following information is provided pursuant to

Rule 29.1 of the Rules of this Court:

The interest of Florida National Bank, as co-personal

representative of the Estate of Bernard L. Danese, has

been succeeded to by First Union National Bank of Flor-

ida, N.A.

TABLE OF CONTENTS

Page

FADES CF ALTE + 0sc0sevas eet vnakesesian iii

REASONS FOR DENYING THE WRIT............. 1

I. THIS CASE DOES NOT PRESENT THE “SPE-

CIAL AND IMPORTANT REASONS”

REQUIRED TO INVOKE THE DISCRETION-

ARY JURISDICTION OF THIS COURT....... 1

Il. THE OPINION OF THE FLORIDA COURT OF

APPEAL IN DANESE DOES NOT PRESENT

AN “IMPORTANT QUESTION OF FEDERAL

RAS 6c vscutesoed vad weer teaeene eee 4

Il. THE FLORIDA COURT OF APPEAL’S RUL-

ING IN DANESE IN NO WAY CONFLICTS

WITH THIS COURT’S OPINIONS IN COE

AGES COUR RUSS 0 65 cb cceeeccauscaenoisssuee 8

A. The facts of the Coe and Wuchter opinions

are easily distinguishable from the facts of

NOOR a5 6i see atdntetess. dae 9

B. In accordance with the rules of practice

established by this Court in United States v.

Raines, the Petitioners lacked standing

even to assert that section 733.702, Florida

Statutes, violated constitutional due pro-

CORD POUCIINS oo as oes exe taaeavereseaunn 14

IV. THE FLORIDA COURT OF APPEAL DID NOT

MISINTERPRET OR MISAPPLY THE COURT’S

OPINIONS IN POPE OR MULLANE IN FIND-

ING THAT PETITIONERS’ ACTUAL KNOWL-

EDGE OF THE OPENING OF THE ESTATE

SATISFIES DUE PROCESS REQUIREMENTS... 17

Ctpsttimee ... 8c ee 21

Pei sano at ft, ammo mamiana

ii

TABLE OF AUTHORITIES

Page

Cases

Baker v. Latham Sparrowbush Associates, 808 F.

Supp. 981 (S.D.N.Y. 1992)....... ie betekehsasen ee Me

Bowlin v. Deschutes County, 712 F. Supp. 803 (D. Or.

1988), aff'd, 918 F.2d 181 (9th Cir. 1990)......----. 15

Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915) . .passim

Cugat v. Cugat, 228 P.2d 31 (Cal. Dist. Ct. App.

OE Pee eee eee 12

Farnow v. Department 1 of Eighth Judicial District

Court in and for Clark County, 64 Neb. 109, 178

a er ee ee ee 11

Fry's Food Stores of Arizona, Inc. v. CBM of Arizona,

636 F. Supp. 168 (D. Ariz. 1986) .......------+++>- 13

Goldlawr, Inc. v. Heiman, 288 F.2d 579 (2d Cir.

1961), rev'd, 369 U.S. 463 (1962).......----- eee eee 13

In re Estate of Barnett, 549 So. 2d 1166 (Fla. Dist. Ct.

ees errrer reece 3, 4

In re Estate of Danese, 641 So. 2d 423 (Fla. Dist. Ct.

eo . ) A co ac passim

In re Estate of Gleason (Raine v. Gleason), 631 So. 2d

321 (Fla. Dist. Ct. App.), review denied, 640 So.

2d 1106 (Fla. 1994), cert. denied, 115 S. Ct. 726

ASS OOS er ee te ee 19, 20

In re Estate of Hill, 582 So. 2d 701 (Fla. Dist. Ct.

(ae bo 7 | nn eee oe cc 3

In re Estate of Kopely (Fahoum v. Winters), 159 Ariz.

391, 767 P.2d 1181 (Ct. App. 1988)......-------+ee 3

In re Estate of Sutherland, 229 Ill. App. 3d 281, 593

NE.2d 955 (1992). .... 2.0.2. ccc ce cece eee eeee: ..3, 16

iV

TABLE OF AUTHORITIES —- Continued

Page

In re Estate of Thompson, 484 N.W. 2d 258 (Minn.

ee Ss Perr errr err rere err rs peer ie 3

In re Estate of Vickery, 564 So. 2d 555 (Fla. Dist. Ct.

