Thursday, January 30, 2014

Koshenina v. Buvens

Kosheniva v.  Buvens, --- So.3d --- (Fla. 1st DCA 2014), 2014 WL 304889

At issue in this case was the proper standard for reviewing (and possibly overriding) a ward's designation of a pre-need guardian.  Here, the ward named her husband as her preneed guardian at a time when her capacity to do so was questionable.  The trial court initially named her sibligns as her emergency temporary guardians, and ultimately appointed them as her plenary co-guardians instead of her husband. 

The Appellate Court had two distinct problems with the trial court's analysis:

(1) Validity of Declaration of Preneed Guardian

After hearing evidence from her lawyer, who said the ward was competent when she executed the Designation naming her husband as her preneed guardian, and conflicting evidence from doctors regarding her ability to execute such a document, the court held that it "seriously questioned" her ability to know what she was doing when she executed the Designation and ultimately held it was in her best interests for her siblings to act.  It did not, however, make an actual ruling on whether the ward was competent when she executed the designation.  

The Court held that the trial court must make a definite ruling on this issue, and explained, "whether a ward was competent to make a decision regarding who will be her preneed guardian, is whether the ward had the capacity to generally understand the nature of the decision she is making and its implications."  It said that if on remand, the ward was determine to have been competent to execute the Designation, then that designation is entitled to a rebuttable presumption, discussed below.

(2)  Standard for Overriding Declaration of Preneed Guardian 

The Court then considered the proper standard for overriding a ward's properly designated preneed guardian.  F.S. 744.3045(4) provides that, "[p]roduction of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve."  But, the trial court is not bound to appoint the preened guardian if that person is found disqualified.  Even if the person designated is qualified to serve, F.S. 744.312(4) states that the court should appoint the preneed guardian, "unless the court determines that appointing such person is contrary to the best interests of the ward."  

The trial court's finding only stated that appointing the ward's siblings was in the best interests of the ward.  The Court held that the proper standard for overturning a properly executed designation of preneed guardian would be a determination that the appointment would be "contrary to the best interests of the ward."  The Court explained the distinction between "best interests" and "contrary to the best interests," by emphasizing the importance of giving the ward's designation great weight.  It held that at a minimum, a finding that another relative might be a better caregiver is not enough to satisfy F.S. 744.313(4).  Instead, the Court held, F.S. 744.312(4) requires a hurdle to show that specific actions/inactions of the designee are sufficiently egregious as to be "contrary to" the "best interests" of the ward thereby justifying a change in the status quo.  

Friday, January 10, 2014

Mack v. Polsby

Mack v. Polsby, --- So.3d --- (Fla. 3d DCA 2014), 2014 WL 54895

The dispute in this case centered around a revocable trust created by an emergency temporary guardian.  The ward, and eventual decedent, had four children.  After he suffered from a stroke and went into a coma, his daughter filed a petition seeking to be appointed as her father's emergency temporary guardian.  The court granted her petition, and also granted a later petition allowing her to create and fund a revocable trust.  Following the court's order allowing her to create the trust, the daughter funded the trust with her father's property in Michigan.

When the father ultimately passed away, one of his sons was appointed personal representative of his estate in Michigan.  The son then filed a Complaint against his sister, which sought a declaration that the trust was invalid and that the sister breached her fiduciary duty as trustee and removal of the sister as trustee.  By the time his Complaint was filed, a new judge was presiding, so the sister moved for summary judgment, arguing that the trial court lacked jurisdiction to review a predecessor judge's order.  The new judge agreed with the sister.  The brother tried again and filed a motion for reconsideration, since another judge had taken over.  Again he was denied, since the court held it had no jurisdiction.

The Appellate Court reversed both trial judges, and held that the court did have jurisdiction over the brother's Complaint.  As to the issue of the validity of the trust, since the Complaint alleged that the sister failed to serve her petition to create the trust on her siblings, and that she committed fraud upon the court when she petition to create the trust, pursuant to Fla.R.Civ.P. 1.540(b), the trial court had jurisdiction since it could allow relief from a judgment procured by the opposing party's fraud or if the judgment itself was void.  As to the breach of fiduciary duty and removal of trustee counts, even the sister's counsel agreed that those counts were independent of and occurred subsequent to the creation of the trust, so the trial court clearly had jurisdiction over these counts.  The Court reversed and remanded for further proceedings.

