text:
    THE FLORIDA BAR, Complainant, v. Daniel Gary GASS, Respondent.
    No. SC12-937.
    Supreme Court of Florida.
    Dec. 18, 2014.

      John F. Harkness, Jr., Executive Director, the Florida Bar, Tallahassee, FL and Adria E. Quíntela, Staff Counsel, and Ghenete Elaine Wright Muir, Bar Counsel, the Florida Bar, Sunrise, FL, for Complainant.
    Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that respondent Daniel Gary Gass be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings óf fact. We also approve the referee’s recommendation that Gass be found guilty of violating Bar Rules 4-1.3 (Diligence), 4-1.4(a)(3), and 4-1.4(a)(4) (Communication; Informing Client of Status of Representation), and 4-8.4(d) (Misconduct); however, we disapprove the referee’s recommendation that Gass be found in violation of Bar Rule 4-1.4(a)(5) (Communication; Informing Client of Status of Representation). We also disapprove the referee’s recommended sanction, a sixty-day suspension. Given Gass’s failure to diligently act on behalf of his clients and to keep them informed as to the status of their case, and . considering the harm his actions caused to the clients, we conclude that a one-year suspension is appropriate.

FACTS

In May 2012, The Florida Bar filed a complaint against Gass, alleging that he engaged in misconduct in violation of the Bar Rules. A referee was appointed to consider the matter. Following a hearing, the referee submitted her report for the Court’s review, in which she made the following findings and recommendations.

In April 2010, Gass was hired by two clients, a married couple, to handle several legal issues pending against them, as well as against their family-owned business. The most significant of these was a civil case pending in the circuit court that was related to an outstanding debt that the clients and their company owed to a third party, who was the plaintiff in the civil case. By the time Gass first met with the clients in April, a default judgment had been entered against them, and the plaintiff was attempting to collect the judgment.

The evidence presented to the referee indicated that the clients received a subpoena for a deposition scheduled for May 25, 2010; the subpoena also directed the clients to produce certain documents at the deposition. The clients informed Gass of the subpoena and provided him with a copy. However, they testified that Gass advised them not to attend. Based on this advice, the clients did not appear for the deposition. Subsequently, counsel for the plaintiff filed a petition for an order to show cause. On June 21, 2010, the circuit court entered an order to show cause, holding the clients in contempt. The order allowed the clients to purge the contempt by appearing at a rescheduled deposition on June 22. The clients attended this deposition, but Gass did not.

Gass formally entered a notice of appearance in the civil case in July 2010. However, the referee stated: “I find that it is clear that Respondent was representing the [clients] prior to the Notice of Appearance and that Respondent should have been present at the [clients’] deposition. Respondent’s failure to attend is a clear indication of a lack of diligence in representing the [clients].” Notably, once Gass filed the notice of appearance, the clients no longer received any correspondence directly from the plaintiff, and they relied on Gass to keep them informed.

At their deposition on June 22, it appears that the clients produced some, but not all, of the documents requested from them. Consequently, in’ July 2010, counsel for the plaintiff filed a second petition for an order to show cause. The referee found that Gass received this petition, but he did not inform the clients. On August 23, 2010, the circuit court entered a second order to show cause, ordering the clients to produce the remaining documents. The order set a show cause hearing for October 4, 2010, and directed the clients to produce the documents at least five days before the hearing. The referee found that Gass received this order, but he again failed to notify the clients or inform them of the show cause hearing. Thus, the clients did ■not attend the hearing, and Gass did not attend the hearing on the clients’ behalf. During the proceedings before the referee, Gass maintained that the clients were aware of the show cause hearing and that they directed him not to attend. The referee expressly found that this testimony was not credible.

On January 10, 2011, the circuit court entered a “Renewed Order Regarding Hearing on Order to Show Cause on October 4, 2010” (Renewed Show Cause Order). On February 8, 2011, the court entered an “Amended Renewed Order Nunc Pro Tunc as of January 10, 2011, Regarding Hearing on Order to Show Cause on October 4, 2010” (Amended Renewed Show Cause Order). The clients were personally served with the orders. The Amended Renewed Show Cause Order gave the clients ten days from the date of service to provide all of the documents requested. The order warned that they would be incarcerated if they did not produce the documents.

When the clients received the Renewed Show Cause Order, they sent a letter to Gass’s secretary. In the letter, the clients stated that they believed they had provided all of the documents they had available, and they asked Gass to advise them how to proceed. Gass did not respond to the letter; however, the clients testified that they did speak with his secretary, and she indicated Gass was addressing the issue.

In his testimony before the referee, Gass maintained that he repeatedly warned the clients that if they did not provide the documents requested by the plaintiff, they could be incarcerated for contempt. However, the referee found Gass’s testimony was “completely lacking in credibility,” and he did not produce any records of correspondence, telephone conversations, or meetings where he provided this advice. ' Gass also maintained that the clients received copies of the circuit court’s Renewed Show Cause Order and Amended Renewed Show Cause Order, and they, should have been aware of the potential for their arrests. The referee found that Gass’s expectation that his clients interpret a legal document on their own indicated “a callous indifference to his clients and is contrary to his ethical obligations as an attorney.”

In February 2011, the circuit court issued capias and bench warrants for the clients.- Although Gass gave conflicting testimony as to whether he received copies of the warrants in advance and whether he warned the clients of their impending arrest, the referee found no credible evidence that Gass attempted to communicate with the clients at this crucial time. On February 22, 2011, the clients were arrested and taken to jail. After their arrests, Gass did take action to secure their release. He filed a personal bankruptcy action on their behalf (staying the civil case), as well as an emergency motion to strike the capias and bench warrants. The motion was granted, and the clients were eventually released. One client spent three days and two nights in custody, and the other client spent three days and three nights in custody. Both clients testified that their incarceration was very traumatic and caused significant emotional anguish.

