       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 4, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

            Nos. 3D15-1610, 3D15-1608, 3D15-1180 & 3D15-1179
                       Lower Tribunal No. 12-116-K
                            ________________


                Joel J. Richard and Kim C. Chernecky,
                                   Appellants,

                                        vs.

                              Karen J. Richard,
                                    Appellee.



      Appeals from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.

      Cummings & Lockwood and Christopher L. Ulrich (Naples); Raul R. Lopez,
for appellants.

      Horan, Wallace & Higgins and Cara Higgins (Key West); Kelley & Kelley,
P.L. and Sean W. Kelley (St. Augustine), for appellee.


Before EMAS, LOGUE and SCALES, JJ.

     EMAS, J.
         INTRODUCTION

         Joel Richard (“Joel”), in his capacity as co-personal representative of the

Estate of Edward A. Richard (“the Estate”), and Kim Chernecky (“Kim”) appeal

from lower court orders that: 1) entered summary judgment in favor of Karen

Richard (“Karen”) and declared a notice to creditors a nullity because it was

published one day prior to rendition of the order appointing personal

representatives; and (2) denied Joel and Kim’s motions to strike Karen’s creditor

claim as untimely and declared Karen’s creditor claim timely filed.1 We reverse

the orders on appeal, holding that the relation back provision of section 733.601,

Florida Statutes (2012), applies to the personal representatives’ act of publishing

the notice to creditors.     Therefore, even though the personal representatives

published the notice one day before the court entered its order appointing them as

personal representatives, the order relates back to this prior act and renders the act

valid.

         FACTS

         Edward A. Richard (“the Decedent”) passed away on May 9, 2012. On June

6, 2012, his surviving spouse (Karen) and his son (Joel) filed a petition for testate

1The summary judgment order was appealed separately by Kim (Case No. 3D15-
1179) and Joel (Case No. 3D15-1180). The order denying the motions to strike
and granting the motion to declare Karen’s claim timely was also separately
appealed by Joel (Case No. 3D15-1608) and Kim (Case No. 3D15-1610). This
court consolidated all four appeals.


                                          2
administration. Both Karen and Joel, who at the time were represented by the

same attorney, sought to be appointed co-personal representatives of the estate.

The court entered an order admitting the will and a codicil to probate and

appointing Karen and Joel co-personal representatives on June 14, 2012. The

letters of administration were also signed on June 14. Both Karen and Joel had

previously signed the oath of personal representative on May 21, 2012.

         On June 13, 2012, one day prior to the court’s order appointing Karen and

Joel as co-personal representatives, Karen and Joel signed and published the first

notice to creditors. Both signed the notice as “personal representative.” The

second statutorily-required notice to creditors was published on June 20, 2012.

         Thereafter, on September 21, 2012 (more than three months after the first

notice to creditors was published), Karen filed a statement of claim2, asserting that

pursuant to a prenuptial agreement between herself and the Decedent, she was

entitled to nearly $4 million in retirement benefits. She also filed a petition for

declaration that her claim was timely, or in the alternative, to extend the time to file

her claim based on estoppel or insufficient notice. Karen claimed that “the estate

became aware that [Karen] may have a potential claim against the estate, and

therefore, became obligated” to serve her with notice, but failed to do so.




2   Karen had obtained separate counsel at this point to file her notice and petition.

                                             3
      Kim, one of the Decedent’s children, objected to Karen’s claim and noted

that Karen’s claim was barred because it was not timely filed. Kim also filed a

motion to strike Karen’s claim as untimely, and asserted that Karen was not a

reasonably ascertainable creditor and, alternatively, that Karen was estopped from

claiming a lack of written notice because she was one of the co-personal

representatives and was a signatory to the notice to creditors.

      Joel also moved to strike Karen’s statement of claim, objected to the claim,

and opposed her petition to have the claim declared timely or to extend time for

filing. He asserted the statement of claim was time-barred and not served in

compliance with Florida Probate Rules. Further, Joel asserted that Karen failed to

establish she was entitled to an extension of time based on fraud, estoppel or

insufficient notice.

