Florida's "Relation Back" Doctrine


University of Miami v. Wilson, __ So.2d __, 2006 WL 1687685 (Fla. 3d DCA June 21, 2006)

The doctrine referred to in the headline for this blog post comes up most often in wrongful-death cases. For whatever reason the plaintiff is unable to be appointed personal representative of the estate prior to the statute-of-limitations period expiring. So he or she files the wrongful-death lawsuit before being appointed personal representative. Defendant responds by seeking to have the lawsuit dismissed arguing (a) that the named plaintiff lacked authority and (b) that since the statute-of-limitations period has since expired, the lawsuit is barred.

That’s essentially what the University of Miami, as defendant, argued in this case. UM lost at the trial court level and again before the Third DCA, which held that because the named plaintiffs were in fact ultimately appointed personal representatives their powers as personal representative “relate back” to the time they filed their lawsuit. Here’s an excerpt from the Third DCA’s opinion: 

Ms. Wilson and Ms. Salmon argue that, because they were ultimately appointed personal representatives, their powers as personal representatives should relate back, thereby validating the actions they took prior to their appointment. We agree as there is both statutory and case law support for such a finding. Chapter 733 of the Florida Statutes is the Probate Code and deals with the administration of estates. Section 733.601, Florida Statutes (2002), specifically provides that

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

(Emphasis added in 3d DCA opinion).

Even early Florida jurisprudence recognized that acts of a personal representative prior to his/her appointment may be validated upon appointment. See Griffin v. Workman, 73 So.2d 844 (Fla.1954)(acknowledging the “ancient doctrine” which validates the acts of a personal representative prior to his appointment and noting that “a wide variety of acts and conduct” have been validated by subsequent qualification of an administrator, including an advancement to a distributee, the sale of estate property, the execution of a deed, and the institution of a wrongful death action); see also Talan v. Murphy, 433 So.2d 207, 208 (Fla. 3d DCA 1983)(holding that, although Talan brought a wrongful death action without having been appointed as personal representative, his subsequent appointment related back and his acts were thereby validated insofar as they were acts he could have performed had he been qualified as a personal representative, and finding that it was not necessary for him to allege in his original complaint that he was the personal representative).

(Emphasis added.)

Lesson Learned:

The general concept at issue here is whether a presumptive personal representative can act on behalf of the estate before being appointed. As the Third DCA pointed out in its opinion, this question comes up in various contexts, not just wrongful death claims. Probate lawyers should be aware of the “relation back” doctrine – you never know when it might just get your clients out of a jam.

Forgetting That Wrongful Death Claims Are Litigated Within the Context of Probate Proceedings Can Be a VERY Costly Mistake

Second DCA Reverses Trial Court's Grant of $410,300 in Attorneys' Fees

Martinez v. Ipox, __ So.2d __ (Fla. 2d DCA April 07, 2006)

Probate issues do not, as they say, "drive the train" in wrongful death cases. But, as a matter of Florida law, these cases may ONLY be litigated by personal representatives. Because wrongful death cases MUST be litigated within the context of a probate proceeding, getting the probate issues "wrong" can come back to bite litigation counsel in a very big way - as demonstrated by this case.

This case started out as a medical malpractice action and was then amended to a wrongful death action when the infant at the center of the litigation died. After a jury trial the parents of the deceased child, acting as co-personal representatives of the child's estate, were awarded a judgement of $2.3 million. On a subsequent motion for attorneys' fees based on a proposal for settlement signed only by the child's mother . . . and only in her individual capacity, Hillsborough County Judge Sam D. Pendino awarded the child's parents $410,300 in attorneys' fees (about 18% of the total damages award).

On appeal the Second DCA reversed the trial court's fee award based on what I am sure appeared to be the height of "form" over substance to plaintiffs' counsel. If you take a minute to think about it, however, the Second DCA probably got this one right. Adopting the statutory analysis of a 2004 Third DCA opinion addressing a similar set of facts, Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), the Second DCA explained its ruling as follows:

We agree with the holding in Reid. . . . In a wrongful death case where there are joint personal representatives, the joint personal representatives are the party plaintiffs. As the party plaintiffs, only the joint personal representatives-acting in that capacity-are entitled to make a valid demand for judgment. The demand for judgment at issue here therefore was invalid. See §§ 768.20, 768.79, Fla. Stat. (2001); Reid, 888 So.2d at 103.

* * * * *

Section 733.615 provides that "multiple representatives must act in concert, and have no authority to act independently, regardless of the circumstances." Messina v. Scionti, 406 So.2d 529, 532 (Fla. 2d DCA 1981). See also Costello v. Davis, 890 So.2d 1179 (Fla. 2d DCA 2004) (holding that one co-personal representative did not bind the other co-personal representative to a contingent fee agreement with counsel because the other co-personal representative did not join in the agreement); Pearce v. Foster, 454 So.2d 721 (Fla. 4th DCA 1984) (holding that a co-personal representative could not unilaterally file a notice of appeal without concurrence of the other co-personal representative). In addition, there was no evidence that Rebeca Ipox had been delegated to act on behalf of the other co-personal representative. See § 733.615(1) (providing that concurrence of all joint personal representatives is not required "when a joint personal representative has been delegated to act for the others").

Because the proposal for settlement that served as the basis for the award of attorneys' fees in this case was not served by both the Ipoxes as joint personal representatives, the trial court erred in relying on it. Therefore, we reverse the award of attorneys' fees.

