Hernandez Sr. v. Hernandez , 230 So. 3d 119 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed September 06, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1464
Lower Tribunal No. 14-4149
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Antonio M. Hernandez, Sr.,
Appellant,
vs.
Eusebio G. Hernandez, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.
Laura Bourne Burkhalter, PA, and Laura Bourne Burkhalter, for appellant.
Sloto & Diamond, PLLC, and James R. Sloto and Seth S. Diamond, for
appellee.
Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
ROTHENBERG, C.J.
In this 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.
BACKGROUND
The 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.
Thereafter, 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
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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.
The 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
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physically. The Ward is now able to ambulate with the aid of a walker and has not
required any further hospitalizations.
The 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.
This 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.1 Leonor also unsuccessfully petitioned for
relief in the United States Bankruptcy Court on August 24, 2011.
1 (1) In case number 09-86047, a final judgment of foreclosure and a final
deficiency judgment pertaining to property located at 8100 Harding Avenue,
Miami Beach, Florida, were entered.
(2) In case number 09-86038, foreclosure proceedings pertaining to property
located at 1015 Palm Avenue, Hialeah, Florida, were initiated, which resulted in a
writ of possession in favor of the bank.
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The 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 acquisition.
In 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
(3) In case number 09-86054, a final judgment of foreclosure was entered on June
16, 2010 pertaining to property located at 420 78th Street, Miami Beach, Florida.
(4) In case number 09-86066, a final judgment of foreclosure was entered
pertaining to property located at 6910-6920 Byron Avenue, Miami Beach, Florida,
and a final deficiency judgment was entered against Antonio.
(5) In case number 09-13881, a final judgment of foreclosure was entered (no
location was provided in the adversary petition).
(6) In case number 10-51107, a final judgment of foreclosure was entered on
January 13, 2011, pertaining to property located at 7730-7740 Dickens Avenue,
Miami Beach, Florida.
(7) In case number 10-61392, a final judgement of foreclosure was entered on
September 27, 2011, pertaining to property located at 1224 Burlington Street, Opa
Locka, Florida.
(8) In case number 11-19728, foreclosure proceedings were initiated against a Las
Bellezas Condominium Unit, located in Hialeah, Florida.
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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.
As 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 unreasonable. Antonio moved
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to vacate these awards based on Eusebio’s failure to serve notice upon Antonio as
an interested person and as the next of kin of the Ward.
The probate court denied Antonio’s objection and motion to vacate the
attorney’s fees orders, finding that Antonio was not an “interested person” within
the definition of section 731.201(23), Florida Statutes (2016), of the Florida
Probate Code, and Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla.
2006). Thus, as Antonio was not an “interested party,” he was not entitled to
receive notice regarding these attorney’s fees petitions and therefore lacked
standing to object. This appeal followed.
ANALYSIS
Antonio contends that he had standing to move to vacate the probate court’s
orders granting attorney’s fees and costs incurred in the guardianship proceedings,
(which he claims were excessive, unreasonable, and entered without notice to
him), because he is an “interested person.” Antonio claims that he is an active
participant in the guardianship proceedings and filed a request for copies under
rule 5.060 of the Florida Probate Rules, and thus, he was entitled to notice and to
object to the fees requested by Eusebio as the plenary guardian.
Our analysis is directed by Chapter 744 of the Florida Statutes, which
governs guardianship proceedings, section 744.108, which governs guardian’s and
attorney’s fees and expenses, and Hayes. Section 744.108 provides that “[a]
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guardian, or an attorney who has rendered services to the ward or to the guardian
on the ward’s behalf, is entitled to a reasonable fee for services rendered and
reimbursement for
costs incurred on behalf of the ward,” § 744.108(1), Fla. Stat.(2016), and “[a]
petition for fees or expenses may not be approved without prior notice to the
guardian and to the ward, unless the ward is a minor or is totally incapacitated,” §
744.108(b), Fla. Stat. (2016).
Because the guardianship statute only provides that notice be given to the
guardian and the ward when approving petitions for fees and costs, the Florida
Supreme Court in Hayes addressed whether standing to participate in guardianship
proceedings under this statute is limited to the guardian and the ward or whether it
extends to other parties. Hayes, 952 So. 2d at 502. The Hayes court noted that
“standing to bring or participate in a particular legal proceeding often depends on
the nature of the interest asserted,” id. at 505, and that “[i]n guardianship
proceedings, the overwhelming public policy is the protection of the ward.” Id.
(citing § 744.1012, Fla. Stat. (2006)). “Thus, unlike most other types of litigation,
guardianship proceedings are not adversarial and are governed by a comprehensive
statutory code and set of procedural rules dictating who should receive notice of a
particular proceeding.” Id. at 505.