Based on these facts, the referee recommended that Gass be found guilty of violating Bar Rules 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a)(3) (a lawyer shall keep the client reasonably informed about the status of the matter); 4-1.4(a)(4) (a lawyer shall promptly comply with reasonable requests for information); 4-1.4(a)(5) (a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know the client expects assistance not permitted by the Rules of Professional Conduct); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

The referee found two aggravating factors in this case: Gass had a prior disciplinary history, having received a public reprimand in 2011 for violations of the trust account rules; and Gass had substantial experience in the practice of law. Additionally, the referee found five mitigating factors: Gass lacked a selfish or dishonest motive for his actions; he made timely, good faith efforts to rectify the consequences of his misconduct; Gass cooperated fully and made free disclosure to the disciplinary board or exhibited a cooperative attitude during the disciplinary proceedings; Gass was of good character or reputation; and Gass exhibited remorse for his misconduct.

As to the sanction, the referee recommended that Gass be suspended from the practice of law for sixty days. The referee also awarded costs to the Bar in the amount of $5,719.24.

The Bar filed a notice of intent to seek review of the report of the referee, urging the Court to disapprove the referee’s recommended sanction and instead impose a one-year suspension. Gass filed a cross-notice, challenging the referee’s recommendations as to guilt as well as the recommended sanction.

ANALYSIS

We first address the referee’s recommendation that Gass be found guilty of violating Bar Rules 4-1.3, 4-1.4, and 4-8.4(d). To the extent that Gass challenges the referee’s findings of fact, the Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will neither reweigh the evidence nor substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla. 1998). To the extent that Gass challenges the referee’s recommendations as to guilt, the Court has stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendation. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

The referee first recommended that Gass be found guilty of violating Bar Rule 4-1.3. We conclude that the referee’s recommendation as to this rule violation is well supported. Rule 4-1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client. Here, the referee found that Gass advised his clients not to attend a deposition scheduled in their civil case, he repeatedly failed to inform them of the circuit court’s orders to show cause and the show cause hearing, and he did not attend depositions and hearings on his clients’ behalf. As a result of his inaction, the depositions and hearings had to be rescheduled, and the civil case against the clients was delayed for months.

We also find that Gass did not act diligently on behalf of the clients when the circuit court issued capias and bench warrants for their arrests. Although there was conflicting testimony as to when Gass received the warrants, the referee ultimately found that he took no action on behalf of the clients during this crucial time.

In his arguments before this Court, Gass contends that he was in regular communication -with the clients, that the clients were aware of the circuit court’s orders and hearings, and that he repeatedly informed the clients that if they did not comply with the plaintiffs requests for documents, they could be found in contempt and arrested. However, the referee found that Gass’s testimony was not credible. This Court has long held, “[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect.” Fla. Bar v. Tobkin, .944 So.2d 219, 224 (Fla.2006) (citing Fla. Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991)). Here, we conclude that there is no basis for rejecting the referee’s determination. Accordingly, we approve the referee’s recommendation that Gass be found guilty of violating Bar Rule 4-1.3.

We also approve the referee’s recommendation that Gass be found in violation of Bar Rules 4 — 1.4(a)(3) and (a)(4). Those rules require the lawyer to keep the client reasonably informed about the status of a matter and to promptly comply with the client’s reasonable requests for information. Here, the referee found that Gass repeatedly failed to inform the clients of orders and hearings in their case. As noted, there is also no evidence that Gass warned the clients that their failure to comply with the court’s orders could result in their being held in contempt. In January 2011, when the clients received the Renewed Show Cause Order, they sent Gass a letter stating that they believed they had provided all of the documents in their possession and asking Gass to advise them how to proceed. Gass did not personally respond to the letter, and there is no indication that he took any action on the clients’ behalf at that time. While Gass maintains that the clients should have known they were at risk to be incarcerated based on language in the Renewed Show Cause Order and Amended Renewed Show Cause Order, we agree with the referee that Gass’s expectation that his clients interpret a legal document on their own without his guidance indicates a callous indifference to the clients. Accordingly, we approve the referee’s recommendation that Gass be found guilty of violating rules 4-1.4(a)(3) and (a)(4).

Gass next urges the Court to disapprove the referee’s recommendation of guilt as to Bar Rule 4-1.4(a)(5). The rule provides that a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct. We agree that the referee’s factual findings do not support the conclusion that Gass failed to consult with the clients about ethical limitations on his conduct, and we disapprove the referee’s recommendation of guilt as to this rule.

Lastly, we approve the referee’s recommendation that Gass be found guilty of violating Bar Rule 4-8.4(d), which provides that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. We conclude that Gass’s failure to act diligently on behalf of the clients and his failure to keep the clients informed, causing significant delays in the case and ultimately resulting in the clients’ arrests and incarceration, were prejudicial to the administration of justice.

We next address the referee’s recommended sanction, a sixty-day suspension. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

We agree with the referee that Gass’s misconduct warrants a suspension. See Fla. Stds. Imposing Law. Sanes. 4.42 (stating that suspension is appropriate when “a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client” or “engages in a pattern of neglect and causes injury or potential injury to a client”). However, we believe that his failures to act on behalf of the clients, and particularly the serious harm his inaction caused to the clients, warrant a more severe suspension than sixty days. The Bar argues that a one-year rehabilitative suspension is appropriate; we agree.

We have previously imposed rehabilitative suspensions in cases where an attorney failed to act on behalf of clients or failed to keep a client informed in a case and caused the client harm. In Florida Bar v. Roberts, 770 So.2d 1207 (Fla.2000), we suspended an attorney for ninety-one days for failing to consult with a client before transferring her case to a new attorney, refusing to respond to the client’s repeated calls, and informing the client that he could no longer represent her less than a month before a scheduled mediation. We stated: “We here make the specific point that an attorney’s consideration of his or her client’s interests and communication with the client at reasonable times in response to the client’s inquiries are a vital and necessary part of the attorney-client relationship.” Id. at 1209 (emphasis added); see also Fla. Bar v. Summers, 728 So.2d 739 (Fla.1999) (suspending former Assistant United States Attorney for ninety-one days for failing to comply with numerous trial court directives in forfeiture case where respondent represented government, resulting in entry of final judgment against government, and for failing to respond to Bar inquires and to attend final hearing before referee); Fla. Bar v. Rolle, 661 So.2d 301 (Fla.1995) (suspending attorney for ninety-one days for failing to respond to repeated requests for information by clients in two separate cases and for failing to take any action in one of client’s cases); Fla. Bar v. Witt, 626 So.2d 1358 (Fla.1993) (suspending attorney for ninety-one days for neglecting client’s workers’ compensation and personal injury cases and for neglecting five separate appeals in First District Court of Appeal, resulting in dismissal of two appeals).

