LADONNA HUDKINS vs MATTHEW L. HUDKINS, GUARDIAN OF THE PERSON AND THE PROPERTY OF THE WARD, KEITH L. HUDKINS

• Court: District Court of Appeal of Florida
• Decided: April 28, 2023
• Docket: 21-3094
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

LADONNA HUDKINS,

Appellant,

v. Case No. 5D21-3094 LT Case No. 2021-GA-024073

MATTHEW L. HUDKINS, GUARDIAN OF THE PERSON AND THE PROPERTY OF THE WARD, KEITH L. HUDKINS,

Appellee.

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Opinion filed April 28, 2023

Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.

Robert J. Hauser, of Sniffen & Spellman P.A., West Palm Beach, for Appellant.

Keith S. Kromash, of Nash & Kromash, LLP, Melbourne, for Appellee.

BOATWRIGHT, J. Appellant, LaDonna Hudkins, appeals the trial court’s Order Appointing

Plenary Guardian, which appointed Appellee, Matthew Hudkins (“the

Guardian”), as the plenary guardian for Keith L. Hudkins (“the Ward”)

following a finding of his total incapacity. On appeal, Appellant challenges

the procedure by which the trial court determined the Ward to be

incapacitated; however, we lack jurisdiction to address that claim because

Appellant failed to timely appeal the lower court’s Order Determining

Incapacity. Appellant additionally challenges the portion of the Order

Appointing Plenary Guardian where the trial court ordered her to transfer her

interests in real and personal property for the Ward’s benefit. We reverse

where the court erred in transferring the property interests at issue to the

Guardian solely for the benefit of the Ward. In all other respects, we affirm

the Order Appointing Plenary Guardian.

I.

Appellant and the Ward were married in 2017. Shortly after they were

married, in 2018, the Ward executed a durable power of attorney naming

Appellant as his attorney-in-fact (“2018 POA”). Pursuant to the 2018 POA,

the Ward conferred to Appellant, inter alia, the power to execute estate

planning documents, initiate legal actions and execute legal documents,

2 make gifts to herself, and, notably, to transfer property and assets, including

real estate.

During the marriage and prior to any issue of incapacity, Appellant and

the Ward were involved in two property transactions specific to this appeal.

First, in 2018, the Ward executed a quitclaim deed transferring title to a

condominium located in Cape Canaveral, FL (“Cape Canaveral Condo”)

from himself, individually, to Appellant and himself as tenants by the entirety.

Subsequently, Appellant and the Ward executed a second quitclaim deed

transferring title to the Cape Canaveral Condo to their Joint Trust. Second,

in 2019, the Ward transferred title to his home located in Ponte Vedra, FL

(“Ponte Vedra Home”) to Appellant and himself as tenants by the entirety.

In July 2020, the Ward was involved in an automobile accident,

following which he needed to be placed in a long-term residential treatment

facility. Appellant engaged an attorney to assist her with sheltering the

Ward’s assets so that he could qualify for Medicaid benefits to assist with his

residential treatment expenses. As a result, Appellant initiated a series of

transactions designed to divert the Ward’s income and assets so that he

would qualify for Medicaid assistance (“Medicaid Transfers”). To effectuate

these transactions, Appellant, using her authority under the 2018 POA,

executed a separate durable power of attorney (“2020 POA”). Among other

3 transactions, Appellant, using the 2018 and 2020 POAs (“POAs”), executed

a quitclaim deed transferring the title to Ponte Vedra Home from its status as

tenants by the entirety into her individual trust and then another quitclaim

deed transferring the title to the Cape Canaveral Condo from the Joint Trust

into her individual trust. Appellant then placed the Cape Canaveral Condo

up for sale.

Appellant and the Guardian (who is the Ward’s son) subsequently

became involved in a dispute over the Ward’s care. The Guardian believed

that, under Appellant’s supervision, his father was being deprived of proper

medical care. In addition, the Guardian was concerned over issues of

Appellant misappropriating assets of the Ward, including placing the Cape

Canaveral Condo up for sale without the Ward’s knowledge.

As a result, the Guardian filed multiple petitions in the trial court. These

included a Petition to Determine Incapacity, a Petition for Appointment of

Plenary Guardian, and a Petition for Appointment of Emergency Temporary

Guardian. 1 The Guardian alleged in the Petition for Appointment of

Emergency Temporary Guardian that the Ward’s assets were in immediate

danger of being wasted, misappropriated, or lost because Appellant had

1 The Petition to Determine Incapacity and the Petition for Appointment of Plenary Guardian were filed in separate cases in the 18th Judicial Circuit with different case numbers.

