West v. West

West v. West., 2013 WL 5989234 (Fla. 4th DCA 2013)

This case involved a family dispute among two sons of the decedent- one was named personal representative of the father's estate, and filed two claims in his father's estate, and the other objected to the claims.  To resolve the dispute, the personal representative/son filed a "Petition to Enforce a Claim" in the probate deivision.  The other son moved to dismiss or strike, since the Petition did not constitute an "independent action" as required by F.S. 733.705.  The trial court dismissed the claims.

The Appellate Court noted that in 2008, the chief judge of the Fifteenth Circuit in Administrative Order 6.102-9/08 declared that "independent actions" must be filed in the civil division.  Here, since the personal representative filed his claims in the wrong division, and he was barred from re-filing because the thirty day statutory period had expired, his only option was to either have his claim transferred or get an extension of time, and the trial court denied him both options.

The Court held that the trial court should not have dismissed the case just because it was filed in the wrong division.  It held that it should have transferred it to the proper division, particularly because even though the personal representative did not file a motion to transfer, he did argue that transfer was the correct remedy.  Even if he had not requested a transfer, the court indicates that a transfer rather than a dismissal would have been proper.

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