In re Guardianship of Morrison

• Decision Date: 28 November 2007
• Docket Number: No. 2D06-4343.,2D06-4343.
• Citation: 972 So.2d 905
• Parties: In re GUARDIANSHIP OF Joseph Scott MORRISON a/k/a J. Scott Morrison. Catharine S. Bogert, Appellant, v. Cynthia L. Morrison, as Guardian Joseph Scott Morrison a/k/a J. Scott Morrison, Appellee.
• Court: Florida District Court of Appeals

972 So.2d 905

In re GUARDIANSHIP OF Joseph Scott MORRISON a/k/a J. Scott Morrison.

Catharine S. Bogert, Appellant, v. Cynthia L. Morrison, as Guardian Joseph Scott Morrison a/k/a J. Scott Morrison, Appellee.

No. 2D06-4343.

District Court of Appeal of Florida, Second District.

November 28, 2007.

Rehearing Denied February 4, 2008.

David A. Wallace and Stacy J. Borisov of Williams Parker Harrison Dietz & Getzen, Sarasota, for Appellant.

James L. Essenson and Barbara J. Welch of Law Firm of James L. Essenson, Sarasota, for Appellee.

STRINGER, Judge.

This case involves competing petitions for appointment of a guardian over the person and property of Joseph Scott Morrison. Mr. Morrison's longtime companion and girlfriend, Catharine S. Bogert, filed a petition in New Jersey, where she and Mr. Morrison were living at the time he was rendered incapacitated. Mr. Morrison's daughter, Cynthia Morrison, filed a petition in Florida, where Mr. Morrison had been relocated subsequent to his becoming incapacitated. Bogert seeks review of three orders that (1) appoint Cynthia as the plenary guardian of the person of Mr. Morrison, (2) appoint Cynthia as the plenary guardian of the property of Mr. Morrison, and (3) deny Bogert's motion to dismiss or stay the Florida action. We reverse based on our determination that the Florida court abused its discretion in refusing to stay the Florida proceedings based on the principle of comity.

Mr. Morrison, who is seventy-one years old, was rendered incapacitated after he fell and struck his head while on vacation with Bogert in Reno in February 2006. Mr. Morrison returned to New Jersey, where he lived with Bogert, and remained there under in-home care until his adult children removed him and took him to Florida in April 2006. The children did this without Bogert's consent or knowledge.

On April 25, 2006, Bogert filed a complaint for guardianship and other relief in New Jersey. The complaint sought an injunction requiring Mr. Morrison's return to New Jersey, an order setting aside a power of attorney that Mr. Morrison had given Cynthia the month before, an evaluation of Mr. Morrison's incapacity, and appointment of a guardian of Mr. Morrison's property and person. On May 18, the New Jersey court issued an order to show cause, which also required that Mr. Morrison be made available for mental capacity examinations, allowed Cynthia to continue to manage Mr. Morrison's assets, granted Bogert visitation in Florida, and set forth a briefing schedule on the issue of Bogert's standing and jurisdiction. Mr. Morrison's children appeared for the New Jersey proceedings through counsel and were included in the briefing schedule.

Nonetheless, on June 2, Cynthia filed several petitions seeking substantially the same relief in a Florida probate court: (1) a petition for determination of incapacity, (2) a petition for appointment of plenary guardian of Mr. Morrison's property, (3) a petition for appointment of plenary guardian of Mr. Morrison's person, and (4) a petition for appointment of emergency temporary guardian of Mr. Morrison's person and property. That day, the Florida court issued an order and letters of emergency guardianship appointing Cynthia as emergency temporary guardian of Mr. Morrison's person and property.

On June 12, Bogert appeared in the Florida proceedings and filed her own petitions for appointment of plenary guardians of Mr. Morrison's person and property. Bogert also filed motions requesting that the court dismiss the petitions, set aside the letters of guardianship, or hold the Florida actions in abeyance pending resolution of the New Jersey action. On June 20, the Florida court denied Bogert's motions and entered an order determining total incapacity.

In the meantime, the parties submitted their briefs to the New Jersey court pursuant to the briefing schedule. On June 29, the New Jersey court held a hearing to determine the issues of standing and jurisdiction. Mr. Morrison's children were represented by counsel, who argued that the New Jersey court lacked jurisdiction and that Bogert lacked standing. On June 30, the New Jersey court issued an order holding that Bogert had standing and that the New Jersey court had jurisdiction because Mr. Morrison was a domiciliary of New Jersey.

