Katke v. Bersche

Katke v. Bersche, 161 So.3d 574 (Fla. 5th DCA 2014), 2014 WL 6488688

In this contested guardianship, there were two petitions filed to determine the alleged incapacitated person's incapacity.  First, the AIP's daughter filed her petition and was appointed as ETG.  She subsequently resigned as ETG and an unrelated professional guardian applied and was appointed as ETG.  The AIP filed an emergency motion to set aside the order appointing both her daughter and the professional guardian as her ETG, which the trial court granted based on lack of service and notice to the AIP.

The AIP next filed an emergency motion to dismiss her daughter's petition.  The daughter withdrew her petition.  Before the trial court heard the motion to dismiss, the professional guardian filed her petition in the same case number as the  daughter.  The AIP filed a motion to strike that petition and sought a writ of prohibition after the court determined that it could proceed on the professional guardian's petition.

The Court held that once the daughter withdrew her petition, the court lost jurisdiction over the case, and could not find that the professional guardian had standing to file her petition in the same case.  As a result, the write of prohibition was a proper claim for relief and was granted.

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