In re Guardianship of Schiavo

• Decision Date: 17 October 2001
• Docket Number: No. 2D01-3626.,2D01-3626.
• Citation: 800 So.2d 640
• Court: Florida District Court of Appeals
• Parties: In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated. Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.

800 So.2d 640

In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated.

Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.

No. 2D01-3626.

District Court of Appeal of Florida, Second District.

October 17, 2001.

Rehearing Denied November , 2001.

Patricia Fields Anderson, St. Petersburg, and Lawrence D. Crow, Tarpon Springs, for Appellants.

George J. Felos of Felos & Felos, P.A., Dunedin, for Appellee.

ALTENBERND, Judge.

This is the third opinion issued by this court addressing a bitter dispute among the members of Mrs. Theresa Schiavo's family over her medical condition and her right to forego life-prolonging medical procedures. See In re Guardianship of Schiavo (Schindler v. Schiavo), 780 So.2d 176 (Fla. 2d DCA 2001)

("Schiavo I"); In re Guardianship of Schiavo (Schindler v. Schiavo), 792 So.2d 551 (Fla. 2d DCA 2001) ("Schiavo II"). Our last opinion instructed the guardianship court to permit Mrs. Schiavo's parents, Robert and Mary Schindler, to file a motion for relief from judgment. We attempted to limit the nature of the grounds upon which relief could be granted. Following our opinion, the trial court summarily denied the Schindlers' newly filed motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(5). We have reviewed the trial court's order in conjunction with our last opinion. We acknowledge that our opinion misled the trial court. Accordingly, we are compelled to reverse a portion of the trial court's decision in this case.

We conclude that the Schindlers' motion for relief from judgment and the supporting affidavits state a "colorable entitlement" to relief concerning the issue of whether Mrs. Schiavo might elect to pursue a new medical treatment before withdrawing life-prolonging procedures. See Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996)

; S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986). This "colorable entitlement" requires the trial court to permit certain limited discovery and conduct an evidentiary hearing to determine whether this new evidence calls into question the trial court's earlier decision that Mrs. Schiavo would elect to cease life-prolonging procedures if she were competent to make her own decision. We emphasize that we are requiring an evidentiary hearing only to resolve the motion for relief from judgment; this opinion does not require a new trial.

I. PROCEDURAL HISTORY OF THIS CASE

In Schiavo I, we affirmed the trial court's decision ordering Mrs. Schiavo's guardian to withdraw life-prolonging procedures. Schiavo I, 780 So.2d 176 (Fla. 2d DCA), cert. denied, 789 So.2d 348 (Fla. 2001) (table). In so doing, we affirmed the trial court's rulings that (1) Mrs. Schiavo's medical condition was the type of endstage condition that permits the withdrawal of life-prolonging procedures,¹ (2) she did not have a reasonable medical probability of recovering capacity so that she could make her own decision to maintain or withdraw life-prolonging procedures,² (3) the trial court had the authority to make such a decision when a conflict within the family prevented a qualified person from effectively exercising the responsibilities of a proxy,³ and (4) clear and convincing evidence at the time of trial supported a determination that Mrs. Schiavo would have chosen in February 2000 to withdraw the life-prolonging procedures.

After our first opinion, the Schindlers began a multipronged attack upon the trial court's final judgment. That attack included filing a motion in the guardianship court seeking relief from the judgment pursuant to rule 1.540(b)(2) and (3), based upon allegations of newly discovered evidence and intrinsic fraud, and filing a separate complaint in the civil division of the circuit court seeking to challenge the final judgment of the guardianship court. On July 11, 2001, this court held that the guardianship court had appropriately denied the 1.540 motion as untimely on its face but that the Schindlers, who are technically "interested parties" in this proceeding, had standing to file either a motion for relief from judgment under rule 1.540(b)(5) or an independent action in the guardianship court to challenge the judgment on the grounds that it is no longer equitable that the judgment should have prospective application. Schiavo II, 792 So.2d 551. This court reversed an injunction entered in the case pending before the civil division of the circuit court and noted that any independent action seeking to challenge the guardianship court's judgment must be filed in the guardianship court. We remanded the case and provided the Schindlers with a limited time in which to file either proceeding in the guardianship court.

