        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                              ROSALIE WOLF,
                                Appellant,

                                       v.

      JO ANN DOLL, individually and as Successor Trustee of the
 Gretchen T. Reysman Revocable Living Trust Dated November 3, 2005,
                             Appellee.

                               No. 4D16-2634

                            [November 15, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Cheryl    Caracuzzo,      Judge;   L.T.    Case    No.
502015CA004849XXXXMB.

  Paul J. Kneski of the Law Offices of Paul J. Kneski, P.A., Plantation, for
appellant.

  James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen,
North Palm Beach, for appellee.

KUNTZ, J.

   At the heart of this case is an attempt by the decedent’s friend to recover
damages from the decedent’s neighbor, who she asserts tortiously
interfered with the inheritance her friend had left to her. However, we need
not tell that story at this time. Our focus in this appeal is on the court’s
conclusion that the friend was barred from raising her claims due to an
earlier probate proceeding.

    The court concluded the friend, Rosalie Wolf, knew about the earlier
probate proceeding, could have raised her claims in that earlier proceeding
and, as a result, was barred from raising the claims in collateral litigation.
Based upon those conclusions, the court entered summary final judgment
in favor of the neighbor, Jo Ann Doll. Now, Wolf appeals, arguing material
issues of fact precluded the entry of summary judgment. We agree. The
controlling statute required “formal notice” to all beneficiaries of the earlier
probate proceeding, a petition for summary administration. However, the
record does not indicate whether or not “formal notice” was provided to
Wolf. Therefore, we reverse.

                           Background Facts

    For purposes of this appeal, there are three relevant people involved in
this story: the decedent, whose money and assets are at issue; Wolf, who
testified that the decedent was best friends with her mother, and that she
and decedent saw each other several times per month; and, Doll, who was
the property manager at the condominium complex where the decedent
lived. Doll testified that she helped the decedent in various capacities
including becoming a signatory on one of her accounts three years prior
to her death.

   In 2005, the decedent executed a Deed to Trustee, giving the decedent,
as Trustee, the power and authority to manage or dispose of her
condominium unit. Five years later, the decedent amended the trust. As
amended, the trust distributed title, ownership and possession of the
condominium unit to Wolf. The trust also distributed all personal property
not specifically transferred to Wolf.

   Later, the decedent fell and fractured her hip. While hospitalized, she
executed another amendment to the trust. This amendment revoked the
provisions of the prior amendment that was in Wolf’s favor, and provided
that the condominium and property would be transferred to her neighbor,
Doll. The decedent also executed a power of attorney, appointing Doll.
Two months later, the decedent passed away.

    Doll petitioned for summary administration of the decedent’s estate.
The petition indicated that Wolf was a beneficiary of the estate and the
certificate of service indicated that Wolf was served with a copy of the
petition. However, the certificate of service did not indicate the manner in
which Wolf was served. The probate court entered an order of summary
administration, transferring the decedent’s jewelry to Wolf and the
remainder of the assets to the trust. Later, pursuant to the amended terms
of the decedent’s trust, the condominium unit was transferred to Doll.

    Wolf, who did not participate in the summary administration, filed a
civil action against Doll, alleging tortious inference with expectancy,
constructive trust, declaratory relief, and conversion. After the parties
participated in discovery, Doll moved for summary judgment. Doll argued
in her motion that Wolf had actual knowledge of the probate proceeding
and, therefore, was prohibited from collaterally attacking the order of
summary administration. Wolf did not address this issue in her lengthy

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response, however, the issue was addressed at her deposition which had
been filed with the court. And, while the court held a hearing on the
motion, the issue of notice was not discussed at the hearing.

    Following the hearing, the court granted Doll summary judgment,
finding Wolf’s claims were procedurally barred. The court stated that
“although [Wolf] was aware of the probate proceeding, she did not contest
the validity of the Will or Trust, as amended, in that proceeding.”

   After the court issued its written order granting Doll’s motion for
summary judgment, Wolf moved for rehearing. Later, the court entered
final judgment, and Wolf renewed her motion for rehearing, arguing the
court had overlooked a material issue of fact; specifically, that the record
was unclear as to whether or not Wolf had knowledge of the probate
proceeding. The court denied rehearing and Wolf appealed.

                                 Analysis

   On appeal, Wolf argues the court improperly granted summary
judgment, as a material issue of fact exists regarding whether she was on
notice of the separate, and earlier, summary administration in probate.

   Summary administration in probate allows for simplified probate of
estates, unless the decedent directed formal administration, when “the
value of the entire estate subject to administration in this state, less the
value of property exempt from the claims of creditors, does not exceed
$75,000 or that the decedent has been dead for more than 2 years.” §
735.201, Fla. Stat. (2013).

   To initiate a summary administration proceeding, any beneficiary or
person nominated as personal representative may petition for summary
administration. § 735.203(1), Fla. Stat. (2013). The statute provides that
the petition must be signed and verified by the surviving spouse, if any,
and any beneficiary not receiving a full distributive share. Id. Further, for
those beneficiaries not required to join the petition because they are
receiving a full distributive share, the statute states “formal notice of the
petition must be served on a beneficiary not joining in the petition.” Id.