PI FOF 0 RN Abe Kee edd ad eeeadabakneseetenaeabess 3

In re Rules of Probate and Guardianship Procedure,

ee ae ee Se EY bs iy 4-00.54 0 bce 06-08-26 Dawes 4

Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98 (Fla.

ee | Ee PT Core err eee ree aay 3

Katz v. Ke Nam Kim, 379 F. Supp. 65 (D. Haw. 1974)

5 Le CAME DE EH VR EE MAR RRR E eee he oe 10, 13, 14, 16

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 | qunty, 274

Cal. App. 2d 154, 79 Cal. Rotr. 23 (1969) ......... 12

Michelson v. Merrill Lynch, Pierce, Fenner & Smith,

mc., 709 F. Supp. i479 (S.O.N.Y. 1909) «4.0.22 656-. 13

Morris v. Morris, 759 S.W.2d 707 (Tex. App. 1988)

UO ee ee Pe ee rr oe Serr epee i3, 34, 39

Mullane v. Central Hanover Bank & Trust Co., 339

fhe TG Pe Pe ep ore rey i, 3, 17, ¥9, 2

North Carolina Electric Membership Corp. v. White,

ae ©: SMO. 1St6 TAGA.. FOO) oo as cas cin aesaiuas 13

Peralta v. Heights Medical Center, Inc., 485 U.S. 80

4 Sy ery re rer Pere meen yer er re 12

Public Health Trust of Dade County v. Estate of Jara,

526 So. 2d 745 (Fla. Dist. Ct. App. 1988)........... 3

Pulaski County v. Commercial National Bank, 194

Peers Oe TN SOUND hs chavs rivdeeseaaeeeonadu hs 1]

ci hia i ia i ated ahi

TABLE OF AUTHORITIES — Continued

Page

Rose v. K.K. Masutoku Toy Factory Co., 597 F.2d 215

ey ee asp ab ae KU en ages we 13

Spohr v. Berryman, 589 So. Zee 2a CFIA. THER) occas se a

Sterling v. Environmental Control Board of the City of

New York, 793 F.2d 52 (2d Cir.), reh'g denied, 795

F.2d 8 (2d Cir. 1986), cert. dented, 479 U.S. 987

aire 1 at wane ale win ee a Nee Pir rr Oe 12

Thames v. Jackson, 598 So. 2d 121 (Fla. Dist. Ct.

App. UR! Sc Pie cig kin wae Mee a oa 4a ee eS passim

Tulsa Professional Collection Services v. Pope, 485

aR Ge Wh. : Re eer }. 3; SS, i7, 16, 2 22

United States v. Raines, 362 U.S. 17 (1960) ..... ene ae

Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508

OE icy a adhe kl aid i oa oie ed de eas ae & 1]

Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976)....... 15, 16

Wuchter v. Pizzutti, 276 U.S. 13 (1928)........... passim

STATUTES

aR as sy | ree ... passim

Ruw

i. tee Oe en COD cee he eyeees .4, 5, 6, 18

REASONS FOR DENYING THE WRIT

Respondents, 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, respectfully submit

that the Petition for Writ of Certiorari (hereinafter

referred to as the “Petition”), which seeks review of the

decision of the First District Court of Appeal of Florida in

In re Estate of Danese, 641 So. 2d 423 (Fla. Dist. Ct. App.

1994), should be denied.

I. THIS CASE DOES NOT PRESENT THE “SPECIAL

AND IMPORTANT REASONS” REQUIRED TO

INVOKE THE DISCRETIONARY JURISDICTION

OF THIS COURT.

Petitioners seek to invoke the jurisdiction of this

Court under 28 U.S.C. § 1257(a). According to Petitioners,

the opinion of the Florida Court of Appeal in In re Estate

of Danese ignores, misinterprets, and misapplies control-

ling authority of this Court, including its decisions in Coe

v. Armour Fertilizer Works, 237 U.S. 413 (1915), Tulsa Pro-

fessional Collection Services v. Pope, 485 U.S. 478 (1988), and

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

(1950). Petitioners predict that the Florida Court of

Appeal’s opinion will “contaminate the entire body of

case law concerning statutory property right depriva-

tion,” and contribute to the erosion of “the fundamental

due process protections declared in Coe and its progeny.”

Petition, at 14-15, 17

ho

Petitioners fail to demonstrate any basis for this

Court’s exercise of its certiorar *eview. This Court may

review

[fjinal judgments or decrees rendered by the

highest court of a State in which a decision

could be had ... . where the validity of a statute

of any State is drawn in question on the ground

of its being repugnant to the Constitution,

treaties, or laws of the United States, or where

any title, right, privilege, or immunity is spe-

cially set up or claimed under the Constitution

or the treaties or statutes of, or any commission

held or authority exercised under, the United

States.

28 U.S.C. § 1257(a). The Rules of this Court emphasize,

however, that

review on writ of certiorari is not a matter of

right, but of judicial discretion. . . . [and] will be

granted only where there are special and impor-

tant reasons therefor.

Sup. Ct. R. 10.1. Such “special and important reasons”

include state court decisions on “important question|s] of

federal law” that have not yet been settled or that conflict

with the relevant and established law of this Court. Sup.

Ct. R. 10.1(c).

Contrary to the Petitioners’ assertions, the opinion of

the Florida Court of Appeal in Danese did not decide an

“important question of federal law.” See Sup. Ct. R.