Moreover, Gass’s misconduct is particularly egregious because it ultimately resulted in his clients each spending three days in jail for contempt. In Florida Bar v. Morrison, 669 So.2d 1040 (Fla.1996), we noted that “[t]he failure of an attorney to pursue representation on behalf of a client resulting in prejudice to a client’s rights is an intolerable breach of trust.” Id. at 1042. In Morrison, the attorney was hired to represent a client in an already pending lawsuit, but he failed to timely file a notice of appearance in the case or respond to motions, resulting in the case being dismissed without prejudice. Although the attorney refiled the complaint, he failed to actively pursue the case, again resulting in dismissal. By the time of the second dismissal, the statute of limitations had run, precluding the client from pursuing her claims. The Court suspended the attorney for one year. In the case presented here, we note that the clients suffered an even more serious harm than the client in Morrison, in that they were arrested and forced to spend three days in jail. The clients testified before the referee that their time in jail was very traumatic and has caused lasting emotional anguish. Accordingly, we conclude that a one-year suspension is appropriate.

We have also considered the referee’s findings in aggravation and mitigation. The referee found two aggravating factors: (1) Gass had a prior disciplinary history, and (2) Gass had substantial experience in the practice of law. The referee also found five mitigating factors: (1) Gass lacked a selfish or dishonest motive for his actions; (2) Gass made timely good faith efforts to rectify the consequences of his misconduct, in that he moved quickly to have the clients released from jail after their arrest; (8) Gass cooperated fully during the disciplinary proceedings; (4) Gass was of good character or reputation; and (5) Gass exhibited remorse for his misconduct. However, we conclude that these mitigating factors do not outweigh Gass’s serious misconduct.

CONCLUSION

Accordingly, Daniel Gary Gass is hereby suspended from the practice of law for one year. The suspension will be effective thirty days from the filing of this opinion so that Gass can close out his practice and protect the interests of existing clients. If Gass notifies this Court in writing that he is no longer practicing law and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Gass shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Gass shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 82399-2300, for recovery of costs from Daniel Gary Gass in the amount of $5,719.24, for which sum let execution issue.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. David Frank PETRANO, Respondent.
    No. SC13-2004.
    Supreme Court of Florida.
    Dec. 18, 2014.
    John F. Harkness, Jr., Executive Director, and James Keith Fisher, Bar Counsel, The Florida Bar, Tallahassee, FL, and Adria E. Quíntela, Staff Counsel, The Florida Bar, Sunrise, FL, for Complainant.
    David Frank Petrano, pro se, Hawthorne, Florida, for Respondent.
   PER CURIAM.

This case came before the Court on The Florida Bar’s petition for interim probation of respondent David Frank Petrano. The Bar asserted facts and presented an affidavit that clearly and convincingly, established that restrictions on respondent’s privilege to practice law are necessary for the protection of the public. After considering filings by the Bar and Petrano, the Court issued an order imposing interim probation with restrictions on Petrano. See Fla. Bar v. Petrano, SC13-2004, 2013 WL 6063506 (Fla. Nov. 12, 2013). Due to Petrano’s constant abusive filings in the Court regarding this ongoing case and other cases, the Court issued an order on June 9, 2014, directing Petrano to show cause

why this Court should not find that you have abused the legal system process and impose upon you a sanction for abusing the legal system, including, but not limited to directing the Clerk of this Court to reject for filing any future pleadings, petitions, motions, letters, documents, or other filings submitted to this Court by you unless signed by a member of The Florida Bar other than yourself.

Fla. Bar v. Petrano, SC13-2004 (Fla. Jun. 9, 2014); R. Regulating Fla. Bar 3-7.17 (Vexatious Conduct and Limitation on Filings); see also Fla. R.App. P. 9.410(a) (Sanctions; Court’s Motion); State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (stating that a court must first provide notice and an opportunity to respond before sanctioning a litigant and prohibiting litigant from future pro se filings). Petrano has filed a response to the Court’s order to show cause. He argues that all of his filings and proceedings were presented in good faith and that he is sincerely remorseful. However, in the response he resumes making the same meritless arguments that he has presented to this Court numerous times. After considering Pe-trano’s response, we conclude that it fails to show cause why sanctions should not be imposed. We find that respondent has engaged in vexatious conduct. See R. Regulating Fla. Bar 3-7.17 (“Vexatious conduct is conduct that amounts to abuse of the bar disciplinary process by use of inappropriate, repetitive, or frivolous actions or communications of any kind directed at or concerning any participant or agency in the bar disciplinary process such as the complainant, the respondent, a grievance committee member, the griev-anee committee, the bar, the referee, or the Supreme Court of Florida, or an agent, servant, employee, or representative of these individuals or agencies.”).

This Court has chosen to sanction pro se respondents who have abused the judicial process and otherwise misused this Court’s limited judicial resources by filing frivolous, nonmeritorious, or otherwise inappropriate filings. Such respondents have been barred from further filings in this Court unless their pleadings, motions, or other requests for relief were filed under the signature of a member of The Florida Bar in good standing other than the respondents. The Court has found that limitations on the abilities of such respondents to submit any further filings in this Court were necessary to protect the constitutional right of access of other litigants, in that it permitted this Court to devote its finite resources to the consideration of legitimate claims filed by others. See Fla. Bar v. Kivisto, 62 So.3d 1137, 1139 (Fla.2011); Fla. Bar v. Thompson, 979 So.2d 917, 918 (Fla.2008); see also In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (noting that “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources”).

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by David Frank Petrano unless such filings are signed solely by a member in good standing of The Florida Bar other than Petrano. R. Regulating Fla. Bar 3-7.17(d). Counsel may file on Petrano’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 15, Fla. Const.

