277 So.3d 694
Fla. Dist. Ct. App.2019Background
- Linda Shaffer (life partner) filed petitions to determine Beulah Covey's incapacity and to appoint an emergency temporary guardian, alleging Alzheimer's, revoked power of attorney, and financial mishandling by Covey's niece.
- On July 2, the circuit court granted Shaffer an ex parte emergency temporary guardianship and appointed counsel for Covey.
- Covey's counsel contacted Covey by phone, moved to vacate the emergency letters, and a hearing was set for July 31.
- Covey and her niece then came to Florida; Covey was served, and at the hearing counsel argued a hearing was required before appointing an emergency guardian.
- The court declined to take live testimony, denied the motion to vacate, and entered the ex parte appointment; Covey appealed under Fla. R. App. P. 9.170.
- During appeal the court later appointed permanent guardians (mooting some relief), but the appellate court proceeded because the issue is capable of repetition yet evading review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute requires a hearing before appointing an emergency temporary guardian | Covey: Section 744.3031 and rule 5.648 require a hearing before appointing an emergency temporary guardian; ex parte appointment violated procedure and due process | Shaffer: Court could hold an evidentiary hearing after granting the emergency petition; ex parte appointment was permissible under circumstances | The court held §744.3031 and rule 5.648 require a hearing prior to granting an emergency temporary guardianship; ex parte appointment was error |
Key Cases Cited
- Anderson v. City of St. Pete Beach, 161 So.3d 548 (Fla. 2d DCA 2014) (judicial restraint—avoid constitutional questions when case can be decided on nonconstitutional grounds)
- Enter. Leasing Co. v. Jones, 789 So.2d 964 (Fla. 2001) (mootness exceptions for issues of public importance or likely to recur)
- Gould v. State, 974 So.2d 441 (Fla. 2d DCA 2007) (mootness doctrine principles)
- Myers v. State, 696 So.2d 893 (Fla. 4th DCA 1997) (interpretation of definite vs. indefinite articles in statutes)
- Anderson v. City of St. Pete Beach, 161 So.3d 548 (Fla. 2d DCA 2014) (principle of avoiding constitutional rulings when a nonconstitutional ground disposes of the case)