On remand, the Schindlers filed a timely motion for relief from judgment pursuant to rule 1.540(b)(5).⁴ In addition to the motion for relief from judgment, the Schindlers filed a "Petition for Independent Medical Examination," a petition for removal of guardian, and a motion to disqualify Judge Greer. The trial court denied the petition for removal of guardian and the motion to disqualify. We affirm those decisions without further discussion. The trial court also summarily denied the motion for relief from judgment and the "petition" for an independent medical examination. These are the decisions we review at greater length in this opinion.

II. THE AMENDED MOTION FOR RELIEF FROM JUDGMENT

The Schindlers contend in their amended motion for relief from judgment that it is no longer equitable for the judgment permitting the withdrawal of life-prolonging measures to have prospective application for two reasons. First, in May 2001, the Schindlers discovered three new witnesses whose proffered testimony is primarily impeachment evidence of the testimony of Mr. Schiavo at the original trial before the guardianship court. Two of these witnesses were close female friends of Mr. Schiavo during a period ending in approximately 1993. The third witness was the husband of one of these women. The Schindlers filed lengthy depositions from the husband and wife, and a lengthy affidavit from the second woman. The Schindlers maintained that this new evidence was sufficient to change the trial court's determination that, in February 2000, Mrs. Schiavo would have chosen to withdraw life-prolonging procedures.

This aspect of the Schindlers' motion asked the guardianship court to assess the impact of new sworn testimony on an issue that was fully litigated in the initial trial before the guardianship court.⁵ In that initial proceeding, the parties debated at length whether Mrs. Schiavo had ever expressed her opinions on life-prolonging procedures and whether the court could determine her wishes. Both sides presented conflicting evidence directed specifically to this issue. The trial court has reviewed the affidavits and depositions of these new witnesses and has assessed the potential impact of this new evidence upon the evidence and testimony that the court considered at the initial trial. We have also reviewed this evidence and conclude that the trial court committed no reversible error in determining that this new evidence failed to present a colorable claim for entitlement to relief from the judgment. See Graham v. Eisele, 245 So.2d 682, 683 (Fla. 3d DCA 1971)

; cf. E.I. DuPont De Nemours & Co. v. Native Hammock Nursery, Inc., 698 So.2d 267 (Fla. 3d DCA 1997) (addressing newly discovered evidence under rule 1.530).

As a second reason for relief from judgment, the Schindlers argued that Mrs. Schiavo's medical condition in February 2000 was misrepresented to the trial court and to this court throughout these proceedings. They claim that she is not in a persistent vegetative state. What is more important, they maintain that current accepted medical treatment exists to restore her ability to eat and speak. The initial trial focused on what Mrs. Schiavo would have decided given her current medical condition and not on whether any available medical treatment could improve her condition. The Schindlers argue that in light of this new evidence of additional medical procedures intended to improve her condition, Mrs. Schiavo would now elect to undergo new treatment and would reverse the prior decision to withdraw life-prolonging procedures.

In support of these arguments, the Schindlers filed numerous affidavits from licensed physicians who have reviewed Mrs. Schiavo's medical records, who have considered affidavits providing anecdotal evidence from lay people about her condition, and who have watched a brief videotape of her interaction with her mother at a time close to the original trial. Mr. Schiavo, as the ward's guardian, has not permitted these doctors to physically examine Mrs. Schiavo or conduct any diagnostic tests.

The affidavits of the several doctors vary in content and rhetoric. Among the affidavits filed by the Schindlers, however, the most significant evidence comes from Dr. Fred Webber. Dr. Webber is an osteopathic physician practicing in Clearwater, Florida, who claims that Mrs. Schiavo is not in a persistent vegetative state and that she exhibits "purposeful reaction to her environment." He swore under oath as follows:

Within the past year, I have treated patients with brain defects similar to Mrs. Schiavo's. In most cases, using cardiovascular medication style of therapy, my patients have shown some improvement, although the degree of that improvement is variable. By "improvement" I mean cognitive and physical items such as speech recovery, enhanced speech clarity and complexity, release of contractures, and better awareness of the patient's surroundings. In my opinion and judgment, based on my 26 years of practice, Mrs. Schiavo has a good opportunity to show some degree of improvement if treated with this type of therapy, although I cannot anticipate how much improvement.

Purely from a lay...