Gren v. Gren

Gren v. Gren, --- So.3d ---, 2014 WL 51640 (Fla. 4th DCA 2014)

This case involved a dispute between the ex-wife of a decedent and his surviving spouse who was serving as his Successor Trustee.  Since there was a question regarding the construction of the Trust, the ex-wife filed a Petition for Construction of Trust Instrument to seek clarity from the court.  Since the Trust had a provision requiring arbitration, the trial court granted a Motion filed by the Successor Trustee to compel arbitration.

The ex-wife failed to take any action for six months following the court order compelling arbitration, so the Successor Trustee sought to dismiss her lawsuit, claiming that the ex-wife's failure to arbitrate had prevented her from filing tax returns and distributing assets.  The ex-wife responded that any question of delay in her giving notice of arbitration was a question of fact to be determined by the arbitrator, not the trial court.  

The Appellate Court agreed with the ex-wife.  It noted that in deciding a motion to compel arbitration, a trial court is limited to three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.  Once those issues are determined, the court should not permit the parties to litigate the dispute in the courts instead of proceeding by arbitration as agreed.  Since the timeliness of a demand for arbitration was a fact question, it should be reserved for an arbitrator, not a judge.  

Thursday, January 9, 2014

JP Morgan Chase Bank, N.A. v. Estate of Neu

JP Morgan Chase Bank, N.A. v. Estate of Neu, --- So.3d ---, 2014 WL 51637 (Fla. 4th DCA 2013)

The principle of priority is the idea that where two courts have concurrent jurisdiction over a cause of action, the first court to exercise jurisdiction has the exclusive right to hear all issues or questions arising in the case.  This often results in a "race to the courthouse" for litigants who may have a preference as to which court they want their action heard by.  Here, the Broward court entered an order directing the disbursement of sales proceeds from the sale of a home, while a declaratory action was already pending in Palm Beach County which would resolve the issues.  The Court held that the Broward court should have stayed their action until the resolution of the Palm Beach action.   

Wednesday, January 8, 2014

In re Guardianship of Klatthaar

In re Guardianship of Klatthaar, --- So.3d --- (Fla. 2d DCA 2014), 2014 WL 51382

In guardianship proceedings, until incapacity is determined and a guardian is appointed, fees of the various attorneys involved and the members of the examining committee may rack up without any method for payment.  Once a guardianship is established, the law is clear about payment of the fees.  But if a guardianship is never established, as the Court correctly points out in this decision, there is a hole in our statute that leaves attorneys and examining committee members with no ability to be paid for their work.

In this case, the alleged incapacitated person died before a final determination of incapacity was rendered.  A petition was filed and an ordered was entered for the fees and costs of the attorney for the petitioner, the attorney for the alleged incapacitated person and the members of the examining committee.  The personal representative of the decedent's estate appealed that determination and the Court ultimately reversed the order for fees and costs because a guardianship was never established.

F.S. 744.331(7)(a) entitles the examining committee and the court-appointed attorney to reasonable fees once incapacity is determined and a guardian is appointed.  F.S. 744.331(7)(c) provides that where the petition for incapacity is dismissed, the costs and attorney's fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.  F.S. 744.331 leaves a gap when a good faith petition to determine incapacity is dismissed. The Court admitted it was concerned that practitioners would not offer their services if they know that they will only be paid if there is a certain outcome, but it felt that it is up to the legislature to determine who should be responsible for these fees.

F.S. 744.108(1) entitles a guardian or an attorney for a ward or guardian to reasonable fees.  This statute only applies to situations where a guardian has actually been appointed for a ward.  If a guardianship is never established, this section cannot be relied on.

Hopefully this decision will spur a change in our guardianship statutes to close this gap!