Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986). · Go Syfert
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Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986). Cases Citing This Book View Copy Cite
12 citation events (7 in the last 25 years) across 2 distinct courts.
Strongest positive: Torres v. One Stop Maintenance & Management, Inc. (fladistctapp, 2015-10-21)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Torres v. One Stop Maintenance & Management, Inc.
Fla. Dist. Ct. App. · 2015 · confidence medium
See, e.g., J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1066-67 (Fla.2000) (twenty-four hours’ notice for a termination of parental rights proceeding is unreasonable); Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 5th DCA 2005) (two days’ notice insufficient for civil contempt hearing); P & L Fla. Inv., Inc. v. Ferro, 545 So.2d 448, 448 (Fla. 3d DCA 1989) (six days’ notice in advance of a hearing is unreasonable); Montgomery v. Cribb, 484 So.2d 73, 75 (Fla. 2d DCA 1986) (two days’ notice of a hearing on a motion to strike is unreasonable).
discussed Cited as authority (rule) Christopher Torres a/k/a Christopher Junior Torres and Doreen Rose Torres a/k/a Doreen Cypress-Torres a/k/a Doreen Rose Cypress v. One Stop Maintenance & Management, Inc., and Michael's Decoration, Inc.
Fla. Dist. Ct. App. · 2015 · confidence medium
See, e.g., J.B. v. Fla. Dep’t of Children & Family Servs., 768 So. 2d 1060 , 1066–67 (Fla. 2000) (twenty-four hours’ notice for a termination of parental rights proceeding is unreasonable); Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 5th DCA 2005) (two days’ notice insufficient for civil contempt hearing); P & L Fla. Inv., Inc. v. Ferro, 545 So. 2d 448, 448 (Fla. 3d DCA 1989) (six days’ notice in advance of a hearing is unreasonable); Montgomery v. Cribb, 484 So. 2d 73, 75 (Fla. 2d DCA 1986) (two days’ notice of a hearing on a motion to strike is unreasonable).
discussed Cited as authority (rule) A.C. v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
See, e.g., J.B. v. Dep’t of Children & Family Servs., 734 So.2d 498 (Fla. 1st DCA), rev. granted, 749 So.2d 503 (Fla.1999), decision quashed on other grounds, J.B. v. Florida Dep’t of Children & Family Services, 768 So.2d 1060 (Fla.2000); Harreld, 682 So.2d at 636 ; Anderson v. Sun Trust Bank/North, 679 So.2d 307 (Fla. 5th DCA 1996); Montgomery v. Cribb, 484 So.2d 73, 74 (Fla. 2d DCA 1986); Henzel v. Golstein, 349 So.2d 824 (Fla. 3d DCA 1977).
discussed Cited as authority (rule) AC v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
See, e.g., J.B. v. Dep't of Children & Family Servs., 734 So.2d 498 (Fla. 1st DCA), rev. granted, 749 So.2d 503 (Fla.1999), decision quashed on other grounds, J.B. v. Florida Dep't of Children & Family Services, 768 So.2d 1060 (Fla.2000); Harreld, 682 So.2d at 636 ; Anderson v. Sun Trust Bank/North, 679 So.2d 307 (Fla. 5th DCA 1996); Montgomery v. Cribb, 484 So.2d 73, 74 (Fla. 2d DCA 1986); Henzel v. Golstein, 349 So.2d 824 (Fla. 3d DCA 1977).
discussed Cited as authority (rule) Jb v. Fla. Dept. of Children and Fam. Services
Fla. · 2000 · confidence medium
The father's inattention and failure to act is troublesome; nonetheless, we hold that 24 hours' notice is insufficient as a matter of law. [5] See Montgomery v. Cribb, 484 So.2d 73, 75 (Fla. 2d DCA 1986) (holding two days' notice of hearing on motion to strike unreasonable); Henzel v. Golstein, 349 So.2d 824, 825 (Fla. 3d DCA 1977) (holding 24 hours' notice of hearing on motion to dismiss inadequate); Reynolds v. Reynolds, 187 So.2d 372, 373 (Fla. 2d DCA 1966) (holding plaintiff had been denied due process of law by only 24 hours' notice of a hearing on an order to show cause why she should no…
discussed Cited "see" JB v. Department of Children and Family Services
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Montgomery v. Cribb, 484 So.2d 73, 75 (Fla. 2d DCA 1986) (holding two days' notice of hearing on motion to strike unreasonable); Henzel v. Golstein, 349 So.2d 824, 825 (Fla. 3d DCA 1977) (holding one working day's notice of hearing on motion to dismiss inadequate); Reynolds v. Reynolds, 187 So.2d 372, 373 (Fla. 2d DCA 1966) (holding plaintiff had been denied due process of law by only one day's notice of a hearing on an order to show cause why she should not be held in contempt).
discussed Cited "see, e.g." Woolf v. Woolf
Fla. Dist. Ct. App. · 2005 · signal: see also · confidence medium
Goral v. State, 553 So.2d 1282, 1283 (Fla. 3d DCA 1989); Harreld v. Harreld, 682 So.2d 635 (Fla. 2d DCA 1996); see also J.B. v. Fla. Dep't. of Children and Family Servs., 768 So.2d 1060, 1066 (Fla.2000) (noting that two days notice has been held insufficient when far less important interests than parental termination is at stake) (citing Montgomery v. Cribb, 484 So.2d 73, 75 (Fla. 2d DCA 1986) (holding that two days notice is insufficient for motion to strike)).The contempt order must therefore be reversed and remanded for a new hearing upon adequate notice.
discussed Cited "see, e.g." Borden v. Guardianship of Borden-Moore
Fla. Dist. Ct. App. · 2002 · signal: see also · confidence medium
See also Montgomery v. Cribb, 484 So.2d 73, 74 (Fla. 2d DCA 1986) (two days notice for a hearing on a motion to strike a claim against an estate based upon summary judgment was inadequate).
Retrieving the full opinion text from the archive…
William T. MONTGOMERY, As Personal Representative of the Estate of Kenneth W. Montgomery, Deceased, Appellant,
v.
Barbara CRIBB and Joseph A. Perez, As Co-Personal Representatives of the Estate of Vivian S. Perez, Deceased, Appellees.
85-1288.
District Court of Appeal of Florida, Second District.
Mar 5, 1986.
484 So. 2d 73
Per Curiam.
Cited by 10 opinions  |  Published