Party Reasonably Expected to Pursue a Personal Injury Cause of Action Against an Estate Is a Creditor Entitled to Actual Notice That the Probate Proceedings Are Pending

Longmire v. Estate of Ruffin, 2005 WL 2016944 (Fla. 4th DCA August 24, 2005) (Trial Court Reversed)

This Fourth District Court of Appeals opinion should make clear once and for all that if a personal representative should reasonably expect that the estate will be sued by a particular party, F.S. § 733.2121(3)(a) requires that the personal representative treat that potential plaintiff like a creditor entitled to actual notice that the probate proceedings are pending. Although this case involved a personal injury cause of action, there is no reason to believe the applicable rule would be different with respect to any other type of cause of action. Lesson learned: if a personal representative wants to take full advantage of the liability shield created by F.S. § 733.702(1), potential plaintiffs must receive actual notice that the probate proceedings are pending.

Court says YES to dismissal of personal injury action based on plaintiff's failure to file a timely motion to substitute a party defendant within 90 days after a suggestion of death was filed

Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Trial Court Affirmed)

Counsel for the defendant in a personal injury action filed a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) based on the plaintiff's failure to move to substitute a party defendant within 90 days after a suggestion of death was filed. Sumter County Circuit Court Judge Hale R. Stancil granted the motion and dismissed the lawsuit. On appeal, the 5th DCA affirmed, providing some very helpful guidance along the way for plaintiffs trying to figure out what to do when a defendant dies and no personal representative is appointed.

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Wrongful Death Act: Decedent's Adult Children Have Standing to Object to Wrongful Death Action Settlement Terms and a Right to a Hearing on Their Objections

Brunson v. McKay, 2005 WL 1677939 (Fla. 2d DCA July 20, 2005) (Trial Court Reversed)

Polk County Judge Ronald A. Herring was apparently convinced that the decedent's adult children had a negligible interest, if any, in a $450,000 wrongful death action settled by the decedent's surviving spouse (who was also the sole personal representative of his estate). As such, when the children sought to object to the terms of the settlement agreement under Florida's Wrongful Death Act, the probate judge held that they lacked standing to do so and denied their request. On appeal, the surviving spouse argued that the probate judge's order was a non-appealable, non-final order. The surviving spouse also argued on appeal that even if the surviving adult children had standing to object, the probate judge was not required to give them a hearing on their timely objections because F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections.

Although the Second DCA clearly signaled that it was inclined to agree with the probate judge's assessment of the "merits" of the adult children's claims, on strict procedural grounds it ruled against the surviving spouse on all issues, holding as follows:

  • Citing Fla. R. App. P. 9.030(b)(1)(A) and 9.110(a)(2), the Second DCA ruled that the probate judge's order approving the settlement was an appealable, final order.
  • Noting that the probate judge had confused the issue of "standing" with the question of the "merits" of the adult children's claims, the Second DCA held that the adult children fell within the definition of "survivors" contained in F.S. § 768.18(1) of the Wrongful Death Act, and thus had standing as a matter of law to object to the terms of the settlement agreement.
  • Recognizing that F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections, the Second DCA nonetheless held that "routine practice under the Act requires one where there is an objection to a proposed settlement."

Establishment of legal guardianship not required to enforce minor's pre-injury arbitration agreement

Global Travel Marketing, Inc. v. Shea, 2005 WL 1576244, 30 Fla. L. Weekly S511 (Fla. July 7, 2005) (Fourth DCA Reversed)

In a case that is sure to be of interest to personal injury attorneys (and the probate/guardianship attorneys they work with), the Florida Supreme Court reversed the Fourth DCA and held that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor's estate in a tort action arising from the contract. Although not central to the Supreme Court's ruling, the Court did provide the following helpful summary of current Florida law regarding when legal guardianships must be established to settle a minor's civil claims:

Under section 744.301(2), Florida Statutes (2004), parents, acting as the natural guardians of their minor children, [FN6] may settle their children's claims for amounts up to $15,000. A net settlement greater than $15,000 on behalf of a minor requires establishment of a legal guardianship. See § 744.387(2), Fla. Stat. (2004). If a legal guardian and a minor have potentially adverse interests, or if otherwise necessary, the trial court may, for a settlement greater than $15,000, and must, for a settlement greater than $25,000, appoint a guardian ad litem to represent the minor's interests. See § 744.301(4)(a); Fla. Stat. (2004). A presuit settlement on behalf of a minor requires court authorization, which may be given if the court determines that the settlement is in the minor's best interest. See § 744.387(1), Fla. Stat. (2004). Settlement of a pending claim also requires court approval. See § 744.387(3)(a), Fla. Stat. (2004).

FN6. For children of divorced parents, "the natural guardianship shall belong to the parent to whom the custody of the child is awarded." § 744.301(1), Fla. Stat. (2004).

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Court says NO to holding personal representative personally liable for attorney's fees and costs in unsuccessful wrongful death lawsuit

Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed)

In the underlying wrongful death suit, the defendants prevailed after a jury trial. They then obtained an order awarding attorney's fees and costs against the personal representative of the decedent's estate . . . in her individual capacity. Apparently Volusia County Judge J. David Walsh thought this was OK because the personal representative was named "individually" in the complaint's caption and she never objected. The Fifth DCA made quick work of the case pointing out that regardless of what the complaint's caption may have said, the body of the complaint made clear that the lawsuit was brought on behalf of the estate, not the individual who happened to be serving as personal representative. And if you're not a party to the lawsuit, the court can't assess a judgment against you . . . even if you don't object.

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The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff's death is "suggested on the record." Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate's successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.

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