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Although section 744.108 does not specifically require that an “interested
person” receive notice, Florida Probate Rule 5.060 requires notice to persons the
trial court concludes is an “interested person” so long as the requirements of the
rule have been satisfied. Hayes, 952 So. 2d at 507. Thus, the Court in Hayes
considered who is an “interested person” in such proceedings. The Florida
Supreme Court concluded that the determination of who is an interested person in
a guardianship proceeding will “vary from time to time and must be determined
according to the particular purpose of, and the matter involved in, any
proceedings.” Id. at 507 (citing § 731.201(21), Fla. Stat. (2006)).2 Thus, “the
definition of ‘interested person’ requires the trial court to evaluate the nature of
both the proceeding and the interest asserted.” Id.
Simply being next of kin does not confer “interested person” status.
Rudolph v. Rosecan, 154 So. 3d 381, 385 (Fla. 4th DCA 2015). An “interested
person” is “any person who may reasonably be expected to be affected by the
outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat. (2016).
For example, “[i]n any proceeding affecting the estate or the rights of a beneficiary
in the estate, the personal representative of the estate shall be deemed to be an
interested person.” Id. “Thus, unlike a ward, a guardian, or next of kin, who are
specific persons occupying finate, statutorily defined roles, the definition of
2 The definition of “interested party” has since been renumbered to section
731.201(23).
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“interested person” requires the trial court to evaluate the nature of both the
proceeding and the interest asserted.” Hayes, 952 So. 2d at 507 (footnote omitted).
Antonio contends that because he is an active participant in the guardianship
proceedings and filed a notice and request for copies under rule 5.060, he is an
interested party entitled to notice and with standing to object to the attorney’s fees
petitions. However, filing a notice and request for copies under rule 5.060 and
being an active participant in the proceedings does not necessarily entitle Antonio
to participate in the proceedings involving requests for attorneys fees by the
Ward’s attorney. See Hayes, 952 So. 2d at 508-09. That is because the court must
still consider the nature of the proceedings.
Here, as in Hayes, Antonio’s involvement in the guardianship proceedings
was necessitated by his alleged mistreatment of the Ward and misappropriation of
her funds and, thus, does not entitle him to participate in the attorney’s fees
proceedings brought by the Ward’s guardian at the request of the Ward’s attorney.
See id. (holding that the petitioners’ “involvement in the guardianship proceedings
that were necessitated by their own mistreatment of the ward and misappropriation
of her funds does not entitle them to participate in proceedings involving requests
for attorney’s fees by the ward’s attorney”).
Given the findings of the trial court that attribute the need for the
guardianship directly to the petitioners, it would appear inescapable
that the fees they now claim are excessive came as a result of their
own misconduct. Petitioners’ concern about potentially excessive
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fees sounds a bit like the apocryphal story of the man who kills both
his parents and begs the court for mercy because he is an orphan.
Id. at 509.
The probate court considered the nature of the proceedings before
concluding that Antonio was not entitled to notice and lacked standing to object to
the attorney’s fees requests related to the guardianship that are the subject of this
appeal. Those proceedings, which necessitated the appointment of an attorney to
represent the Ward include: (1) Eusebio’s and Elena’s petition for the appointment
of a plenary guardian, to which Antonio objected; (2) the appointment of Eusebio
as guardian, to which Antonio objected; (3) the petition to sell the Ward’s
homestead in order to pay for the Ward’s care and treatment at the Palace where
the Ward has steadily improved since her transfer there by the guardian, to which
Antonio also objected; and (4) the petition to file an adversary proceeding against
Antonio, Leonor, and Antonio, Jr. for their alleged mistreatment of the Ward,
undue influence over her, and misappropriation of her assets.
We, therefore, find no error in the probate court’s determination that
Antonio lacks standing to object to the attorney’s fees requests pertaining to the
services rendered as to these guardianship proceedings. As the Florida Supreme
Court concluded in Hayes: “There must be a balance between ensuring that these
petitions for attorney’s fees are carefully scrutinized and ensuring that these
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petitions are not subject to endless challenges by those whose only interest is to
maximize their potential inheritance.” Id. at 509.
Antonio has received notice and was afforded the opportunity to object and
to participate in the guardianship proceedings relating to the appointment of a
plenary guardian for the Ward, the appointment of Eusebio as the guardian, the
sale of the Ward’s homestead, the petition to initiate adversary proceedings against
Antonio and his family’s alleged mistreatment of and undue influence over the
Ward. We conclude that the order finding that Antonio lacks standing to contest
the attorney’s fees, which were necessitated by Antonio’s unsuccessful objections
to these petitions, strikes the balance suggested by the Florida Supreme Court. It
permits the probate court and the guardian to carefully scrutinize the fee requests
but limits the “endless challenges by those whose only interest is to maximize their
potential inheritance.” Id. Accordingly, we affirm the order on appeal.
