Bambrick v. BambrickBambrick v. Bambrick
The plaintiff-appellant‘s amended complaint in chancery was in two counts. Pursuant to motions of the several defendants, appellees here, the Chancellor entered an order dismissing Count I with prejudice; Count II was transferred to the law side of the court. This appeal ensued.
The plaintiff‘s complaint, as amended, was set out in 45 pages, with 21 additional pages of exhibits. We summarize the pertinent allegations of Count I as follows: Plaintiff, a resident of Lake County, voluntarily went to Pinellas County in February of 1960 to undergo treatment for an illness. In the month following, plaintiff‘s wife, one of the defendant-appellees here, filed a petition in the County Judge‘s Court in Pinellas County, requesting that the plaintiff be adjudged incompetent by reason of insanity. This petition for adjudication of incompetency stated that the address of the alleged incompetent, the appellant here, was Umatilla, Florida. In due course the court entered an order adjudging
The complaint herein alleged that at all times material here George Bambrick was a resident of Umatilla, in Lake County, Florida. The complaint then alleged that during the term of the guardianship various transactions took place involving property located in Lake County. One alleged transaction was that Bambrick and his wife were the purchasers under contract and in possession of certain real property, and that, instead of completing said purchase according to the contract, the guardian and certain other defendants fraudulently caused the title to said property to be taken in the name of Bambrick‘s father-in-law and mother-in-law. This transaction was neither reported to nor approved by the County Judge‘s Court. The complaint sought a decree setting aside that conveyance. In another alleged transaction the guardian conveyed real property owned by the incompetent, taking back as part of the consideration a mortgage that was made to certain of the defendants under a claim that these defendants owned a half interest in the property, even though the record title was in the incompetent. This transaction was reported to and approved by the County Judge‘s Court. The complaint prayed that this transaction be set aside. The complaint then alleged in numerous paragraphs that various items of personal property of the plaintiff were taken by the guardian and other defendants and never returned to him; that these transactions were neither reported to nor approved by the County Judge‘s Court; and that certain of the defendants fraudulently induced him to sign a receipt for his property, which receipt was filed in the guardianship proceedings, even though he in fact never received the same. The complaint further alleged that the entire guardianship proceedings were void because venue and jurisdiction for such guardianship proceedings was in Lake County, the place of residence of the incompetent, and not in Pinellas County. Count II of the amended complaint alleged fraud and conspiracy on the part of the defendants in connection with the same transactions alleged in Count I and it prayed for compensatory and punitive damages for the mistreatment of plaintiff and his property.
The trial court dismissed Count I of the amended complaint upon its determination that the County Judge‘s Court in Pinellas County had jurisdiction to appoint a guardian for the plaintiff under
With this background we turn our attention to paragraph (i) of said subsection (12). We note that this paragraph provides that after the entry and filing of an order certifying any person to a hospital, the court, upon application of any party, may appoint a temporary guardian of the property of such person; and that the general guardianship laws1 shall apply to all subsequent proceedings therein. Upon the discharge of a person by the hospital, the temporary guardian is required to file his final account and upon approval of the same surrender the assets to the discharged person. This paragraph further provides that if such person previously certified for confinement and hospitalization as temporarily incompetent is thereafter adjudged incompetent, then a guardian of the person or property, or both, may be appointed for such adjudicated incompetent under the general guardianship laws, in which event the temporary guardian must file his final account and on approval surrender the assets to the guardian appointed under the general guardianship laws.
There remains, then, the question as to whether or not Count I of the amended complaint alleges facts showing that the County Judge‘s Court of Pinellas County was without jurisdiction to appoint a guardian for this incompetent. This question has been resolved for us by the decision of the Supreme Court in In Re Guardianship of Mickler, Fla. 1964, 163 So.2d 257, wherein it was held that jurisdiction (the power to act) to appoint a guardian of the person and property of an incompetent residing in the State of Florida was vested in both the County Judge‘s Court of the County in which the incompetent resided and in the County Judge‘s Court in the County in which the incompetent may be found. The Supreme Court there made it clear that where there is a contest over which of two such County Judges’ Courts should appoint the guardian under the circumstances of that case, the question is not one of jurisdiction — but one of venue. Consonant with the Mickler decision, we conclude that the County Judge‘s Court of Pinellas County had jurisdiction under the provisions of
In addition to an assault upon the order appointing guardian on the grounds of lack of jurisdiction and improper venue, Count I alleged numerous defects, errors and irregularities in the guardianship proceedings. For example, it was pointed out that the petition for the appointment of guardian failed to allege: (1) the place of residence and post office address of the incompetent; (2) the names and addresses of persons most closely related to the incompetent; and (3) when and where the adjudication of incompetency was made. It was further alleged that there was a failure to give notice to anyone other than
Our finding that the County Judge‘s Court in Pinellas County had jurisdiction of the guardianship proceedings necessarily includes a determination that the court also had jurisdiction to enter the order authorizing the sale of the incompetent‘s real property located in Lake County. See
With regard to each of the foregoing matters, as to which we have found that the County Judge‘s Court of Pinellas County had jurisdiction, we have stated that the allegations of Bambrick‘s amended complaint are insufficient to collaterally attack the various orders entered in the guardianship proceedings. These judgments and orders of the County Judge‘s Court cannot be re-examined collaterally by a court of equity, except upon allegations of facts showing that the orders made were void for lack of jurisdiction of the County Judge‘s Court to enter such orders at the time they were actually entered. This “lack of jurisdiction” means the absence of initial jurisdiction over the subject matter or the person, or the failure to comply with statutory requirements which are deemed to be jurisdictional requisites to the power of the court to proceed further or to act pendente lite in a matter over which it has already acquired jurisdiction of the subject matter and of the parties. Where there are allegations of jurisdictional facts and a determination of such matters, then an erroneous decision in that regard is subject to review upon direct attack by appeal. But such erroneous decision does not render the judgment void; under those circumstances the judgment is conclusive when questioned by collateral attack. State ex rel. Campbell v. Chapman, 1941, 145 Fla. 647, 1 So.2d 278. On the other hand, when the record of the proceedings in the County Judge‘s Court does not disclose a determination of facts pertaining to the jurisdictional prerequisites, then its judgment may be attacked in any collateral proceedings by showing the absence of jurisdiction. Pitts v. Pitts, 1935, 120 Fla. 363, 162 So. 708; American Surety Co. of New York v. Andrews, 1943, 152 Fla. 638, 12 So.2d 599; Polk v. Polk, Fla. 1949, 41 So.2d 150. See also 34 C.J.S. Executors and Administrators § 579.2
With the foregoing principles of law in mind, we conclude that a cause of action was stated by that part of Bambrick‘s amended complaint alleging that Bambrick and his wife were the purchasers under contract and in possession of certain real property; that instead of the guardian completing the purchase in accordance with the terms of the contract executed prior to the adjudication of incompetency, the guardian and her mother and father fraudulently caused the title to be taken in the names of the guardian‘s mother and father; and that this transaction was neither reported to nor approved by the County Judge‘s Court in Pinellas County.