10.1(c). Rather, the Danese opinion simply considered

whether the Probate Court properly applied the decision

of the Florida Court of Appeal in Thames v. Jackson, 598

a i a ar rm maaas

So. 2d 121 (Fla. Dist. Ct. App. 1992),' to the facts of this

case. The Danese court followed established Florida prece-

dent to find that “the probate court erred in interpreting

Thames to permit reopening of the estate and in denying

appellants’ motion for entry of order pursuant to man-

date.” 641 So. 2d at 426.

Moreover, even if, as Petitioners suggest, the Danese

decision implicated fundamental constitutional principles

of due process, the decision of the Florida Court of

Appeal in no way contradicts controlling authority of this

Court. See Sup. Ct. R. 10.1(c}. Although Petitioners argue

that the Danese opinion “fails to acknowledge the exis-

tence” of certain binding authority (including the Court's

decisions in Coe v. Armour Fertilizer Works and Wuchter v.

Pizzutti), this Court’s opinions in Coe and Wuchter are

neither relevant nor binding. Instead, the Danese court

properly interpreted and applied the principles set forth

in this Court’s decisions in Tulsa Professional Collection

Services v. Pope, 485 U.S. 478 (1988), and Mullane v. Central

' The rule followed by the Florida Court of Appeals in

Thames is not new. Thames is merely one of many decisions that

interprets the effect of the United States Supreme Court's deci-

sion in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S.

478 (1988), upon probate non-claim statutes. See, e.g., In re Estate

of Kopely (Fahoum v. Winters), 159 Ariz. 391, 767 P.2d 1181 (Ct.

App. 1988); Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98 (Fla.

Dist. Ct. App. 1992); In re Estate of Hill, 582 So. 2d 701 (Fla. Dist.

Ct. App. 1991); In re Estate of Vickery, 564 So. 2d 555 (Fla. Dist. Ct.

App. 1990); In re Estate of Barnett, 549 So. 2d 1166 (Fla. Dist. Ct

App. 1989); Public Health Trust of Dade County v. Estate of Jara

526 So. 2d 745 (Fla. Dist. Ct. App. 1988); In re Estate of Sutherland,

229 Ill. App. 3d 281, 593 N.E.2d 955 (1992); In re Estate of

Thompson, 484 N.W. 2d 258 (Minn. Ct. App. 1992).

Hanover Bank & Trust Co., 339 U.S. 306 (1950), along with

relevant authority of the Florida appellate courts.

Ii. THE OPINION OF THE FLORIDA COURT OF

APPEAL IN DANESE DOES NOT PRESENT AN

“IMPORTANT QUESTION OF FEDERAL LAW.”

In Danese the Florida Court of Appeal did not find, as

Petitioners suggest, that the Petitioners’ actual knowl-

edge of the opening of the Estate “cure[d] 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 ascertainable creditors.” Petition, at

11. The question of the constitutionality of the applicable

probate non-claim statute — and the effect of a claimant's

actual knowledge of information necessary to file a pro-

bate claim — had already been decided by the Florida

Court of Appeal in Thames v. Jackson, 598 So. 2d 121 (Fla.

Dist. Ct. App. 1992). See also In re Rules of Probate and

Guardianship Procedure, 537 So.2d 500, 549-50 (Fla. 1988)

(enacting Florida Probate Rule 5.495); In re Estate of Bar-

nett, 549 So. 2d 1166, 1167-68 (Fla. Dist. Ct. App. 1989).

The only question decided by the Danese court, then, was

whether the Probate Court properly applied the decision

of the Florida Court of Appeal in Thames v. Jackson “as its

sole predicate for revoking the orders of discharge of the

,

personal representative’

and allowing Petitioners to

reopen the estate. 641 So. 2d 423, 424.?

In Thames a creditor who claimed to have been a

“known or readily ascertainable” creditor of the estate

filed an untimely claim. The creditor alleged that he had

not received notice of the administration of the estate,

and, in accordance with Florida Probate Rule 5.495,

sought an extension of time within which to file his claim.

The probate court struck the creditor’s claim as untimely,

and denied his petition for an extension of time. 598 So.

2d at 122.

The Thames court ruled that, based upon the rationale

of this Court in Tulsa Professional Collection Services v.

Pope, 485 U.S. 478 (1988), the 1985 version of section

733.702, Florida Statutes, violated due process and could

not, standing alone, bar the claim of a known or reason-

ably ascertainable creditor. 598 So. 2d at 125. Because

Rule 5.495 of the Florida Probate Rules? required a

2 In granting the petition to reopen, the Probate Court

explained that

even if the filing of a lawsuit is not a sufficient pre-

sentment of a claim under the non-claim statute

[based upon the decision of the Florida Supreme

Court in Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991)],

the failure to file a timely claim will not prevent asser-

tion of that claim where an unconstitutional non-

claim statute is relied upon as the only authority for

barring the claim. Thames, 598 So. 2d at 125.

