THOMAS J. FOSTER, SR. v. CHRISTA RADULOVICH, THE EMERGENCY TEMPORARY GUARDIAN

• Court: District Court of Appeal of Florida
• Decided: September 29, 2021
• Docket: 20-2988
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

THOMAS J. FOSTER, SR., an alleged incapacitated person,

Petitioner,

v.

CHRISTA RADULOVICH, the emergency temporary guardian; SUSAN FOSTER MELENDY; THOMAS J. FOSTER, JR.; and SHARON ROPER,

Respondents.

No. 2D20-2988

September 29, 2021

Petition for Writ of Mandamus to the Circuit Court for Pinellas County; Sherwood Coleman, Judge.

J. Ronald Denman, Latasha Lordes, and Victoria McLaughlin of Bleakley Bavol Denman & Grace, Tampa, for Petitioner.

Brandon D. Bellew, Caitlein J. Jammo, Caitlin M. Powell of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Respondent, Thomas J. Foster, Jr. Edward C. Castagna, Jr., of Castagna Law Firm, P.A., Clearwater, for Respondent, Susan Foster Melendy.

Thomas G. Tripp of Law Offices of Thomas G. Tripp, Pinellas Park, for Respondent, Christa Radulovich.

No appearance for Respondent, Sharon Roper.

ATKINSON, Judge.

Thomas J. Foster, Sr., petitions this court for a writ of

mandamus to quash the trial court's order denying his motion to

substitute attorney J. Ronald Denman as his counsel for the

underlying guardianship proceeding.1 We treat Mr. Foster's petition

as a petition for writ of certiorari and grant the writ.

The Department of Children and Families (DCF) filed a petition

for appointment of a plenary guardian over the person and property

of Mr. Foster, an alleged incapacitated person. The trial court

appointed counsel for Mr. Foster for the guardianship proceedings

pursuant to section 744.331(2)b, Florida Statutes (2020).

Appointed counsel attended the hearing on DCF's petition, but Mr.

1 Respondent Susan Foster Melendy filed a response in support of Mr. Foster's petition, and Respondents Thomas J. Foster, Jr. and Christa Radulovich filed responses in opposition to the petition. Foster, Jr., and Radulovich will be referred to collectively as Respondents throughout this opinion. 2 Foster was not present. The parties—including appointed counsel

on behalf of Mr. Foster—stipulated to the appointment of Christa

Radulovich (Temporary Guardian) as emergency temporary

guardian over Mr. Foster's property. The emergency temporary

guardianship letters delegated Mr. Foster's right to contract to the

Temporary Guardian and were set to expire on September 20, 2020.

Thereafter, Attorney Denman filed a motion seeking

appointment as Mr. Foster's counsel for the guardianship

proceedings. DCF and Respondents opposed the motion, arguing

that Mr. Foster could not hire Attorney Denman because the trial

court had removed his right to contract through the emergency

temporary guardianship. At a hearing on the motion, Mr. Foster

explained to the trial court that he had met with Attorney Denman

to discuss the guardianship proceedings and wanted Attorney

Denman to serve as his attorney. The trial court denied the motion

for appointment as counsel.

After the hearing but before the trial court denied the motion

for appointment, Mr. Foster filed a motion to substitute Attorney

Denman as his counsel for the guardianship proceedings. The trial

court did not immediately rule on the motion. On September 21,

3 2020, the day after the emergency temporary guardianship letters

expired, Attorney Denman filed a notice of appearance as Mr.

Foster's attorney. The trial court then entered amended emergency

temporary guardianship letters nunc pro tunc to September 20,

2020, denied the motion to substitute Attorney Denman as counsel,

and struck his notice of appearance as a nullity. Attorney Denman,

on behalf of Mr. Foster, challenges the order denying the motion to

substitute counsel and striking his notice of appearance.

"To obtain a writ of certiorari, the 'petitioner must establish (1)

a departure from the essential requirements of the law, (2) resulting

in material injury for the remainder of the trial (3) that cannot be

corrected on postjudgment appeal.' " Brundage v. Evans, 295 So.