4 placed the Cape Canaveral Condo for sale without the Ward’s knowledge or

consent. The Guardian separately alleged in the Petition to Determine

Incapacity that the Ward suffered from age-related dementia and was unable

to make financial decisions on his own behalf.

In April 2021, the court held a hearing on the Petition for Appointment

of Emergency Temporary Guardian. At this hearing, the issue of the transfer

of the title to the Cape Canaveral Condo and its proposed sale was raised.

However, the trial court did not enjoin the sale at that time, but instead

directed the proceeds from the sale to be held in trust pending the outcome

of the guardianship proceedings. Following the hearing, the trial court

entered an order appointing the Guardian as the Ward’s Emergency

Temporary Guardian and issued letters of Emergency Temporary

Guardianship.

In June 2021, the Guardian filed an emergency motion alleging that

Appellant had impermissibly transferred title to the Ponte Vedra Home to her

individual trust and had listed the home for sale. The Guardian sought

permission from the trial court, pursuant to section 744.441(1)(k), Florida

Statutes, to initiate and prosecute an independent legal action in St. Johns

County, FL to invalidate the transfer of the title to the Ponte Vedra Home into

Appellant’s individual trust and to enjoin Appellant from selling the Ponte

5 Vedra Home during the pendency of the guardianship and incapacity

proceedings. The record, though incomplete, indicates that the trial court

held an evidentiary hearing on this emergency motion, but the court never

ruled on this motion. 2

The court held a separate, final evidentiary hearing, spanning the

course of three months on four separate days, on the Petition to Determine

Incapacity and the Petition for Appointment of Plenary Guardian (the “Final

Hearing”). At the outset of the Final Hearing, the court initially addressed the

issue of the Ward’s incapacity. The trial court entered a written Order

Determining Total Incapacity on August 26, 2021, in which it found that the

Ward was totally incapacitated.

The parties separately presented testimony and argument over the

span of the remaining days of the Final Hearing concerning whether the

Ward required a plenary guardian, or whether the POAs were less restrictive

alternatives; whether the Medicaid Transfers were procured through undue

influence; whether Appellant had subsequently used the Medicaid Transfers

to benefit herself to the detriment of the Ward; and whether the Guardian

2 At the conclusion of the hearing, the parties agreed that the Ponte Vedra Home should be sold and the proceeds be distributed equally between Appellant and the Ward, but this was never memorialized in an order or a settlement agreement.

6 was qualified to serve as the Ward’s plenary guardian. At the conclusion of

the Final Hearing, the parties discussed Appellant’s entitlement to her

interest in the proceeds from the sale of the Cape Canaveral Condo, and it

was decided that this issue would be litigated at a future hearing date. There

was no discussion, however, as to disposition of the Ponte Vedra Home, as

the Guardian had previously requested the authority to file an independent

action regarding the property.

The trial court entered the Order Appointing Plenary Guardian, which

is the subject of the instant appeal, on November 12, 2021. In the Order, the

trial court found that Appellant’s property transactions involving the Ponte

Vedra Home and the Cape Canaveral Condo were self-serving and not in

the best interests of the Ward. Based on these findings, the trial court

appointed the Guardian to serve as the plenary guardian for the person and

property of the Ward and ordered Appellant to transfer title to the Ponte

Vedra Home to the Guardian for the benefit of the Ward. Further, the court

ordered that the proceeds from the sale of the Cape Canaveral Condo be

transferred into a guardianship account to be used solely for the benefit of

the Ward without holding a hearing on the matter as previously discussed by

the parties and the court.

7 Appellant subsequently filed the instant appeal, in which she initially

challenges the trial court’s Order Determining Total Incapacity. In addition,

Appellant contests the portions of the Order Appointing Plenary Guardian in

which the trial court: 1) ordered the transfer of title to the Ponte Vedra Home

to the Guardian for the benefit of the Ward, and 2) ordered the transfer of all

proceeds from the sale of the Cape Canaveral Condo to a guardianship

account for the benefit of the Ward.

II.

A.

First, Appellant challenges the trial court’s order determining that the

Ward was totally incapacitated. Because Appellant did not timely appeal the

trial court’s order, we lack jurisdiction to address this portion of her appeal.

Appellant argues that her failure to timely appeal the Order

Determining Total Incapacity is based on the premise that she could not have

challenged that order because it did not finally adjudicate her rights and

obligations in the instant proceedings. Florida Rule of Appellate Procedure

9.170, entitled “Appeal Proceedings in Probate and Guardianship Cases,”

provides an enumerated list of final appealable orders in probate and

guardianship proceedings. See Fla. R. App. P. 9.170(b). Rule 9.170(b)(8)

provides that “[o]rders that finally determine a right or obligation include, but

8 are not limited to, orders that . . . determine a petition or motion to determine

incapacity or to remove rights of an alleged incapacitated person or ward.”