[*74] Carl J. Robie, III, Sarasota, for appellant.

Jon H. Anderson, Lakeland, for appellees.

PER CURIAM.

Appellant, William Montgomery, seeks review of an order granting a motion to strike filed by appellees, Barbara Cribb and Joseph A. Perez, personal representatives of the estate of Vivian S. Perez. We reverse.

Vivian Perez died on December 15, 1982. Her will was admitted to probate and the court appointed Barbara Cribb and Joseph Perez as personal representatives of the estate. On September 26, 1983, Kenneth Montgomery, a minor, drowned in a swimming pool located on the Perez estate. His father, the appellant, filed a statement of claim against the estate for damages arising out of the allegedly wrongful death of his son. The appellees timely objected to appellant's statement of claim and the appellant filed a separate civil action. The appellees filed an answer and affirmative defenses alleging, among other things, that appellant had accepted an offer of settlement but had refused to arrange for the execution of an appropriate release. The appellees then filed a motion to enforce settlement and a motion for summary judgment.

In addition to the reasons set forth in the motion to enforce settlement, the motion for summary judgment sought relief on the basis that the sole cause of the son's death had been inadequate parental supervision, that appellant's son had not been an invitee, and that the attractive nuisance doctrine did not, as a matter of law, apply. The trial court found there existed no substantial issue as to any material fact and, on September 21, 1984, granted summary judgment in favor of the appellees. The appellant voluntarily dismissed an appeal of that order, apparently in consideration of $5000 tendered by the appellees. He later obtained new counsel who, without success, attempted to set aside dismissal of the appeal.

On November 15, 1984, appellees filed a motion for supplemental relief stating they were ready to perform the settlement agreement by tendering $5000 into the registry of the court. On March 5, 1985, the court granted the motion, thereby releasing appellees from further liability. The appellant filed, on April 11, 1985, a notice of appeal of that order. Eleven days later, the appellees filed a motion to require appellant to return their tender of $5000. Appellees alleged that in exchange for their tender of $5000, appellant had dismissed his appeal of the final summary judgment, that appellant had subsequently engaged new counsel to appeal the order granting the motion for supplemental relief, that the appellant had disavowed the settlement agreement entered into by his former attorney, and that appellant therefore had no basis for retaining the $5000. The appellant then filed a stipulation agreeing to return appellees' tender. On appeal, this court temporarily relinquished jurisdiction to the trial court for the parties to secure a final order as to the effect of appellant's release of tender. That appeal is still pending.

Meanwhile, appellees had filed, on April 22, 1985, a motion to strike appellant's claim against the estate based upon the summary judgment that had been entered. On April 23, 1985, appellant received notice that a hearing on the motion to strike would be held on April 25, 1985. Prior to the hearing, appellant filed a motion for continuance on the basis that he had not been given reasonable notice of the hearing. The trial court did not rule on appellant's motion for continuance, and following the hearing, entered an order granting appellees' motion to strike. Appellant has timely appealed that order.

Appellant contends that the court erred in ruling on the motion to strike because appellant did not receive reasonable[*75] notice of the hearing. We agree. Florida Rule of Probate and Guardianship 5.041(a), provides that unless the court orders otherwise, every petition or motion for an order determining rights of an interested person shall be served on interested persons. "Interested persons" are those who reasonably may be expected to be affected by the outcome of the particular proceeding. § 731.201(21), Fla. Stat. (1985).

Florida Rule of Probate and Guardianship 5.042(c), provides that unless a motion is to be heard ex parte, a copy of the notice of the hearing on the motion must be served a reasonable length of time prior to the hearing. We find that two-day notice is not a reasonable length of time. See Reynolds v. Reynolds, 187 So.2d 372 (Fla. 2d DCA 1966); see also, Hernandez v. Ward, 437 So.2d 781 (Fla. 2d DCA 1983).

Appellees argue they were privileged to proceed ex parte in this matter because, following this court's denial of appellant's motion to set aside the voluntary dismissal of the summary judgment appeal, appellant was no longer an "interested person." We disagree. Appellant remains an "interested person" in these proceedings because an appeal is pending on an issue pertaining to his claim against the estate. Appellant, therefore, was entitled to reasonable notice, and we, accordingly, reverse the trial court's order granting the motion to strike. Upon remand, after the appellant is given reasonable notice, the court may again rule upon the motion to strike.

Reversed and remanded for proceedings consistent herewith.

GRIMES, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.