      . Petrano is the subject of the instant disciplinary proceeding, Florida Bar v. Petrano, No. SC13-2004, and he has failed to demonstrate compliance with the Court’s previous order that he undergo a mental health evaluation. He filed a petition for a writ of mandamus challenging this disciplinary proceeding. Petrano v. Fla. Bar, 143 So.3d 921 (Fla.2014) (petition denied in SC13-1731). In addition, he and his wife, Mary Katherine Day-Petrano, filed a petition for a writ of mandamus seeking relief against at least thirteen persons and entities, including the Bar and the Florida Board of Bar Examiners. M.K.D.P. v. Fla. Bd. of Bar Examiners, No. SC13-1857 (Fla. Jan. 30, 2014) (dismissed in part, denied in part). He filed a separate "petition for contempt” against the Bar. Petrano v. Fla. Bar, No. SC14-830 (Fla. Apr. 30, 2014) (dismissed as unauthorized).
      In addition to the various proceedings, the Court has addressed Petrano's numerous motions and filings within the cases. In No. SC13-1731, the first mandamus petition, Pe-trano filed over 120 pleadings and appendices. He also engaged in repeated attempts to file an affidavit of his wife, even though the filing was previously stricken. Petrano v. Fla. Bar, No. SC13-1731 (Fla. Feb. 7, 2014) (denying Petrano’s motion requesting that the Clerk of Court be ordered not to strike his wife’s affidavits); Petrano v. Fla. Bar, No. SC 13-1731 (Fla. Feb. 17, 2014) (affidavit stricken). On February 7, 2014, the Court issued an order that struck a reply and appendices that Petrano filed on November 26 and 27, 2013. The Court issued another order on that same date, striking Petrano’s filings of November 18, 19, 20, 21, 22, and 26, 2013. Also, the Court has ordered him not to file pleadings over fifty pages in length. In this case, over eighty of his filings were stricken. Clearly, the majority of his filings have not resulted in relief, as they have been stricken or denied.
      In the instant case, No. SC13-2004, before it was referred to a referee, Petrano filed thirty-two motions or appendices in this Court. For example, he objected to the substitution of Bar counsel after Bar counsel had left the Bar’s employment. In another pleading, he requested'that the Court permit him to amend his answer; however, he filed this request after the Court issued an order ruling on the point. Fla. Bar v. Petrano, No. SCI 3-2004 (Fla. Mar. 19, 2014) (motion denied). Although this Court ordered Petrano to undergo the mental health evaluation, he thereafter filed a motion for protective order asking the Court to prohibit the Bar from making him undergo the evaluation. The Court denied his motion and struck yet another of his filings. As in No. SC13-1731, Petrano repeatedly attempted to file an affidavit of his wife after it was stricken. Fla. Bar v. Petrano, No. SC 13-2004 (Fla. Nov. 12, 2013) (striking affidavit as unauthorized); Fla. Bar v. Petra-no, No. SC 13-2004 (Fla. Feb. 26, 2014) (same). He filed a motion demanding that the Bar provide ADA accommodations for his wife to participate in the mental health evaluation with him. The motion was denied. His motion to take judicial notice was stricken for failure to comply with the appellate rule prohibiting argument. Fla. Bar v. Petrano, No. SC 13-2004 (Fla. Feb. 26, 2014).
      Therefore, Petrano’s numerous filings in No. SC13-2004, No. SC13-1731, No. SC13-1857, and No. SC14-830, which are repetitive and meritless, abuse the Court's limited resources.


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420.
    No. SC14-569.
    Supreme Court of Florida.
    Dec. 18, 2014.
    Murray Bruce Silverstein, Chair, Rules of Judicial Administration Committee, Greenberg Traurig, P.A., Tampa, FL; Judge Jon Berkley Morgan, Past Chair, Rules of Judicial Administration Committee, Kissimmee, FL; Judge Lisa T. Mu-nyon, Chair, Florida Courts Technology Commission, Orlando, FL; Susan Dawson, Staff Liaison, Office of the States Court Administrator, Tallahassee, FL; John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Barbara Anne Petersen, President, First Amendment Foundation, Tallahassee, FL; Carol Jean LoCicero and Rachel Elise Fu-gate of Thomas & LoCicero PL, Tampa, FL and Dana Jane McElroy of Thomas & LoCicero PL, Fort Lauderdale, FL, on behalf of Florida Media Organizations, Responding with comments.
   PER CURIAM.

The Court has for consideration amendments to Florida Rule of Judicial Administration 2.420 (Public Access to Judicial Branch Records) proposed by the Florida Courts Technology Commission (Commission or FCTC), with input from The Florida Bar’s Rules of Judicial Administration Committee (RJA Committee). The more significant amendments conform the rule with In re Standards for Access to Electronic Court Records, Fla. Admin. Order No. AOSC14-19 (amended May 23, 2014), which provides for access to electronic court records in accordance with the Standards for Access to Electronic Court Records and the Access Security Matrix adopted by the Court. We have jurisdiction and amend rule 2.420 as proposed, with minor modifications. The amendments to rule 2.420 we adopt here are one of the final steps in the Court’s ongoing effort to provide responsible public access to electronic court records.

BACKGROUND

For the past ten years, much effort has been put into developing the safeguards, policies, and infrastructure needed before the Court could authorize public access to nonconfidential electronic court records. First, in In re Committee on Privacy and Court Records, Fla. Admin. Order No. AOSC04-04 (Feb. 12, 2004), due to concerns about public access to sensitive and confidential information in court records, the Court imposed a limited moratorium on the release of court records in electronic form. The Court imposed the moratorium as a means to protect sensitive and confidential information from inappropriate or improper disclosure until sufficient safeguards could be established. That administrative order also established and charged the Committee on Privacy and Court Records (Privacy Committee) with recommending to the Court comprehensive policies and rules governing electronic access to court records, as well as the necessary safeguards to be put in place before the Court could authorize electronic access. See Fla. Admin. Order No. AOSC04-04 at 4-6. Then, in a series of administrative orders issued after the Privacy Committee made its recommendations, the Court modified the restrictions on the electronic release of court records by adopting and later revising the interim policy on electronic release of court records. See In re Revised Interim Policy on Elec. Release of Court Records, Fla. Admin. Order No. AOSC07-49 (Sept. 7, 2007) (approving revised interim policy governing electronic release of court records); In re Interim Policy on Elec. Release of Court Records, Fla. Admin. Order No. AOSC06-21 (June 30, 2006) (approving interim policy governing electronic release of court records); In re Implementation of Report and Recommendations of the Comm, on Privacy and Court Records, Fla. Admin. Order No. AOSC06-20 (June 30, 2006) (recognizing that a modified limited moratorium on the electronic release of court records must continue until permanent procedures are approved).