Fla. R. App. P. 9.170(b)(8). The rule thus provides that an order adjudicating

a petition to determine incapacity is, by its very definition, an order that

“finally determine[s] a right or obligation of an interested person as defined

in the Florida Probate Code.” See Giller v. Giller, 319 So. 3d 690, 690 (Fla.

3d DCA 2021) (“[Rule 9.170(b)] enumerates a nonexclusive list of twenty-

three orders that fall under the umbrella of rule 9.170(b)’s finality

requirement.” (quoting N. Tr. Co. as Tr. of Elizabeth W. Walker Tr. v. Abbott,

313 So. 3d 792, 795 (Fla. 2d DCA 2021))). As a result, a notice of appeal

would be required to be filed within 30 days of any order that falls under rule

9.170(b). See Fla. R. App. P. 9.110(b).

The Order Determining Total Incapacity, which was issued on August

26, 2021, was a final order that determined a right or obligation of an

interested person as defined in the Florida Probate Code under rule 9.170(b).

A Notice of Appeal was not filed in this matter until December 13, 2021,

which is well past the 30-day filing limit required by rule 9.110(b). Because

the portion of the appeal challenging the Order Determining Total Incapacity

is untimely, we lack jurisdiction to address it, and this portion of the appeal

is therefore dismissed. See Bank of N.Y. Mellon for Certificateholders of

9 CWABS, Inc. v. Swain, 217 So. 3d 226, 227 (Fla. 5th DCA 2017) (“A notice

of appeal must be filed within thirty days of rendition of the order to be

reviewed; otherwise, this Court lacks jurisdiction to entertain the appeal.”

(citations omitted)).

B.

Next, Appellant challenges the portion of the trial court’s Order

Appointing Plenary Guardian directing her to transfer title to the Ponte Vedra

Home to the Guardian for the benefit of the Ward. Originally, Appellant and

the Ward held title to the Ponte Vedra Home as tenants by the entirety. The

court found that Appellant misused the POAs issued to her and that the

transfer of the Ponte Vedra Home to her individual trust was self-serving.

However, rather than ruling on the Guardian’s pending request to initiate an

independent legal action to invalidate the transfer of the Ponte Vedra Home

into Appellant’s individual trust, the court instead ordered Appellant to

transfer title to the Ponte Vedra Home solely to the Guardian to be used for

the benefit of the Ward.

The guardianship court may authorize a guardian to take possession

of pre-guardianship assets of a ward. Section 744.361(12) provides:

The guardian, if authorized by the court, shall take possession of all of the ward’s property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian’s appointment,

10 and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward’s dependents, as provided for under the terms of the guardianship plan or by law.

§ 744.361(12), Fla. Stat. (2021) (emphasis added).

This statute has been construed as allowing the guardianship court to

authorize the guardian to pursue, on the ward’s behalf, the rescission of a

pre-guardianship transaction. McGilton v. Millman, 868 So. 2d 1259, 1260

(Fla. 4th DCA 2004). This can be accomplished by the guardian seeking the

authority from the guardianship court to file an independent legal action

pursuant to section 744.441(1)(k). See generally McGilton, 868 So. 2d at

1261 (“[I]f a guardian needs to take action to preserve the property of a ward,

it is appropriate to file a cause of action . . . with the guardianship court’s

approval.” (citing Cohen v. Cohen, 346 So. 2d 1047 (Fla. 2d DCA 1977))).

Moreover, even if a property transaction has been rescinded, the court

cannot then allocate the property contrary to established legal principles.

Section 744.457(1)(a) provides:

All legal or equitable interests in property owned as an estate by the entirety by an incapacitated person for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or

11 mortgaged in accordance with section 744.447, if the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property.

§ 744.457(1)(a), Fla. Stat. (2021) (emphasis added). As a result, section

744.457(1)(a) requires the spouse who is not incapacitated to consent before

an entireties interest in property can be transferred or conveyed. Romano v.

Olshen, 153 So. 3d 912, 921 (Fla. 4th DCA 2014) (noting that section

744.457(1)(a) is “consistent with the Florida view of entireties ownership, that

the husband and wife hold the property ‘per tout,’ Bailey v. Smith, 103 So.

833, 834 (Fla. 1925), such that both are treated as one person and ‘neither

spouse can sell, forfeit, or encumber any part of the estate without the

consent of the other.’ Douglass v. Jones, 422 So. 2d 352, 355 (Fla. 5th DCA

1982)”).

Thus, the trial court erred when it ordered Appellant to transfer the title

to the Ponte Vedra Home to the Guardian. We are aware that the trial court

found that Appellant’s actions regarding the Ponte Vedra Home were self-

serving and that the use of the POAs was not in the best interest of the Ward.