Appendix to Petition for Writ of Certiorari, at 31a.

* Following the Pope decision, the Supreme Court of Florida

enacted Florida Probate Rule 5.495, which allowed known

creditor to establish that he lacked actual knowledge of

the administration of the estate, the Thames court

remanded for an evidentiary hearing on the factual issues

presented, including a determination as to whether “the

appellant did have knowledge of the opening of adminis-

tration.” Id. at 124, 125.

creditors to petition for an extension of time within which to file

a claim. According to Rule 5.495:

If a creditor of the estate files a petition to extend

the time for filing a claim, after the time allowed by

law for presenting claims, or a petition to require

payment of claim, which claim was filed after the time

allowed by law for presenting claims, and the petition

alleges that the creditor was known to or reasonably

ascertainable by the personal representative, but was

not served witha copy of the notice of administration,

such petition shall specifically allege facts showing

that such creditor was known to or reasonably ascer-

tainable by the personal representative. It shall also

include a verified statement alleging either that i)

the creditor did not have actual knowledge of those

matters relating to creditors’ claims required to be

set forth in the notice of administration during the

period allowed for filing claims against the estate,

or (ii) facts sufficient to obtain relief under Florida

Rule of Civil Procedure 1.540(b).

Fla. Prob. R. 5.495 (emphasis added). The amended rule became

effective in January, 1989, and, together with the 1985 version of

section 733.702, operated as the procedural and substantive

non-claim provision of the Florida Probate Code until October 1,

1991, when the Florida Legislature amended section 733.702 to

allow creditors to petition for an extension of time.

Contrary to the Petitioners’ assertions, then, the

Danese court did not find that the Petitioners’ actual

knowledge of the opening of the estate “cure[d] 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 ascertainable creditors.” Petition, at

11. The Florida Court of Appeal did not even decide

whether the Petitioners were in fact “known or reason-

ably ascertainable creditors,” but simply held that

the probate court erred in interpreting Thames to

permit reopening of the estate and in denying

appellants’ motion for entry of order pursuant

to mandate. Even if appellees were known or

reasonably ascertainable claimants, appellees’

failure to file a claim in the probate estate at any

time before the estate was closed when they had

actual knowledge of the opening of the estate

makes Thames inapplicable to the present case.

Danese, 641 So. 2d at 426. Accordingly, the Danese court

reversed the Probate Court’s decision, and upon remand,

instructed the Probate Court

to apply the decision of the Florida Supreme

Court in Spohr v. Berryman, 589 So. 2d 225 (Fla.

1991) and deny appellees’ petition to reopen the

estate, based upon their failure to file a timely

claim in the estate.

Id. at 427.

Despite Petitioners’ efforts to demonstrate otherwise,

this case does not present an important federal question

for the Court’s discretionary review. The Danese court

merely interpreted the relevant facts, in light of existing

state case law, to find that the Probate Court erred in

relying upon Thames to reopen the estate. The limited

applicability of the Danese opinion — and its emphasis

upon the particular facts of the case — gives little credence

to Petitioner’s assertion that “the Florida Court of

Appeal’s opinion threatens to contaminate the entire

body of case law concerning statutory property right

deprivation.” See Petition, at 14.

Ill. THE FLORIDA COURT OF APPEAL’S RULING IN

DANESE IN NO WAY CONFLICTS WITH THIS

COURT’S OPINIONS IN COE AND WUCHTER.

Petitioners also argue that the opinion of the Florida

Court of Appeal ignores controlling and binding Supreme

Court precedent, specifically, this Court’s decisions in Coe

v. Armour Fertilizer Works, 237 U.S. 413 (1915), and Wuch-

ter v. Pizzutti, 276 U.S. 13 (1928). Petitioners’ repeated

efforts to demonstrate the applicability of Coe and its

progeny have been correctly rejected by the Florida

appellate courts, including the Florida Court of Appeal

(which did not expressly address the Coe argument in its

opinion and denied Petitioners’ Motion for Rehearing Or,

In the Alternative, Certification) and the Florida Supreme

Court (which refused to exercise its discretionary juris-

diction to consider the case). Once again, Petitioners fail

to demonstrate that the decisions of this Court in Coe and

Wuchter control the question before the Florida Court of

Appeal in Danese.

Not only do the facts of Coe ant? Wuchter differ from

the facts of this case, the Petitioners’ actual knowledge of

information necessary to file a claim with the estate — in

accordance with the rules of practice established by this

Court in United States v. Raines, 362 U.S. 17 (1960) -

effectively deprived the Petitioners of standing to contest

the constitutionality of section 733.702, Florida Statutes.

The Danese court property rejected Petitioners’ reliance

upon Coe and Wuchter in favor of more relevant and

apposite authority.