      Karen later filed an amended petition for a declaration that her claim was

timely filed or, in the alternative, to extend the time to file her claim. She asserted

she was a reasonably ascertainable creditor; that Joel and counsel knew about her

claim but failed to serve her with the notice to creditors; that the Estate would not

be prejudiced by her claim; and that “equity and fairness” weigh in favor of her

claim because she is the former spouse of the Decedent. Finally, Karen argued that

the notice to creditors was null and void because it was not published by a duly

appointed personal representative as required by Florida law, due to the fact that



                                          4
she and Joel were not appointed until the day after the notice was published. She

argued that the relation back doctrine did not apply because the statute in

question—section 733.601, Florida Statutes (2012)—expressly provides only that a

personal representative’s “powers” relate back, but does not provide for the

relation back of a personal representative’s “duties.” Karen contends that, because

the publication of notice to creditors is a duty and not a power, the June 14 order

appointing personal representatives did not relate back to the premature notice to

creditors signed and published on June 13.

      Karen filed a motion for summary judgment on the issues of whether the

notice to creditors was null and void, whether her statement of claim was barred,

whether the relation back doctrine applied, and whether she was a reasonably

ascertainable creditor such that she should have been served with a notice to

creditors. At a hearing on the motion, the trial court granted summary judgment,

concluding that the notice to creditors published on June 13 was a nullity because

it was published one day prior to the court’s order appointing the co-personal

representatives and that the relation back doctrine did not apply to validate the act

of publication.

      The court held a subsequent hearing on Joel and Kim’s motions to strike

Karen’s claim and on Karen’s amended motion to declare her claim timely filed.

The court denied Joel and Kim’s motions to strike and granted Karen’s motion,



                                         5
determining that neither the first nor the second notice to creditors was valid, and

declared Karen’s claim timely filed. These appeals followed. We have jurisdiction

pursuant to Florida Rule of Appellate Procedure 9.170(b), and review the issues

raised de novo. Univ. of Miami v. Wilson, 948 So. 2d 774 (Fla. 3d DCA 2006).

      ANALYSIS

      The question presented in this case: does the relation back doctrine, as

incorporated in section 733.601, apply to validate a notice to creditors that was

published one day prior to the appointment of the personal representatives or did

the trial court correctly determine that the premature notice is a nullity, and

therefore, that Karen’s statement of claim was timely?

      It is undisputed that:

      ● the notice to creditors was first published on June 13;

      ● Joel and Karen were appointed as co-personal representatives on June 14;

      ● a second notice to creditors was published on June 20; and

      ● Karen filed her statement of claim on September 21, 2012, more than

      three months after the first publication date.3

3 Under section 733.702(1), Florida Statutes (2015) “no claim or demand against
the decedent’s estate that arose before the death of the decedent . . . is binding on
the estate . . . 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 . . . .”

                                           6
        The roots of the “relation back” doctrine run deep in Florida law. In 1954,

the Florida Supreme Court referred to it as an “ancient doctrine” when considering

whether or not a trial court erred in dismissing a wrongful death claim brought by a

father on behalf of his deceased son’s estate prior to his appointment as personal

representative of the estate. Griffin v. Workman, 73 So. 2d 844, 846 (Fla. 1954).

The Court further noted the doctrine, which provides that “whenever letters of

administration or testamentary are granted they relate back to the intestate’s or

testator’s death,” had “been accepted with virtual unanimity, since it was

promulgated, in a long line of cases” throughout the country. Id. Determining that

the relation back doctrine should apply in the circumstances before it, the Griffin

Court approved a decision from Ohio which held that the “institution of suit ‘was

not a void performance, being an act done during the interim which was for the

benefit of the estate.’” Id. (quoting Archdeacon v. Cincinnati Gas & Elec. Co., 81

N.E. 152, 154 (Ohio 1907)).

        In 1974, the Legislature codified the relation back doctrine in section

733.601, Florida Statutes. The 2012 version of that statute provides in pertinent

part:

              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


                                           7
             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.

§733.601, Fla. Stat. (2012).

      The Florida Supreme Court has recently recognized the continued vitality of

the doctrine, see Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2004), as has this

court. See Wilson, 948 So. 2d at 774 (applying relation back doctrine to validate

pre-suit notice served by personal representatives prior to their appointment). See

also Talan v. Murphy, 443 So. 2d 207 (Fla. 1984).

      The question is whether Joel and Karen’s June 13 act of publishing the

notice to creditors was validated upon entry of the court’s June 14 order appointing

them as personal representatives. Karen contends that the relation back doctrine

(and section 733.601) does not apply because the statutory language makes a

distinction between a “power” and a “duty.” Specifically, it provides:

      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.

      § 733.601, Fla. Stat. (2012) (emphasis added).

