Bambrick v. Bambrick, 3303

• Decision Date: 29 May 1964
• Docket Number: No. 3303,3303
• Citation: 165 So.2d 449
• Parties: George Donehoo BAMBRICK, Appellant, v. Cecelia BAMBRICK, also Known as Cecelia L. Bambrick and as Mary Cecelia Bambrick, and as Mary Cecelia Littman Bambrick, Individually and as the putative Guardian of the person and of the property of George Donehoo Bambrick, also known as George D. Bambrick, and also known as George Bambrick, et al., Appellees.
• Court: Florida District Court of Appeals

Page 449

165 So.2d 449

George Donehoo BAMBRICK, Appellant, v. Cecelia BAMBRICK, also Known as Cecelia L. Bambrick and as Mary Cecelia Bambrick, and as Mary Cecelia Littman Bambrick, Individually and as the putative Guardian of the person and of the property of George Donehoo Bambrick, also known as George D. Bambrick, and also known as George Bambrick, et al., Appellees.

No. 3303.

District Court of Appeal of Florida, Second District.

May 29, 1964.

Rehearing Denied July 8, 1964.

E. H. Wilkerson and Cecil H. Brown, of Sutton & Brown, Orlando, for appellant.

Z. D. Giles, Leesburg, for appellees Cecelia Bambrick, L. J. Littman, and Faye K. Littman.

Gordon G. Oldham, Jr., Leesburg, for appellee Mary E. Patrick.

Harry E. Gaylord, Eustis, for appellee Elmer D. Austin.

E. R. Mills, Jr., Ocala, for appellee Neal D. Huebsch.

J. H. Chumbley, St. Petersburg, for appellee Henry Esteva.

SMITH, Chief Judge.

The plaintiff-appellant's amended complaint in chancery was in two counts. Pursuant to motions of the several defendants, appellees here, the Chancellor entered an order dismissing Count I with prejudice; Count II was transferred to the law side of the court. This appeal ensued.

The plaintiff's complaint, as amended, was set out in 45 pages, with 21 additional pages of exhibits. We summarize the pertinent allegations of Count I as follows: Plaintiff, a resident of Lake County, voluntarily went to Pinellas County in February of 1960 to undergo treatment for an illness. In the month following, plaintiff's wife, one of the defendant-appellees here, filed a petition in the County Judge's Court in Pinellas County, requesting that the plaintiff be adjudged incompetent by reason of insanity. This petition for adjudication of incompetency stated that the address of the alleged incompetent, the appellant here, was Umatilla, Florida. In due course the court entered an order adjudging the appellant incompetent, and on the same day his wife filed a petition for her appointment as guardian of the person and property of her incompetent husband. This petition alleged that the wife resides at Umatilla, Florida; that her husband formerly resided there; and that the property of the incompetent consisted of real estate of the value of $2,000 and personal property of the value of $1,000. Neither the residence nor the post office address of the incompetent was alleged in the petition. The court entered an order appointing the wife as guardian without requiring bond, and letters of guardianship were issued to her. In May of 1960 the plaintiff was discharged from the state hospital to which he had been committed, and in September the County Judge's Court entered an order restoring the plaintiff to competency and terminating the guardianship. None of the orders entered in the County Judge's Court made any findings or determinations as to the domicile or place of residence of the plaintiff.

The complaint herein alleged that at all times material here George Bambrick was a resident of Umatilla, in Lake County, Florida. The complaint then alleged that during the term of the guardianship various transactions took place involving property located in Lake County. One alleged transaction was that Bambrick and his wife were the purchasers under contract and in possession of certain real property, and that, instead of completing said purchase according to the contract, the guardian and certain other defendants fraudulently caused the title to said property to be taken in the name of Bambrick's father-in-law and mother-in-law. This transaction was neither reported to nor approved by the County Judge's Court. The complaint sought a decree setting aside that conveyance. In another alleged transaction the guardian conveyed real property owned by the incompetent, taking back as part of the consideration a mortgage that was made to certain of the defendants under a claim that these defendants owned a half interest in the property, even though the record title was in the incompetent. This transaction was reported to and approved by the County Judge's Court. The complaint prayed that this transaction be set aside. The complaint then alleged in numerous paragraphs that various items of personal property of the plaintiff were taken by the guardian and other defendants and never returned to him; that these transactions were neither reported to nor approved by the County Judge's Court; and that certain of the defendants fraudulently induced him to sign a receipt for his property, which receipt was filed in the guardianship proceedings, even though he in fact never received the same. The complaint further alleged that the entire guardianship proceedings were void because venue and jurisdiction for such guardianship proceedings was in Lake County, the place of residence of the incompetent, and not in Pinellas County. Count II of the amended complaint alleged fraud and conspiracy on the part of the defendants in connection with the same transactions alleged in Count I and it prayed for compensatory and punitive damages for the mistreatment of plaintiff and his property.

