PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Voluntary Dismissal Of A Guardianship – The Pendulum Swings!

In Gort v. Gort, 2016 Fla. App. LEXIS 1448 (Fla. 4th DCA 2/3/16), the appellate court, in distinguishing Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012), held that a party can voluntarily dismiss a petition to determine incapacity.

In Gort, the petitioner petitioned to have his brother found incapacitated and for appointment of a limited guardian and emergency temporary guardian. The brother and his cousin opposed the petition. The cousin petitioned to determine the brother’s incapacity and sought to be appointed plenary guardian of his person and property. The trial court entered an order setting an incapacity hearing, appointed counsel for the brother, and appointed a three-member examining committee. All three members found the brother was incapacitated and lacked the capacity to contract. Prior to the incapacity hearing, the court referred the parties to mediation. All parties participated and were represented by counsel. The meditation resulted in a settlement agreement, in which the petitioner and the cousin would dismiss their pending petitions without the need for prior court approval. Pursuant to the agreement, the petitioner and cousin voluntarily dismissed their petitions. Over one year later, the petitioner filed an action against the brother and cousin in the probate division seeking a declaration that the settlement agreement was valid and enforceable. The brother responded by filing a counter-petition seeking to have the agreement declared invalid and unenforceable. The trial court enforced the settlement agreement.

On appeal, the brother and cousin argued, in part, that the trial court erred in enforcing the settlement agreement because it is void under Florida law and public policy. Specifically, they argue the petitioner cannot voluntarily dismiss his petition without the statutorily required adjudicatory hearing on the brother’s incapacity, citing Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012).

The appellate court, in affirming the trial court’s order enforcing the settlement agreement, reasoned in part:

While the rules are silent on whether a petition can be voluntarily dismissed prior to an adjudicatory hearing, common sense dictates that a petitioner has that ability. Katke v. Bersche, 161 So. 3d 574 (Fla. 5th DCA 2014), is helpful. There, in ruling on a petition for a writ of prohibition, the Fifth District implicitly recognized the voluntary dismissal of a petition to determine incapacity prior to an adjudicatory hearing. Id. at 575-76.

“A party may voluntarily dismiss any claim, and such a dismissal, if accepted by the trial court, deprives the court of jurisdiction over the subject matter of the claim dismissed.” Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012). The plaintiff’s right to voluntarily dismiss its own lawsuit is almost absolute, with exceptions for fraud on the court and child custody. Tobkin v. State, 777 So. 2d 1160, 1162 (Fla. 4th DCA 2001). Id. at 576.

* * * *

[In Jasser v. Saadeh] [w]e distinguished a voluntary dismissal from an agreed settlement and mutual dismissal. Id. We then discussed the importance of insuring that the person alleged to be incapacitated is protected. Id. at 247-48. We did not hold that a person cannot voluntarily dismiss a petition once filed.

While the policy discussion in Jasser supports the brother and cousin’s position, the facts and issue in Jasser were different from this case. Here, the brother is not suffering from Alzheimer’s, but has a mental health disorder, which appears controllable when properly medicated. The brother attests to that fact. Instead of proceeding with the adjudicatory hearing, the trial court sent the parties to mediation to resolve their dispute. They resolved it, and the brother did not complain about the settlement agreement until more than one year after dismissal of the petition to determine incapacity.

Although three examining committee members concluded the brother lacked capacity to contract in June 2012, the reports were never considered at a formal adjudicatory hearing. And, there was never a trial court determination that the brother was incapacitated. In fact, the brother maintained that he was NOT incapacitated.

Because our guardianship and probate rules do not prohibit a party from voluntarily dismissing a petition to determine incapacity, and section 744.331 does not mandate an adjudicatory hearing, the trial court did not err in finding the settlement agreement did not violate Florida law or public policy.