      Karen asserts that by including the words “duties and powers” in the first

sentence, but omitting the word “duties” from the second sentence, the Legislature



                                          8
intended that only the powers, and not the duties, of a personal representative

relate back. Karen further argues that because publication of the notice to the

creditors is a “duty” rather than a “power,” the June 14 order appointing Joel and

Karen as personal representatives does not relate back to the publication of the

notice to creditors the day before, and therefore, that the publication is a nullity.4

We are not persuaded by this argument.

      Although the statute provides that the “powers . . . relate back in time,” the

same sentence goes on to clarify that they relate back “to give acts by the person

appointed, occurring before appointment and beneficial to the estate, the same

effect as those occurring after appointment.”         § 733.601 (emphasis added).

Therefore, it is the acts of the person, who is later appointed personal

representative of the estate, taken before his or her actual appointment that are

granted “the same effect as those occurring after appointment,” so long as those

acts are beneficial to the estate. Id.    Certainly one cannot have the duty to act

unless one also has the power to act. Taking the instant case as an example:

implicit in the nature of the duty to publish a notice to creditors is the existence of
4 As the argument goes, because the first publication was null and void, the

“second” notice of publication (published on June 20), though a valid act, was in
effect only the “first” notice of publication and, given the failure to publish a
second valid notice to creditors as required by statute, the personal representatives
failed to comply with the statutory requirements for publication of notice to
creditors. See § 766.2121(2), Fla. Stat. (2012) (requiring that, to be valid, the
notice to creditors must be published “once a week for 2 consecutive weeks, in a
newspaper published in the county where the estate is administered”).


                                          9
the power to publish the notice to creditors. Therefore, there must have been some

other reason why the Legislature chose to include the word “duties” in the first

sentence of section 733.601, while omitting it from the very next sentence. It

seems clear that the Legislature did so to avoid imposing a statutory duty upon a

person, to act on behalf of the estate, prior to the court appointing that person as

personal representative. The decision in Gilson v. Foltz, 431 So. 2d 647 (Fla. 2d

DCA 1983), provides a good example of the unintended consequences that could

follow had the term “duties” been included in the second sentence of section

733.601. In Gilson, the Second District rejected a claim for negligence against the

son of a decedent, sued in his capacity as a personal representative, for failing to

review a decedent’s will prior to the decedent’s death. The Second District held

that the decedent’s son had no duty to examine the decedent’s will prior to his

death, because the son had not yet been appointed personal representative. The

personal representative could not have a “duty” to act prior to the decedent’s death

(or, by extension, prior to his appointment as personal representative). Had the

statutory language of section 733.601 provided that the “powers and duties of a

personal representative relate back in time” (emphasized words added), a personal

representative could arguably be held responsible for “failing” to discharge a duty

even before she was appointed personal representative and before she assumed her

statutory duties. Such a construction runs counter to the unquestionably proper



                                        10
decision in Gilson, and we conclude that the language used in section 733.601, and

the difference between the first two sentences of that statute, merely underscores

this rational distinction.

         We further note that the pertinent language of section 733.601 is identical in

all material respects to that of the Uniform Probate Code. See Unif. Probate Code

§ 3-701 (amended 2010).5 Importantly, the comment to that Uniform Probate

Code provision notes that “[t]his section codifies the doctrine that the authority of

a personal representative relates back to death from the moment it arises.” Id.

(Emphasis added). This reinforces our conclusion that the relation back doctrine

applies to “acts” taken by a personal representative prior to his or her appointment

and is not limited to those acts which can be characterized as “powers,” to the

exclusion of those acts which can be characterized as “duties.” See Griffin, 73 So.

2d at 846 (noting that “[a] wide variety of acts and conduct by a party acting in

behalf of an estate when he was not properly qualified have been held to be

5   That provision reads in pertinent part:

         The duties and powers of a personal representative commence upon
         his appointment. The powers of a personal representative relate back
         in time to give acts by the person appointed which are beneficial to
         the estate occurring prior to appointment the same effect as those
         occurring thereafter. Prior to appointment, a person named executor in
         a will may carry out written instructions of the decedent relating to his
         body, funeral and burial arrangements. A personal representative may
         ratify and accept acts on behalf of the estate done by others where the
         acts would have been proper for a personal representative.
         (Emphasis added.)

                                              11
validated or ratified by his subsequent qualification as administrator . . . [including]

advancement to a distributee; . . . the sale of estate property; the execution of a

deed”).

      The relation back doctrine enjoys virtually unanimous application

throughout the fifty states, and dates back, by some accounts, more than 500 years.

