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Wallace v. Comprehensive Personal Care Services, Inc.

Wallace v. Comprehensive Personal Care Services, Inc., --- So.3d --- (Fla. 3d DCA 2019)
This decision highlights the disconnect between the Appellate Courts and the reality of practicing guardianship law. Here, prior to an incapacity proceeding, the court in a related trust matter entered a protective order dealing with the dissemination of medical records. Later, prior to filing for guardianship, the AIP's son sought an order from the court allowing him to attach those medical records to his petition to determine incapacity. The trial court denied his request.
The Appellate Court affirmed, basing its analysis on the procedures set forth in Chapter 744. Apparently, the Court has a great deal of faith that the members of examining committees will abide by the provisions of Chapter 744. The Court seemed to feel that because the petitioner can outline the factual basis for their beliefs in their petition, can name the AIP's attending physician, and because F.S. 744.331 requires at …

Mullins v. Mullins

Mullins v. Mullins, --- So.3d --- (Fla. 5th DCA 2019)
This decision deals with the effect of an order determining homestead on a beneficiary's interest in the homestead property. Specifically, the Court considered whether a consent to the entry of an order determining homestead, where that order does not properly lay out the ownership interests in the property, is enough to actually alter the parties ownership interests. The Court held that it did not.
The decedent in question left her homestead to her three children, subject to a life estate for two of the three children for as long as they wanted to live there. The probate court entered an order determining homestead which stated that the homestead was devised in equal shares to the three children but failed to mention the life estates. The Court considered whether the homestead order in and of itself could eradicate the life estates. It held that because the consents to the homestead order were not formal agreements to modify the…

Kaminsky v. Hecht

Kaminsky v. Hecht, --- So.3d --- (Fla. 4th DCA 2019)
Does the Florida long-arm statute reach trustees of trusts administered elsewhere with beneficiaries in Florida? Committing a tortious act within the state is one of the enumerated acts which can give rise to jurisdiction for purposes of the long-arm statute. Fla. Stat. 48.193(1)a.2. While physical presence is not required to commit a tortious act for purposes of the long-arm statute, mere injury in Florida from a tortious act committed elsewhere is not enough.
Here, the Court found that the trustee of a trust who had never resided in Florida, had not administered the trust in Florida and did not hold trust assets in Florida, but may have failed to account to Florida beneficiaries or mismanaged trust assets for Florida beneficiaries did not meet the requirements of the long-arm statute for the Florida court to have jurisdiction over the trustee.

Alexander v. Harris

Alexander v. Harris, --- So.3d --- (Fla. 2nd DCA 2019)
In this 2nd DCA case, the Court once again considered the ability to garnish distributions from a trust for the enforcement of a child support order. It held that the distributions made to or for the benefit of the father from a discretionary special needs trust could be garnished for child support payments owed to a minor child.
The trust in question was a special needs trust funded from the settlement of a product liability action. The father has no control over the trust, cannot compel the trustee to make distributions, and does not personally receive any disbursements from the trust because they are made directly to third parties. The mother argued that pursuant to F.S. 736.0503, the discretionary distributions are not protected from continuing garnishment for support payments. 
As you may recall, in 1985, the Florida Supreme Court held in Bacardi v. White that a continuing writ of garnishment may attach to discretionary distribu…

Levine v. Stimmel

Levine v. Stimmel, --- So.3d --- (Fla. 5th DCA 2019)
Florida Statutes F.S. 736.1004 provides that in actions for breach of fiduciary duty or challenging a trustee's exercise (or nonexercise) of their powers, and in trust modification proceedings, the court may award fees as in chancery actions. Here, the Court considered whether F.S. 736.1004 allowed a party to recover fees after unsuccessfully litigating entitlement to fees under F.S. 57.105. 
More specifically, in this instance a fiduciary sought fees under F.S. 736.1004 after successfully defending claims revolving around alleged breaches of fiduciary duty. Part of the fees she sought were those incurred pursuing an unsuccessful F.S. 57.105 motion. The Court held that because F.S. 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative ground for fees, the fees incurred litigating the entitlement to fees were not recoverable.

Romanoff v. Lazarus

Romanoff v. Lazarus, 267 So.3d 33 (Fla. 4th DCA 2019)
Failure to raise a defense of lack of personal jurisdiction at the right time can constitute a waiver of the defense altogether. The timing of the defense has to be exactly right or the defense will often be waived. Here, the defendant did not raise the defense in her first motion to dismiss, but did raise it in a second motion to dismiss which was filed before the court heard her first motion to dismiss.
Lack of personal jurisdiction is a defense that must be raised at the first opportunity and before the defendant takes any steps in the proceeding which would constitute submission to the court's jurisdiction. However, a waiver will not occur if the initial motion is amended to include the defense before the motion is heard. The Court held that while an answer which fails to raise the defense may constitute a waiver of the defense, a motion to dismiss that fails to raise the defense and is amended before it is heard will not con…

Jacobsen v. Busko

Jacobson v. Busko, 262 So.3d 238
This decision is a short and sweet reminder that once an order of incapacity is entered removing a ward's right to contract, that ward no longer has the ability to independently hire counsel for him or herself. Here, even though F.S. 744.3215(1)(l) gives the ward the right to counsel, the ward's right to contract was removed when the court ordered him incapacitated. At that point, only the guardian had the ability to hire counsel for the ward.