Christine Swistock Flegal, Amy Swistock, Peggy S. Keeshin and Nancy Swistock Snyder v. Guardianship of Peter R. Swistock, Sr. ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHRISTINE SWISTOCK FLEGAL, AMY SWISTOCK, PEGGY S.
KEESHIN and NANCY SWISTOCK SNYDER,
Appellants,
v.
GUARDIANSHIP OF PETER R. SWISTOCK, SR.,
Appellee.
No. 4D13-4410
[July 15, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 502011GA000097.
John Farina of Boyes & Farina, P.A., Palm Beach Gardens, for
appellants.
Robin I. Bresky and Michele K. Feinzig of Law Offices of Robin Bresky,
Boca Raton, (withdrawn as counsel after filing a brief), for appellee.
MAY, J.
Due process and a family dispute over stock shares are at the center
of this appeal. Four sisters appeal orders entered in a guardianship.
They argue that their property, stock shares, was taken without due
process. We agree in part and reverse in part.
The father and ward had five daughters and two sons. Four
daughters lived out-of-state; the fifth daughter lived in Florida, as did the
father. A dispute arose between the four out-of-state daughters and
their father over 39,668 shares in Omega Bank. When First National
Bank (“FNB”) purchased Omega Bank, it issued new share certificates to
the father and the four daughters. Each of the four daughters claimed
ownership with their father as joint tenants with right of survivorship of
9,917 shares each.
In 2010, the father sued the four daughters in Pennsylvania. He
alleged that he had transferred the stock shares to his four daughters as
a joint tenancy with right of survivorship, but had intended for them to
inherit the stock upon his death. He had not intended to gift the stock to
them. He paid for the stock, kept possession of the certificates, retained
all dividends, and paid income tax on those dividends. The father had
requested the four daughters to sign the stock back to him, but they
refused. The father sought a declaration that he was the sole owner of
the stock. This litigation would outlive the father.
In 2011, while the Pennsylvania suit was pending, the four daughters
filed a petition in Florida to: (1) determine the father’s capacity; and (2)
appoint them plenary guardians of the father’s person and property. The
father moved to dismiss the proceedings, alleging the petition had been
filed in bad faith to avoid the outcome of the Pennsylvania action. When
three court-appointed medical examiners concluded he was not
incapacitated, the four daughters voluntarily dismissed their petition.
In September 2012, the father suffered a stroke, and was hospitalized
in critical condition. The fifth daughter, who lived in Florida, petitioned
the circuit court to have the father declared incapacitated, and to be
appointed emergency temporary guardian and plenary guardian. She
alleged her father was in imminent danger because his recent stroke
rendered him vulnerable to “elderly exploitation and abuse” by her
sisters, who were “currently the subjects of open elder abuse claims filed
in Pennsylvania.” The petition for appointment of plenary guardian listed
the stock as property subject to the guardianship.
The trial court entered three orders: (1) appointing counsel for the
father; (2) directing an examination of the father; and (3) setting the
hearing on the petition for September 11, 2012. The orders were mailed
to the four daughters, who received them just four days prior to the
hearing. Two of them sent a letter to the court stating that they could
not attend the hearing on such short notice.1 The incapacity petition
was set for hearing on October 19, 2012. The four daughters were
mailed a copy of the notice sent to the father.
At the September 11th hearing, the trial court appointed the fifth
daughter emergency temporary guardian for ninety days, or until a
permanent guardian was appointed, whichever came first. She was
granted “full power” to exercise the powers and duties, among other
things, over “[a]ny and all shares of stock held at FNB Corporation
purchased by [the father], including . . . all dividends issued by FNB
Corporation.”
1 Although the letter is in the record, it is unclear whether the court actually
received it.
2
The next day, pursuant to an agreement between the guardian’s
counsel and the ward’s counsel, the fifth daughter submitted a proposed
order that required Registrar and Transfer Company to transfer current
title of the shares in FNB—51,636 in total—from the joint tenancy with
the four daughters to the fifth daughter as guardian. Of these shares of
stock, 39,668 were the focus of the then-pending Pennsylvania litigation.
The fifth daughter requested the stock “for the specific purpose of
protecting the father and securing dividends needed to pay for his round-
the-clock care.” Without notice to the four daughters or a hearing, the
court signed the order on September 12th. The father died the next day.
The following month, the fifth daughter petitioned to be discharged as
the emergency temporary guardian of the father’s person. She filed her
Final Report of Emergency Temporary Guardian of the Property. She
transferred the 51,636 shares of FNB from herself “as emergency
temporary guardian” to herself as personal representative of her father’s
estate.
In January 2013, after a bench trial that took place prior to the
father’s death, the Pennsylvania court found in favor of the four
daughters. It determined the stock was held as joint tenants with the
right of survivorship.