On August 9, Bogert filed, in Florida, a request for judicial notice and a motion to dismiss the petitions filed in Florida based on the New Jersey court's recent order on standing and jurisdiction. Bogert requested that the Florida court dismiss the petitions, revoke the appointment of the emergency temporary guardian, and enter an order directing the transport of Mr. Morrison back to New Jersey. Bogert alternatively requested a stay of the Florida proceedings based on the principle of priority.¹ The Florida court rendered an order denying the request and motion on August 29. The Florida court concluded that "[t]he New Jersey judgment on jurisdiction has no impact on this court taking and maintaining jurisdiction over the matter." The Florida court subsequently issued final orders appointing Cynthia as plenary guardian of the person and property of Mr. Morrison.

On appeal, Bogert argues that the Florida court abused its discretion in refusing to stay the Florida proceedings based on the principle of priority. Bogert argues that because the New Jersey proceedings were filed first and the New Jersey court exercised jurisdiction first, the Florida court should have applied the principle of priority and stayed its actions as a matter of comity. Cynthia argues that the principle of priority does not apply because the Florida court was the first to exercise jurisdiction and the subject matter of the actions and the parties is not similar enough. Cynthia also argues that even if the principle of priority applies, the Florida court did not abuse its discretion in declining to apply it as a matter of comity.

A. Whether the Principle of Priority Applies.

If courts in different states have concurrent jurisdiction over a matter, then the proper court is determined by either legislation or the principle of comity. Philip J. Padovano, Civil Practice § 1.7 (2007). In this case, there is no legislation governing the subject of concurrent jurisdiction over guardianship proceedings, so the principle of priority governs as a matter of comity.

In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the "principle of priority." Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla. 1991) (quoting Bedingfield v. Bedingfield, 417 So.2d 1047, 1050 (Fla. 4th DCA 1982)). The purpose of applying the principle of priority as a matter of comity is to prevent "unnecessary and duplicitous lawsuits" that "would be oppressive to both parties." Siegel, 575 So.2d at 1272 (quoting Bedingfield, 417 So.2d at 1050).

Cynthia argues that the principle of priority does not apply because the Florida court was the first to exercise jurisdiction when it issued its order and letters of emergency guardianship on June 2, 2006. Bogert acknowledges the supreme court's holding in Siegel that priority should be given to "the court which first exercises its jurisdiction." Bogert argues that the majority of Florida decisions grant priority to the action that was first filed.² However, Bogert cites to district court cases, and the supreme court has never receded from Siegel. Furthermore, none of the district court cases cited by Bogert actually rule on the question of whether filing, as opposed to the exercise of jurisdiction, triggers priority. Thus, there is no reasonable basis to conclude that the trigger for priority is anything but the exercise of jurisdiction as was stated by the supreme court in Siegel.

Bogert alternatively argues that the New Jersey court first exercised jurisdiction on May 18, 2006, when it issued the order to show cause. This order required Mr. Morrison's children to show cause why the requested relief should not be granted. It also required that Mr. Morrison be made available for mental capacity examinations, allowed Cynthia to continue to manage Mr. Morrison's assets, granted Bogert visitation, and set forth a briefing schedule on the issue of Bogert's standing and jurisdiction. Cynthia argues that the show cause order did not constitute an exercise of jurisdiction because the order was issued without prejudice to a determination of standing and jurisdiction, and the issues of standing and jurisdiction were not determined until after the Florida court acted.

It is true that no Florida court appears to have addressed the question of exactly what the supreme court meant by the term "the court which first exercises its jurisdiction" in Siegel, However, this case is analogous to another case from this court in which we held that the principle of priority applied. See Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Ainsworth, 630 So.2d 1145 (Fla. 2d DCA 1993).

In Merrill Lynch, some of Merrill Lynch's customers instituted arbitration proceedings in New York against Merrill Lynch with the National Association of Securities Dealers, Inc. ("NASD"), alleging that Merrill Lynch committed fraud in selling the customers units in limited partnerships. Id. at 1146. In response, Merrill Lynch filed a special action in New York state court seeking a stay of the arbitration while the court determined the arbitrability of the claims. The New York court issued an ordered to show cause why the stay should not be granted and served the order on the customers' attorney.

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