DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
THOMAS J. FOSTER, SR.,
an alleged incapacitated person,
Petitioner,
v.
CHRISTA RADULOVICH,
the emergency temporary guardian;
SUSAN FOSTER MELENDY;
THOMAS J. FOSTER, JR.; and
SHARON ROPER,
Respondents.
No. 2D20-2988
September 29, 2021
Petition for Writ of Mandamus to the Circuit Court for Pinellas
County; Sherwood Coleman, Judge.
J. Ronald Denman, Latasha Lordes, and Victoria McLaughlin of
Bleakley Bavol Denman & Grace, Tampa, for Petitioner.
Brandon D. Bellew, Caitlein J. Jammo, Caitlin M. Powell of
Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for
Respondent, Thomas J. Foster, Jr.
Edward C. Castagna, Jr., of Castagna Law Firm, P.A., Clearwater,
for Respondent, Susan Foster Melendy.
Thomas G. Tripp of Law Offices of Thomas G. Tripp, Pinellas Park,
for Respondent, Christa Radulovich.
No appearance for Respondent, Sharon Roper.
ATKINSON, Judge.
Thomas J. Foster, Sr., petitions this court for a writ of
mandamus to quash the trial court's order denying his motion to
substitute attorney J. Ronald Denman as his counsel for the
underlying guardianship proceeding.1 We treat Mr. Foster's petition
as a petition for writ of certiorari and grant the writ.
The Department of Children and Families (DCF) filed a petition
for appointment of a plenary guardian over the person and property
of Mr. Foster, an alleged incapacitated person. The trial court
appointed counsel for Mr. Foster for the guardianship proceedings
pursuant to section 744.331(2)b, Florida Statutes (2020).
Appointed counsel attended the hearing on DCF's petition, but Mr.
1 Respondent Susan Foster Melendy filed a response in
support of Mr. Foster's petition, and Respondents Thomas J.
Foster, Jr. and Christa Radulovich filed responses in opposition to
the petition. Foster, Jr., and Radulovich will be referred to
collectively as Respondents throughout this opinion.
2
Foster was not present. The parties—including appointed counsel
on behalf of Mr. Foster—stipulated to the appointment of Christa
Radulovich (Temporary Guardian) as emergency temporary
guardian over Mr. Foster's property. The emergency temporary
guardianship letters delegated Mr. Foster's right to contract to the
Temporary Guardian and were set to expire on September 20, 2020.
Thereafter, Attorney Denman filed a motion seeking
appointment as Mr. Foster's counsel for the guardianship
proceedings. DCF and Respondents opposed the motion, arguing
that Mr. Foster could not hire Attorney Denman because the trial
court had removed his right to contract through the emergency
temporary guardianship. At a hearing on the motion, Mr. Foster
explained to the trial court that he had met with Attorney Denman
to discuss the guardianship proceedings and wanted Attorney
Denman to serve as his attorney. The trial court denied the motion
for appointment as counsel.
After the hearing but before the trial court denied the motion
for appointment, Mr. Foster filed a motion to substitute Attorney
Denman as his counsel for the guardianship proceedings. The trial
court did not immediately rule on the motion. On September 21,
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2020, the day after the emergency temporary guardianship letters
expired, Attorney Denman filed a notice of appearance as Mr.
Foster's attorney. The trial court then entered amended emergency
temporary guardianship letters nunc pro tunc to September 20,
2020, denied the motion to substitute Attorney Denman as counsel,
and struck his notice of appearance as a nullity. Attorney Denman,
on behalf of Mr. Foster, challenges the order denying the motion to
substitute counsel and striking his notice of appearance.