Affirmed.
SUAREZ, J., concurs.
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Antonio M. Hernandez, Sr. v. Eusebio G. Hernandez, etc.
3D16-1464
EMAS, J., dissenting.
I respectfully dissent, because I conclude that Antonio M. Hernandez was an
“interested person” within the meaning of section 731.201(23), Florida Statutes
(2016) and Florida Probate Rule 5.060, and thus had standing to participate in the
specific proceedings below which form the basis for this appeal. The parties to
this appeal agree that our standard of review is de novo. See Rudolph v. Rosecan,
154 So. 3d 381 (Fla. 4th DCA 2014); Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA
2011); Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008).
To provide proper context, it is important to note what is not at issue in this
appeal. The question is not whether the trial court was correct in granting
appellees’ numerous petitions for orders approving attorney’s fees; whether the
trial court correctly authorized Eusebio to file an adversary petition against
Antonio; or whether Antonio in fact engaged in the conduct alleged by Eusebio.
The very narrow issue in this appeal is whether Antonio M. Hernandez was simply
entitled to notice of, and an opportunity to be heard at, the proceedings held by the
trial court regarding the petitions for attorney’s fees and costs for services by
attorneys handling the adversary petition on behalf of Eusebio.
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The majority cites to the Florida Supreme Court’s decision in Hayes v.
Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006). While I agree that the
Hayes decision is helpful, it is not dispositive of the question presented here.
The linchpin of the majority’s holding is found at *10 of its opinion:
Here, as in Hayes [v. G’ship of Thompson, 952 So. 2d 498 (Fla.
2006)], Antonio’s involvement in the guardianship proceedings was
necessitated by his own alleged mistreatment of the Ward and
misappropriation of her funds and thus does not entitle him to
participate in the attorney’s fees proceedings brought by the Ward’s
guardian at the request of the Ward’s attorney.
But this conclusion puts the proverbial cart before the horse and ignores a
singular and dispositive distinction between this case and Hayes: in the instant
case, the three pages of the majority’s opinion detailing the “allegations” in
Eusebio’s adversary petition are simply that—allegations. There has been no
evidentiary hearing or other determination or finding of fact regarding those
allegations.
By contrast, the trial court in Hayes had already determined this issue and
made an actual finding of improper conduct and actions by the heirs. See id. at
509 (noting that petitioners were not entitled to notice and to participate in the
proceedings “[g]iven the findings of the trial court that attribute the need for the
guardianship directly to the petitioners . . . .”). In the instant case, we have only
the allegations of Eusebio— allegations which continue to be denied and contested
by Antonio. The majority, apparently satisfied with such, concludes in circular-
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logic fashion that Antonio cannot be an interested person with standing to be heard
on, or contest, the request for attorney’s fees, because the fees requested were
necessitated by Antonio’s “alleged mistreatment of the Ward and misappropriation
of funds.” If at some point Eusebio’s allegations are determined to be unfounded
or not proven, will Antonio then be deemed (nunc pro tunc) an “interested
person”? The answer to this question would appear to be obvious, but equally
obvious is that this answer would come too late to provide meaningful relief.
I would hold that Antonio is an “interested person” because Antonio may
reasonably be expected to be affected by the outcome of a proceeding which will
result in the payment of nearly $100,000 from his mother’s assets, an amount
which exceeds the total value of the liquid assets of her estate.3 Although being an
heir, or next of kin, does not automatically confer “interested person” status,
Rudolph, 154 So. 3d at 385, the Florida Supreme Court in Hayes acknowledged
that “courts must scrupulously oversee the handling of the affairs of incompetent
persons under their jurisdiction and err on the side of over-supervising rather than
indifference.” Hayes, 952 So. 2d at 508. I do not suggest that Antonio has any
right to prevent the trial court from approving the requests for attorney’s fees and
costs. Nor do I suggest that the trial court is prevented from considering Antonio’s
possible motive, bias or interest in lodging any objections to the requests for
3 In May of 2016, the guardian filed a 2015 annual guardianship accounting, listing
the Ward’s liquid assets, with a total value of $81,267.15.
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attorney’s fees and costs. I do suggest, however, that he is an interested person
who has the right to receive notice of, and to be heard at, the proceedings at which
the trial court is considering and ruling upon the requests.
I therefore respectfully dissent.
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