      Third District Court of Appeal
                              State of Florida

                        Opinion filed October 14, 2015.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D14-1651
                         Lower Tribunal No. 13-4495
                            ________________


                              Yvette Soriano,
                                   Appellant,

                                       vs.

                     In re: Estate of Luis F. Manes,
                                   Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.

     Hershoff, Lupino & Yagel and Robert C. Stober, for appellant.

     Sergio L. Mendez and Daniel J. Mendez, for appellee.


Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

     EMAS, J.
      Yvette Soriano appeals an order denying her petition for an order declaring

her statement of claim timely filed or, alternatively, for an extension of time to file

a claim against the Estate of Luis F. Manes.            We affirm the trial court’s

determinations that Ms. Soriano’s claim was untimely, and that she was not a

“reasonably ascertainable creditor” entitled to personal service of notice to

creditors. Instead, she was merely a “conjectural creditor” for whom notice by

publication was legally sufficient.

      FACTS

       Luis F. Manes (“Decedent”) died on November 3, 2013. Decedent’s former

wife, Carmen Manes, filed an emergency petition for intestate administration in

Miami-Dade County on November 12, 2013.1 The court appointed Ms. Manes as

personal representative on November 14, 2013, and ordered the estate be closed

within twelve months if not contested. A notice to creditors was published in

Miami-Dade County on November 21 and 29, 2013.

      Four months later, on March 21, 2014, Ms. Soriano filed a statement of

claim against the estate, alleging she had an unsecured claim “based upon an

imminent private tort action against [the Decedent] stemming from a criminal

charge he incurred on May 28, 2013 in Monroe County, Florida.” Attached to the

statement of claim was a document entitled “Traffic/Criminal Case Detail

1The petition was filed as an emergency because the sale of Decedent’s insurance
agency business was pending at the time of his death.

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Information” which showed that the Decedent had been charged with misdemeanor

battery in June 2013, and that the State nolle prossed the criminal case on

December 4, 2013 (a month following Decedent’s death).

      Contemporaneous with her statement of claim, Ms. Soriano filed a petition

for an order declaring her statement of claim timely filed, or in the alternative, for

an extension of time to file her claim. In this unverified petition, Ms. Soriano

alleged that she “was the victim of a battery in the course of obtaining employment

at Decedent’s insurance agency in Key Largo, Monroe County, Florida on May 28,

2013,” 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 Ms. Soriano’s lawyer spoke on the phone with Decedent’s criminal

defense attorney and advised he was Ms. Soriano’s attorney. Ms. Soriano asserted

she was entitled to be personally served with the notice to creditors because she

was a “reasonably ascertainable creditor.” Ms. Soriano requested the court accept

her notice of claim as timely filed or grant an extension for her to file her claim.

      In response, Ms. Manes 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, Ms. Manes averred in her affidavit that she:




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      ● Searched Decedent’s personal and business records both at his business
      and at his home;

      ● Extensively reviewed each and every document from Decedent’s business
      in preparation for the sale of the business;

      ● Extensively reviewed each and every document from his personal
      residence in preparation for the sale of the residence and the clearing of the
      contents of his residence;

       ● Never discovered any documents regarding Ms. Soriano or regarding any
      claim or potential claim by Ms. Soriano;

      ● Spoke with Decedent once a week on average, and Decedent never
      mentioned Ms. Soriano, or that he had been charged with any crime
      involving Ms. Soriano; and

      ● Had never heard of Ms. Soriano until Ms. Manes was advised by the
      attorney for Decedent’s estate that Ms. Soriano had filed a statement of
      claim.

      Ms. Soriano filed three affidavits from the following individuals: (1) Luke

Bovill, the prosecutor in the criminal case against the Decedent; (2) Elena Vigil-

Farinas, the Decedent’s criminal defense attorney; and (3) Robert C. Stober, Ms.

Soriano’s personal attorney.   Bovill’s affidavit averred that the Decedent was

represented by Jessica Reilley, Esq.,2 and that Bovill was aware Ms. Soriano had

retained personal counsel. Vigil-Farinas’ affidavit averred that the Decedent’s

2 It came out during the hearing on Soriano’s petition that Reilley and Vigil-
Farinas are law partners.

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“wife contacted me and paid the retainer for [Decedent’s] criminal defense.”

