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Sarfaty v. In re M.S.

Florida Court of Appeals, Third District

November 1, 2017

Gilberto Sarfaty, Appellant,
In Re: M.S., Appellee.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 15-6691, Celeste Hardee Muir, Judge.

          Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Dunwody White & Landon, P.A., and Jeremy P. Leathe; Markowitz, Ringel, Trusty & Hartog, P.A., and Joshua Rosenberg and Candis Trusty, for appellant.

          Akerman LLP, and Gerald B. Cope, Jr., Richard C. Milstein and Dale Noll, for appellee.

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


          SALTER, J.

          We grant in part the appellee's motion for rehearing or clarification, withdraw our opinion issued May 10, 2017, and substitute the following opinion in its place.

         Gilberto Sarfaty appeals the dismissal (without leave to amend) of his petition to determine incapacity of his adult brother, M.S. We reverse the order of dismissal and remand the guardianship case to the circuit court for further proceedings.

         The Petition and Psychological Assessment Report Attached to the Petition

         The verified petition alleged that 46-year-old M.S. is incapacitated and has been incapacitated his entire life. The petition attached a psychological assessment of M.S. prepared by a South Florida consulting psychologist[1] prepared six months before the petition was filed. The assessment was based on personal clinical interviews of M.S., an interview of the petitioner, and cognitive evaluation tests. The assessment included background information that M.S. was diagnosed with intellectual disability secondary to neurocognitive deficits as a child in his native Peru. M.S. attended specialized training programs in Massachusetts and New Haven, Connecticut, for the development of independent living and work skills.

         The verified petition and attached assessment report stated that M.S. lives in a condominium in Aventura and receives assistance from a Peruvian aide and her husband with activities such as shopping, participating in a support group for outings such as movies, and keeping appointments. The psychologist reported that M.S.'s executive functioning "requires ongoing functional support, " and that his sister in New York City manages M.S.'s access to money. The assessment report further stated:

Given these deficits, [M.S.] will require supervision in terms of managing his affairs, including health, finance, self-care and any business decisions. When questioned regarding his role in family business affairs, [M.S.] had no answer and indicated that he did not know. [M.S.] is unable to comprehend issues related to assets and liabilities, corporate structure and organization, division of shares, power of attorney, voting rights, etc., and other issues related to financial management. This deficit places him at risk for financial exploitation. [M.S.] lacks informed decision making capacity and is in need of assistance in the overall management of affairs and monitoring of his executive functioning capacity.
Summarily, the evaluation of [M.S.] reflects the existence of pronounced personal, psychological and cognitive/intellectual deficits that augment his degree of susceptibility to undue influence. His poor capacity to resist suggestions would adversely impact upon his accurate perception of events and circumstances and render an informed decision. His inability to navigate situations and circumstances that require abstract and/or complex reasoning ability precludes his acting in a knowing, intelligent and voluntary manner.

         The verified petition further alleged that M.S.'s cognitive deficits have left him "susceptible to exploitation and undue influence." The petitioner attached powers of attorney executed by M.S. in favor of any one of four family members (the petitioner, M.S.'s brother, Gilberto Sarfaty; M.S.'s mother, a resident of Paris, France, Jeannette Sarfaty; and M.S.'s two sisters: Susie Sarfaty, a resident of New York City, and Lisette Sarfaty, a resident of Lima, Peru). The verified petition alleged that these powers of attorney had been utilized by M.S.'s sisters and mother to transfer M.S.'s shares in a family-controlled business from voting to non-voting status, in breach of their fiduciary duty to M.S. Corporate documents evidencing authority purportedly conferred by M.S. for corporate action were also attached to the petition. The petition complied with the statutory requirements of section 744.3201, Florida Statutes (2015).

