in Re Guardianship of John L Frescura ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re Guardianship of JOHN L. FRESCURA.
THERESA LOMBARDI, UNPUBLISHED
February 5, 2019
Petitioner-Appellant,
v No. 342569
Wayne Probate Court
CAROL MORRIS, Guardian of JOHN L. LC No. 2017-830936-GA
FRESCURA, a legally incapacitated person,
Respondent-Appellee.
Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.
PER CURIAM.
Petitioner appeals as of right the probate court’s order denying her petition to modify the
guardianship of the ward, John L. Frescura, a legally incapacitated individual. Because Mr.
Frescura is now deceased, we dismiss the present appeal as moot.
On September 5, 2017, petitioner, acting as Mr. Frescura’s patient advocate and attorney-
in-fact under a durable power of attorney, filed a petition with the probate court seeking the
appointment of a guardian of Mr. Frescura, then 84 years old, on the ground that he was legally
incapacitated. The petition nominated as guardian Andry Zabinska, a longtime friend and Mr.
Frescura’s purported preference for guardian. On September 28, 2017, Gabriel Brownlee,
petitioner’s son, filed a competing petition seeking to be appointed Mr. Frescura’s guardian. The
probate court entered an order appointing Carol Morris as temporary public guardian.
On November 14, 2017, the probate court held a hearing regarding the competing
petitions. During the hearing, petitioner asserted that, if the probate court determined that Mr.
Frescura lacked the capacity to nominate Mr. Zabinska as his guardian, petitioner would have
statutory priority to be appointed his guardian because she was his patient advocate and attorney-
in-fact. After hearing testimony from Mr. Frescura, the probate court determined that he was not
competent to nominate his own guardian. In light of the parties’ arguments, the probate court
determined it was appropriate to appoint Ms. Morris, the public guardian, as Mr. Frescura’s full
guardian. On January 22, 2018, petitioner filed a petition seeking to modify the guardianship
and nominating herself as guardian. Mr. Brownlee again disputed the petition. The probate
court held a hearing regarding this petition and, on February 20, 2018, entered an order denying
the petition, retaining Ms. Morris as guardian, and authorizing Ms. Morris to relocate Mr.
Frescura to a memory care facility or other suitable placement. In the intervening time since
petitioner filed the present appeal of the probate court’s order, Mr. Frescura has passed away.
The question of mootness is a threshold issue that a court must address before it reaches
the substantive issues of a case. In re MCI Telecom Complaint, 460 Mich. 396, 436 n 13; 596
NW2d 164 (1999). Because Michigan courts exist to determine actual cases and controversies,
“as a general rule, this Court will not entertain moot issues or decide moot cases.” East Grand
Rapids Sch Dist v Kent Co Tax Allocation Bd, 415 Mich. 381, 390; 330 NW2d 7 (1982). A
matter is moot when a court’s ruling would have no practical legal effect, Federated
Publications, Inc v City of Lansing, 467 Mich. 98, 112; 467 NW2d 383 (2002), citing Anway v
Grand Rapids R Co, 211 Mich. 592, 610; 179 N.W. 350 (1920), such that it presents “nothing but
abstract questions of law which do not rest upon existing facts or rights,” Gildemeister v Lindsay,
212 Mich. 299, 302; 180 N.W. 633 (1920). An exception to the mootness doctrine exists when a
matter of public significance is likely to recur yet evade judicial review. Federated Publications,
467 Mich. at 112.
On appeal, petitioner contends that she has statutory priority to be appointed Mr.
Frescura’s guardian and seeks remand to the probate court for a determination of her suitability
to serve as guardian. A “guardian’s authority and responsibility for a legally incapacitated
individual terminates upon the death of the guardian or ward . . . .” MCL 700.5308. Because
Mr. Frescura is now deceased, the guardianship at issue no longer exists. This Court is therefore
unable to grant the relief requested by petitioner, rendering the present appeal moot. See Garrett
v Washington, 314 Mich. App. 436, 449; 886 NW2d 762 (2016) (“An issue becomes moot when a
subsequent event renders it impossible for the appellate court to fashion a remedy.” (quotation
marks and citation omitted)). Nor is this a matter of public significance that is likely to recur yet
evade judicial review.1
1
While disputes over the appointment of guardians are not uncommon, they can be and at least
occasionally are resolved by the appellate courts before the death of the protected individual, as
guardianships extend for several years in certain cases. Furthermore, the dispute in this case is
largely fact driven, so resolving it despite Mr. Frescura’s death would be unlikely to provide
guidance for the resolution of future cases.
-2-
Accordingly, dismissal of the present appeal is appropriate. Dismissed.
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
/s/ Michael F. Gadola
-3-