A. The facts of the Coe and Wuchter opinions are

easily distinguishable from the facts of Danese.

Petitioners’ reliance upon Coe and Wuchter ignores

essential factual distinctions between this case and the

two Supreme Court decisions. Neither Coe nor Wuchter

addressed the constitutionality of probate non-claim stat-

utes; more importantly, the statutes considered in each

case were explicitly unconstitutional, and could not be

constitutionally applied under any circumstances.

For example, the Coe decision considered the consti-

tutionality of a statute that did not provide for notice or

hearing in any form. See Coe, 237 U.S. at 417. The statute

gave creditors the right, upon the return of an unsatisfied

execution initially issued only for the property of the

corporation, to issue an execution against shareholders

for any unpaid stock subscriptions. The Court found the

statute “repugnant to the ‘due process of law’ provision

of the 14th Amendment, which requires at least a hearing,

Or an opportunity to be heard, in order to warrant the

taking of one’s property to satisfy his alleged debt or

obligation.” 237 U.S. at 422-23. In emphasizing that the

statute itself must provide notice and an opportunity for

hearing, the Court stated:

10

Nor can extra-official or casual notice, or a hear-

ing granted as a matter of favor or discretion, be

deemed a substantial substitute for the due pro-

cess of law that the Constitution requires.

237 U.S. at 424.

Similarly, in Wuchter the Court construed “the val-

idity, under the 14th Amendment, of a statute of New

Jersey providing for service of process vn nonresidents of

the state in suits for injury by the negligent operation of

automobiles on its highways.” 276 U.S. at 15. The defen-

dant in Wuchter had actual notice of the pending action

against him, but did not appear to defend the action. Id.

at 24. The Court relied upon Coe to find that, because the

statute itself did not require notice, the defendant’s actual

notice “[could] not, therefore, supply constitutional val-

idity to the statute or service under it.” Id.

The Coe and Wuchter decisions “involved challenges

to statutory schemes which were constitutionally inade-

quate in all of their respective reaches.” Katz v. Ke Nam

Kim, 379 F. Supp. 65, 67 (D. Hawaii 1974). Yet unlike the

facts of Coe and Wuchter, the statute at issue in Danese (to

the extent the opinion even could be considered a “chal-

lenge” to the statutory scheme of section 733.702) has

never been declared unconstitutional on its face. Rather,

it is well established that the 1985 version of section

733.702, Florida Statutes, violates due process only when

the statute, standing alone, bars the claim of a known or

reasonably ascertainable creditor. See Danese, 641 So. 2d at

427; Thames, 598 So. 2d at 124-25. The Danese court did

not even find it necessary to decide whether the Peti-

tioners were known or reasonably ascertainable creditors.

11

Moreover, it is undisputed that the personal representa-

tive in Danese gave timely publication notice of the

administration of the estate, and that the personal repre-

sentative, through its counsel, gave actual, detailed notice

of the administration of the estate to Petitioners. See

Danese, 641 So. 2d at 424, 426. Unlike the Supreme Court's

decisions in Coe and Wuchter, Danese determines only

whether the particular method of actual notice given to

Petitioners is reasonable under the circumstances, not

whether the statutory notice by publication itself violates

due process. Id. at 426. Indeed, in this fact-dependent

decision, the sufficiency of notice by publication was not

even implicated. See id. at 426-27.

Nor do the numerous state and federal courts cited

by Petitioners demonstrate the applicability of Coe and

Wuchter to the facts of this case. Petitioners argue that

numerous state courts recognize the principle

established by Coe and its progeny that applica-

tion of a statute which does not provide for

constitutionally sufficient notice is not rendered

constitutional simply because one learns of the

proceedings in some other way.

Petition, at 13. None of the cited state court opinions has

any relevance to the facts of the case before the Florida

Court of Appeal in Danese. With the exception of the

Texas Court of Appeal’s opinion in Morris v. Morris, 759

S.W.2d 707 (Tex. App. 1988), each of the state courts

considered the constitutionality of statutes that did not

require notice in any form before depriving the subject

individual of his property. See Pulaski County v. Commer-

cial Nat'l Bank, 194 S.W.2d 883, 888 (Ark. 1946); Watkins v.

Dodson, 159 Neb. 745, 68 N.W.2d 508, 513 (1955); Farnow v.

12

Department 1 of Eighth Judicial Dist. Court in and for Clark

County, 64 Nev. 109, 178 P.2d 371, 376 (1947); Merco Con-

struction Engineers, Inc. v. Los Angeles Unified School Dis-

trict of Los Angeles County, 274 Cal. App. 2d 154, 79 Cal.

Rptr. 23, 30 (1969); Cugat v. Cugat, 228 P.2d 31, 32 (Cal.

