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Cantero v. In re Estate of Caswell

Florida Court of Appeals, Third District

October 2, 2019

Jorge L. Cantero, Appellant,
v.
In Re: Estate of: Jane Althea Caswell, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 17-1997, Yvonne Colodny, Judge.

          Law Offices of Robin Bresky, Jeremy Dicker and Robin Bresky (Boca Raton), for appellant.

          Law Office of Hauser and Hauser, PLLC, Marc Hauser and David L. Hauser; Fischer & Feldman, and Martin Feldman (Hollywood), for appellee.

          Before LINDSEY, HENDON and GORDO, JJ.

          GORDO, J.

         Appellant, Jorge Cantero, appeals the trial court's order granting the motion to strike his claim against the Estate of Jane Althea Caswell as untimely. Mr. Cantero argues the trial court abused its discretion in finding he was not a reasonably ascertainable creditor, despite the personal representative and personal representative's attorney having actual knowledge of his claims. Based upon the record below, we find no abuse of discretion in the trial court's order and affirm.

         The relevant facts set forth in the trial court's order are as follows:

Jane Althea Caswell ("Decedent") died on April 16, 2017, owning property located at 212 Golden Beach Drive, Golden Beach, Florida. Decedent was not married at the time of her death, and did not have children. In her will, Decedent appointed one of her four brothers, Errol W. Caswell, as Personal Representative ("PR").
Pursuant to Florida Statute § 733.2121, on June 7, 2017, PR properly published the Notice of Creditors. The creditors period expired on September 7, 2017. No creditor claims were filed in the Estate. PR filed a Verified Statement as to creditors on September 25, 2017, which averred no creditors. By order dated, August 28, 2017, the Court ordered the Golden Beach property to be sold.

         On January 5, 2018, nearly four months after the expiration of the creditor claim period, Mr. Cantero filed a Statement of Claim/Correspondence in the trial court asserting he was entitled to all of the proceeds from the sale of Decedent's Golden Beach property. Mr. Cantero objected to the disbursement of proceeds from the sale of the Estate and later filed a Notice of Filing Civil Action against the personal representative.

         As Mr. Cantero asserted that he was a reasonably ascertainable creditor entitled to personal service of Notice to Creditors and was not time-barred from filing a claim against the Estate, the trial court held an evidentiary hearing specifically on this issue.

         During this hearing, the personal representative testified that he diligently searched the property and did not uncover any paperwork regarding Mr. Cantero's alleged interest in the property. The personal representative testified that he had only two conversations with Mr. Cantero, in which Mr. Cantero never brought up having any interest in the Golden Beach property. The first time they spoke, Mr. Cantero called to give condolences. After a few minutes, Mr. Cantero mentioned that he may have left some car parts in the garage. The personal representative told him the house was up for sale and he was welcome to go by the and check the garage. In the second call, Mr. Cantero advised he went to the house to go in the garage, but it was locked. The personal representative told him to contact his attorney, David Hauser, who had been handling the property. Mr. Hauser testified that Mr. Cantero called him once. The call lasted less than a minute. Mr. Cantero only mentioned having left some car parts in the garage over 20 years ago. Mr. Hauser advised him the family had cleaned out the garage in order to sell the home and did not find any car parts. Mr. Cantero never brought up any kind of ownership interest in the Golden Beach property when he spoke to Mr. Hauser, nor did he indicate he wished to file a claim regarding the car parts.

         Mr. Cantero testified that he was in a romantic relationship with Decedent when they decided to purchase the Golden Beach property in 1992. Mr. Cantero resided with Decedent in the Golden Beach property for nearly five years until they broke up. Mr. Cantero claimed he paid all the monies to purchase the property and continued to pay the mortgage premiums while he resided there. Mr. Cantero claimed he paid the down payment for the home and that he had a verbal agreement with Decedent that upon her death, the property would be transferred to him. However, Mr. Cantero ...


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