Sun Bank and Trust Co. v. Jones
| Decision Date | 30 September 1994 |
| Docket Number | No. 93-1861,93-1861 |
| Citation | 645 So.2d 1008 |
| Parties | 19 Fla. L. Weekly D2078 SUN BANK AND TRUST COMPANY, Appellant, v. John G. JONES, Appellee. |
| Court | Florida District Court of Appeals |
Charlie Luckie, Jr. of McGee, Luckie & Dayton, P.A., Brooksville, for appellant.
Gene H. Auvil of Gene H. Auvil, P.A., Brooksville, for appellee.
Sun Bank and Trust Company, the personal representative of the estate of Donald Nichols, appeals from an order rendered by the court handling Donald's guardianship, which denied Sun Bank's objections to the Guardian's Petition for Discharge and Final Report filed by Donald's guardian, John Jones. Sun Bank objected to all fees proposed to be paid and those previously paid to Jones and to Jones' attorney for all services and costs rendered in trying to implement Jones' "home plan" for his ward, Donald. The court refused to allow a hearing on these matters because it ruled it previously approved prior accountings (through June 26, 1992), which authorized payment of these contested fees. It relied on McGinnis v. Kanevsky, 564 So.2d 1141 (Fla. 3d DCA 1990). We reverse.
In reviewing this case, we looked closely at the record on appeal. Based on the record, we conclude the facts of this case are not in material dispute. The errors that occurred in this case are errors of law and stem in part from faulty memories of what occurred procedurally in court, over a considerable time period. The following is a summary of the record. It is necessarily lengthy.
Donald was a retired military veteran. He was widowed and lived with his only child, Donald Jr. and Linda, his son's wife, in their home in Hernando County, Florida, in the early 1980's. Donald acquired several parcels of real estate and rental properties located in Hernando County and central Florida. After Donald Jr. died, Donald continued to live with Linda and his two young grandchildren.
Some problems arose between Linda and Donald. In 1986, Donald moved to an apartment near Linda's residence. He traveled. When he returned to Hernando County, he moved into a different residence where he lived alone for a short time.
In 1987, Donald was charged with two counts of committing lewd and lascivious acts in the presence of a child. He pled nolo contendere and was placed on community control for two years. After he violated his community control in 1988, Donald was sentenced to three years in prison.
Donald never served any time in prison, however, because he was found to be mentally incompetent. Jones, a friend of Donald's from the military, was appointed to serve as Donald's plenary guardian. Linda had declined to serve in that capacity.
Donald was first placed in a secure psychiatric facility in Tampa, Florida. Jones dealt with his ward's rental properties in Hernando County, his personal property, real estate interests, intangible properties, and pension income. In 1989, the Tampa facility indicated it could no longer keep Donald. Jones helped place and move him to another psychiatric hospital facility at the Veteran's Administration Medical Center in Tuscaloosa, Alabama.
Donald was unhappy and depressed in Tuscaloosa. In 1990, Jones conceived of a plan to move Donald back to Hernando County. Jones proposed to sell Donald one-half of the property then owned by Jones and his wife, and build his ward a three-bedroom, two-bath home on that property, next-door to their own residence. Jones planned to hire a live-in caretaker couple to look after Donald. Jones and his wife would be available to assist in supervising his care.
In a petition filed September 13, 1990, Jones sought the court's authorization to carry out his "home plan" for Donald. He described the real estate to be sold to his ward (originally four acres, later amended to two acres), the price (the current appraised value of $39,500.00, later amended to $19,735.18), and how he planned to pay for the project (all cash for the land, $13,000 cash to the contractor, and the balance owed on the house and other improvements, to be financed with a $60,000.00 mortgage to Sun Bank). The "home plan" would cost Donald at least $92,700.00.
In the petition, Jones also summarized the value of Donald's net assets at $275,000.00, of which $90,000 was liquid. He projected Donald's net annual income at $47,500.00, and the costs of Donald's living expenses at $39,000.00 per year, once he returned to live in Hernando County. The petition also mentions "criminal accusations [against Donald] heretofore made by public authorities," and the fact that doctors at the Tuscaloosa facility approved of his "home plan" for Donald.
