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Hernandez v. Hernandez

Florida Court of Appeals, Third District

September 6, 2017

Antonio M. Hernandez, Sr., Appellant,
v.
Eusebio G. Hernandez, etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Bernard S. Shapiro, Judge. Lower Tribunal No. 14-4149

          Laura Bourne Burkhalter, PA, and Laura Bourne Burkhalter, for appellant.

          Sloto & Diamond, PLLC, and James R. Sloto and Seth S. Diamond, for appellee.

          Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.

          ROTHENBERG, C.J.

         In this guardianship case, Antonio Hernandez, Sr. ("Antonio") appeals the probate court's order finding that Antonio lacks standing to object to several court orders authorizing payment of attorney's fees from his mother, Elena Hernandez's ("the Ward") assets. We have reviewed the probate court's determination of standing de novo, see Bivins v. Rogers, 147 So.3d 549 (Fla. 4th DCA 2014), and affirm.

         BACKGROUND

         The Ward is a widow with three adult children: the appellant, Antonio; the appellee, Eusebio G. Hernandez ("Eusebio"); and Elena Hernandez-Kucey ("Elena"). On October 17, 2014, Eusebio filed a petition for the appointment of a plenary guardian for his eighty-five-year-old mother. Thereafter, the probate court found that the Ward was totally incapacitated, and on December 16, 2014, the court appointed Eusebio as plenary guardian over the Ward and her property. The probate court's order delegated all of the Ward's delegable rights to Eusebio, including the right to sue and defend suits and the right to contract.

         Thereafter, Eusebio filed petitions to engage litigation counsel to file (1) an ejectment action against Antonio; Antonio's wife, Leonor Robles Hernandez ("Leonor"); and their son, Antonio M. Hernandez, Jr. ("Antonio, Jr."); and (2) a lawsuit against Antonio, Leonor, and Antonio, Jr. for damages related to their alleged conspiracy to deprive the Ward of over $222, 000, undue influence, and abuse and neglect of a vulnerable adult. These petitions were granted, as was Eusebio's subsequent petition for authorization to file an adversary petition for damages and equitable relief based on the above grounds, which he claimed resulted in the dissipation of significant assets belonging to the Ward.

         The adversary petition alleges that the Ward suffered a serious fall in November 2013 and subsequently suffered multiple urinary tract infections that further impaired her balance and cognition to the point where the Ward became completely incapable of taking care of herself. Although Eusebio and Elena wanted to place the Ward in an assisted living facility, where the Ward could receive round-the-clock care, Antonio objected and insisted that the Ward remain in her home with a caretaker hired by Antonio. The petition further alleges that the caretaker Antonio hired was unqualified and an alcoholic, and as a result of the caretaker's deficient care, the Ward was hospitalized six times between November 2013 and November 2014 from severe urinary tract infections, became wheelchair bound, and ultimately required total care. Eusebio claims in the petition that he found his mother several times sitting in a recliner in her home, covered in her own urine and feces. Upon being named guardian, Eusebio, with his sister Elena's consent, promptly moved the Ward into the Palace Renaissance ("the Palace"), an assisted living facility where the Ward has steadily improved both mentally and physically. The Ward is now able to ambulate with the aid of a walker and has not required any further hospitalizations.

         The adversary petition alleges that Antonio intentionally withheld proper medical care from the Ward in an effort to expedite her death and preserve the Ward's assets in order to ensure a larger inheritance by Antonio and Antonio's family. The petition alleges that Antonio, Leonor, and Antonio, Jr. conspired and acted in concert to allow the Ward's physical, medical, and psychological condition to deteriorate, not only to expedite the Ward's death, but also to enable them to exert undue influence over her and obtain dominion and control over her assets.

         This conspiracy was allegedly mounted and executed due to Antonio and his family's financial difficulties. After enjoying a lifestyle of wealth, comfort, and luxury, Antonio and his family's various businesses and real estate investments began to fail in 2008. Beginning in 2009, eight separate foreclosure proceedings were initiated by various banks, resulting in numerous final judgments of foreclosure and deficiency judgments.[1] Leonor also unsuccessfully petitioned for relief in the United States Bankruptcy Court on August 24, 2011.

         The adversary petition alleges that based upon Antonio's financial difficulties, Antonio, Leonor, and Antonio, Jr. conspired together and used undue influence over the deteriorating, weakened, and dependent Ward, in order to convert the Ward's assets, which the Ward needed for her own care, to Antonio and his family's own use. Specifically, it is alleged that they were able to transfer $240, 000.00 of the Ward's assets into a bank account jointly held by the Ward and Antonio, Jr., and then use $222, 322.09 of the transferred funds to complete a cash purchase of real property located at 9128 S.W. 227 Lane, Miami, Florida, which was purchased in Leonor's name. Leonor and Antonio have lived at 9128 S.W. 227 Lane since the acquisition.

         In addition to filing the adversary petition, Eusebio petitioned the probate court for authorization to sell the Ward's homestead property to help pay for the Ward's healthcare, debts, and expenses. Although the Ward's health and mobility were improving since Eusebio had removed her to the Palace, Antonio, Leonor, and Antonio, Jr. objected to the Ward's residency and care at the Palace and the sale of the Ward's homestead to pay for her continued care at the Palace, and insisted that she be returned to her home. The appointment of counsel was necessitated by Antonio, Leonor, and Antonio, Jr.'s objection to the appointment of a guardian, the transfer of the Ward to the Palace, and the sale of the Ward's homestead to pay for her care. Counsel was also necessary to pursue the lawsuit filed by Eusebio against Antonio, Leonor, and Antonio, Jr. for civil conspiracy, conversion, undue influence, an equitable lien, a constructive trust, abuse and neglect of a vulnerable adult, and exploitation of a vulnerable adult.

         As required by the probate court, Eusebio periodically petitioned the court for orders approving and granting reasonable fees for the services performed by the law firms for the benefit of the Ward. These petitions, which were filed by Eusebio with Elena's consent, were considered and ruled on by the probate court with no notice to Antonio. Antonio objected to these awards of attorney's fees and costs, and specifically those fees and costs incurred relevant to the adversary proceedings brought against him and his family, which Antonio argued were not for the benefit of the Ward and were excessive and ...


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