Dist. Ct. App. 1951). And the Morris court relied upon

“Coe and its progeny” to consider only two issues: first,

whether an appellee committed extrinsic fraud when she

“caus[ed] a citation by publication to issue when personal

service was appropriate”; and second, whether the appel-

lant was required to establish a meritorious defense.+ 759

S.W.2d at 708.

Petitioners also contend that numerous federal dis-

trict courts and courts of appeal cite Coe and Wuchter “as

authority for the principal [sic] that actual knowledge

cannot cure the failure of a statute to require constitu-

Petition, at 12. Again, Peti-

”

tionally sufficient notice.

tioners fail to demonstrate the relevance of such opinions

to the facts of this case. None of the cases cited consid-

ered the constitutional due process requirements of pro-

bate non-claim statutes. See Sterling v. Environmental

4 In support of the second issue, the Morris court cited

another United States Supreme Court decision, Peralta v. Heights

Medical Center, Inc., 485 U.S. 80 (1988), in which the Court stated

that

[when] a person has been deprived of property in a

manner contrary to the most basic tenants [sic] of due

process, “it is no answer to say that in his particular

case due process of law would have led to the same

result because he had no adequate defense upon the

merits.” Coe v. Armour Fertilizer Works, 237 U.S. 413,

424, 35 S. Ct. 625, 629, 59 L. Ed. 1027 (1915).

759 S.W.2d at 710.

13

Control Board of the City of New York, 793 F.2d 52, 53 (2d

Cir.), reh’g denied, 795 F.2d 8 (2d Cir. 1986), cert. denied, 479

U.S. 987 (1986); Rose v. K.K. Masutoku Toy Factory Co., 597

F.2d 215, 218 (10th Cir. 1979); Goldlawr, Inc. v. Heiman, 288

F.2d 579, 580 (2d Cir. 1961), rev'd on other grounds, 369 U.S.

463 (1962); Baker v. Latham Sparrowbush Assoc., 808 F.

Supp. 981, 987-88 (S.D.N.Y. 1992); North Carolina Electric

Membership Corp. v. White, 722 F. Supp. 1314, 1316 (D.S.C.

1989); Michelson v. Merrill Lynch, Pierce, Fenner & 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, 171-72 (D. Ariz. 1986); Leab v. Streit, 584 F. Supp. 748,

758-60 (S.D.N.Y. 1984); Katz v. Ke Nam Kim, 379 F. Supp.

65, 67-69 (D. Haw. 1974). Indeed, three of the federal

decisions cited by Petitioners simply held that even a

defendant's actual notice of the pending civil action filed

against him does not remedy otherwise defective service

of process. See Goldlawr, 288 F.2d at 582; Michelson, 709 F.

Supp. at 1282; Leab, 584 F. Supp. at 760. Several of the

other federal decisions - like Coe and Wuchter — consid-

ered statutes which were unconstitutional as a matter of

law. See Rose, 597 F.2d at 219; North Carolina Electric

Membership Corp., 722 F. Supp. at 1316-19; Fry's Food Stores

of Arizona, 636 F. Supp. at 171-72. Finally, the Hawaii

federal district court’s opinion in Katz distinguished Coe

and Wuchter to find that the appellant lacked standing to

challenge the constitutionality of the state statute. 379 F.

Supp. 65, 67-69.

Neither Coe nor its “progeny,” then, controls the deci-

sion of the Florida Court of Appeal in Danese. The Danese

court properly relied upon more apposite case law, find-

ing that

14

the Florida Supreme Court, in enacting Rule

5.495, and this court in Thames, implicitly recog-

nized that actual knowledge of the information

necessary to file a claim satisfies due process

requirements.

641 So.2d at 427.

B. In accordance with the rules of practice estab-

lished by this Court in United States v. Raines,

the Petitioners lacked standing even to assert

that section 733.702, Florida Statutes, violated

constitutional due process principles.

Petitioners assert that Coe and Wuchter remain bind-

ing precedent, arguing that “this Court has never explic-

itly overruled, retreated from, or even questioned the

relevant portions of these holdings.” Petition, at 12. Con-

trary to Petitioners’ argument, the rules of practice estab-

lished by this Court in United States v. Raines, 362 U.S. 17

(1960), demonstrate that Petitioners - by virtue of their

actual knowledge of the opening of the estate — lacked

standing even to complain that section 733.702 was

unconstitutional.

In Raines the Court emphasized the limited jurisdic-

tion of federal courts:

This Court, as is the case with all federal courts,

has no jurisdiction to pronounce any statute,

either of a State or of the United States, void,

because irreconcilable with the Constitution,

except as it is called upon to adjudge the legal rights

of litigants in actual controversies.

362 U.S. at 20 (emphasis added). Accordingly, to effectu-

ate this limited jurisdiction, the Court relied upon certain

15

rules of practice, including the rule that “one to whom

application of a statute is constitutional will not be heard

to attack the statute on the ground that impliedly it might

also be taken as applying to other persons or other situa-

tions in which its application might be unconstitutional.”