         The verified petition sought a plenary guardianship and the appointment of a "professional guardian"-not the petitioner or other family member of M.S.-to serve as plenary guardian of the person and property of M.S. In a matter of days following the filing of the verified petition and those attachments, the mental health division of the probate division of the Miami-Dade circuit court issued a standard order (signed by the circuit judge) appointing three credentialed and independent mental health professionals to serve as the examining committee for M.S. as the "allegedly incapacitated person" or "AIP." In that order, the court also appointed an independent attorney to serve as counsel for M.S. and "to represent the AIP in all proceedings involving the verified petition."[2] The order further specified that the court-appointed attorney "may not hereafter serve as guardian, nor as the guardian's counsel."

         Private Counsel for M.S.

         The attorneys for the petitioner/brother of M.S., Gilberto Sarfaty, and M.S. himself, promptly notified M.S.'s mother, two sisters, and M.S.'s aides of the commencement of the guardianship and the fact that the petitioner sought an independent guardian for M.S. In less than ten days from the service of the circuit court's form order appointing the examining committee and independent, court-appointed counsel, the other family members retained counsel and appeared in the case.

         Of particular note, and as detailed in the attached time line, attorneys and their law firm purporting to be appearing on behalf of M.S.-not M.S.'s mother or sisters, but M.S., the allegedly incapacitated person himself-immediately appeared in the case and moved to be substituted for the independent, court-appointed attorney representing M.S.[3] That motion was signed by M.S. himself.

         The independent, court-appointed attorney for M.S. was concerned that, though M.S. "may substitute her or his own attorney for the attorney appointed by the court, this is not an absolute right and certain factors must be taken into consideration when allowing this substitution."[4] (Emphasis in the original). The court-appointed attorney expressed concern regarding M.S.'s capacity, based on M.S.'s life-long medical history, the verified allegations in the petition, and the pre-petition assessment report of Dr. Toomer attached to the petition. The objections noted uncertainty as to who actually hired private counsel for M.S., and suggested that the court assure that private counsel for M.S. "is a disinterested third party, with [M.S.'s] best interests in mind." The court-appointed attorney did not, however, press for an evidentiary hearing on her objections.

         The day after the objections were filed, the circuit court entered two orders. The first found that M.S. is not indigent and ordered reassignment from the Office of Criminal Conflict and Civil Regional Counsel "as soon as we have resolved the issue of who should be the successor court-appointed attorney, " and a second order granted private counsel's emergency petition to be substituted in place of the initially-appointed independent counsel.

         Stipulation for Continuance; M.S.'s Motions to Strike and to Dismiss

         The circuit court's standard order of December 10, 2015 (served by mail the following day), scheduled the adjudicatory hearing on the petition for January 13, 2016. But on January 6, 2016, counsel for all of the interested persons and for M.S. stipulated to a motion for continuance of that hearing because of scheduling conflicts and ongoing settlement negotiations. The court granted the joint motion and directed counsel to coordinate a later date for the hearing on the petition to determine incapacity.

         As of January 7, 2016, M.S. was represented by his private counsel, and the original, court-appointed attorney terminated her services on behalf of M.S. On January 13, 2016, M.S.'s private counsel filed a declaration that the petition for a determination of incapacity was adversary. Although M.S.'s court-appointed counsel had begun seeking information from the petitioner's counsel regarding access to M.S. in December, and although M.S.'s mother and M.S.'s private counsel were present during a December 29, 2015, interview with Dr. Echavarria of the Examining Committee, M.S.'s private counsel next moved to dismiss the petition for procedural reasons. The motion to dismiss, filed January 20, 2016, asserted that M.S. "has been consistently denied the due process and procedures required in these proceedings, " that the petition is "fatally flawed, " and that the relief requested is "barred by the doctrines of unclean hands and estoppel."

         The following day, M.S.'s private counsel filed a notice to require in person testimony of the three examining committee members, and a motion to strike all three examining committee member reports (each of which had recommended a limited guardianship based on M.S.'s inability to make informed decisions regarding a majority of the 13 categories assessed in the report).