The amendments to rule 2.420 proposed by the Commission in this case further the judicial branch’s goal of providing electronic access to nonconfidential court records when appropriate safeguards are in place. The amendments implement Recommendation Twelve of the recommendations made by the Privacy Committee in its August 15, 2005, report. See Committee on Privacy and Court Records, Privacy, Access and Court Records: the Report and Recommendations of the Committee on Privacy and Court Records 58 (2005) (Privacy Committee Report). Privacy Committee Recommendation Twelve, which was approved by the Court along with most of the Privacy Committee’s other recommendations, urged the Court to revise rule 2.420 to “allow remote access to court records in electronic form to the general public in jurisdictions where [certain] conditions are met.” Privacy Committee Report at 58. One of the conditions that had to be met before the rule could be amended was the development by the Commission, in cooperation with the clerks of court, of uniform technical and substantive standards governing the electronic release of court records, to be adopted by the Court. See Fla. Admin. Order No. AOSC06-20 at 10.

As part of this ongoing effort, the Court has adopted the necessary safeguards recommended by the Privacy Committee, including rule amendments that provide procedures to assist in the identification and protection of confidential information in court records and rule amendments that reduce the amount of unnecessary sensitive information filed with the courts. The Court also adopted standards and rules to implement e-filing in the trial and appellate courts through the Florida Courts e-Filing Portal (Portal), e-mail service of pleadings and documents between parties, and finally electronic service through the Portal, moving the courts to an electronic, mostly paperless environment.

In Florida Administrative Order No. AOSC14-19, with the necessary prerequisites in place to allow public access to the electronic documents filed with the courts, the Court recently adopted the Standards for Access to Electronic Court Records and the Access Security Matrix (standards and access security matrix) to govern access to electronic court records. The standards and access security matrix “provide a carefully structured mechanism to facilitate appropriate, differentiated levels of access to court records to members of the general public and user groups with specialized credentials, and judges and court and clerk’s office staff, based upon governing statutes and court rules.” Fla. Admin. Order No. AOSC14-19 at 4.

Consistent with Administrative Order No'., AOSC14-19, the Commission proposes amending rule 2.420 to provide that access to electronic and other court records shall be governed by the standards and access security matrix adopted in that administrative order and remote access to electronic court records shall be permitted in counties where the conditions for the electronic release of such records are met. The Commission also proposes other minor changes to the rule that were suggested by the RJA Committee.

The RJA Committee voted 18-2 in favor of the proposed rule amendments, as filed with the Court. The Florida Bar Board of Governors approved the proposals by vote of 21-15. The Court published the proposed amendments for comment and three comments were filed. The RJA Committee filed a comment supporting the proposals. Various broadcast and print media entities (Media) and the First Amendment Foundation (Foundation) filed comments raising concerns about the implementation of electronic access to court records. The Commission filed a response pointing out that the issues raised in those comments are beyond the scope of the straightforward proposals at issue here, which simply conform the rule to the administrative order, and urging the Court to amend rule 2.420 as proposed.

After considering the proposed amendments and comments filed, we adopt the Commission’s proposals, with minor modifications explained below.

AMENDMENTS

First and most significantly, we amend subdivision (a) (Scope and Purpose) of rule 2.420, as proposed, to require that “[a]c-eess to all electronic and other court records shall be governed by the Standards for Access to Electronic Court Records and Access Security Matrix, as adopted by the supreme court in Administrative Order AOSC14-19 or the then-current Standards for Access.” As amended, subdivision (a) also provides that “[r]emote access to electronic court records shall be permitted in counties where the supreme court’s' conditions for release of such records are met.”

Because the focus of rule 2.420 is public access to judicial branch records, we modify the Commission’s proposed amendment to the title of rule 2.420, so the title will now read “Public Access to and Protection of Judicial Branch Records.” We also modify the proposed amendment to the first sentence of subdivision (a), consistent with the amendment to the title, to provide that rule 2.420 “shall govern public access to and the protection of the records of the judicial branch of government.”

Finally, at the suggestion of the RJA Committee, subdivision (b)(3) (Definitions; Custodian) is reworded slightly to clarify the definition of “Custodian,” and a typographical error is corrected in the “notice of confidential information within court filing” form.

We take this opportunity to thank the Commission for its invaluable assistance in achieving the important, long-standing goal of providing the public with access to nonconfidential electronic court records.

Accordingly, we amend Florida Rule of Judicial Administration 2.420 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a)Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the following rule shall govern public access to and the protection of the records of the judicial branch of government. The public shall have access to all records of the judicial branch of government, except as provided below. Access to all electronic and other court records shall be governed by the Standards for Access to Electronic Court Records and Access Security Matrix, as adopted by the supreme court in Administrative Order AOSC14-19 or the then-current Standards for Access. Remote access to electronic court records shall be permitted in counties where the supreme court’s conditions for release of such records are met.

(b) Definitions.

(l)-(2) [No Change]

(8) “Custodian.” The custodian of all administrative records of any court is the chief justice or chief judge of that court, except that each judge is the custodian of all records that are solely within the possession and control of that judge. As to all other records, the custodian is the official charged with the responsibility of maintaining the office havingfor the care, safekeeping, and supervision of such records. All references to “custodian” mean the custodian or the custodian’s designee.

(4) — (6) [No Change]

(c)-(m) [No Change]

Committee Note

[No Change]

2002 Court Commentary

[No Change]

2005 Court Commentary

[No Change]

2007 Court Commentary

[No Change]

2007 Committee Commentary

[No Change]

NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

Pursuant to Florida Rule of Judicial Administration 2.420(d)(2), I hereby certify:

CERTIFICATE OF SERVICE

      . See Fla. R. Jud. Admin. 2.236(b)(13) (charging Commission with responsibility to “recommend ... rule changes or additions relating to court technology and the receipt, maintenance, management, use, securing, and distribution of court records by electronic means”).

