Thomas-McDonald Law Firm, P.A. v. Jorge E. Silva, Etc.

• Court: District Court of Appeal of Florida
• Decided: October 16, 2024
• Docket: 3D2024-1130
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 16, 2024. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D24-1130 Lower Tribunal No. 23-202-GD-02 ________________

Thomas-McDonald Law Firm, P.A., Petitioner,

vs.

Jorge E. Silva, etc., Respondent.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.

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

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

Before LOGUE, C.J., and FERNANDEZ and LOBREE, JJ.

LOGUE, C.J.

In this case, the past attorney for a Ward seeks certiorari review of a

blanket protective order prohibiting testimony by the Ward. This case stems from a guardianship in which Jorge E. Silva (the “Son”) was appointed a

limited guardian of his 87-year-old father, Dr. Orlando G. Silva (the “Ward”)

against the Ward’s wishes. The Petitioner is the Thomas-McDonald Law

Firm, P.A. which represented the Ward in that contested proceeding. The

Law Firm has pending motions for costs and fees against the Ward’s estate

which are fiercely opposed by the Son in his capacity as guardian.

The Son obtained a blanket protective order from the trial court which

“due to the Ward’s advanced age, medical conditions, physical limitations,

his mental incapacity and his status as a vulnerable adult” prevents and

prohibits “him from being called as a witness for any deposition, hearing, trial

or other legal proceeding.” The order, however, provides that “nothing in this

Order shall prohibit this Court from hearing from the Ward for any reason this

Court may deem necessary for the Ward’s wellbeing.” There are, by the way,

several legal matters pending in which the Ward is involved. The Law Firm

raises various legal challenges to this protective order. Because this petition

was filed in the name of the Law Firm, we agree it has no standing to speak

for the Ward, but it does have standing to assert its interest in having

evidence available to support its claims for fees.

“Properly stated in its modern form, which puts the jurisdictional

element first, a party seeking a writ of certiorari must establish ‘(1) a material

2 injury in the proceedings that cannot be corrected on appeal (sometimes

referred to as irreparable harm); and (2) a departure from the essential

requirements of the law.’” Schaeffer v. Medic, 49 Fla. L. Weekly D1438, at *1

(Fla. 3d DCA July 10, 2024) (footnote omitted) (quoting Fla. Power & Light

Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 2019)). The requirement of

irreparable harm is jurisdictional. “Unless the petitioner establishes

irreparable harm, the court must dismiss the petition for lack of jurisdiction.”

Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014);

Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014) (“The

establishment of irreparable harm is a condition precedent to invoking

certiorari jurisdiction.”).

While the Law Firm generally suggests the Ward is a necessary

witness to support its motion for fees, it has not proffered the facts that it

intends to establish by the testimony of the 87-year-old Ward, much less

established the Ward is a necessary source for those facts, which may be

an issue given the Ward’s apparent medical and mental frailty. Indeed, the

Law Firm has not formally attempted to obtain the Ward’s testimony and

been denied. Moreover, we recently dismissed as untimely the Ward’s

appeal of the finding of incapacity, affirmed the appointment of the Son as

limited guardian, but reversed and remanded the provisions setting forth the

3 rights removed from the Ward. Silva v. Silva, 49 Fla. L. Weekly D1280, at *2-

4 (Fla. 3d DCA June 12, 2024). The issue of the powers reserved to the Ward

are therefore in flux, at least in the records of this Court. In these

circumstances we find that the Law Firm has failed to establish irreparable

harm and dismiss the petition.

Dismissed.