Antonio M. Hernandez, Sr., Appellant,
Eusebio G. Hernandez, etc., Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Bernard
S. Shapiro, Judge. Lower Tribunal No. 14-4149
Bourne Burkhalter, PA, and Laura Bourne Burkhalter, for
& Diamond, PLLC, and James R. Sloto and Seth S. Diamond,
ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
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.
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.
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.
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.
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.
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. Leonor also unsuccessfully petitioned for
relief in the United States Bankruptcy Court on August 24,
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
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.
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 ...