Orlando G. Silva v. Jorge E. Silva

• Court: District Court of Appeal of Florida
• Decided: June 12, 2024
• Docket: 2023-0811
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 12, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0811 Lower Tribunal No. 22-6148 ________________

Orlando G. Silva, Appellant,

vs.

Jorge E. Silva, Appellee.

An appeal from non-final orders from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

Thomas-McDonald Law Firm, P.A., and Aislynn Thomas-McDonald, for appellant.

Silva & Silva, P.A., and Paul Jon Layne, for appellee.

Before LOGUE, C.J., and EMAS, and MILLER, JJ.

MILLER, J. In this contentious intrafamily dispute, appellant, Dr. Orlando G. Silva,

challenges orders determining limited incapacity and appointing his son,

Jorge E. Silva, a Florida-barred attorney, to serve as his guardian. We

commend the trial judge on her prudent handling of this difficult case and

impute no error to the orders under review, save the breadth of the rights

removed.

BACKGROUND

After his wife tragically died, Dr. Silva raised his children, two of whom

now share a successful law firm, while maintaining an oncology practice. In

late 2016, he executed a Declaration of Preneed Guardian, with the

assistance of counsel, naming his son, Jorge, as his plenary guardian. The

Declaration provided, in relevant part:

If I am at any time determined to be an incapacitated person, as that term is defined in the Florida Guardianship Law as it now exists or may hereafter be amended, I declare that my son, Jorge Silva . . . is to serve as Plenary Guardian of my Person and Property, to exercise all delegable legal rights and powers and to perform all tasks necessary to care for me and my property or estate. I further declare that it is my intent and desire that the above-named person[] be appointed by the Court having jurisdiction to serve without bond.

Dr. Silva stopped practicing medicine due to an underlying health

condition, but he assisted his sons regularly in their law office.

2 Dr. Silva’s children soon learned that he was experiencing financial

distress, including a foreclosure and an automobile repossession. Because

he had enjoyed a lucrative career and collected substantial sums from a

settlement and certain real estate transactions, Dr. Silva’s sons suspected

his long-term intimate partner was draining his bank accounts and otherwise

dissipating his resources.

Although his children offered to assist him, Dr. Silva took up residence

with his sister and began sleeping on a couch in her efficiency apartment.

He failed to attend to his personal hygiene and healthcare needs,

exacerbating a chronic serious health condition, and he amassed a series of

unpaid traffic citations, culminating in a license suspension.

In October of 2022, Dr. Silva’s sons, Jorge and Carlos, petitioned the

court for the issuance of emergency temporary guardianship letters.

Appended to the petition were medical records detailing Dr. Silva’s

deteriorating health, along with a medical letter signed by his primary care

physician of nearly forty years, Dr. Julio Pita, opining that Dr. Silva could no

longer care for himself.

On November 3, 2022, the court issued letters of emergency

temporary guardianship and appointed Jorge to serve as the emergency

temporary guardian. The court also appointed a three-member examining

3 committee and set a hearing for a capacity determination for mid-December.

See § 744.331(3), Fla. Stat. (2023).

Two of the three committee members examined Dr. Silva and

concluded a limited guardianship was appropriate due to evident

neurological impairment and limited functional capacity. Dr. Silva refused,

however, at that time, to submit to an evaluation by the third committee

member, Dr. Ralph Richardson, a forensic psychologist.

At the request of the parties, the December hearing was continued until

mid-January. In the interim, Dr. Richardson examined Dr. Silva. Dr.

Richardson agreed a limited guardianship was proper, but his opinion

regarding the proper scope of the rights to be removed was considerably

narrower than that of the first two examiners.

On January 12, 2023, the trial court convened the capacity

determination hearing. At that time, Dr. Silva’s attorney stipulated on the

record to a limited capacity determination but requested an evidentiary

hearing as to the selection of permanent guardian and the extent of the rights

to be removed.