Id. at 21 (citations omitted).

Courts have relied upon the rule of restraint pro-

nounced by the Court in Raines to limit the application of

Coe. See Wiren v. Eide, 542 F.2d 757, 762 (9th Cir. 1976); see

also Bowlin v. Deschutes County, 712 F. Supp. 803, 807 (D.

Or. 1988), aff'd, 918 F.2d 181 (9th Cir. 1990). In Wiren the

Ninth Circuit relied upon Raines to refuse to allow a

plaintiff, who had received actual notice of the seizure of

his automobile, to challenge the constitutionality of the

post-seizure notice provisions; the plaintiff, “[h]aving

received such notice, .. . clearly . . . [was] accorded due

process in the application of the statute as to him person-

ally.” 542 F.2d at 762; see also Bowlin, 712 F. Supp. at

807-808 (because plaintiff had received actual notice and

a hearing, court did not find ordinance unconstitutional

based upon asserted procedural due process defects).

Petitioners contend that the Wiren and Bowlin courts

misinterpreted the rules of practice established in Raines.

According to Petitioners,

[T]he Coe court clearly was cognizant of the

general rule that one may not assert that a stat-

ute is unconstitutional as applied to someone

else when the Court rejected the argument that

the plaintiff was not “within the class who may

justly complain” because he had actual knowl-

edge of the pending property deprivation.

16

Petition, at 15 n.5. Again, Coe and Wuchter are easily

distinguishable, for “each involved challenges to statu-

tory schemes which were constitutionally inadequate in

all of their respective reaches.” Katz v. Ke Nam Kim, 379 F.

Supp. 65, 67 (D. Hawaii 1974). When faced with a statu-

tory scheme that is constitutional as applied to certain

individuals, federal courts have found that the receipt of

actual notice may deprive the claimant of standing to

argue that the statute violates constitutional due process

principles. See Katz, 379 F. Supp. at 67-69 (considering

statute that was constitutional when used as postjudg-

ment collection remedy); see also Wiren, 542 F.2d at 761-62

(claimant not entitled to pre-seizure notice and oppor-

tunity for hearing under forfeiture statute); In re Estate of

Sutherland, 229 Ill. App. 3d 281, 593 N.E.2d at 960-61

(1992) (considering constitutionality of probate non-claim

statute following Pope).

Based upon the rules of practice stated by this Court

in Raines, even if section 733.702, Florida Statutes, did not

explicitly provide the means for giving sufficient actual

notice to known creditors, Petitioners, having received

actual notice, may not challenge the statute as unconstitu-

tional. See Wiren, 542 F.2d at 762; accord In re Estate of

Sutherland, 229 Ill. App. 3d 281, 593 N.E.2d at 960-61

(“[e]ven if the publication notice provisions of ... the

Probate Act were constitutionally deficient as to a credi-

tor without notice of the probate proceeding, . . . [the

creditor's] receipt of actual notice ‘deprives him of stand-

ing to raise the claim’ ”) (citing Wiren, 542 F.2d at 762).

Actual notice of the pendency of the probate proceeding,

therefore, is relevant, for the receipt of such notice

17

deprived Petitioners of any standing to assert the alleged

unconstitutionality or section 733.702.

IV. THE FLORIDA COURT OF APPEAL DID NOT

MISINTERPRET OR MISAPPLY THE COURT’S

OPINIONS IN POPE OR MULLANE IN FINDING

THAT PETITIONERS’ ACTUAL KNOWLEDGE OF

THE OPENING OF THE ESTATE SATISFIES DUE

PROCESS REQUIREMENTS.

Finally, Petitioners contend that the Danese court

“misinterpreted and misapplied this Court's opinions” in

Pope and Mullane. Petition, at 16. According to the Peti-

tioners,

[T]he Florida Court of Appeal cited Mullane and

Pope as authority for the proposition that due

process requirements can be satisfied by actual

knowledge. In so holding, the court failed to

recognize that both Mullane and Pope deal exclu-

sively with the question of what sort of notice is

required to be given by the terms of a statute.

Not only does Petitioners’ interpretation contradict the

express language of the Danese opinion, the Pope and

Mullane opinions considered general constitutional due

process requirements, and should not be limited simply

to determining “the question of what sort of notice is

required to be given by the terms of a statute.” Petition,

at 16. Once again, despite Petitioners’ predictions of the

“detrimental effect that .. . [the Danese} opinion will have

on Fourteenth Amendment due process jurisprudence,”

Petitioners fail to demonstrate any compelling reason for

this Court to exercise its discretionary jurisdiction.

