Wednesday, November 23, 2016

Inglis v. Casselberry

Inglis v. Casselberry, 200 So.3d 206 (Fla. 2d DCA 2016)

And the Berlinger versus Casselberry saga continues.  As you may remember, we first met Bruce Berlinger and Roberta Casselberry back in 2013, when Roberta, the former spouse, obtained an order from the court affirming writs of garnishment on discretionary distributions to Bruce, the former husband, from four family trusts.  

Roberta then filed supplemental proceedings against Bruce and trustees of several trusts of which Bruce and his children were beneficiaries.  She sought discovery against Bruce and the trustees, seeking information about distributions to Bruce and his adult children.  The trustees objected with regard to the distributions to the adult children, arguing that those distributions were not at issue, and that the children have a constitutional right to privacy with regard to their personal financial information.  The trial court overruled the objections, noting the litigation history between the parties and the lengths Bruce went to avoid paying Roberta.  The trial court concluded that the information was relevant and ordered the trustees to comply with the discovery requests.

On appeal, the Court disagreed.  It held that the trial court must generally make a determination of whether the information sought is relevant after an evidentiary hearing.  Since there was no evidence offered about why the information was relevant, nor was its relevancy clear from the pleadings, the Court quashed the trial court's order compelling the discovery.

Thursday, November 10, 2016

Linde v. Linde

Linde v. Linde, 199 So.3d 1102 (Fla. 3d DCA 2016)

While it is rare that a guardianship proceeding ends with a restoration of the ward's rights, F.S. 744.464 provides a process for doing so.  In this decision, the Court considered what evidence can be introduced at a hearing under F.S. 744.464, as compared to the evidenced used to make an initial determination of incapacity under F.S. 744.331.

At the hearing to restore the ward's capacity, the trial court (1) granted an injunction which prevented the court-appointed independent physician from having communications with the ward's temporary guardian and (2) granted the ward's motion in limine to prevent the temporary guardian from presenting evidence of the ward's prior medical history and background.  The temporary guardian appealed.

The Court held that F.S. 744.464 which governs restoration proceedings differs from initial proceedings of incapacity under F.S. 744.331.  F.S. 744.331 requires examining committee members to have access to previous examinations of the person when making their initial determination of a person's capacity.  F.S. 744.464 does not contain the same requirement.  It simply states that upon the filing of a suggestion of capacity, the trial court must immediately appoint a physician to conduct an examination of the ward.  The Court failed to read the requirements of F.S. 744.331 into F.S. 744.464, and held that it was appropriate for the trial court to prohibit communications with the temporary guardian, especially since the trial court also established a mechanism for the independent physician to get all of the information he needed.

The Court also held that the trial court's preclusion of evidence not directly related to the ward's current capacity was appropriate.  It found that even though historical evidence may have some probative value for a trial court determining a ward's current capacity, it was not an abuse of discretion for the trial court to preclude such evidence. 

Thursday, November 3, 2016

Vassallo v. Bean

Vassallo v. Bean, 2016 WL 3474981 (Fla. 3d DCA 2016)

This decision deals with the question of whether a drafting attorney can be compelled to answer questions about a testator's reasons for disinheriting his children at a deposition.  The attorney claimed that the statements were confidential pursuant to Florida Bar Rule 4-1.6.  The Court found that Rule 4-1.6 applies only in situations other than those where evidence is sought from the lawyer through compulsion of law, and that F.S. 90.502(4)(b) (which states that there is no attorney-client privilege when a communication is relevant to an issue between parties who claim through the same deceased client) required the lawyer to answer the questions.