    Ultimately, our resolution of this appeal turns on the definition of
“formal notice.” In granting Doll’s summary judgment motion, the court
determined that Wolf “was aware of the probate proceeding,” and,
therefore, was precluded from proceeding in this subsequent action for
tortious interference. But, the record is unclear even as to Wolf’s actual
knowledge of the probate proceeding. And, missing from the record is any

                                     3
evidence that Wolf was provided “formal notice” of that proceeding in the
manner required by the statute and rules.

    The Probate Code provides that “‘formal notice’ means a form of notice
that is described in and served by a method of service provided under rule
5.040(a) of the Florida Probate Rules.” § 731.201(18), Fla. Stat. (2013).
Rule 5.040(a) provides for a copy of the document to be sent, together with
a notice requiring the person served to serve written defenses within 20
days after service of the notice, and “notifying the person served that
failure to serve written defenses as required may result in a judgment or
order for the relief demanded in the pleading or motion, without further
notice.” Fla. Prob. R. 5.040(a)(1).

   The rule also provides that the “formal notice” is accomplished through
service of process or “by sending a copy by any commercial delivery service
requiring a signed receipt or by any form of mail requiring a signed
receipt.” Fla. Prob. R. 5.040(a)(3). Importantly, for purposes of this case,
the rule states that “proof of service shall be by verified statement of the
person giving the notice; and there shall be attached to the verified
statement the signed receipt or other evidence satisfactory to the court
that delivery was made to the addressee or the addressee’s agent.” Fla.
Prob. R. 5.040(a)(4).

    Here, the record does not indicate formal notice was sent to Wolf.
There is no verified statement of service nor a signed receipt, both of which
are required to effectuate “formal notice.” Instead, the record indicates
that Doll filed a petition for summary administration, and the petition
included a certificate of service indicating it was served on Wolf. However,
the certificate of service does not indicate the method of service. Later, the
court issued the “order of summary administration.” The order indicates
it was sent to Wolf, however, again, does not indicate the method of service.
Wolf testified that she may have seen the probate court’s “order of
summary administration,” but was uncertain as to when she saw it.
Nowhere in the record is there evidence that formal notice was sent to Wolf.

   Doll also asserts that Wolf had actual knowledge of the proceeding. We
recognize the practical appeal to Doll’s assertion of actual notice and in
many contexts actual notice may be sufficient. However, we question
whether actual notice would be sufficient in the context of notice of a
probate proceeding. See, e.g., In re Ballett’s Estate, 426 So. 2d 1196, 1199
(Fla. 4th DCA 1983) (“Anna R. pooh-poohs the slight difference between
formal and informal notice, particularly because it is asserted that Baron
had actual notice. However, the court held in In re Estate of Dalton, 206
So. 2d 264 (Fla. 3d DCA 1968), that, where statutory notice had not been

                                      4
furnished, actual notice of the filing of a will for probate is not sufficient .
. . the reason being that the written notice puts the interested person on
notice of the time limitations for him to act.”); Nardi v. Nardi, 390 So. 2d
438, 440 (Fla. 3d DCA 1980) (“A nonadherence to these requirements [of
formal notice] amounts to an abandonment of the benefit . . . .”).
Regardless, we need not decide that issue today. Whether or not Wolf had
actual knowledge is unclear from the record, leaving a disputed issue of
material fact as to her actual notice.

   Generally, collateral proceedings to a probate action are governed by
section 733.103(2), Florida Statutes (2013). Case law interpreting the
statute has held that when a party has notice of probate proceedings and
an opportunity to contest the probate proceedings, the party is prohibited
from bringing an action for wrongful interference with a testamentary
expectancy if it failed to raise its challenges. See Schilling v. Herrera, 952
So. 2d 1231, 1236 (Fla. 3d DCA 2007). Specifically regarding claims of
tortious interference, the Florida Supreme Court held that the law permits
a claim for tortious interference of a testamentary expectancy “if the
circumstances surrounding the tortious conduct effectively preclude
adequate relief in the probate court.” DeWitt v. Duce, 408 So. 2d 216, 219
(Fla. 1981).

   The statute and case law require us to resolve one question: Whether
Wolf was given notice of the probate proceeding. If so, her collateral claims
are barred. However, if Wolf was not given notice of the probate
proceeding, she was effectively precluded from obtaining adequate relief in
that proceeding, and her collateral claims are not barred. Therefore,
whether she received notice of that proceeding is undeniably a material
fact. Further, based on this record before us, the fact is undeniably
disputed. As such, summary judgment was improper.

                                 Conclusion

  Based upon this record, there is a disputed issue of material fact as to
whether Wolf had notice of the earlier probate proceeding. Therefore, the
summary final judgment in favor of Doll must be reversed.

   Reversed and remanded.

TAYLOR and MAY, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.

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