"To obtain a writ of certiorari, the 'petitioner must establish (1)
a departure from the essential requirements of the law, (2) resulting
in material injury for the remainder of the trial (3) that cannot be
corrected on postjudgment appeal.' " Brundage v. Evans,
295 So.
3d 300, 303 (Fla. 2d DCA 2020) (quoting Parkway Bank v. Fort
Myers Armature Works, Inc.,
658 So. 2d 646, 648 (Fla. 2d DCA
1995)). We have jurisdiction because an erroneous denial of a
motion for substitution of counsel causes the kind of irreparable
harm for which certiorari lies because the litigant is deprived of his
or her choice of counsel for the entire proceeding and this
deprivation cannot be remedied on appeal. See Nader v. Fla. Dep't
of Highway Safety & Motor Vehicles,
87 So. 3d 712, 721 (Fla. 2012)
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(explaining that a court must first examine the second and third
prongs of the test for certiorari, often referred to as "irreparable
harm," to determine whether it has jurisdiction to hear the petition);
cf. Holmes v. Burchett,
766 So. 2d 387, 388–89 (Fla. 2d DCA 2000)
(granting an alleged incapacitated person's petition for writ of
certiorari to quash a trial court's denial of her motion for
substitution of counsel).
After an interested person initiates guardianship proceedings
by filing a petition to determine incapacity pursuant to sections
744.3201 and 744.331(1), the trial court is required to appoint an
attorney for the alleged incapacitated person. § 744.331(2)b.
Section 744.331(2)b provides that "[t]he alleged incapacitated
person may substitute her or his own attorney for the attorney
appointed by the court." An alleged incapacitated person is
permitted to substitute counsel until the trial court determines
incapacity by clear and convincing evidence. See id.; cf. Holmes,
766 So. 2d at 388–89 (holding that an alleged incapacitated person
subject to an emergency temporary guardianship is presumed
competent to contract and has a right to substitute counsel during
guardianship proceedings until incapacity is established); In re
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Guardianship of Bockmuller,
602 So. 2d 608, 609 (Fla. 2d DCA
1992) (holding that counsel for an incapacitated person must be
contracted for by a guardian or appointed by the court);
§ 744.1012(3) ("[I]t is the purpose of this act to promote the public
welfare by establishing a system that permits incapacitated persons
to participate as fully as possible in all decisions affecting them
. . . .").
After a petition to determine incapacity has been filed, but
before a guardian has been appointed, the trial court may appoint
an emergency temporary guardian for the person, property, or both,
of an alleged incapacitated person. § 744.3031(1). While the trial
court must make specific findings that there is an imminent danger
to the health of the "alleged incapacitated person" or that the
person's property is in danger of being wasted, the trial court is not
required to determine that the person is incapacitated to appoint an
emergency temporary guardianship. § 744.3031(1). Rights that are
not specifically enumerated by the trial court in emergency
temporary guardianship letters are retained by the alleged
incapacitated person because the "powers and duties of the
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emergency temporary guardian must be specifically enumerated by
court order." See § 744.3031(1).
Respondents acknowledge that section 744.331(2)b permits
Mr. Foster to substitute counsel to represent him in proceedings to
determine his incapacity. However, they argue that Mr. Foster
cannot personally exercise his statutory right to substitute counsel
because the trial court removed his right to contract and delegated
it to the temporary guardian through the emergency temporary
guardianship. They argue that permitting an alleged incapacitated
person whose right to contract has been removed pursuant to an
emergency temporary guardianship to contract with an attorney
would undermine the purpose of an emergency temporary
guardianship—to protect the alleged incapacitated person and his
or her property. See § 744.3031(1). Respondents conclude that if
Mr. Foster wanted to substitute his court-appointed counsel, he
should have expressed his wishes to his temporary guardian who
would make the ultimate decision regarding whether to retain
Attorney Denman, subject to the trial court's review for breach of
fiduciary duty. See Jacobsen v. Busko, 262 So. 3d 238, 239 (Fla. 3d
DCA 2018) ("Only the ward's plenary guardian . . . has the capacity
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to enter into a contract with an attorney on behalf of the ward [after
the removal of the ward's right to contract following a determination
of incapacity]." (citing In re Guardianship of Bockmuller, 602 So. 2d
at 609)).
Section 744.3031(1) gives the trial court the general authority
to delegate certain rights of the alleged incapacitated person to a
guardian who has the power to exercise those rights on the alleged
incapacitated person's behalf. The statute confers "authority" on
the temporary guardian but makes no express mention of the
removal of a temporary ward's rights. See § 744.3031. Delegation
of specifically delineated authority has the consequence of removing
corresponding rights from the alleged incapacitated person subject
to an emergency temporary guardianship to protect the person or
property of the individual from danger that may result from the
person's alleged incapacity if immediate action is not taken. See
§ 744.3031(1). Among those rights removed from the alleged
incapacitated person might be the right to enter into contracts.