         Hearing and Dismissal Without Leave to Amend

         Private counsel for M.S. amended the motion to dismiss[5] on April 26, 2016, and the motion was heard a week later. The hearing was non-evidentiary, and the thrust of the movants' objections were (a) the alleged failure of court-appointed counsel to read the petition and form notice to M.S., and (b) the fact that the examining committee members did not file their reports within the fifteen day period allowed by the form notice and section 744.331(3)(e), Florida Statutes (2016). Private counsel for M.S. also addressed the alleged merits of the petition, moving beyond the four corners of the petition and its attachments. During that hearing, as here, private counsel for M.S. argued that less restrictive alternatives to guardianship should be considered-including a guardian advocate under section 393.12, Florida Statutes (2016), [6] and a petition under section 709.2116, Florida Statutes (2016), for judicial relief regarding any alleged conflict of interest relating to the execution of powers of attorney by M.S. or family members.

         Counsel for the petitioner argued that M.S.'s private counsel had stepped into the shoes of counsel for M.S., with the ability and duty to read the petition to him, explain its consequences, and assist him with scheduling timely meetings with the examining committee members so that their reports could be timely filed.[7]The court determined, however, that the proceedings needed to begin anew and that the petitioner would not be allowed to amend the petition. The court expressed the well-intentioned hope that the family members might be reconciled and avoid the expense of further proceedings, though recognizing that the dismissal was "unusual." The present appeal followed.


         Our standard of review for an order granting the dismissal of a petition without leave to amend is de novo. We review the allegations within the four corners of the petition and its attachments, assume them to be true, and construe all reasonable inferences from those allegations in favor of the petitioner. Greene v. Times Publ'g Co., 130 So.3d 724, 728 (Fla. 3d DCA 2014); Lonestar Alt. Sol., Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 10 So.3d 1169, 1172 (Fla. 3d DCA 2009).

         The order of dismissal, and the oral ruling that amendment would not be allowed, are grounded on (1) an alleged failure of due process; (2) the allegedly untimely filing of the examining committee member reports; and (3) the objection by the initial, court-appointed counsel to the appointment of M.S.'s private counsel, alleged to have been prejudicial to M.S.[8] While these arguments may constitute defenses to the petition, they fail to establish the legal insufficiency of the petition. They are also circular arguments because of the unusual procedural developments in the case.

         Within days of independent, court-appointed counsel's receipt of the standard order appointing her, M.S. had signed a paper prepared by his proposed, private counsel asking that court-appointed counsel be discharged. This occurred because counsel for the petitioner immediately (and properly) disseminated the petition and its attachments electronically to M.S.'s family members. M.S., his mother, and his two sisters then immediately hired four separate Miami law firms to represent them.[9] As soon as private counsel was substituted for court-appointed counsel, the normal urgency in guardianship cases apparently diminished, because all counsel stipulated to the continuance of the originally-set evidentiary hearing.

         In light of this unusual record, M.S.'s reliance on strict adherence to the time and notice requirements in section 744.331(3)(e) and in the circuit court's standard notice and order mailed December 11, 2015, is not persuasive; M.S.'s own counsel and his family could have immediately asked the Court (but did not) to defer the examining committee member assessments, or to expedite them. Instead, counsel for M.S. made him available for the examining committee member examinations and sat with M.S. as each professional assessed M.S. M.S. now complains of actions not taken by the court-appointed attorney he petitioned to discharge, and then purportedly not taken by his own private counsel.

         We have identified no Florida case holding that the timing set forth in the statute cannot be waived by an AIP or the AIP's private counsel. Nor have we identified a case holding that the timing set forth in the statute is so significant to the process and parties that a petition must be dismissed, without leave to amend, if the time requirements are not strictly fulfilled.[10]

          Instead, M.S. and three family members persuaded the trial court months later that substantial compliance with the statute and rule were insufficient, citing such cases as In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993), and Borden v. Guardianship of Borden-Moore, 8181 So.2d 604 (Fla. 5th DCA 2002). Although In re Fey holds that "compliance with section 744.331 and rule 5.550 is mandatory, " 624 So.2d at 772, the non-compliance in that case involved the failure to appoint independent counsel for the AIP until "the commencement of the final hearing, " "long past the pleadings and trial preparation stage." Id. No such failure occurred in the present case, in which the court's initial order, mailed only days after the petition was filed, appointed independent counsel and the members of the examining committee. And no final hearing has begun, much less occurred, in this case.

