Graham v. Florida Dept. of Children and Families, — So.2d —-, 2007 WL 4245627 (Fla. 4th DCA Dec 05, 2007)
The linked-to case is the second appellate decision involving a family feud between two brothers, "Luke" and "Larry" Graham, both of which were vying to be appointed their mother’s guardian with authority over her $850,000+ in assets. When I first wrote about this case [click here], brother-Larry seemed to be on the losing end of this litigation. After Larry initially lost his bid to be appointed guardian, he apparently took matters into his own hands. Here’s how the 4th DCA summed up the operative facts at that time:
After the trial court appointed the guardian, Larry surreptitiously took Betty from the residence where she had been placed by the guardian and moved her to California without giving notice to the court or any of the parties. The trial court held Larry in indirect criminal contempt for removing Betty from Florida and otherwise defying the guardianship orders. Larry has refused to reveal his exact whereabouts as well as the whereabouts of his mother.
Based on these facts, in the last opinion the 4th DCA hammered Larry.
Fatally flawed procedural/evidentiary record leads to stunning reversal of all trial-court wins:
The most important person in any contested guardianship proceeding is the judge. He is both law giver and fact finder. Convincing the trial judge of the justness of your cause is a precondition to winning this type of case, but it’s not enough. To protect your trial-court wins you need to make sure you’ve built a procedural and evidentiary record that can survive appellate challenge – even if your trial judge is wiling to give you a pass on these issues. On the flip side, if you’ve lost at the trial-court level, every procedural and evidentiary mistake made by the other side is an opportunity to be exploited on appeal.
The following appellate rulings from the linked-to opinion – all of which combined together to give brother-Larry a stunning victory on appeal – demonstrate how a fatally flawed procedural and evidentiary record can undo even the most sweeping trail-court wins.
1. Improper service leads to reversal of criminal contempt order:
When Larry took his mother from Florida to California in defiance of the trial court’s orders, you know the judge must have been fuming. This judge was almost guaranteed to find Larry in contempt. All the moving side had to do was make sure it complied with the minimum procedural and evidentiary requirements of Florida Rule of Criminal Procedure 3.840, governing indirect criminal contempt, and the judge would do the rest. This wasn’t done, leading to the following appellate victory for Larry.
Failure to strictly follow the dictates of Rule 3.840, governing indirect criminal contempt, constitutes fundamental, reversible error. Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003).
Laurence Graham argues that the trial court’s order is based upon a statement from Catholic Charities, which is not in affidavit form and was not issued upon personal knowledge, that he did not receive notice of the contempt proceedings, and that he was not properly served.
We reject without comment Laurence’s arguments concerning an insufficient affidavit and lack of notice, but agree with his contention that he was not properly served.
It is undisputed here that Laurence was not personally served with the order to show cause and thus, reversal is warranted. See Van Hare v. Van Hare, 870 So.2d 125, 127 (Fla. 4th DCA 2003) (reversing order of criminal contempt for lack of compliance with Rule 3.840).
2. Guardianship appointment effectively revoked ward’s advanced health care directive without necessary proof, notice and hearing.
Rather than challenge the order appointing his brother as guardian directly, Larry focused instead on the fact that he was the named surrogate under an advanced health care directive executed by his mother. The evidentiary and procedural record was fatally flawed with respect to revoking an advanced health care directive, resulting in a reversal – on procedural grounds – of the order appointing Larry’s brother as guardian.
Laurence Graham contends next that, in appointing Luke Graham as Betty’s temporary plenary guardian, the trial court effectively revoked Betty’s valid Directive, and did so without the necessary proof under section 765.105, Florida Statutes (2007), and without notice and a hearing, in violation of section 744.3115, Florida Statutes (2007). We agree in part.
* * * * *
In appointing Luke Graham as Betty’s temporary plenary guardian, an act which effectively revoked her Directive, the trial court failed to comply with the requirements of section 744.3115. The court failed to determine whether the Directive was valid before appointing a guardian.
* * * * *
Therefore, we reverse and remand on this issue for a determination by the trial court of whether Betty’s Directive is valid, and if so, what grounds under section 765.105 require its revocation.
3. Flawed evidentiary record leads to dismissal of entire guardianship proceeding
Larry’s biggest win on appeal was the ruling by the 4th DCA reversing the trial court’s incapacity finding and remanding the case "with directions to dismiss the guardianship proceeding." What could have lead to such a drastic change of fortune for Larry? Evidence, plain and simple. The evidence relied upon by the winning side at the trial-court level was outdated by the time of the incapacity hearing, and Larry’s trial counsel did a good job of building a record for a successful appeal by introducing rock solid evidence countering the incapacity finding. Here’s how the 4th DCA summarized this final leg of the case:
After finding Laurence in contempt, the trial court found that Betty’s incapacity was established and appointed Luke Graham as her temporary plenary guardian. Laurence claims the trial court erred in doing so without sufficient evidence of Betty’s incapacity pursuant to section 744.331, Florida Statutes. We agree.
A trial court’s ruling on mental capacity cannot be disturbed “unless the evidence shows it is clearly erroneous.” Fleming v. Fleming, 352 So.2d 895, 898 (Fla. 1st DCA 1977) (citing Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891)). “In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.” § 744.331(5)(c), Fla. Stat. (2007). Further, section 744.331(5)(a), Florida Statutes (2007), states:
Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.
Laurence Graham relies on LeWinter v. Guardianship of LeWinter, 606 So.2d 387 (Fla. 3d DCA 1992), which is analogous to the instant case. In LeWinter, the Second District reversed a finding of incapacity and the appointment of a guardian, concluding that there was no competent evidence to support the order. The court found that although the report of the examining committee established under section 744.331(3)(a) contained findings that the ward lacked the capacity to perform the functions that served the basis for the guardianship, it was filed over six weeks before the hearing, and there was evidence that the ward’s condition had improved in the meantime. LeWinter, 606 So.2d at 388.
Similarly, in the instant case, two of the three examining committee reports were filed two months or more before the hearing. The hearing took place on February 8, 2007. One report was filed on November 21, 2006, and another on December 8, 2006. Further, Laurence Graham submitted a sworn affidavit dated January 20, 2007, from Dr. Clyde Rouse Jr., who was Betty’s previous psychiatrist for 2 years, and again evaluated her in January 2007, stating that Betty’s condition had improved. Dr. Rouse claimed, inter alia: “She looks very well and shows no evidence of any psychiatric symptoms. She reviewed her health care advance directive with me and verbally acknowledged that she had named her son Larry as her surrogate in that document.” He also stated that her condition improved due to medication and in his opinion she “is perfectly competent to make financial decisions, to execute any legal documents such as power of attorney, health care advance directives, etc.” Notably, a report by Dr. David Trader, board certified in general psychiatry and geriatric psychiatry, dated February 14, 2007, a few days after the hearing in question, indicated that “[t]he present examination suggests that Betty Graham has sufficient mental capacity to make financial, medical, testamentary and general personal decisions at this time.”
Because Dr. Rouse’s report indicated an improvement in Betty’s condition and the committee member reports were filed two months prior to the hearing, the record evidence failed to establish Betty’s incapacity by clear and convincing evidence. Thus, we reverse and remand with directions to dismiss the guardianship proceeding. See LeWinter, 606 So.2d at 388.