On March 15, 2013, five months after the fifth daughter had filed her
final report, the four daughters filed an objection. They argued that they
owned 39,668 of the 51,636 shares of FNB as a joint tenancy with the
father and objected to the September 12th order that allowed for the
transfer of the FNB stock. They claimed lack of reasonable notice and an
opportunity to be heard. They asked the court to disapprove the final
report and require the fifth daughter to turn over their stock.
The Clerk’s Audit of the Final Accounting included a comment that
the objection was filed on March 15, 2013, but that objections were to be
filed up to thirty days from the filing of the final report. On May 2, 2013,
the trial court entered an order approving the final report, noting the
untimely objection. Three weeks later, the court entered an order
approving distribution of the 51,636 shares to the father’s estate. The
trial court entered an order, discharging the fifth daughter as the
emergency temporary guardian.
The four daughters moved to vacate the discharge order, arguing that
they were not notified of the September 12th order transferring their
shares, the petition for discharge, final accounting, or the final report.
3
On October 31, 2013, the trial court entered a second order of discharge.
The four daughters moved for rehearing. They then filed a notice of
appeal abandoning their motion for rehearing.
The four daughters argue they were deprived of their FNB stock
without due process rendering the orders of discharge and approval of
the final report void. The guardianship responds that the trial court
followed Florida law and rules, notified the four daughters of the
proceedings, and they simply failed to appear and file appropriate
requests.
We have de novo review of a trial court’s compliance with the
guarantees of due process. VMD Fin. Servs., Inc. v. CB Loan Purchase
Assocs., 68 So. 3d 997, 999 (Fla. 4th DCA 2011).
The United States Constitution guarantees that no state “shall deprive
any person of life, liberty, or property without due process of law.”
Amend. XIV, § 1, U.S. Const.; see also Art. I, § 9, Fla. Const. “[D]ue
process requires both fair notice and a real opportunity to be heard.”
Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795
So. 2d 940, 948 (Fla. 2001). Notice must be “reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950) (citations omitted).
Rule 5.648(b) requires that the “notice of filing of the petition for
appointment of an emergency temporary guardian and any hearing . . .
be served before the hearing on the . . . alleged incapacitated person and
on the alleged incapacitated person’s attorney.” Fla. Prob. R. 5.648(b).
The Rule does not actually require notice to the four daughters.
The four daughters argue, however, that Rule 5.041 provides that
“every petition or motion for an order determining rights of an interested
person . . . shall be served on interested persons.”2 Fla. Prob. R. 5.041
(emphasis added). They claim to be interested persons who should have
received reasonable notice before the stock transfer. We agree.
When the petition was filed, the stock was titled in the names of each
of the four daughters and the father as a joint tenancy with right of
2 The Florida Statutes defines an “interested person” as “any person who may
reasonably be expected to be affected by the outcome of the particular
proceeding.” § 731.201(23), Fla. Stat. (2012).
4
survivorship. Their interests were affected by the court’s September 12th
order transferring the stock to the fifth daughter as emergency temporary
guardian. They were entitled to reasonable notice and an opportunity to
be heard. See Hagopian v. Zimmer, 653 So. 2d 474, 476 (Fla. 3d DCA
1995) (stating that presumptive owners of joint accounts are entitled to
notice). “While there are no hard and fast rules about how many days
constitute a ‘reasonable time,’ the party served with notice must have
actual notice and time to prepare.” Harreld v. Harreld, 682 So. 2d 635,
636 (Fla. 2d DCA 1996).
The Fifth District has held that four days’ notice is unreasonably
short in guardianship proceedings. See Anderson v. Sun Trust Bank/N.,
679 So. 2d 307, 308 (Fla. 5th DCA 1996) (reversing an order awarding
guardianship fees and costs due to insufficient notice).
Because the four daughters did not receive reasonable notice, they
were deprived of their property without due process. This due process
violation was even more egregious as the petition did not actually request
the transfer of the stock, but merely identified the stock as subject to the
guardianship. So, there was in effect no notice of the fifth daughter’s
intent to transfer the stock.
We find no merit, however, in the four daughters’ argument that the
court erred in entering the initial order of discharge. Rule 5.680(f)
provides:
(f) Objections. All persons served shall have 30 days to file
objections to the petition for discharge and final report. . . .
If a notice of hearing on the objections is not served within
90 days of filing of the objections, the objections will be
deemed abandoned.
Fla. Prob. R. 5.680(f). Here, the four daughters failed to file their
objection within thirty days of notice of the petition for discharge and the
final report. They further failed to notice a hearing on their objection
within ninety days after filing it. They therefore abandoned or waived
any objection. See id.
Reversed in part and remanded for further proceedings consistent with
this opinion.
TAYLOR and KLINGENSMITH, JJ., concur.
* * *
5
Not final until disposition of timely filed motion for rehearing.
6