The petition does not show that a copy of it was mailed or served on anyone. Nor is there in this record any notice of a hearing date on the petition. Pursuant to section 744.446, any transaction potentially involving a conflict of interest between guardian and ward must be approved in advance by the court, and pursuant to section 744.447 notice of such petition must be given to the ward, the next of kin, and other "interested persons."
However, in an order filed on October 10, 1990, the court states that it held a hearing on the "home plan" on October 5, 1990. The order also states that "formal notice" of the petition and notice of the hearing were given to "interested parties." Copies of the order were certified as having been mailed to Donald, Linda, and the medical center in Tuscaloosa. At that hearing, the court approved the "home plan" for Donald.
On October 18, 1990, Linda filed an answer to the "home plan" petition. She also filed a motion to stay implementation of the "home plan," and a motion to rehear and set aside the order which approved the plan. Linda argued the "home plan" created a serious conflict of interest between guardian and ward, that it would primarily benefit Jones, and that it was not in Donald's best interest because he would receive diminished medical and psychiatric care if the plan were carried out.
In her motion for rehearing, Linda alleged that the court had actually considered the "home plan" at an ex parte hearing, without notice to her, on October 4, 1990, not October 5, 1990, as recited in the order. She pointed out that after receiving "formal notice," 1 she should have been given twenty days within which to file an answer or respond to the petition. Fla.Prob.R. 5.040(a)(2). She alleged the twenty days after service on her expired on October 8, 1990, and the court proceeded prematurely to consider the petition on its merits prior to that date.
In an order filed November 13, 1990, the court denied Linda's motions as "untimely," although they were filed only eight days after the order approving the "home plan" itself was filed. However, the order in fact "stayed" the prior order approving the guardian's "home plan" through December 6, 1990, unless Linda showed good cause to the court why the home plan order should not be carried out.
On November 9th, Linda filed objections to the form of the proposed order, which was later filed November 13, and on December 3, 1990, Jones filed a motion to strike objections to the "home plan" filed by the State of Florida. The state's objections are not in the record on appeal, but they were also apparently filed after the court's ex parte hearing on the "home plan."
These matters culminated in a hearing before the court on December 4, 1990. At this hearing, Linda's attorney continued to object to the "home plan" as a conflict of interest. She also asserted Linda's right to have a full hearing on her objections, since the ex parte hearing on the "home plan" was held before twenty days had lapsed after the guardian's "home plan" petition was served on her.
The state attorney made a different point. He told the court he thought Donald was a pedophile, who posed a danger to the children of Hernando County. He said that if Donald regained mental competence, the state would bring him to trial on pending criminal charges and enforce his prison sentence. He also said that if Donald remained mentally incompetent and was returned to Hernando County to reside there next-door to Jones, pursuant to the proposed "home plan," the state would insist Donald be placed in a secure state psychiatric facility, such as Chattahoochee.
The court's remarks at the hearing indicate it was surprised by the state attorney's strong opposition to the "home plan." The judge said, "[t]his project [the 'home plan'] may be dead from the inception." At the end of this hearing, the court questioned whether the "home plan" was not an "exercise in futility," not going to accomplish anything, and not help Donald. The court said it needed to hear the "entire story" before it could rule. Finally, the court ruled that the state would be treated as an "interested party," thereafter entitled to notice of hearings and further motions concerning the "home plan."
In an order dated December 7, 1990, the court made the State of Florida a party to the proceeding. It also continued "[a]ll matters and issues" before the court until a final hearing, to be scheduled in the future, could be conducted. The order also explicitly stated, "[t]he guardian is stayed from all action as proposed in his petitions pending the outcome at the final hearing on these matters."
Another hearing on the "home plan" was held March 4, 1991. At this hearing, the court concluded that the criminal cases against Donald must be resolved first before making "grandiose plans for spending a substantial amount of the estate's money when we don't have any idea what his long term future will be ..." The judge said:
[B]ut I would think that really an expenditure of such funds as proposed by the guardianship should not be made until we know that Mr. Nichols is going to be with us for a while and able to enjoy the fruits of those expenditures.
Linda's subsequent counsel said he had other objections to the plan...
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