The court entered an order finding by clear and convincing evidence

that Dr. Silva was partially incapacitated. As a result, the court ordered that

the temporary emergency guardianship letters should remain in full force and

4 effect and a limited guardian was warranted. The court set a further hearing

to address less restrictive rights removal alternatives and the selection of the

guardian.

The parties proceeded to a two-day evidentiary hearing. During the

hearing, Dr. Silva produced a newly executed Declaration of Preneed

Guardian, dated February 8, 2023, revoking his prior designation of Jorge

and naming Elena George, a professional guardian, as guardian. He then

attested he destroyed his original declaration. After several witnesses

provided impeachment testimony, Dr. Silva admitted he did not destroy the

original declaration.

Notwithstanding a timely hearsay objection, the reports of the first two

examining committee members were admitted into evidence without expert

testimony or any proffered hearsay exception. At the conclusion of the

hearing, the trial court entered two orders. The first reiterated the limited

capacity finding and removed a myriad of rights. The second order named

Jorge as limited guardian. This appeal ensued.

ANALYSIS

Resolution of this appeal requires an examination of several discrete

sources of law. The first is Florida Rule of Appellate Procedure 9.170(b)(8),

which states that an order determining incapacity in a guardianship case is

5 final for purposes of appeal. The second is section 744.3045(4), Florida

Statutes (2023), Florida’s preneed guardian statute, which provides a

rebuttable presumption in favor of the selection of a designated preneed

guardian. The third is Florida Probate Rule 5.170, which renders the Florida

Rules of Evidence generally applicable in guardianship proceedings. We

examine each, in turn.

I. The Limited Capacity Determination

The first issue on appeal concerns the limited capacity determination.

Bearing the title “Appeal Proceedings in Probate and Guardianship Cases,”

Florida Rule of Appellate Procedure 9.170 provides a list of final appealable

orders in probate and guardianship proceedings. Among those enumerated

are “[o]rders that finally determine a right or obligation,” including 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).

Here, the trial court found limited capacity and rendered a written order

to this effect as far back as mid-January. Dr. Silva did not appeal that ruling.

It is well-settled that “repeating the same ruling in [a] later order . . . cannot

revive an appeal period.” Campos v. Campos, 230 So. 3d 553, 555 (Fla. 1st

DCA 2017). Consequently, we lack jurisdiction to revisit the propriety of the

capacity determination and dismiss that portion of the appeal.

6 II. The Guardian Appointment

We must next examine the choice of guardian. It is axiomatic that the

trial court enjoys broad discretion in selecting a guardian. See Waldon v.

Waldon, 305 So. 3d 634, 637 (Fla. 3d DCA 2020). In cases involving the

designation of a preneed guardian, however, this discretion is tethered to an

established standard. See Miller v. Goodell, 958 So. 2d 952, 954 (Fla. 4th

DCA 2007). “Where a ward’s preference as to the appointment of a guardian

is capable of being known, that intent is the polestar to guide probate judges

in the appointment of their guardians.” Est. of Salley v. Comprehensive Pers.

Care Servs., Inc., 742 So. 2d 268, 271 (Fla. 3d DCA 1997).

This principle is codified in section 744.3045, Florida Statutes, the

preneed guardian statute. The statute allows a competent adult to name a

preneed guardian by executing a written declaration. See § 744.3045(1),

Fla. Stat. Once the declaration is executed, the statute creates a rebuttable

presumption that the named guardian is entitled to serve in that capacity.

See § 744.3045(4), Fla. Stat. But “[t]he court shall not be bound to appoint

the preneed guardian if the preneed guardian is found to be unqualified to

serve as guardian.” Id.; see also Acuna v. Dresner, 41 So. 3d 997, 999 (Fla.

3d DCA 2010); Est. of Salley, 742 So. 2d at 271 (“A ward's nominee, of

course, may be rejected when unfit or unsuitable, or for other like reasons.”);

7 Davis v. King, 686 So. 2d 763, 765 (Fla. 5th DCA 1997) (holding designated

preneed guardian unqualified to serve where conflict of interest exists).