Finally, Stober’s affidavit averred that he “was retained by Ms. Soriano to assist

her with a workplace battery” committed by Decedent and that, on or about

November 13, 2013,3 he “spoke with Mr. Manes’ criminal defense attorney,

Jessica Reilly, and advised Ms. Reilly of my representation of Ms. Soriano.”

Following a hearing on Ms. Soriano’s petition, the trial court denied the petition,

finding Ms. Soriano was not an ascertainable creditor and struck the claim as

untimely. This appeal followed.

      ANALYSIS

      We review the trial court’s ruling for an abuse of discretion. Jones v. Sun

Bank/Miami, N.A., 609 So. 2d 98 (Fla. 3d DCA 1992). Florida law provides that:

            no claim or demand against the decedent’s estate that
            arose before the death of the decedent . . . even if the
            claims are unmatured, contingent, or unliquidated . . . and
            no claim for damages, including, but not limited to, an
            action founded on fraud or another wrongful act or
            omission of the decedent, is binding on the estate, on the
            personal representative, or on any beneficiary unless filed
            in the probate proceeding on or before the later of the
            date that is 3 months after the time of the first publication
            of the notice to creditors or, as to any creditor required to
            be served with a copy of the notice to creditors, 30 days
            after the date of service on the creditor . . . .


3This conversation occurred ten days after the Decedent’s death and one day after
Ms. Manes filed the emergency petition for intestate administration.

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§733.702(1), Fla. Stat. (2013).

      This time limitation for filing a claim includes causes of action founded

upon the wrongful act of the decedent. §733.702(2). If the court does not extend

the time for filing an otherwise untimely claim, the claim is barred. §733.702(3).

“An extension may be granted only upon grounds of fraud, estoppel, or insufficient

notice of the claims period.” Id.

      Pursuant to section 733.2121, Florida Statutes (2013), the personal

representative is required to promptly (1) publish a notice to creditors once a week

for two consecutive weeks in a newspaper published in the county where the estate

is administered; (2) make a diligent search to determine the names and addresses of

creditors of the decedent who are reasonably ascertainable, even if the claims are

unmatured, contingent or unliquidated, and promptly serve a copy of the notice on

those creditors.    Importantly, “impracticable and extended searches are not

required.” §733.2121(3)(a).

      The issue in this case is whether Soriano was a “reasonably ascertainable

creditor,” such that she was entitled to personal service of the notice to creditors.4


4 Ms. Soriano also claims that the trial court erred in failing to conduct an
evidentiary hearing to resolve the conflicts in the competing affidavits; however
the affidavits filed by the parties can be reconciled and are not in conflict on the
material facts; even accepting as true the averments in the petition and affidavits
provided by Ms. Soriano, they fail to establish that Ms. Soriano was a “reasonably
ascertainable creditor” and thus no evidentiary hearing was required. See Fla. Ins.
Guar. v. Sill, 154 So. 3d 422 (Fla. 5th DCA 2014) (holding where underlying

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      Even accepting as true the averments in the affidavits of Ms. Soriano’

counsel, the prosecutor, and Decedent’s criminal defense attorney (together with

the uncontested averments in Ms. Manes’ affidavit), these averments fail to

establish that Ms. Soriano was a reasonably ascertainable creditor.

      The averments in the three affidavits filed by Ms. Soriano establish the

following material facts and no more:

      ● Ms. Soriano was the victim of a criminal battery allegedly committed by
      Decedent on May 28, 2013;

      ● Decedent retained a criminal defense attorney to represent him and Ms.
      Manes5 may have paid a retainer fee to the criminal defense attorney;

      ● When criminal defense counsel attempted to schedule a deposition of the
      victim (Ms. Soriano) without first seeking a court order, the prosecutor
      contacted Decedent’s defense attorney to advise counsel that Ms. Soriano
      had her own personal attorney; and

      ● Ms. Soriano’s attorney spoke to Decedent’s defense attorney and advised
      he was representing Ms. Soriano.




relevant facts are undisputed, no evidentiary hearing required).
5 Decedent’s criminal defense counsel averred in her affidavit that “Mr. Manes’

wife contacted me and paid the retainer for Mr. Manes’ criminal defense.”
(Emphasis added.) However, the affidavit does not identify “Mr. Manes’ wife” by
name, and it is undisputed that Decedent and Ms. Manes were divorced when he
died and Decedent had not remarried. Even assuming that Ms. Manes was in fact
the person who paid the retainer fee to Decedent’s criminal defense attorney, it
does not affect the analysis or outcome.