      . See art. V, § 2(a), Fla. Const.

      . See Fla. Admin. Order No. AOSC06-20 at 1 (recognizing that providing electronic access to nonconfidential court records when appropriate conditions are met is a goal of the judicial branch).

      . See Fla. Admin. Order No. AOSC06-20.

      . The Court amended rule 2.420 to require filers to identify confidential information in their pleadings, and to narrow the scope of statutory exemptions applicable to court records to a list of twenty exemptions that the clerk of court must automatically treat as confidential. See In re Amends, to Fla. Rule of Jud. Admin. 2.420, 124 So.3d 819 (Fla. 2013) (clarifying and refining rule 2.420 procedures); In re Amends, to Fla. Rule of Jud. Admin. 2.420, 68 So.3d 228 (Fla.2011) (adding twentieth category of automatically confidential information); In re Amends, to Fla. Rule of Jud. Admin. 2.420 & Fla. Rules of App. Pro., 31 So.3d 756 (Fla.2010) (recognizing that refinement of rule governing confidential court records was a necessary step in providing the public electronic access to court records).

      . The Court adopted rule 2.425 to minimize the presence of sensitive information in court records. See In re Implementation of Comm, on Privacy & Court Records Recommendations-Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin.; Fla. Rules of Crim. Pro.; Fla. Probate Rules; Fla. Small Claims Rules; Fla. Rules of App. Pro., & Fla. Fam. Law Rules of Pro., 78 So.3d 1045 (Fla.2011) (recognizing that reducing the amount of extraneous personal information in court records is another necessary step in the Court's ongoing effort to provide the public with electronic access to nonconfidential court records).

      . See In re Amends, to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro-Elec. Filing, 102 So.3d 451 (Fla.2012) (adopting rules to provide for mandatory electronic filing of documents through the Portal); In re Statewide Standards for Elec. Access to the Courts, Fla. Admin. Order No. AOSC09-30 (July 1, 2009) (updating standards for electronic filing).

      . See In re Amends, to Fla. Rule of Jud. Admin. 2.516, 112 So.3d 1173 (Fla.2013) (amending e-mail service rule); In re Amends, to Fla. Rules of Jud. Admin., Fla. Rules of Civ. Pro., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., <& Fla. Family Law Rules of Pro.-E-Mail Service Rule, 102 So.3d 505 (Fla. 2012) (adopting e-mail service rule).

      . See In re Amends, to Fla. Rules of Jud. Admin., 126 So.3d 222 (Fla.2013) (amending rules to provide for electronic service through the Portal).

      . In Florida Administrative Order No. AOSC14-19 at 5, the Court also approved a statewide certification process to assess compliance with the standards and access security matrix. Under the certification process, each clerk will participate in a ninety-day pilot program to demonstrate compliance with the standards and matrix and will request approval by the FCTC and the Court to provide online access to electronic court records.

      . Because the concerns raised in the Media's and the Foundation’s comments are not a proper subject for this rules proceeding, those comments are not addressed in this opinion. However, the Court is referring those comments to the FCTC for consideration and recommendation.


author: GROSS, J.

text:
    Anthony ROMANO, as Guardian of the Property of Jack D. Olshen, Appellant, v. Irene OLSHEN, Appellee. Irene Olshen, Appellant, v. David Howard Goldberg, P.L., Appellee. Irene Olshen, Appellant, v. Anthony Romano, Guardian of the Property of Jack D. Olshen, Appellee.
    Nos. 4D12-451
      , 4D12-2466, 4D13-1083.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.

      Freeman W. Barner, Jr. and Brett C. Barner of Freeman Barner & Associates, P.A., Palm Beach Gardens, for Anthony Romano, as Guardian of the property of Jack D. Olshen.
    Bruce A. Katzen and Erin E. Bohannon of Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, for Irene Olshen.
    David Howard Goldberg of David Howard Goldberg, P.L., Miami, for David Howard Goldberg, P.L.

      . These cases were previously consolidated for same panel and briefing purposes. We sua sponte consolidate the cases for all purposes.

   GROSS, J.

This consolidated appeal centers upon the attempts of a guardian and his attorneys to recover guardianship administration fees from a joint investment account held by a ward and his spouse that was part of a guardianship estate. We affirm the orders authorizing the guardian to access the account after the death of the ward and reverse the order that barred access to the account. .

Jack Olshen (“the Ward”) and his wife Irene were married in 2004, when the Ward was in his mid-seventies and Irene was 10 years his junior. In January 2010, the Ward sold Olshen Overseas, Inc., the business he had owned and operated for forty years, receiving approximately $1,800,000.00 in net proceeds. Within thirty days of closing, the funds were deposited into a joint brokerage account at Oppenheimer & Co. (“Oppenheimer Account”), entitled: “Jack Olshen & Irene Olshen JTWROS” — an acronym for joint tenants with right of survivorship. Under Oppenheimer’s policy, withdrawal from the account required both owners’ signatures.

In September 2010, the 81-year-old Ward filed for dissolution of marriage in the circuit court. To prevent Irene from depleting his assets, the Ward also obtained a temporary injunction freezing the parties’ marital assets. Irene responded to the .lawsuit by counter-petitioning for dissolution and filing verified petitions seeking (1) to determine the Ward’s mental incapacity and (2) to appoint an emergency temporary guardian. In her petitions, Irene made, indirect reference to the Oppenheimer Account, stating that the property “subject to guardianship” exceeded $1,400,000.00.

Finding the Ward incapacitated due to dementia, the trial court appointed a “professional guardian,” appellant Anthony Romano (“Guardian”), to serve as guardian of the Ward’s person and property. In addition, the trial court modified the temporary injunction to lift the freeze placed upon the Oppenheimer Account. A significant legal effect of the guardianship was to stay the dissolution proceeding for “at least 3 years.” § 61.052(l)(b), Fla. Stat. (2012).