However, section 744.331(2)b specifically provides that an
alleged incapacitated person has the right to substitute appointed
counsel with counsel of his or her choice during proceedings to
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determine incapacity; this right, by logic and practicality, must
entail the right to enter into an agreement with the attorney of his
choosing.2 Thus, while section 744.3031(1) is broad enough to
allow removal of the right to contract generally, section 744.331(2)b
effectively prohibits the trial court from removing the alleged
incapacitated person's right to contract with an attorney. In other
words, because the statute confers on the alleged incapacitated
person the right to contract with and substitute counsel, this
constitutes an exception from the general authority of the trial court
to remove the alleged incapacitated person's rights by conferring
authority on an emergency temporary guardian. See Fla. Virtual
Sch. v. K12, Inc.,
148 So. 3d 97, 102 (Fla. 2014) ("When reconciling
statutes that may appear to conflict, the rules of statutory
construction provide that a specific statute will control over a
general statute . . . .").
2While an attorney-client relationship might be capable of
formation absent an explicit and express agreement, such an
arrangement typically occurs as a consequence of the attorney's
representations made or services rendered to the client. Here, the
issue is whether the client may be permitted to act on his own
behalf to procure counsel—an endeavor that we presume for
purposes of this opinion to most likely entail a contract, in some
form or another, entered into with chosen counsel.
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Respondents' reliance on Jacobsen and In re Guardianship of
Bockmuller is misplaced. The wards in these cases were
incapacitated persons subject to plenary guardianships. Jacobsen,
262 So. 3d at 239; In re Guardianship of Bockmuller, 602 So. 2d at
609. The right to substitute counsel in section 744.331(2)b only
applies to alleged incapacitated persons, not to individuals whose
incapacity has been determined by clear and convincing evidence.
Unlike the wards in Jacobsen and In re Guardianship of Bockmuller,
Mr. Foster was an alleged incapacitated person and, as such, had a
statutory right to substitute counsel pursuant to section
744.331(2)b which the trial court is not authorized to remove
pursuant to section 744.3031(1).
Respondents also suggest that Holmes,
766 So. 2d 387, one of
the cases relied on by Mr. Foster, undermines Mr. Foster's position
because the trial court had not removed the alleged incapacitated
person's right to contract in that case. See
id. at 388, 388 n.2. In
Holmes, this court concluded that the trial court departed from the
essential requirements of the law by prohibiting the alleged
incapacitated person from substituting appointed counsel for the
counsel of her choice because the trial court had not removed her
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right to contract and, thus, she was presumed competent to
contract.
Id. at 388. However, our conclusion in this case is not
undermined by our earlier decision in Holmes because we did not
consider in that case whether the general authority given to the trial
court pursuant to section 744.3031(1) allows the trial court to
prevent an alleged incapacitated person from exercising his or her
explicit right to contract with and substitute counsel pursuant to
section 744.331(2)b. A person subject to an emergency temporary
guardianship remains an alleged incapacitated person until such
time as he is adjudicated incapacitated and is free to exercise all
rights not otherwise delegated to a guardian pursuant to an
emergency temporary guardianship, including the right to
substitute counsel. See §§ 744.3031(1), .331(2)(b).3
3 After this case was perfected, Mr. Foster's court-appointed
attorney for the guardianship proceedings below filed documents
with this court indicating that the trial court determined Mr. Foster
to be incapacitated. However, this postperfection determination of
incapacity does not prevent this court from concluding that the trial
court departed from the essential requirements of the law by
denying Mr. Foster's motion to substitute counsel to represent him
during proceedings to determine incapacity at a time when his
incapacity was merely alleged.
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As an alleged incapacitated person, Mr. Foster had a right to
substitute his court-appointed attorney with the attorney of his
choice until the trial court determined his incapacity. See
§ 744.331(2)b. By denying his motion to substitute counsel, the
trial court departed from the essential requirements of the law. We
consider Mr. Foster's petition as one for a writ of certiorari, grant
the writ, and quash the trial court's order denying his motion to
substitute counsel.
Petition for writ of certiorari granted; order quashed.
LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.
Opinion subject to revision prior to official publication.
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