Based on these findings, the court had the authority to grant the injunction to

prevent Appellant from selling the home and authorize the Guardian to

pursue an independent legal action under section 744.441(1)(k) to seek to

invalidate the transfer of the Ponte Vedra Home into Appellant’s individual

12 trust. See McGilton, 868 So. 2d at 1261. However, it was error to order

Appellant to transfer full title to the Ponte Vedra Home to the Guardian

without her consent.

C.

Finally, Appellant contends that the trial court erred by ordering that

the proceeds from the sale of the Cape Canaveral Condo be placed in the

guardianship account solely for the benefit of the Ward. Specifically,

Appellant argues that she was denied procedural due process regarding

these funds because although she raised the issue below, the court

adjudicated the disposition of the funds without giving her an opportunity to

be heard.

As a general principle, the trial court was authorized to permit the

Guardian to access the proceeds from the sale of the Cape Canaveral Condo

for the Ward’s benefit because (prior to the sale) the Cape Canaveral Condo

was owned by Appellant and the Ward in their Joint Trust, as opposed to

their previous entireties ownership. See Romano, 153 So. 3d at 912 (holding

that a guardianship court can authorize the guardian to access a joint

account held with the ward’s spouse to pay authorized expenses of the

guardianship).

13 However, it is error for a guardianship court to authorize the guardian

to access the ward’s jointly owned assets without first providing the other

owner of those joint assets with adequate notice and a meaningful

opportunity to be heard. See Zelman v. Zelman, 170 So. 3d 838, 839 (Fla.

4th DCA 2015) (reversing trial court’s order transferring money from a bank

account held jointly between the ward and his wife into the ward’s solely-

owned revocable trust because the wife’s due process rights were violated,

as she was not provided with a meaningful opportunity to be heard). “[T]he

constitutional guarantee of due process requires that each litigant be given

a full and fair opportunity to be heard.” Id. (citing Vollmer v. Key Dev. Props.,

Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA 2007)); see also J.G.G. v. M.S.,

312 So. 3d 509, 511 (Fla. 5th DCA 2020). “At its core, due process envisions

‘a law that hears before it condemns, proceeds upon inquiry, and renders

judgment only after proper consideration of issues advanced by adversarial

parties.’” Zelman, 170 So. 3d at 839 (quoting Scull v. State, 569 So. 2d 1251,

1252 (Fla. 1990)). “‘[D]ecid[ing] matters not noticed for hearing and not the

subject of appropriate pleadings’ contravenes these principles.” Id.

(quoting Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d

865, 871 (Fla. 2d DCA 2011)).

14 The Cape Canaveral Condo was sold during these proceedings. It had

been held in the Joint Trust before Appellant, using the POAs, sold the

condo. The trial court ordered these funds to be held in Appellee’s attorney’s

trust account. Once the funds were placed in the trust account, Appellant

filed a petition to determine the allocation of the proceeds. At no point was

the allocation of these proceeds argued below. At the end of the Final

Hearing, Appellant requested to be heard on the distribution of the funds as

outlined in her petition. The matter was discussed on the record, and it was

agreed by the court and the parties that the matter would be heard at a

subsequent hearing. However, before the hearing was held, the court,

without notice to Appellant, issued its Final Order transferring all the Cape

Canaveral Condo proceeds to the Guardian for the benefit of the Ward. As

these were joint assets, Appellant should have had the opportunity to be

heard as to the allocation of these proceeds; thus, her procedural due

process rights were violated. See Zelman, 170 So. 3d at 839.

III.

We dismiss the portion of the appeal relating to the challenge of the

finding of incapacity, as we lack jurisdiction. However, we reverse the court’s

ruling transferring the title of the Ponte Vedra Home to the Guardian for the

benefit of the Ward, because the transfer was invalid. The Guardian should

15 be able to pursue the legal relief that he requested in the court below when

he sought to enjoin Appellant from selling the Ponte Vedra Home and sought

authority from the court to file an independent legal action in St. Johns

County, FL to invalidate the transfer of the title to the Ponte Vedra Home into

Appellant’s individual trust. In addition, we reverse the portion of the trial

court’s order directing that the entire Cape Canaveral Condo proceeds be

transferred to the guardianship account for the benefit of the Ward because

Appellant has not had the opportunity to be heard on the allocation of these

joint assets. On these issues, we remand for further proceedings consistent

with this opinion. Finally, we affirm all other portions of the Order Appointing

Plenary Guardian.

DISMISSED, in part; AFFIRMED, in part; REVERSED in part; and

REMANDED with instructions.

JAY and SOUD, JJ., concur.