Merkle v. Guardianship of Jacoby

912 So. 2d 595, 2005 WL 433143
CourtDistrict Court of Appeal of Florida
DecidedFebruary 25, 2005
Docket2D02-2748
StatusPublished
Cited by19 cases

This text of 912 So. 2d 595 (Merkle v. Guardianship of Jacoby) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merkle v. Guardianship of Jacoby, 912 So. 2d 595, 2005 WL 433143 (Fla. Ct. App. 2005).

Opinion

912 So.2d 595 (2005)

LeRoy H. MERKLE, Jr., Appellant,
v.
GUARDIANSHIP OF Robert J. JACOBY, an incapacitated person, Appellee.

No. 2D02-2748.

District Court of Appeal of Florida, Second District.

February 25, 2005.

*597 LeRoy H. Merkle, Jr., Tampa, pro se.

No appearance for Appellee.

ORDER IMPOSING SANCTIONS ON LeROY H. MERKLE, JR., A MEMBER OF THE FLORIDA BAR

WALLACE, Judge.

We have before us the unpleasant duty of considering the imposition of sanctions on LeRoy H. Merkle, Jr., a member of The Florida Bar. Mr. Merkle was the appellant in this case in his capacity as guardian of the person and property of Robert Jacoby, an incapacitated person (the Ward).[1] Mr. Merkle also acted as his own attorney throughout the course of this appeal. For the reasons set forth below, we sanction Mr. Merkle for his failure to notify this court that he had settled the controversy that was the subject of this case before our decision on the merits.

Background

Mr. Merkle filed a notice of appeal of a trial court order entered in May 2002 that required him to refund to the Ward's estate the sum of $3931.12 that he had previously paid to himself. No one filed an appearance as an appellee in the case. On December 24, 2003, this court issued an opinion reversing the trial court's order on procedural grounds and remanding the case for further proceedings. Merkle v. Guardianship of Jacoby, 862 So.2d 906 *598 (Fla. 2d DCA 2003). Our mandate issued in due course on February 3, 2004.

On April 30, 2004, we received a motion to vacate prior ruling from the Department of Veterans Affairs (the Department), an interested party in the proceedings in the trial court. The Department suggested that prior to the issuance of our decision, the case had become moot by reason of a "Settlement Agreement" (the Agreement) that the Department had reached with Mr. Merkle on December 4, 2002, more than one year prior to our decision. Pursuant to the Agreement, Mr. Merkle had agreed to refund to the personal representative of the Ward's estate a total of $6687.06. The Department agreed to consent to the entry of Mr. Merkle's discharge as guardian upon his payment of the $6687.06 refund. The Department informed us further that Mr. Merkle had paid the refund amount. Finally, the Department enclosed a copy of the Agreement and a copy of a "Stipulation for Final Discharge of Guardian" executed on behalf of the Department and by Mr. Merkle.

Upon receipt of the Department's motion, we issued an order directing Mr. Merkle to respond to the Department's suggestion that the case had become moot prior to our decision on the merits. Mr. Merkle's response disputed the Department's claim of mootness and raised several factual issues. One of the factual issues was a claim that the Agreement with the Department "was entered into on the condition that it would not be used to prejudice the review of the trial court's action by the appeals court." We were unable to determine the issue of mootness on the basis of the materials available to us. Therefore, on June 11, 2004, we issued an order that recalled our mandate in this case and directed the chief judge of the Thirteenth Judicial Circuit to appoint a commissioner for the purpose of determining whether the Agreement rendered moot Mr. Merkle's appeal of the trial court's order.

Pursuant to our order, the chief judge of the Thirteenth Judicial Circuit appointed the Honorable E. Lamar Battles as commissioner. Judge Battles conducted a patient and painstaking inquiry into this matter, including an evidentiary hearing held on August 10, 2004. Evidence adduced at that hearing established that the amount Mr. Merkle agreed to refund to the personal representative of the Ward's estate included the $3931.32 that was the subject of the trial court's order. Despite his settlement with the Department, Mr. Merkle had continued to pursue his appeal in this court, serving his initial brief on November 21, 2002, the day after he had signed the Agreement.[2] Mr. Merkle paid the final installment of the refund amount on April 1, 2003. When Judge Battles asked Mr. Merkle at the hearing if he did not believe he was obligated to advise this court that he had paid the amount that was the subject of the order on appeal, Mr. Merkle replied, "I didn't feel an obligation to do that."

Mr. Merkle explained his reason for failing to inform this court of the settlement he had reached with the Department as follows:

[T]here are greater issues besides this immediate case. This, this problem *599 we're addressing now has gone on in about ten other cases that I'm, I'm not the guardian on. I'm an attorney on some of them and other attorneys on [sic], and trying to get cases closed when everybody's consented, everybody's satisfied but for the trial court.
. . . .
Okay. So it's a bigger issue than this particular case. That is one of the problems we have.

Thus Mr. Merkle admitted that his purpose in continuing to pursue the appeal in this case after reaching a settlement with the Department was to gain a perceived tactical advantage in matters unrelated to the Jacoby guardianship.

At the hearing before Judge Battles, the Department disputed Mr. Merkle's claim that the settlement was conditioned on a collateral agreement that it would not prejudice appellate review of the trial court's order. Such a condition was not included in the Agreement, and it was not memorialized in any other writing. The only evidence for the existence of such a collateral agreement was Mr. Merkle's testimony. For the reasons to be discussed below, if the Agreement had been subject to such a condition, such a collateral agreement would not have excused Mr. Merkle of his duty to notify this court that he had settled the case pending in this court.

In his findings and report to this court, Judge Battles concluded that the issues in this case were rendered moot by the Agreement. Judge Battles also found "that Mr. Merkle may not have been fully forthcoming and timely in keeping the courts apprised of all actions in this matter." We take this occasion to thank Judge Battles for his service as commissioner. We commend him for his thorough and informative report.

Upon receipt of Judge Battles' report, we issued an order directing Mr. Merkle to show cause in writing why this court should not impose sanctions on him for his noncompliance with Florida Rule of Appellate Procedure 9.350(a). The rule provides:

Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.

Mr. Merkle's response to our show cause order raised three points. First, Mr. Merkle asserted his lack of experience in handling appellate matters. Second, Mr. Merkle reiterated the explanation he had previously offered to Judge Battles that he continued to pursue the appeal after settling with the Department because of his "concern with observing the rules of procedural due process and the Probate and Guardianship Rules" in several matters that had nothing to do with the Jacoby guardianship. Finally, Mr. Merkle improperly directed our attention to recent nonrecord events related to the Jacoby guardianship proceedings. We expressly decline to consider these nonrecord events in determining the matter of sanctions.

Mootness and Counsel's Duty of Candor to the Court

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Cite This Page — Counsel Stack

Bluebook (online)
912 So. 2d 595, 2005 WL 433143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merkle-v-guardianship-of-jacoby-fladistctapp-2005.