Alleged Battery Victim who Alleged she had an Unsecured Claim Based Upon an Imminent Private Tort Action was not an Ascertainable Creditor Entitled to Personal Service

Posted on October 25, 2015

In Soriano v. Estate of Manes, 2015 Fla. App. LEXIS 15196 (Fla. 3d DCA 2015) the Third DCA found that where a creditor failed to show that she was a reasonably ascertainable creditor and there was nothing in the affidavits filed by the creditor to suggest such.  The creditor’s petition for an order declaring her statement of claim timely filed was properly denied as her claim was untimely and barred by Section 733.702(1), Fla. Stat.

In the subject case, Luis F. Manes (“Decedent”) died on November 3, 2013. Decedent’s former wife, Carmen Manes, (“Appellee”) then filed an emergency petition for intestate administration in Miami-Dade County.  The court appointed Appellee as personal representative and ordered the estate be closed within twelve months if not contested. A notice to creditors was published in Miami-Dade County twice in late November 2013. Four months later, in March, 2014, Ms. Soriano (“Appellant”) filed a statement of claim against the estate, alleging she had an unsecured claim based upon an imminent private tort action stemming from an alleged battery by Decedent upon Appellant, on  May 28, 2013, in Key Largo, Florida. The Decedent had been charged with misdemeanor battery in June 2013, and the State nolle prossed the criminal charge on December 4, 2013.  Decedent died before a civil action based upon the alleged battery was instituted by Appellant.  Appellant alleged in her unverified petition that she had retained private counsel to investigate private litigation as a result of the battery, and that Decedent’s criminal counsel was aware of this because Appellant’s lawyer spoke on the phone with Decedent’s criminal defense attorney and advised he was Appellant’s attorney. Appellant asserted she was entitled to be personally served with the notice to creditors because she was a “reasonably ascertainable creditor.” Appellant requested the court accept her notice of claim as timely filed or grant an extension of time for her to file her claim.

In response, Appellee filed an affidavit, wherein she averred that she had conducted a diligent search and inquiry to determine the identities of the Decedent’s creditors, and had served all those creditors whom she identified. Specifically, Appellee said in her affidavit that she searched Decedent’s personal and  business records both at his business and at his home and extensively reviewed each and every document from Decedent’s business and residence and never discovered any documents regarding Appellant or regarding any claim or potential claim by Appellant. In addition, she stated that she spoke with Decedent once a week on average, and Decedent never mentioned Appellant or that he had been charged with any crime involving Appellant.  Appellant filed three affidavits, including one from Appellant’s personal attorney who stated he had spoken to the Decedent’s criminal defense attorney and advised her of his representation of Appellant.

The trial court denied Appellant’s petition, finding that Appellant was not an ascertainable creditor and struck the claim as untimely. She appealed to the Third DCA who upheld the trial court, noting that pursuant to Section 733.2121, Fla. Stat., a personal representative is required to promptly (1) publish the notice to creditors and (2) make a diligent search to determine the creditors of the decedent who are reasonably ascertainable and serve a copy of the notice on those creditors.   Section 733.2121(3)(a), Fla. Stat. specifically provides that “impracticable and extended searches are not required.”  The Third DCA observed that no affidavit or other evidence was presented to establish that Appellant or her counsel ever sent correspondence or otherwise notified Decedent, his counsel or Appellee that there was an actual or potential civil claim arising out of the pending criminal prosecution.  They also stated that there was no evidence that Decedent’s criminal defense counsel was ever made aware of any actual or potential civil claim by Ms. Soriano, and that it was self-evident that Appellant was not a known or reasonably ascertainable creditor.  The Third DCA cited to and quoted U.S. Supreme Court precedent, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,314 (1950) and Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), for the proposition that “[I]t is reasonable to dispense with actual notice to those with more ‘conjectural’ claims” and which “disavowed any intent to require impracticable and extended searches . . . in the name of due process.”.  Thus, the Court held that Appellant could not show that the personal representative following a diligent search should have ascertained that Appellant had a claim or a potential claim and classified her “as a mere conjectural creditor”.  Accordingly, she was not entitled to personal service of the notice to creditors.  As a result, her petition was untimely and her asserted claim was barred by Section 733.702(1), Fla. Stat.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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