The Accumulation of Fees

Shortly after his appointment, the Guardian filed a verified inventory of the guardianship estate, which listed the Oppenheimer Account as the estate’s primary asset. The Oppenheimer Account comprised 89% of the $1,454,903.03 net value of the guardianship estate.

On May 27, 2011, the Guardian petitioned for instructions regarding whether divorce proceedings should be abated for three years on account of the Ward’s incapacity. Recognizing the ramifications of an abatement, Irene filed an urgent motion in the divorce court seeking to stay proceedings pending a determination of the validity of a 2004 prenuptial agreement and an accompanying 2008 amendment, both of which, she claimed, were triggered by the Ward’s dissolution petition.

Following a hearing, the trial court ordered the dissolution proceeding abated for a period of three years, pursuant to section 61.052. As a residual effect, Irene’s motion regarding the prenuptial agreement was placed on indeterminate hold. Shortly thereafter, the trial court denied a second motion from Irené, which sought to compel a settlement of the claim involving the prenuptial agreement in accordance with section 744.387, Florida Statutes (2012).

The Attempts to Access the Oppenheimer Account

With the Ward’s estate mired in dispute, the Guardian and his attorneys accumulated fees beyond the Ward’s tangible non-Oppenheimer Account assets. For example, appellee David Howard Goldberg, P.L., obtained an order awarding $53,051.55 in fees for the services performed for the Guardian from February 1, 2011, through March 31, 2011. Since the Ward’s uncontested assets were insufficient to satisfy this amount, the trial court reserved ruling on the source of payment.

To resolve the question of payment, the Guardian filed the following three petitions, which sought to transfer funds from the Oppenheimer Account to cover outstanding fees and expenses:

(1) Petition For Order Authorizing Transfer Of Funds From Oppenheimer & Co. To Restricted Depository at Gibraltar Bank For Additional Payments to Limited Guardian Of Person and Property (4/21/2011).
(2) Petition For Order Authorizing Transfer Of Funds From Oppenheimer & Co. To Restricted Depository At Gibraltar Bank For Periodic Payments To Limited Guardian Of Person And Property (4/27/2011, Amended 7/5/2011).
(3) Petition to Compel The Withdrawal Of Funds From Oppenheimer Account To Pay Court-Approved Retainers Of Guardian’s Counsel (5/26/2011).

Furthermore, on July 8, 2011, when the Ward’s liquid assets dipped to $15,000, the Guardian obtained another temporary injunction freezing the Oppenheimer Account pending the dispute’s resolution.

Irene’s response to the petitions was to attempt to block all access to the Oppenheimer Account by the Guardian on behalf of the Ward. Irene filed an omnibus objection to the Oppenheimer Account “being accessed for any purpose” until the court determined “the validity and application of the parties’ Prenuptial Agreement.” Enforcement of the prenuptial agreement as Irene desired would have left the Ward insolvent. Within her objection, Irene described the Oppenheimer Account as being “held as joint tenants with right of surviv-orship.”

The Budgetary Hearing

By August 2011, the Ward’s health had deteriorated significantly. On August 4, the trial court conducted a hearing to resolve, among other things, the Guardian’s petitions to access the Oppenheimer Account and a petition to approve an amended budget. Although not elaborated upon in detail, the trial court denied the Guardian’s petitions as they pertained to “the withdrawal of funds from the Oppenheimer Account to pay the court appointed retainers of [the] guardian’s counsel” and directed the parties to act with urgency in setting a hearing on the budgetary matter. In so doing, the trial court remarked:

Just from [Irene’s] point of view, regardless of her legal position she would be misguided if she thought I wasn’t going to allow th[e Oppenheimer Account to pay for [the Ward’s] necessities, pending the determination of what I’ll be determining about the account.

At the August 11, 2011 budgetary hearing, the Guardian testified that the Ward was in critical condition and required 24-hour nursing care, at a cost of about $11,000 per month. Finding that such costs were necessary for the Ward’s well-being, and that there were insufficient funds in the Ward’s unrestricted accounts to cover such expenses, the trial court orally ordered that this amount be withdrawn from the Oppenheimer Account along with $6,000 per month for Irene’s expenses. A written order was never entered. Less than a week later, on August 16, 2011, the Ward died.

Case No. 4D12-451

On September 19, 2011, the Guardian filed a petition seeking “use of the- Oppenheimer Account to pay guardianship administration expenses, and other expenses, and finalize the guardianship proceedings after the death of the Ward.” In the petition, the Guardian averred that the Oppenheimer Account, as a joint tenancy with right of survivorship, was part of the Ward’s guardianship estate and thus could be accessed to pay the necessities of the Ward, including guardianship administration costs.

The October Evidentiary Hearings

At an October 18-19 hearing, the Guardian introduced three exhibits: (1) a September 2011 statement for the Oppenheimer Account, which listed the account’s title as “Jack Olshen & Irene Olshen JTWROS”; (2) Oppenheimer and Company Standing Periodic ACH Instructions, dated December 3, 2010, providing for a $6,000 monthly withdrawal, which was signed on the “co-owner” lines by Irene and by the Guardian, on behalf of the Ward; and (3) the initial guardianship inventory, which included the Oppenheimer Account as its primary asset. In addition, the- Guardian testified that the funding for the Oppenheimer Account derived from the sale of the Ward’s solely owned business in 2010, and that withdrawal of funds required the signatures of both parties. On Irene’s cross examination, the Guardian disclaimed knowledge as to whether the Oppenheimer Account was a tenancy by the entireties between the Ward and Irene. Irene did not testify.

Among other things, the Guardian argued in closing that since a guardian of property is statutorily required to perform certain obligations following a ward’s death, Irene’s right of survivorship in the Oppenheimer Account should be encumbered by a lien for the guardianship administration fees.

In response, for the first time in the litigation, Irene took the position that the Oppenheimer Account was inaccessible to the Guardian as a tenancy by the entire-ties, unless Irene authorized payment for her husband’s expenses, which she did not. Furthermore, Irene argued that even if the account were a joint tenancy, Irene’s survivorship interest vested immediately upon the Ward’s death, extinguishing any claims, liens, or judgments against the Ward individually, so that the Oppenheimer Account could not be accessed to cover pre-death expenses of the Ward.