3d 300, 303 (Fla. 2d DCA 2020) (quoting Parkway Bank v. Fort

Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA

1995)). We have jurisdiction because an erroneous denial of a

motion for substitution of counsel causes the kind of irreparable

harm for which certiorari lies because the litigant is deprived of his

or her choice of counsel for the entire proceeding and this

deprivation cannot be remedied on appeal. See Nader v. Fla. Dep't

of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012)

4 (explaining that a court must first examine the second and third

prongs of the test for certiorari, often referred to as "irreparable

harm," to determine whether it has jurisdiction to hear the petition);

cf. Holmes v. Burchett, 766 So. 2d 387, 388–89 (Fla. 2d DCA 2000)

(granting an alleged incapacitated person's petition for writ of

certiorari to quash a trial court's denial of her motion for

substitution of counsel).

After an interested person initiates guardianship proceedings

by filing a petition to determine incapacity pursuant to sections

744.3201 and 744.331(1), the trial court is required to appoint an

attorney for the alleged incapacitated person. § 744.331(2)b.

Section 744.331(2)b provides that "[t]he alleged incapacitated

person may substitute her or his own attorney for the attorney

appointed by the court." An alleged incapacitated person is

permitted to substitute counsel until the trial court determines

incapacity by clear and convincing evidence. See id.; cf. Holmes,

766 So. 2d at 388–89 (holding that an alleged incapacitated person

subject to an emergency temporary guardianship is presumed

competent to contract and has a right to substitute counsel during

guardianship proceedings until incapacity is established); In re

5 Guardianship of Bockmuller, 602 So. 2d 608, 609 (Fla. 2d DCA

1992) (holding that counsel for an incapacitated person must be

contracted for by a guardian or appointed by the court);

§ 744.1012(3) ("[I]t is the purpose of this act to promote the public

welfare by establishing a system that permits incapacitated persons

to participate as fully as possible in all decisions affecting them

. . . .").

After a petition to determine incapacity has been filed, but

before a guardian has been appointed, the trial court may appoint

an emergency temporary guardian for the person, property, or both,

of an alleged incapacitated person. § 744.3031(1). While the trial

court must make specific findings that there is an imminent danger

to the health of the "alleged incapacitated person" or that the

person's property is in danger of being wasted, the trial court is not

required to determine that the person is incapacitated to appoint an

emergency temporary guardianship. § 744.3031(1). Rights that are

not specifically enumerated by the trial court in emergency

temporary guardianship letters are retained by the alleged

incapacitated person because the "powers and duties of the

6 emergency temporary guardian must be specifically enumerated by

court order." See § 744.3031(1).

Respondents acknowledge that section 744.331(2)b permits

Mr. Foster to substitute counsel to represent him in proceedings to

determine his incapacity. However, they argue that Mr. Foster

cannot personally exercise his statutory right to substitute counsel

because the trial court removed his right to contract and delegated

it to the temporary guardian through the emergency temporary

guardianship. They argue that permitting an alleged incapacitated

person whose right to contract has been removed pursuant to an

emergency temporary guardianship to contract with an attorney

would undermine the purpose of an emergency temporary

guardianship—to protect the alleged incapacitated person and his

or her property. See § 744.3031(1). Respondents conclude that if

Mr. Foster wanted to substitute his court-appointed counsel, he

should have expressed his wishes to his temporary guardian who

would make the ultimate decision regarding whether to retain

Attorney Denman, subject to the trial court's review for breach of

fiduciary duty. See Jacobsen v. Busko, 262 So. 3d 238, 239 (Fla. 3d

DCA 2018) ("Only the ward's plenary guardian . . . has the capacity

7 to enter into a contract with an attorney on behalf of the ward [after

the removal of the ward's right to contract following a determination

of incapacity]." (citing In re Guardianship of Bockmuller, 602 So. 2d

at 609)).

Section 744.3031(1) gives the trial court the general authority

to delegate certain rights of the alleged incapacitated person to a

guardian who has the power to exercise those rights on the alleged

incapacitated person's behalf. The statute confers "authority" on

the temporary guardian but makes no express mention of the

removal of a temporary ward's rights. See § 744.3031. Delegation

of specifically delineated authority has the consequence of removing

corresponding rights from the alleged incapacitated person subject

to an emergency temporary guardianship to protect the person or

property of the individual from danger that may result from the

person's alleged incapacity if immediate action is not taken. See

§ 744.3031(1). Among those rights removed from the alleged

incapacitated person might be the right to enter into contracts.

