       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 7, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-371
                      Lower Tribunal Nos. 13-337, 13-2299
                              ________________


                              Stephen C. Rose,
                                    Appellant,

                                        vs.

        Meredith Sonson and Jennifer Sonson, as Co-Personal
         Representatives of the Estate of Stephen R. Sonson,
                                    Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Genden, Judge.

      Billbrough & Marks and Geoffrey B. Marks; Luis E. Barreto, for appellant.

     Holland & Knight and Rodolfo Sorondo, Jr., Lee P. Teichner and Frances G.
De La Guardia, for appellees.


Before WELLS, SHEPHERD and SCALES, JJ.

      WELLS, Judge.
      In this probate action, Stephen C. Rose, the putative child of the decedent

Stephen Sonson, appeals from a final order granting the co-personal

representatives of the Sonson estate’s motion to dismiss with prejudice Rose’s

amended counter-petition for paternity. We affirm for three reasons: first, because

by the time Rose’s petition was filed, his paternity claim had already been

extinguished by section 95.11(3)(b) of the Florida Statute (1986), the applicable

statute of limitations; second, because the 2009 amendment to section

732.108(2)(b) of the Florida statutes, which eliminated application of section

95.11(3)(b) to paternity determinations in probate proceedings relating to intestate

succession, does not apply retroactively; and, third, even if the 2009 amendment to

section 732.108(2)(b) were retroactive in application, it could not breathe new life

into Rose’s previously extinguished claim.

      The facts are relatively undisputed. Rose was born out of wedlock in New

York State on December 25, 1964. At the time Rose was born, and until October

1986 when section 742.011 of the Florida Statutes was amended, only the mother

of a child born out of wedlock could bring suit to establish paternity. See §

742.011, Fla. Stat. (1982) (“Any woman who shall be pregnant or delivered of a

child may bring proceedings in the circuit court, in chancery, to determine the

paternity of such child.”); Ch. 86-220, § 150, at 1723, Laws of Fla. (amending

section 742.011 to permit, in addition to mothers, both putative children and



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putative fathers to bring paternity actions). While Rose’s mother told him at a

young age that Stephen Sonson was his father, she did not attempt to have

Sonson’s paternity established in Florida either before Rose attained majority on

December 25, 1982, or before section 742.011 was amended in 1986.

      In 1986, and at the same time that section 742.011 was amended to allow

both putative children and putative fathers to bring suit to establish paternity,

section 95.11(3)(b) of the Florida Statutes was amended to impose a four year time

limit to “run[] from the date the child reaches the age of majority” on such actions.

Ch. 86-220, § 139, at 1716, Laws of Fla. While only a short time remained under

this provision for Rose to bring suit to establish paternity, he did not do so.

      Sonson died intestate on June 21, 2012, leaving behind two daughters,

Meredith Sonson and Jennifer Sonson, and a son, Adam Sonson. On January 29,

2013, as co-personal representatives for Sonson’s estate, the daughters filed a

petition for administration of Sonson’s intestate estate in probate court. Rose

appeared and filed a counter-petition to determine beneficiaries, claiming to be a

surviving son of the decedent and therefore a rightful beneficiary of the estate.

      On September 29, 2014, the co-personal representatives moved to dismiss

Rose’s counter-petition, claiming that the four year statute of limitations period for

maintaining a paternity action had expired for the reasons set forth by the Florida

Supreme Court in In re Estate of Smith, 685 So. 2d 1206 (Fla. 1996). Following a



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hearing on the motion, the trial court dismissed Rose’s counter-petition

concluding: (1) that the 2009 amendment to section 732.108(2)(b) of the Florida

Statutes which eliminated the four year statute of limitations previously applicable

to paternity determinations could not revive Rose’s already extinguished claim; (2)

that the 2009 amendment to section 732.108(2)(b) did not apply retroactively

because the Florida Legislature did not express a clear intent it was to be so

applied; and, (3) that any such retroactive application would constitute a violation

of the decedent’s and of the co-personal representatives’ due process rights

because Rose’s claim was already extinguished. For the following reasons, we

agree with the trial court and affirm.

      In Smith, the Florida Supreme Court considered whether the four year

limitations period generally applicable by section 95.11(3)(b) barred a sixty-year-

old putative daughter from bringing a section 732.108(2)(b) paternity action in

probate court to establish her right to intestate succession. Smith, 685 So. 2d at

1207-08. Therein, the Court expressly rejected the notion “that section

732.108(2)(b) creates a separate and distinct statutory cause of action [for

determining paternity in probate courts] which begins to run upon the death of the

putative father rather than when the child reaches the age of majority.” Id. at 1208

(footnote omitted). Rather, reasoning that because section 732.108(2)(b) did not

expressly remove paternity adjudications brought in probate court from the



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provisions of section 95.11(3)(b), the Court determined that while chapter 742

recognized that paternity determinations could be made in probate proceedings,

those determinations would, like all other such determinations, be subject to the

general limitations period provided in section 95.11(3)(b). Id.; see § 742.10, Fla.

