FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.170 from the Circuit Court for
Collier County; Frederick Hardt, Judge.
Matthew A. Linde of Cody & Linde, PLLC, Fort Myers; Robin
D. Merriman II of Aloia, Roland, Lubell & Morgan, PLLC,
Fort Myers; and Philip V. Howard and Lance M. McKinney of
Osterhout & McKinney, P.A., Fort Myers, for Appellant.
S. Perlow, Naples, for Appellee Linda Shaffer.
C. Sanchez of Burandt, Adamski, Feichthaler & Sanchez,
PLLC, Naples, for Appellee Phyllis Covey.
circuit court granted Linda Shaffer's petition to appoint
an emergency temporary guardian for Beulah Covey. Covey
challenges the order on several grounds, but we address only
her assertion that the court erred in granting the petition
without a hearing. We agree and reverse.
27, 2018, Shaffer filed petitions to determine Covey's
incapacity and for the appointment of an emergency temporary
guardian for Covey, whom Shaffer asserted was suffering from
Alzheimer's disease and diminished capacity. Shaffer was
Covey's life partner for thirty-six years. She alleged
that Covey's niece had taken Covey with her to Michigan
two months earlier and was not allowing Shaffer to speak with
her, preventing Shaffer from confirming that Covey was taking
her medications and being properly cared for. Shaffer also
alleged that Covey had since revoked a power of attorney that
she had previously given to Shaffer and had been writing
checks to the benefit of others.
2, the circuit court issued an ex parte order appointing
Shaffer as Covey's emergency temporary guardian. The
court also appointed counsel to represent Covey and to serve
as elisor. Covey's attorney was able to make contact with
Covey by phone, and he then filed an emergency motion to
vacate the letters of guardianship and the order appointing
Shaffer as emergency temporary guardian. A hearing on the
motion was scheduled for July 31. Several days before the
hearing, Covey and her niece traveled to Florida. Covey's
attorney was then able to meet with Covey for the first time
and serve her with Shaffer's petitions.
hearing on the motion to vacate, Covey's counsel argued,
among other things, that the court could not appoint a
temporary guardian without holding an evidentiary hearing.
Shaffer responded that the court could still hold an
evidentiary hearing on the petition, even after it had been
granted. Covey's niece, who had filed a counterpetition
and sought to serve as guardian, suggested that the court
take testimony then and there, as all of the parties were
present, but the court rejected that proposal, citing a lack
of notice. The court then denied Covey's motion to
vacate, and her counsel filed this appeal under Florida Rule
of Appellate Procedure 9.170(b)(8).
the pendency of the appeal, the circuit court extended the
temporary guardianship for a further ninety days, as is
permitted by section 744.3031(4), Florida Statutes (2018). At
oral argument in January 2019, the parties' attorneys
informed us that the circuit court had since determined that
Covey was incapacitated and that it had appointed Shaffer as
permanent guardian of Covey's person and a professional
guardian to serve as permanent guardian of Covey's
appointment of permanent guardians for Covey effectively
moots Covey's challenge to the appointment of Shaffer as
the temporary guardian. See In re Smith,
05-09-00913-CV, 2010 WL 4324434, at *2 (Tex. App. Nov. 3,
2010) ("Complaints about an order regarding temporary
guardianship ordinarily become moot if a permanent guardian
is appointed."). However, because an emergency temporary
guardianship can last for a maximum of only 180 days,
see § 744.3031(4) (providing that an emergency
temporary guardianship expires after ninety days or when a
guardian is appointed, whichever occurs first, and may be
extended for "an additional 90 days"), the issues
here are capable of repetition while evading appellate
review. We therefore decline to dismiss the appeal as moot.
See Enter. Leasing Co. v. Jones, 789 So.2d 964, 965
(Fla. 2001) ("Although the issue presented in this
appeal may be moot as it relates ...