Interestingly, the statute is self-executing. Upon a finding of incapacity,

“[t]he preneed guardian shall assume the duties of guardian immediately.”

§ 744.3045(5), Fla. Stat.

Here, Dr. Silva executed a declaration naming Jorge as his preneed

guardian. Although he produced a second declaration at trial, that document

post-dated the trial court’s limited capacity determination. Thus, by the time

Dr. Silva signed the document, he was no longer “[a] competent adult.”

§ 744.3045(1), Fla. Stat. This rendered the second declaration, at best, a

“post need” designation and therefore outside the ambit of the preneed

guardian statute.

Further, guardianship proceedings are, by their very nature, intrusive

and, as in this case, oftentimes initiated against the wishes of the ward.

While there was testimony in favor of appointing a professional guardian,

competing testimony demonstrated that Jorge was uniquely suited to serve

his father’s best interests. In determining whether a ruling is supported, we

assess the record evidence for sufficiency, only, not weight. The trial court

must be trusted to exercise sound judgment in resolving credibility issues.

See Porter v. State, 788 So. 2d 917, 923 (Fla. 2001) (observing “the trial

8 court’s superior vantage point in assessing the credibility of witnesses and in

making findings of fact”); see also Meyers v. Meyers, 295 So. 3d 1207, 1213

(Fla. 2d DCA 2020) (“The credibility of witnesses is within the trial court’s

exclusive purview.”). The competing testimony compels us to affirm the

appointment of guardian.

III. The Breadth of the Removed Rights

Lastly, Dr. Silva argues that the trial court erroneously relied upon the

hearsay reports of the examining committee in determining the breadth of

rights warranting removal.1 Adopting the reasoning embraced by our sister

court in Shen v. Parkes, 100 So. 3d 1189 (Fla. 4th DCA 2012), we agree.

In Shen, the Fourth District Court of Appeal was tasked with

determining whether the trial court erred in accepting and approving a

general magistrate’s recommendation that limited capacity was established.

See id. at 1189. Shen had contested the adjudicatory hearing and objected

to the hearsay nature of the examining committee members’ reports. See

id. at 1190. The court overruled the objection and admitted the reports. See

id. None of the examiners testified. See id.

1 Florida Rule of Appellate Procedure 9.170(b)(8) allows for the review of a determination removing “rights of an alleged incapacitated person or ward.”

9 Recognizing the deferential standard afforded to the trial court, the

appellate court nonetheless reversed. See id. at 1191–92. In doing so, the

court noted that, unless otherwise specified under the Florida Probate Code,

Florida Probate Rule 5.170 renders the Florida Rules of Evidence applicable

in guardianship proceedings. See id. Because the examiners did not testify

and no evidentiary exception was proffered, admission of the reports violated

the prohibition against hearsay. See id.

The reasoning in Shen is consistent with other reported decisions from

around the state. See Scaringe v. Herrick, 711 So. 2d 204, 204–05 (Fla. 2d

DCA 1998) (“The act of filing [a] report [with the court] does not place the

report in evidence. Hearsay rules contained in the Florida Evidence Code

apply . . . .”); G.T. v. Dep’t of Child. & Fam. Servs., 935 So. 2d 1245, 1252

(Fla. 1st DCA 2006) (finding trial court erroneously admitted report into

evidence and relied on it when report was inadmissible hearsay subject to

Florida Rules of Evidence). The facts in this case are on all fours with this

line of authority. Because the reports violated the prohibition against

hearsay, they could not be used to demonstrate that Dr. Silva “lacked the

capacity to perform the functions referred to in the order” removing rights.

LeWinter v. Guardianship of LeWinter, 606 So. 2d 387, 388 (Fla. 3d DCA

10 1992). Thus, we are constrained to reverse that aspect of the order under

review.

Dismissed in part, affirmed in part, reversed in part, and remanded.