Stat. (2016) (“Except as provided in chapters 39 and 63, this chapter provides the

primary jurisdiction and procedures for the determination of paternity for children

born out of wedlock.       If the establishment of paternity has been raised and

determined within an adjudicatory hearing brought under the statutes governing

inheritance . . . such adjudication . . . constitutes the establishment of paternity for

purposes of this chapter.”).1 As a consequence, the Florida Supreme Court held

that because more than four years had passed since the putative daughter reached

the age of majority, her paternity action in the probate court was time barred. Id.

      We therefore agree with the trial court that here, as in Smith, the putative

child’s paternity claim following Sonson’s death in 2012 is time barred because

more than four years has passed since Rose attained majority in 1982.

      We also agree with the trial court that the 2009 amendment to section

732.108(2)(b) of the Florida Statutes, which expressly eliminated application of

section 95.11(3)(b) to paternity adjudications when determining intestacy

1 The Court also pointed out that while most paternity actions brought under
chapter 742 “are brought in order to obtain support, any determination of paternity
made in such proceedings also determines paternity for purposes of intestate
succession.” Smith, 685 So. 2d at 1208.

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succession in probate court, does not affect this outcome. See Ch. 2009-115, § 2,

at 1508, Laws of Fla.; § 732.108(2)(b), Fla. Stat. (2009) (“For the purpose of

intestate succession . . . a person born out of wedlock . . . is also a descendant of

his or her father and is one of the natural kindred of all members of the father’s

family, if: . . . (b) The paternity of the father is established by an adjudication

before or after the death of the father. Chapter 95 shall not apply in determining

heirs in a probate proceeding under this paragraph.”). This is because the Florida

Legislature did not make the amendment to section 732.108(2)(b) retroactive in its

application2 and applying the 2009 amendment to that provision would not have

affected the outcome in any event. This is so because by the time the 2009

amendment to section 732.108(2)(b) took effect to eliminate the limitations bar

previously imposed by section 95.11(3)(b), Rose’s claim had long since expired,

and as noted in Smith, “[o]nce a claim has been extinguished by the applicable

statute of limitations, the claim cannot be revived because a constitutionally

2 See, e.g., Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 692-93 (Fla. 5th
DCA 2002) (finding that while the enacting legislation demonstrated the
legislature’s intent that an amendment be applied to existing causes of action, there
was nothing therein establishing a clear intent that the amendment be applied
retroactively); see also Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So. 2d
494, 499 (Fla. 1999) (“[I]f a statute attaches new legal consequences to events
completed before its enactment, the courts will not apply the statute to pending
cases, absent clear legislative intent favoring retroactive application.”); Hassen v.
State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) (“It is a well
established rule of statutory construction that, in the absence of an express
legislative statement to the contrary, an enactment that affects substantive rights or
creates new obligations or liabilities is presumed to apply prospectively.”).

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protected property right to be free from the claim has vested in the defendant.” Id.

at 1210; see also Wiley v. Roof, 641 So. 2d 66, 68 (Fla. 1994) (“Once the defense

of the statute of limitations has accrued, it is protected as a property interest just as

the plaintiff’s right to commence an action is a valid and protected property

interest. . . . Florida’s statute of limitations, section 95.011, bars all action unless

commenced within designated times. . . . Once an action is barred, a property right

to be free from a claim has accrued.”).

      Thus, while section 732.108(2)(b) as amended in 2009 provided relief to

similarly situated individuals with existing causes of action by eliminating the four

year statute of limitations imposed by section 95.11(3)(b) on paternity

determinations in probate proceedings to determine intestate succession going

forward, this amendment provides no relief to those such as Rose whose claims

had already expired by the time the amendment became law. See Smith, 685 So.

2d at 1210 (“[T]he 1986 amendment [to section 95.11(3)(b) to extend the

limitations period for bringing paternity actions] provides Scruggs no solace

because even under its terms her claim had long since expired.”); Wiley, 641 So.

2d at 68 (“The Legislature has the power to increase a prescribed period of

limitation and to make it applicable to existing causes of action provided the

change in law is effective before the cause of action is extinguished by the force of




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a pre-existing statute.”) (quoting Walter Denson & Son v. Nelson, 88 So. 2d 120,

122 (Fla. 1956) (emphasis supplied))).

      Accordingly, we affirm the final order dismissing with prejudice Rose’s

amended counter-petition for paternity.

      Affirmed.




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