         Similarly, in Borden, the AIP's daughter (who had petitioned for a determination that her mother was incapacitated) and the AIP's court-appointed independent attorney were not notified of a hearing on a motion by the AIP's husband. "The hearing was not recorded, no examining committee reports were considered because the examining committee had not yet completed the required examinations, and [the AIP's] court-appointed attorney did not participate because he was not notified of the hearing." 818 So.2d at 606. Nevertheless, at the conclusion of that hearing, the trial court found that the AIP was competent and dismissed the petition. Id.

         Unsurprisingly, the Fifth District in Borden reversed the order of dismissal, based on the lack of any notice to the petitioner and the AIP's counsel. In doing so, that court also found that the trial court should not have dismissed the facially sufficient petition without considering examining committee reports and conducting an adjudicatory hearing. These were the flagrant departures from the mandatory requirements of section 744.331 in Borden. What occurred in the present case-a few days of delay in the filing of the examining committee member reports during the end-of-year holiday season, following a change in counsel sought by the AIP himself-is entirely distinguishable.

         The Dissent

         Our dissenting colleague argues forcefully that the order below must be affirmed because of "fundamental error" regarding the petition and the fact that the initial, court-appointed attorney "completely ignored her duties as Elisor . . . ." Dissent, slip op. at 25. A brief and specific response is appropriate.

         No fundamental error occurred. What occurred is unique to the present case and is not a feature of any of the statutes, rules, or cases relied upon by the appellees and our colleague. That occurrence is that the court-appointed attorney and elisor, Ms. Valdes, was served by mail on December 11, 2015, with the order appointing her.[11] Over a week before the deadline for her to read the petition to M.S., Ms. Valdes had already been served with an emergency petition for her substitution by M.S.'s current counsel, and the petition was signed by M.S. himself. Surely the dissent and M.S.'s current counsel cannot be suggesting that M.S. signed the motion for substitution without reading the copy of the notice mailed to him, or another copy provided by his chosen private counsel, or having it read to him by his personal counsel. As no evidentiary hearing has been held on this point (or on any other issue in the case), the record does not establish that the notice was not read to M.S. as provided by Florida Probate Rule 5.550(b)(2).

         The attached time line demonstrates that Ms. Valdes sought information from petitioner's counsel regarding access to M.S. on December 26, 2015, which is over a week after M.S.'s personal counsel had begun advising M.S. Ms. Valdes's time records, which are in the record, refer to an email and a letter from M.S.'s personal counsel as early as December 18, 2015. Thereafter, (1) the court granted the motion for substitution of counsel, and (2) M.S.'s private counsel, not Ms. Valdes, attended the meetings with M.S. and each of the three members of the examining committee, and (3) a scheduled adjudicatory hearing was continued by agreement among counsel. Any error which occurred in moving the petition toward an adjudicatory hearing was not a fundamental error (of the kind apparent in the reported cases), but rather an invited error.

         Turning next to the examining committee reports, apparently the appellees and the dissent would allow dismissal of a petition without leave to amend if a single examining committee report was filed a single day after the 15-day period allowed in section 744.331 (3)(e). Such a draconian interpretation must be rejected after considering the express purpose of the statute and rule-providing the AIP and parties sufficient time before an adjudicatory hearing to understand and contest the reports if that is considered appropriate. No case has held that missing the 15-day period by a few days warrants dismissal of the petition without leave to amend.

