final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 07-1786 Maria M. Korvick, Judge.
Family Legal & Mediation Services, LLC, and Kristen Goss
(Ft. Lauderdale); Spectrum Law Firm Miami, PLLC and Sandy
Boisrond, for appellant.
Berman, Karpf & Gonzalez, P.A., and Andrew S. Berman, for
FERNANDEZ, MILLER and GORDO, JJ.
Lovest appeals the guardianship court's Order for
Discharge and Denying Motion for Rehearing/Reconsideration,
which overruled her objections that (1) the guardianship
court's July 2017 and November 2011 Orders violated her
due process rights, (2) the guardianship court lacked subject
matter jurisdiction, and (3) the appellee David Mangiero
should have provided proper accountings. We affirm the
guardianship court's order.
is a beneficiary of artist Pervis Young's will. In 2007,
the court established Mangiero as Young's guardian of the
property. After Young passed away in 2010, Mangiero became
the successor personal representative of Young's estate.
Because the estate had outstanding debts, Mangiero filed a
petition to pay the debts using Young's artwork. The
guardianship court granted the petition the next day on
November 16, 2011, but it required that creditors receive art
equal to 200% of their claims to offset appraisal and broker
costs. Three months later, Eddie Mae Lovest, who lives at the
same address as Taketha Lovest, sent a letter acknowledging
receipt of the order but objecting to paying 200% of claims
and not being at the initial hearing. The court held a
rehearing that February.
16, 2017, Mangiero filed another petition to pay the debts
with Young's artwork, stating that his efforts to pay the
creditors cash had failed because there was no marketplace
for the art. Mangiero sent notice of the petition and hearing
by certified mail to Lovest on May 22, 2017, evidenced by a
stamp on an undeliverable envelope to her. On July 19, 2017,
the guardianship court authorized the petition. On October
22, 2018, Mangiero filed annual reports for the past seven
years, which he had not done since 2011. On July 4, 2018,
Lovest filed the three abovementioned objections to the
guardianship court's order. The guardianship court
overruled all three objections, and this appeal followed.
standard of review for lack of due process, subject matter
jurisdiction, and accounting is de novo. See
Dockswell v. Bethesda Mem. Hosp., Inc., 210 So.3d 1201,
1206 (Fla. 2017) (statutory interpretation is reviewed de
novo); VMD Fin. Servs. v. CB Loan Purchase Assocs.
LLC, 68 So.3d 997, 999 (Fla. 4th DCA 2011) (due process
is reviewed de novo); Mora v. McDonough, 934 So.2d
587, 588 (Fla. 1st DCA 2006) (lack of jurisdiction is purely
a legal issue).
Probate Rule 5.060(a) provides that "[a]ny interested
person who desires notice . . . may file a separate written
request for notice of further proceedings." The Florida
Supreme Court has held that the trial court needs an
opportunity to weigh whether a party is
"interested" after they file a form under 5.060.
Hayes v. Guardianship of Thompson, 952 So.2d 498,
507 (Fla. 2006). Nothing in the record indicates that Lovest
filed a request for notice form pursuant to rule 5.060, so
the guardianship court could not determine if she was an
"interested party." Thus, she was not entitled to
the guardianship court retained subject matter jurisdiction
over the case. Section 744.527(2), Florida Statutes (2011)
states that when a guardian applies for discharge, they
"may retain from the funds in his or her possession a
sufficient amount to pay the final costs of administration,
including guardian and attorney's fees regardless of the
death of the ward." This statute includes assets like
Young's artwork as well as funds. See Bivins v.
Guardianship of Bivins, 223 So.3d 1006, 1007 (Fla. 4th
DCA 2017); Midland Nat'l Bank and Trust v. Comerica
Trust Co. of Fla., N.A., 616 So.2d 1081, 1084 (Fla. 4th
DCA 1993). In the present case, the guardianship court
retained jurisdiction after Young's death while Mangiero
paid the outstanding guardian and attorney fees.
if a guardian fails to provide a timely annual report,
"the judge may impose sanctions which may include
contempt, removal of the guardian, or other sanctions
provided by law in [section] 744.3685." §
744.367(5) Fla. Stat. (2011). Section 744.3685 provides that
the court shall order the guardian to file the report within
fifteen days or be held in contempt or personally fined.
§ 744.3685 Fla. Stat. (2011). In the present case, the
guardianship court should have required Mangiero to provide
proper accountings each year. However, because the court
never ordered him ...