However, section 744.331(2)b specifically provides that an

alleged incapacitated person has the right to substitute appointed

counsel with counsel of his or her choice during proceedings to

8 determine incapacity; this right, by logic and practicality, must

entail the right to enter into an agreement with the attorney of his

choosing.2 Thus, while section 744.3031(1) is broad enough to

allow removal of the right to contract generally, section 744.331(2)b

effectively prohibits the trial court from removing the alleged

incapacitated person's right to contract with an attorney. In other

words, because the statute confers on the alleged incapacitated

person the right to contract with and substitute counsel, this

constitutes an exception from the general authority of the trial court

to remove the alleged incapacitated person's rights by conferring

authority on an emergency temporary guardian. See Fla. Virtual

Sch. v. K12, Inc., 148 So. 3d 97, 102 (Fla. 2014) ("When reconciling

statutes that may appear to conflict, the rules of statutory

construction provide that a specific statute will control over a

general statute . . . .").

2While an attorney-client relationship might be capable of formation absent an explicit and express agreement, such an arrangement typically occurs as a consequence of the attorney's representations made or services rendered to the client. Here, the issue is whether the client may be permitted to act on his own behalf to procure counsel—an endeavor that we presume for purposes of this opinion to most likely entail a contract, in some form or another, entered into with chosen counsel. 9 Respondents' reliance on Jacobsen and In re Guardianship of

Bockmuller is misplaced. The wards in these cases were

incapacitated persons subject to plenary guardianships. Jacobsen,

262 So. 3d at 239; In re Guardianship of Bockmuller, 602 So. 2d at

609. The right to substitute counsel in section 744.331(2)b only

applies to alleged incapacitated persons, not to individuals whose

incapacity has been determined by clear and convincing evidence.

Unlike the wards in Jacobsen and In re Guardianship of Bockmuller,

Mr. Foster was an alleged incapacitated person and, as such, had a

statutory right to substitute counsel pursuant to section

744.331(2)b which the trial court is not authorized to remove

pursuant to section 744.3031(1).

Respondents also suggest that Holmes, 766 So. 2d 387, one of

the cases relied on by Mr. Foster, undermines Mr. Foster's position

because the trial court had not removed the alleged incapacitated

person's right to contract in that case. See id. at 388, 388 n.2. In

Holmes, this court concluded that the trial court departed from the

essential requirements of the law by prohibiting the alleged

incapacitated person from substituting appointed counsel for the

counsel of her choice because the trial court had not removed her

10 right to contract and, thus, she was presumed competent to

contract. Id. at 388. However, our conclusion in this case is not

undermined by our earlier decision in Holmes because we did not

consider in that case whether the general authority given to the trial

court pursuant to section 744.3031(1) allows the trial court to

prevent an alleged incapacitated person from exercising his or her

explicit right to contract with and substitute counsel pursuant to

section 744.331(2)b. A person subject to an emergency temporary

guardianship remains an alleged incapacitated person until such

time as he is adjudicated incapacitated and is free to exercise all

rights not otherwise delegated to a guardian pursuant to an

emergency temporary guardianship, including the right to

substitute counsel. See §§ 744.3031(1), .331(2)(b).3

3 After this case was perfected, Mr. Foster's court-appointed attorney for the guardianship proceedings below filed documents with this court indicating that the trial court determined Mr. Foster to be incapacitated. However, this postperfection determination of incapacity does not prevent this court from concluding that the trial court departed from the essential requirements of the law by denying Mr. Foster's motion to substitute counsel to represent him during proceedings to determine incapacity at a time when his incapacity was merely alleged. 11 As an alleged incapacitated person, Mr. Foster had a right to

substitute his court-appointed attorney with the attorney of his

choice until the trial court determined his incapacity. See

§ 744.331(2)b. By denying his motion to substitute counsel, the

trial court departed from the essential requirements of the law. We

consider Mr. Foster's petition as one for a writ of certiorari, grant

the writ, and quash the trial court's order denying his motion to

substitute counsel.

Petition for writ of certiorari granted; order quashed.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.