DEBORAH DUROSS GUIBORD v. GUARDIANSHIP OF KATHLEEN DUROSS FORD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEBORAH DUROSS GUIBORD,
Appellant,
v.
IN RE: GUARDIANSHIP OF KATHLEEN DUROSS FORD, now deceased,
by and through L. FRANK CHOPIN, as Personal Representative,
Appellee.
No. 4D20-1312
[May 18, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Suskauer, Judge; L.T. Case Nos. 50-2018-GA-
000542-XXXX-NB and 50-2018-MH-003270-XXXX-NB.
Harriet Rae Freeman and James R. Merola of Merola & Freeman, P.A.,
Palm Beach Gardens, and Sonia E. O’Donnell and Robert A. O’Donnell of
the O’Donnell Law Firm, P.A., Miami Springs, and Donald E. Christopher
of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, and
Jefferson P. Knight of the Knight Law Firm, Miami, for appellant.
Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach,
and F. Gregory Barnhart and Jack Scarola of Searcy Denney Scarola
Barnhart & Shipley, P.A., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
CONNER, C.J.
We grant the appellant’s motion for rehearing, withdraw our opinion
dated March 2, 2022, and issue the following opinion in its place.
Deborah Duross Guibord (“Appellant”) appeals the final order
determining incapacity and appointing a plenary guardian for her mother,
Kathleen Duross Ford (“the Ward”), and the order denying her motion for
rehearing. Appellant asserts multiple trial court errors, including failing
to properly apply the presumption of undue influence involving self-
dealing, failing to comply with guardianship statutes in appointing the
guardian, precluding and ignoring evidence, and relying on improper
expert testimony outside the witness’s expertise. We affirm the trial court’s
rulings without discussion, except as to one issue, the denial of a motion
for rehearing as moot. As to that issue we reverse and remand for further
proceedings.
After the trial court issued its order determining incapacity and
appointing the plenary guardian, Appellant filed a motion for rehearing
based on newly discovered evidence of a witness who would offer a first-
hand account of prior physical abuse of the Ward by the appointed
guardian. Unfortunately, the Ward died before the trial court ruled on the
motion for rehearing. The guardian filed a response opposing the motion.
The trial court denied the motion without a hearing, concluding the motion
was moot due to the death of the Ward.
Regarding the final order determining incapacity and appointing the
plenary guardian, after extensively reviewing and considering (1) the large
record on appeal; (2) the forty-eight-page order with extensive findings of
facts and conclusions of law; and (3) the arguments on appeal, we are not
persuaded by any of Appellant’s arguments. Granting appellate relief
regarding the appointment of the guardian as requested by Appellant
would involve reweighing evidence and accepting what Appellant contends
is the “better” evidence. Such a course of action is improper for an
appellate court. See Michael Anthony Co. v. Palm Springs Townhomes, 174
So. 3d 428, 432 (Fla. 4th DCA 2015) (explaining that it is not the function
of appellate courts to reweigh evidence). We conclude the trial court
properly ruled on the evidentiary issues and reached appropriate legal
conclusions based upon the evidence presented.
Regarding the trial court’s denial of the motion for rehearing as moot
due to the Ward’s death, we remind guardianship judges that the death of
the ward renders a motion for rehearing moot as to the incapacity
determination and the appointment of the guardian of the person. That is
because “[a] guardian of the person is discharged without further
proceeding upon filing a certified copy of the ward’s death certificate.” §
744.521, Fla. Stat. (2020); see also Fla. Prob. R. 5.680(a) (“A guardian of
the person is discharged without further proceeding upon filing a certified
copy of the ward’s death certificate.”); In re Guardianship of Beck, 204 So.
3d 143, 146 (Fla. 2d DCA 2016) (“The parties agree that [the ward’s] death
rendered moot any further proceedings with respect to a determination of
whether he was incapacitated or whether a plenary guardian should be
appointed.”).
However, the ward’s death does not render a motion for rehearing moot
as to the appointment of a guardian of the property if the guardian of the
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property handled the ward’s property for a period of time or engaged in
any transactions affecting the ward’s property to a significant degree. That
is because collateral legal consequences may flow from the appointment of
the guardian of the property. As we have previously explained:
The guardian of property is not discharged upon the ward’s
death, but must continue the administration until a petition
for discharge is granted and his or her final accounting is
approved. See § 744.531, Fla. Stat. (2012). Section
744.441(16), Florida Statutes (2012), allows a guardian, with
court approval, to pay “reasonable funeral, interment, and
grave marker expenses for the ward from the ward’s estate, up
to a maximum of $6,000.” Upon applying for discharge, the
guardian may also “retain from the funds in his or her
possession a sufficient amount to pay the final costs of
administration, including guardian and attorney’s fees
regardless of the death of the ward, accruing between the filing
of his or her final returns and the order of discharge.” §
744.527(2), Fla. Stat. (2012); Fla. Prob. R. 5.680(b)(3).
Romano v. Olshen, 153 So. 3d 912, 920 (Fla. 4th DCA 2014).
As the guardian correctly conceded at oral argument, the Ward’s death
did not render the motion for rehearing moot as to the appointment of a
guardian of the property. Although the newly discovered evidence claim
may involve issues related to the appointment of the guardian of the
person, the motion for rehearing also asked the court to reconsider its
ruling with respect to the guardian of the property, as Appellant claimed
it overlooked evidence that she contended should have prevented the trial
court from appointing the guardian to this fiduciary position. The trial
court refused to consider it, erroneously concluding that it was moot.
Since the motion was not entirely moot, we reverse for the trial court to
consider the motion for rehearing only as to the appointment of the
guardian of the property.
Affirmed in part, reversed in part, and remanded for further proceedings.
WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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