As to the transaction concerning the sale by the guardian of the incompetent‘s real property, the amended complaint alleged bare conclusions of fraud, unsupported by statements of fact; therefore, the amended complaint failed to allege a cause of action as to that transaction.
With regard to that part of the amended complaint pertaining to Bambrick‘s personal property, we note that none of the alleged transfers or transactions were reported to or approved by the County Judge‘s Court. Therefore, the assault upon said transfers and transactions does not constitute an improper collateral attack upon the proceedings in the County Judge‘s Court. However, the allegations of fraud are not supported by statements of fact, and the amended complaint thus fails to allege a cause of action as to this matter.
With regard to that alleged transaction whereby the guardian conveyed real property owned by the incompetent and took back as part of the consideration a mortgage that was made to the defendants Littman, under a claim that said defendants owned a half interest in the property, when the record title was in the incompetent, the amended complaint stated a cause of action, in that it was shown that the order approving this mortgage was void for lack of jurisdiction in the County Judge‘s Court
Summarizing our findings as to Count I of the amended complaint, we conclude that this count shows: (1) the County Judge‘s Court in Pinellas County had jurisdiction to adjudicate Bambrick incompetent; (2) the said County Judge‘s Court had jurisdiction to appoint the guardian and to authorize the sale of the incompetent‘s real property; (3) the allegations of improper venue, errors and irregularities in the County Judge‘s Court are insufficient to collaterally attack that court‘s orders; (4) the County Judge‘s Court did not have jurisdiction to declare the defendants Littman as owners of an interest in the real property sold by the guardian, and it did not have jurisdiction to approve the mortgage given to the Littmans as a part of the purchase price of said property; (5) a cause of action was stated as to the property which, although held by Bambrick and his wife under the contract to purchase, was fraudulently conveyed by deed to the defendants Littman; (6) the allegations of fraud concerning the sale of the parcel of real property, which sale was approved by the County Judge‘s Court, were insufficient to state a cause of action; (7) the allegations of fraud concerning the transfers of personal property were insufficient to state a cause of action; and (8) the allegations set forth as a basis for an accounting from the former guardian and her parents, the Littmans, are sufficient, but as to the remaining parties such allegations are insufficient to state a cause of action.
With reference to the matters referred to in items (1), (2) and (3) of the above paragraph, the court‘s dismissal with prejudice was proper, because the dismissal related to an inherent defect in the case shown by the facts alleged. See Hardee v. Gordon Thompson Chevrolet, Inc., Fla.App. 1963, 154 So.2d 174. The dismissal of that part of the amended complaint relating to items (4) and (5), supra, was erroneous. The dismissal of the amended complaint as it related to items (6) and (7) was proper; however, the insufficiency of the complaint here is the failure to allege necessary facts to state a cause of action, and the dismissal should have been without prejudice to the plaintiff to amend. As to item (8) the dismissal as to the former guardian and the Littmans was error; the dismissal as to the remaining defendants was proper, but the dismissal should have been without prejudice and with leave to amend.
In Count II of the amended complaint, the plaintiff alleged facts to the effect that certain of the defendants conspired to have him unlawfully adjudged incompetent in order that they might seize and take for their personal use and benefit his property of the approximate value of $90,000; and that such conduct on the part of these defendants was willful, wanton and malicious, causing the plaintiff mental, emotional and physical pain and suffering — for which the plaintiff claimed compensatory and punitive damages in the sum of $187,956.85. We agree that, standing alone, as this count did after the court dismissed Count I with prejudice, Count II was an action at law in which no equitable relief was sought. However, in view of our conclusions as to Count I, we believe the order transferring Count II to the law side of the court should be reversed in order that the court could again consider that count in the light of any amended complaint which the plaintiff might file. In view of the great length of this complaint and the fact that we have determined that substantial parts thereof do not and cannot state a cause of action, leave is granted to the court on remand to require the plaintiff to file an amended complaint in which the plaintiff can eliminate large parts of the complaint.
Affirmed in part and reversed in part.
KANNER, (Ret.), J., and SMITH, CULVER, Associate Judge, concur.