                                         7
      No affidavit or other evidence was presented to establish that Ms. Soriano or

her counsel ever sent correspondence or otherwise notified Decedent, his counsel,

or Ms. Manes that there was an actual or potential civil claim arising out of the

pending criminal battery prosecution.      The most that can be said is that Ms.

Soriano was the victim of an alleged misdemeanor battery, and she had hired

“personal counsel” who contacted Decedent’s criminal defense attorney and

advised that he was representing Ms. Soriano. The fact that Ms. Manes may have

paid the retainer fee for Decedent’s criminal defense is of no moment, as there is

no evidence that Decedent’s criminal defense counsel was ever made aware of any

actual or potential civil claim by Ms. Soriano.

      It is self-evident that Soriano was not a known or reasonably ascertainable

creditor. In Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950) the United States Supreme Court held that “[a]n elementary and

fundamental requirement of due process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to

present their objections.” However, the Court explained, it is not “unreasonable for

the State to dispense with more certain notice to those beneficiaries whose interests

are either conjectural or future. . . .” Id. at 317. Years later, in Tulsa Professional

Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), the Supreme Court applied



                                          8
this principle to nonclaim statutes, such as the one at issue in this case.      It

recognized that Mullane had “disavowed any intent to require impracticable and

extended searches . . . in the name of due process.” Pope, 485 U.S. at 490. Thus,

the Pope court held, publication notice is sufficient for creditors who are not

known or “reasonably ascertainable,” but for those creditors that are known or

“reasonably ascertainable,” due process requires actual notice.       Id. at 489.

Importantly, however, “all the . . . executrix need do is make ‘reasonably diligent

efforts’ to uncover the identities of creditors,” and not “everyone who may

conceivably have a claim [is] properly considered a creditor entitled to actual

notice . . . . [I]t is reasonable to dispense with actual notice to those with mere

‘conjectural’ claims.” Id. at 490. See also Strulowitz v. Cadle Co. II, 839 So. 2d

876, 880 (Fla. 4th DCA 2003) (noting a “personal representative has no duty to

speculate and conjecture that someone might possibly have a claim against the

estate” (citing Jones, 609 So. 2d at 102)).

      There is nothing in the affidavits filed by Ms. Soriano to suggest that Ms.

Manes, or Decedent’s criminal defense counsel, had any actual knowledge of

Soriano’s civil claim against Decedent. Nor is there any evidence (or assertion in

the affidavits) that a search more diligent than that conducted by Ms. Manes would

have revealed the existence of Ms. Soriano’s claim. Neither Ms. Soriano nor her

attorney placed Ms. Manes on notice of any such claim. In fact, the affidavits fail



                                          9
to contain an averment that Ms. Soriano or her attorney placed anyone on notice

that she was pursuing, or intended to pursue, a civil claim against Decedent or his

estate.

          It is the absence of any such averment that distinguishes the instant case

from the cases relied upon by Ms. Soriano.             Compare, e.g., In re Estate of

Ortolano, 766 So. 2d 330 (Fla. 4th DCA 2000) (finding appellant was a reasonably

ascertainable creditor where it was established that the personal representative had

actual notice of the contingent creditor’s claim); Foster v. Cianci, 773 So. 2d 1181

(Fla. 2d DCA 2000) (same).

          The affidavits presented to the trial court failed to establish that Ms. Soriano

was a reasonably ascertainable creditor and further failed to establish that Ms.

Manes, following a diligent search, should reasonably have ascertained that Ms.

Soriano had a claim or a potential claim. The trial court properly denied Ms.

Soriano’s petition because, as a mere conjectural creditor, she was not entitled to

personal service of the notice to creditors, her petition was untimely, and her

asserted claim was barred by section 733.702(1), Florida Statutes.

          Affirmed.




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