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Covey v. Shaffer

Florida Court of Appeals, Second District

July 3, 2019

BEULAH COVEY, Appellant,


          Appeal 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.

          Jeffry S. Perlow, Naples, for Appellee Linda Shaffer.

          Alvaro C. Sanchez of Burandt, Adamski, Feichthaler & Sanchez, PLLC, Naples, for Appellee Phyllis Covey.


          Northcutt, Judge.

         The 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.


         On June 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.

         On July 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.

         At the 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).

         During 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 property.[1]


         The 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 ...

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