18

First, the Petitioners’ interpretation of Danese contra-

dicts the very language of the court’s decision. Although

Petitioners argue that the Danese court cited Mullane and

Pope “as authority for the proposition that due process

requirements can be satisfied by actual knowledge,” the

Florida Court of Appeal actually relied upon controlling

authority of the Florida appellate courts in reaching this

conclusion. As the Danese court explained,

[T]he Florida Supreme Court, in enacting Rule

5.495, and this court in Thames, implicitly recog-

nized that actual knowledge of the information

necessary to timely file a claim satisfies due

process requirements. It is undisputed that

appellees in the instant case had actual knowl-

edge of the opening of the estate. Appellees, in

fact, sued the estate, naming and serving the

appropriate personal representative, within the

three-month non-claim period prescribed by

section 733.702, Florida Statutes. We, therefore,

hold that the probate court erred in relying on

Thames in denying appellants’ motion for entry

of order pursuant to mandate and in granting

appeilees’ petition to reopen the estate.

641 So. 2d at 427.

The Danese court even distinguished the facts of this

case from the facts of Pope. The Danese court “[was] not

persuaded that the Pope court would have been sympa-

thetic to appellees,” for despite their undisputed actual

knowledge of the opening of the estate, Petitioners “did

not file a claim in the estate,” but instead “filed and

served a civil complaint naming the estate within the

three-month non-claim period.” 641 So. 2d at 426. More-

over, Petitioners “argued the applicability of Thames only

19

after appellants filed a motion to enforce . . . [the] man-

date in In re Estate of Danese, 601 So. 2d 570 (Fla. Ist DCA

1992).” 641 So. 2d at 426 (citing In re Estate of Gleason, 631

So. 2d 321 (Fla. Dist. Ct. App.), review denied, 640 So. 2d

1105 (Fla. 1994), cert. denied, 115 S. Ct. 726 (1995)).5 As the

Danese court correctly noted, Petitioners’ failure to file a

timely probate claim resulted not from any deficiencies in

the notice, but from the Petitioners’ own failure to act

properly on the notice received. See 641 So. 2d at 426

(citing Gleason).

And nowhere in the Pope and Mullane decisions did

the Court restrict its interpretations of constitutional due

process requirements to cases that “deal exclusively with

the question of what sort of notice is required to be given

° In Gleason the claimant argued that “his failure to file a

claim against the estate . . . [was] no bar because he was not

given actual notice of the time in which to file claims and was

thus deprived of due process” under Pope. 631 So. 2d at 322. The

Gleason court rejected the claimant’s argument, emphasizing

that the Pope court would not have been sympathetic to this

claimant:

First, the Pope court was not being asked to reopen an

estate which had been closed for 14 months. Second

the Pope claimant was a creditor who had no notice of

the death and was merely seeking to file beyond a two

month non-claim period, while this claimant was liti-

gating against Gleason at the time of Gleason’s death,

was represented by counsel who knew the estate was

being probated in Florida, and took no action until 14

months after the estate was closed.

631 So. 2d at 323. Accordingly, the Gleason court concluded that

“it was not the expiration of Florida’s three month non-claim

period which bars this claim, but rather claimant’s failure to do

anything in the Florida estate until 14 months after it was

closed.” Id. (emphasis added).

20

by the terms of statute.” Petition, at 16. Instead, Pope and

Mullane considered broader issues relating to constitu-

tional due process requirements. As the Pope Court

explained:

Mullane v. Central Hanover Bank & Trust

Co. . . . established that state action affecting

property must generally be accompanied by

notification of that action: “an elementary and

fundamental requirement of due process in any

proceeding which is to be accorded finality is

notice reasonably calculated, under all the cir-

cumstances, to appraise interested parties of the

pendency of the action and afford them an

”

opportunity to present their objections.”. .. .

The focus is on the reasonableness of the bal-

ance, and, as Mullane itself made clear, whether

a particular method of notice is reasonable

depends on the particular circumstances.

485 U.S. at 484 (citations omitted). The Danese court - in

accordance with the decision of the Fourth District Court

of Appeal of Florida in In re Estate of Gleason — simply

cited Mullane for the proposition that “whether a particu-

lar method of notice is reasonable depends on the partic-

ular circumstances,” and noted that the Pope court would

not have been sympathetic to the Petitioners in the pre-

sent case. 641 So. 2d at 426 (citing In re Estate of Gleason,

631 So. 2d at 323).

Because the Danese court correctly interpreted and

applied the principles of Mullane and Pope in accordance

with the particular facts and circumstances of this case,

the Danese opinion necessarily does not have any “detri-

mental effect ... on Fourteenth Amendment due process

jurisprudence.” Petition, at 17. Once again, Petitioners

«!

nbn. be nan se ean!

21

fail to demonstrate any compelling reason for this Court

to exercise its discretionary jurisdiction.

+

CONCLUSION

For all the foregoing reasons, the Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

Dana G. Braprorp, II

(Counsel of Record)

Baumer, BRADFORD & Watters, P.A.

50 North Laura Street, Suite 2200

Jacksonville, Florida 32202

(904) 358-2222