Connell v. Guardianship of Connell, BD-101

• Decision Date: 24 October 1985
• Docket Number: No. BD-101,BD-101
• Citation: 10 Fla. L. Weekly 2401,476 So.2d 1381
• Parties: 10 Fla. L. Weekly 2401 Henry G. CONNELL, Appellant, v. GUARDIANSHIP OF Hattie C. CONNELL, Appellee.
• Court: Florida District Court of Appeals

Page 1381

476 So.2d 1381

10 Fla. L. Weekly 2401

Henry G. CONNELL, Appellant, v. GUARDIANSHIP OF Hattie C. CONNELL, Appellee.

No. BD-101.

District Court of Appeal of Florida First District.

Oct. 24, 1985.

Stephen A. Rappenecker of Stephen A. Rappenecker, P.A., Gainesville, for appellant.

MILLS, Judge.

Henry Connell appeals from the entry of a final summary judgment restoring the competency of his mother, Hattie C. Connell. We affirm.

On 30 June 1983, Hattie was adjudicated an incompetent adult in the State of Georgia, and on 6 July, Henry was appointed guardian of her property. Prior to the appointment, Hattie removed the bulk of her money, some $200,000, from a Georgia bank and came to Alachua County, Florida, the home of her brother. The money was deposited in a Florida bank in the names of the brother and his wife. Henry filed a petition in the Alachua County circuit court to recognize out-of-state guardianship and was recognized as a foreign guardian by order of 4 October 1983.

On 8 November, Hattie's brother filed a petition for restoration of competency in Alachua County, acknowledging the Georgia decree but alleging her recovery and renewed capability to understand and manage her assets. Henry answered, denying the allegations of the petition, and discovery commenced. Depositions of Drs. Thio and Dillon were submitted, but a protective order was granted barring the deposition of Dr. Roundtree, after Hattie intervened and asserted the psychotherapist-patient privilege pursuant to Section 90.503, Florida Statutes (1983). The court appointed a committee consisting of a layman, a general physician and a psychiatrist to examine Hattie and its report was also submitted.

The medical testimony received by the court via deposition opined that Hattie was competent to manage her affairs. (Dr. Thio had recommended a finding of incompetency to the Georgia court but the record does not reflect his re-examination of Hattie for purposes of the Florida restoration proceeding.) The examining committee concluded as well that she was capable of handling her assets. Based on the unanimity of these opinions, Hattie moved for a summary judgment restoring her competency. Before ruling on the motion, the court permitted a brief re-examination by the medical members of the examining committee. The judge then questioned the physicians and interviewed Hattie, permitting counsel to do so as well. Based on this interview and the physicians' re-statement of their opinion that Hattie was competent, the motion was granted.

Henry contends that the motion should not have been granted based on the existence of certain conflicting facts, first as to Hattie's bona fide residence in Florida. Summary judgment requires the complete absence of genuine issues of material fact, i.e. facts essential to the result and placed in issue by the pleadings. Wells v. Wilkerson, 391 So.2d 266 (Fla. 4th DCA 1980). Henry does not refer us to any authority requiring an incompetent to be a bona fide resident of Florida before a restoration action may be...