See generally, Relation back of letters testamentary or of administration, 26 A.L.R.

1359 (1923). In addition, the publication of the notice to creditors can reasonably

be described as both a duty and a power of the personal representative. The

personal representative is the only person authorized to publish a valid notice to

creditors6 and the personal representative is obligated to publish the notice

promptly. See § 733.2121(1), Fla. Stat. (2012).         Thus, to the extent Karen’s

proposed construction of section 733.601 is plausible, the “act” of publishing a

notice to creditors, prior to the order appointing personal representatives, was

validated by the relation back doctrine.




6 The only other person who is authorized to publish the notice to creditors under
Florida law is a court-appointed curator, an individual “appointed by the court to
take charge of the estate of a decedent until letters are issued.” § 731.201, Fla.
Stat. (2012); In re Sale’s Estate, 227 So. 2d 199 (Fla. 1969) (noting a “curator is
ordinarily appointed only as a temporary expedient to take possession of and
preserve the assets of the estate until a personal representative may be appointed.”)
Under Florida Probate Rule 5.122(d), entitled “Powers,” “the court may authorize
the curator to perform any duty or function of a personal representative, including
publication and service of notice to creditors.”

                                           12
      Karen cites no case in support of the nice distinction she proposes between

“duties” and “powers” of the personal representative as it relates to publishing the

notice to creditors. The cases that Karen does cite in support of her position are

inapposite. In Tyler v. Huggins, 175 So. 2d 239 (Fla. 2d DCA 1965), for example,

the court was governed by now-repealed law, section 733.15, Florida Statutes

(1973), which provided that “[e]very personal representative, after taking out

letters testamentary or of administration, shall cause a notice to be published. . .”

(emphasis added). In 1974, section 733.15 was repealed and section 733.601 (the

relation back doctrine) was added to Florida probate law. The cases of In re Sale’s

Estate, 227 So. 2d 199 (Fla. 1969) and Estate of Tanner, 288 So. 2d 578 (Fla. 2d

DCA 1974), are similarly inapplicable. First, both cases involve the authority of a

curator, rather than a personal representative, to perform the duties of a personal

representative without court approval. At the time those decisions were issued,

curators were only authorized to perform the duties and functions of a personal

representative “on special order of the court.” § 733.501(3), Fla. Stat. (1974).

That language no longer appears in the law. See § 733.501(1), Fla. Stat. (2012).

To that extent, neither case is any longer persuasive precedent. Second, and more

importantly, neither Sale’s nor Tanner dealt at all with the application of the

relation back doctrine.




                                         13
      In sum, none of the cases cited by Karen in support of her position dealt with

the question presented here: whether the relation back doctrine applies to validate

the act of publishing a notice to creditors undertaken by a personal representative

one day before his appointment. We hold that it does, and further hold that the

trial court erred in granting Karen’s summary judgment motion and her motion to

declare her claim timely filed, and in denying Joel and Kim’s motions to strike

Karen’s claims.

      Were we to adopt Karen’s construction of the statute, it would create

significant and substantial uncertainty for a personal representative, who would

now be required in each instance to determine whether the act undertaken is

considered to have been taken pursuant to a “duty” or a “power” such that the

former would not relate back but the latter would.7 This would be in conflict with

the duties of a personal representative to “settle and distribute the estate of the

decedent . . . as expeditiously and efficiently as is consistent with the best interests

of the estate,” § 733.602(1), and to “promptly publish a notice to creditors.” §

733.2121.

      CONCLUSION

7  By way of example, section 733.604 imposes a duty upon a personal
representative to “file a verified inventory of property of the estate.” Under
Karen’s dichotomous construction, if the personal representative, prior to
appointment, files the verified inventory, the subsequent order of appointment
would not relate back and validate that act because it is considered a “duty” rather
than a “power.”

                                          14
      We hold that the relation back doctrine, codified in section 733.601, applies

to the personal representative’s act of publishing the notice to the creditors, and

that the order appointing personal representative relates back and validates the pre-

appointment act of publication of the notice to creditors. We reverse the orders on

appeal and remand this cause to the trial court for further proceedings with this

opinion.8




8 Upon remand, the trial court should reconsider Karen’s motion for summary
judgment and her petition for declaration of timely filed claim to determine
whether or not she was a reasonably ascertainable or known creditor, and whether
she was entitled to be served with the notice to creditors (even though she herself
signed the notice to creditors). We express no opinion on the merits of these
issues.




                                         15