         The dissent's quotations from Fey and Borden have already been addressed in this opinion-a broadly-written statement in Borden that "[c]ompliance with the requirements of section 744.331 is mandatory and the trial court's failure to adhere to those requirements constitutes reversible error, " 818 So.2d at 609, was not referring to an AIP represented by his own counsel after the AIP signed a motion and apparently authorized the filing of numerous pleadings, or to an AIP whose counsel attended his meetings with all members of the court-appointed examining committee (as occurred in the present case).

          Rather, Borden involved a petitioner who was given "no notice, reasonable or otherwise, that dismissal of the incapacity proceedings would be considered by the court" at a hearing, when: dismissal had not even been sought by an adverse party; an attorney appeared on behalf of the AIP without obtaining an order of substitution for the court-appointed attorney; no court reporter recorded the proceedings; and the court dismissed the petition having never obtained the examining committee's report. Id. at 607-609. Those are the departures from the statute and rules referred to by the Fifth District in Borden, not the fact that the examining committee reports were a few days late, or that successor counsel for the AIP criticized the court-appointed counsel's failure to read the initial notice to the AIP (following the delivery to the AIP of copies of both the petition and the notice).

         Another case cited by the dissent for the principle that proceedings to determine competency must strictly comply with the statute, Rothman v. Rothman, 93 So.3d 1052, 1054 (Fla. 4th DCA 2012), ordered dismissal of a guardianship petition because two of three examining committee members concluded that the AIP was not incapacitated. The trial court had granted the petition, despite the fact that the statute requires dismissal of the petition if a majority of the examining committee members conclude that the alleged AIP is not incapacitated. This is in sharp contrast to the present case, in which all three of the independent examining committee members concluded that M.S. could not make informed decisions in a majority of categories assessed, such that a limited guardianship is appropriate. And these three reports followed a similar evaluation by Dr. Toomer, discussed earlier and detailed in a written report attached to the verified petition.

         Similarly, the dissent's citation to Adelman v. Elfenbein, 174 So.3d 516, 518 (Fla. 4th DCA 2012), for propositions that the guardianship statutes must be strictly construed and that failure to adhere to the requirements of section 744.331 constitutes fundamental error, must also be considered against the record in that case. Adelman involved two separate petitions by a grand-niece for the appointment of a plenary guardian for the petitioner's great uncle. In the first, the trial court dismissed the petition after determining that the AIP's advance directive documents "provided a less restrictive alternative to guardianship." The petitioner/grand-niece did not appeal those final orders.

         "Several months later, the grand-niece filed a 'petition to reopen' the guardianship, " and the trial court conducted a trial and appointed a professional plenary guardian for the AIP. Id. at 517. The Fourth District found that the trial court lacked jurisdiction to enter the order because the petition to reopen the case "is not premised on any rule or statute, and Appellee cites no statutory authority to reopen an incapacity proceeding where no guardianship was ordered." Id. at 518. No such lack of jurisdiction and complete absence of statutory authority is evident in the record in the present case. The dissent's reliance on Adelman is misplaced.

         Finally, the dissent cites a case involving defects in personal service and due process. The issue of the sufficiency of service in the present case is readily resolved through an evidentiary hearing, if truly in doubt, rather than summary dismissal without leave to amend. There is abundant evidence that the petition was delivered to M.S. His counsel has not denied, in promptly appearing with the consent of M.S. to defend his interests, that counsel discussed the verified allegations in the petition with him. This is a far cry, in short, from a plaintiff's attempt to accomplish service by mailing the summons and complaint to a corporate employee "at the private mailbox registered to the corporation" (versus the registered homestead address in Florida of the corporate principals), in the case cited by the dissent. McDaniel v. FirstBank Puerto Rico, 96 So.3d 926, 929 (Fla. 2d DCA 2012).


         The petition and its attachments are facially sufficient to allege that M.S. is incapacitated. We thus reverse the trial court's dismissal of the petition without leave to amend, [12] and remand with direction to permit the petitioner to amend the petition, should he choose, and to permit M.S. and the other co-respondents to raise such defensive matters as each may consider appropriate.[13] M.S.'s motions to require in-person testimony of the examining committee members and to strike the examining ...

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