The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Find Your Probate Lawyer

Lawyer Locator Front End

Independent Action Filed in Wrong Division – Transfer or Dismiss?

In which division of the court you file actions can be a trap for unwary.  Fortunately, the appellate court here saved a litigant who would have been late in refiling a new action where the original action was filed in the wrong division of the circuit court. 

In West v. West, 126 So. 3d 437 (4th DCA 2013), a creditor of the estate (who also happened to be the personal representative), filed a creditor claim against the estate for money that he had lent to his decease father during his lifetime.  The other beneficiary of the estate, his brother, objected to the creditor claim.

Under the Florida Probate Code, a creditor of the estate has 30 days within which to file an “independent action” against the estate from the time of the objection to the creditor claim.  The claimant here filed a “Petition to Enforce Claim” in the probate division of the court, inside of the probate case already pending.  The trial court dismissed the Petition to Enforce Claim as having been filed in the wrong division of the court.  The Court refused to transfer the case to the proper division or otherwise grant any leave to remedy the situation.

In most of the circuit courts of Florida, the courts are divided into various divisions of the court – civil, domestic, criminal, and probate.  Under rules set forth by the Florida Supreme Court and the Florida legislature, each circuit court is permitted to make these administrative divisions of the court.  The chief judge is then permitted to assign particular types of cases to the various divisions established. These divisions, however, are not jurisdictional in nature – a circuit court judge is a circuit court judge and has the jurisdiction to hear any case properly within the court.

As the appellate court in this case explained:

The single question we answer is whether the trial court should have transferred the case to the civil division. The answer is yes.

In 2008, the chief judge of the Fifteenth Circuit signed Administrative Order 6.102-9/08, which declared that “independent actions” be filed in the civil division. The personal representative filed the claims in the wrong division, and he could not re-file his petition in the civil division because the statutory thirty-day period expired. See § 733.705(5), Fla. Stat.(2011). His only viable options were to have his claim transferred or to obtain an extension of time. The trial court denied him both.

We have previously acknowledged that, in a situation where a complaint should have been filed in the probate division, the court should not dismiss the case solely because it was filed in the wrong division. Grossman v. Selewacz, 417 So. 2d 728, 730  [*439]  (Fla. 4th DCA 1982)  [**4] (citing In re Guardianship of Bentley, 342 So. 2d 1045 (Fla. 4th DCA 1977)). “[W]hile the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court’s jurisdiction, and cases filed in the wrong division should be transferred to the proper division.” Id.

While the personal representative did not file a motion to transfer, he did argue that transfer was the correct remedy.

As the Third District explained:

In the instant case the [trial] court did not consider the question of transfer, and there is nothing in the record to show that it was requested to do so. Nevertheless, we feel that in construing the rule to produce a just result (as we conceive it our duty to do) it is necessary for us to hold that the court should transfer rather than dismiss the cause.Gross v. Franklin, 387 So. 2d 1046, 1048 (Fla. 3d DCA 1980) (emphasis added).

The trial court erred in not transferring the personal representative’s petition to the civil division.

Find Your Probate Star

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Orange County (Orlando)

Philip W. Gunthert

Hillsborough County (Tampa)

R. Todd Burbine

Sarasota County

Dawn Bates-Buchanan

Lee County (Ft. Myers)

Scott Kuhn

Pinellas County (Clearwater)

Matthew Weidner

Duval County (Jacksonville)

Long H. Duong

Complete Guide to Florida Probate

Opening the Probate Estate / Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights
Closing the Probate Estate
Probate Litigation and Will Contests
Florida Probate Quick Guides

Complete Guide to Florida Probate

Opening the Probate Estate - Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Hillsborough County (Tampa)

R. Todd Burbine

Orange County (Orlando)

Philip W. Gunthert

Duval County (Jacksonville)

Long H. Duong

Sarasota County

Dawn Bates-Buchanan

Lee County (Ft. Myers)

Scott Kuhn

Pinellas County (Clearwater)

Matthew Weidner

Find Your Florida Probate Star

Hillsborough County (Tampa)

R. Todd Burbine

Duval County (Jacksonville)

Long H. Duong

Sarasota County

Dawn Bates-Buchanan

Orange County (Orlando)

Philip W. Gunthert

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Pinellas County (Clearwater)

Matthew Weidner

Lee County (Ft. Myers)

Scott Kuhn