The trial court dismissed Count I of the amended complaint upon its determination that the County Judge's Court in Pinellas County had jurisdiction to appoint a guardian for the plaintiff under § 394.22(12)(i), Florida Statutes, F.S.A. From our review of Chapter 394, we conclude that the provisions of the cited statute are not applicable. In order to better understand this section, it should be noted that until the enactment of Chapter 59-42, Laws of Florida 1959, § 394.22 provided the procedure for the adjudication of persons mentally or physically incompetent. Until 1959, subsection (12) thereof related to temporary hospitalization of a person pending incompetency proceedings, and it authorized the court to commit a person against whom incompetency proceedings were pending to an approved hospital for observation and treatment for a period not to exceed three months. Such a commitment did not deprive the person so confined of any of his civil rights. At the expiration of the period of confinement the proceedings could then continue--resulting either in adjudication of incompetency or discharge of the alleged incompetent. In the event of discharge, there was of course no adjudication of incompetency; and in either event, there were no special provisions in that subsection for the appointment of a guardian. By and through Chapter 59-42, Laws of Florida 1959, the Legislature amended and completely re-wrote subsection (12) of § 394.22, Florida Statutes, F.S.A. As so amended, this subsection now provides that, under a petition for examination to determine a person's mental competency, such person may only be adjudged temporarily incompetent and committed by the court to a hospital for care, treatment and observation for a period not to exceed six months. If at any time within that time the hospital determines that such person is mentally competent or that such person will not benefit from further hospitalization, the hospital may discharge the person, and notice thereof to the court constitutes a discharge of the incompetency and terminates the proceedings. On the other hand, if within that time the hospital certifies that the person is mentally incompetent, a further hearing is had by the court, in which event a judgment of incompetency may be entered. The order certifying the person for admission to the hospital creates a presumption of incompetency and suspends the person's civil rights; the certificate of discharge from the hospital automatically restores these rights.

With this background we turn our attention to paragraph (i) of said subsection (12). We note that this paragraph provides that after the entry and filing of an order certifying any person to a hospital, the court, upon application of any party, may appoint a temporary guardian of the property of such person; and that the general guardianship laws ¹ shall apply to all subsequent proceedings therein. Upon the discharge of a person by the hospital, the temporary guardian is required to file his final account and upon approval of the same surrender the assets to the discharged person. This paragraph further provides that if such person previously certified for confinement and hospitalization as temporarily incompetent is thereafter adjudged incompetent, then a guardian of the person or property, or both, may be appointed for such adjudicated incompetent under the general guardianship laws, in which event the temporary guardian must file his final account and on approval surrender the assets to the guardian appointed under the general guardianship laws.

Section 394.22(1), Florida Statutes, F.S.A., permits the application by written petition to the County Judge of the County wherein the alleged incompetent resides or may be found for a judicial inquiry as to the mental or physical condition, or both, of the alleged incompetent. The plaintiff here was in Pinellas County at the time of the filing of the petition; therefore, the County Judge's Court of that County had jurisdiction to entertain the petition and enter the order of incompetency. Since the order here entered was an adjudication of incompetency, the provisions of subsection (12) of § 394.22, Florida Statutes, F.S.A., are not applicable. The provisions of that subsection are applicable only where the order entered is that such a person is adjudged only temporarily incompetent. Paragraph (i) of said subsection likewise provides only for the appointment of a temporary guardian of the property of a person found to be temporarily incompetent. The order appointing a guardian for Bambrick does not purport to be and could not have been a temporary guardianship order contemplated under that paragraph, because such a temporary guardian is appointed only for a person ordered temporarily hospitalized and confined pursuant to subsection (12); furthermore, any such temporary...