## Facts

- Howard B. Wald, Jr. was injured in an accident involving Samuel Gus Felos and sued Felos for personal injuries.
- Felos died before Wald obtained a final tort judgment against him.
- Athena F. Grainger was appointed personal representative of Felos’s estate.
- On May 23, 2007, Grainger served a notice to creditors on Wald’s attorney of record from the personal-injury case.
- The notice advised that a claim had to be filed within 30 days of personal service.
- The 30-day period under Fla. Stat. § 733.702(1) expired on June 22, 2007.
- Wald signed a statement of claim on June 16, 2007 but did not file it in the probate court until July 2, 2007.
- Grainger petitioned to strike the claim as untimely; the probate court denied the petition, finding service ineffective because it was made on a “personal injury” attorney rather than a “probate” attorney.
- Grainger appealed.

## Issues

1. Whether service of a notice to creditors on the creditor’s attorney of record complied with Florida Probate Rule 5.041(b) and due process, thereby triggering the 30-day limitations period in Fla. Stat. § 733.702(1).
2. Whether a claim signed within, but filed after, the 30-day period is barred under Fla. Stat. § 733.702(1).

## Decision

- The First District Court of Appeal reversed the order denying the petition to strike.
- Service on Wald’s attorney of record was effective under Florida Probate Rule 5.041(b) and triggered the 30-day period in Fla. Stat. § 733.702(1).
- The probate rules do not recognize a distinction between “personal injury” and “probate” counsel for purposes of service.
- Wald had actual notice of the nonclaim period in time to file because he signed the claim before the deadline.
- Because Wald filed after June 22, 2007 without a valid basis to avoid the statute, the claim was time-barred and should have been stricken.

## Legal Principles

- Under Fla. Stat. § 733.702(1), a known or served creditor must file a claim within 30 days after service of the notice to creditors; untimely claims are barred.
- Florida Probate Rule 5.041(b) permits service of papers on a party’s attorney; the rule does not turn on the subject-matter scope of the attorney’s representation.
- Due process in probate nonclaim matters is satisfied when notice is given by means reasonably certain to ensure actual notice of the running limitations period; actual, timely notice supports enforcement of the statutory bar.
- A creditor’s failure to file within the statutory period is not excused where the record shows timely notice and a fair opportunity to comply.

## Conclusion

The court held that serving a notice to creditors on the creditor’s attorney of record was effective and, because the creditor received actual notice in time to act, the creditor’s claim filed after the 30-day statutory deadline was barred and had to be stricken.


Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010)