The Tnal Court’s 1/10/2012 Order

On January 10, 2012, the trial court entered a written order denying the Guardian’s petition on the grounds that, upon the Ward’s death, “the funds in the Oppenheimer [Ajccount became immediately [Irene’s] and were no longer available to pay guardianship expenses.” In support of this ruling, the trial court found that since the Ward and Irene were married at the time of the Ward’s death, and since the Oppenheimer Account “was titled in both of their names,” “they [we]re presumed to have held title[] as tenants by the entireties.” To make this ruling, the court applied the presumption described in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001), upon which Irene had relied. Tacitly, the court adopted Irene’s view that the account was not available to pay the Ward’s expenses during his lifetime without Irene’s consent.

In reaching its decision, the trial court understandably expressed concern over the fairness of its ruling:

Candidly, this Court saw the equities in this dispute in favor of the guardian, who along with his attorney, performed exemplary service to the Ward. In this regard, the Court read and reviewed the plethora of law furnished by the parties and has done its own research, looking for a legal basis to preliminarily grant relief to the guardian so that, subject to the claims of [Irene,] the funds in the joint Oppenheimer [A]ccount could be used to pay for the remaining guardianship expenses.

Recognizing that there was pending litigation pertaining to the account, the court continued the freeze order on the account for an additional 60 days. This order is the subject of the appeal in Case No. 4D12-451.

Case No. 4D12-2466

With the 60 day extension nearing expiration, the Guardian moved to continue the freeze on the Oppenheimer Account in February 2012. On March 20, the trial court granted the Guardian’s motion, finding that although the Oppenheimer Account became Irene’s upon the Ward’s death, “there were claims that accrued as of the date of the Ward’s death that are attributed to the guardianship of the Ward, including fees and expenses of the Guardian and Counsel.” Accordingly, “notwithstanding that the Oppenheimer [A]ccount was no longer an asset of the guardianship upon the death of the Ward,” the trial court ruled that “the funds therein may be used to pay for the[ ] pre-death expenses of the Ward.”

With the freeze in place, appellee Goldberg petitioned the court for authorization to use the Oppenheimer Account to pay for the attorney’s fee it was awarded prior to the Ward’s death. Irene objected to any invasion of the Oppenheimer Account, arguing that: (1) the account is a tenancy by the entireties, and thus inaccessible; (2) guardian and attorney’s fees are not necessities of the Ward, and thus may not be obtained from a joint account; and (3) the account passed to Irene through her right of survivorship.

Following a May 10, 2012 hearing, the trial court permitted appellee Goldberg to recover fees from the Oppenheimer Account. Along with finding the fees “necessary” for the guardianship’s administration, the trial court elaborated:

If the system was one that the guardian — the attorney for the guardian could have come into Court the following week during [the Wardj’s lifetime and [gotten] a hearing, then it would have been heard during the time that [the Ward] was still alive before he died and the account went over all to Irene.
And so I’m looking at the date of the order of entitlement as being the critical date because I just have to then determine where it’s coming from.So I think that the entitlement equitably and legally for this expense is appropriate.

The trial court’s written order effectuating this oral pronouncement is the subject of Case No. 4D12-2466.

Case No. 4D13-1083

Prior to the order on appellee Goldberg’s motion, on March 23, 2012, the Guardian moved to (1) determine other claims and expenses of the guardianship that remained unpaid and (2) identify the source of funds for payment. In October 2012, the trial court awarded numerous “expenses of the Guardianship that accrued during the Ward’s lifetime,” including nursing care fees, funeral expenses, and other debts of the sort. Upon the Guardian’s motion, the trial court entered an order approving payment of the expenses from the frozen Oppenheimer Account. That order is the subject of Case No. 4D13-1083.

Of the three orders on appeal, the latter two are in conflict with the first, since they authorize payment from the Oppenheimer account for fees and expenses incurred prior to the Ward’s death.

Legal Analysis

The legal issues in this case arise at the intersection where guardianship law meets the law concerning forms of ownership of joint bank or brokerage accounts. Because the Oppenheimer Account is properly viewed as a joint tenancy with right of survivorship, Chapter 744 permits the trial court to authorize payments for the Ward’s necessary expenses after his death.

Guardianship as an Equitable Proceeding

The “overwhelming” public policy of guardianship law “is the protection of the ward.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006). Part of the expressed legislative intent of Chapter 744 is to assist a ward “in meeting the essential requirements for [his] physical health and safety, in protecting [his] rights, in managing [his] financial resources, and in developing or regaining [his] abilities to the maximum extent possible.” § 744.1012, Fla. Stat. (2012). Chapter 744 is to be “liberally construed to accomplish this purpose.” Id. Although not true in this case, generally, “guardianship proceedings are not adversarial and are governed by a comprehensive statutory code.” Hayes, 952 So.2d at 505.

The ability of a court to effectuate the public policy of protecting the ward is enhanced by a guardianship’s status as an equitable proceeding. “Historically, courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief.” Hedges v. Lysek, 84 So.2d 28, 31 (Fla.1955). “Equity is a court of conscience; it demands fair dealing in all who seek relief, and requires decency, good faith, fairness, and justice. Equity cannot be invoked for selfish or ulterior purposes.” Epstein v. Epstein, 915 So.2d 1272, 1275 (Fla. 4th DCA 2005) (quoting Schetter v. Schetter, 279 So.2d 58, 61 (Fla. 4th DCA 1973) (Walden, J., dissenting)).

As courts of equity, guardianship courts are “charged with the responsibility of protecting an incompetent and his property.” Cohen v. Cohen, 346 So.2d 1047, 1048 (Fla. 2d DCA 1977) (citing Am. Surety Co. v. Andrews, 152 Fla. 638, 12 So.2d 599 (1943)); see also In re Nusbaum’s Guardianship, 152 Fla. 31, 10 So.2d 661, 663 (1942) (stating that a guardian’s acts are “always open to the rigid scrutiny of courts of equity” (citations omitted)); In re Estate of Howard, 542 So.2d 395, 397 (Fla. 1st DCA 1989). Guardianship courts “have wide discretion in fashioning remedies to satisfy the exigencies of the circumstances.” Schroeder v. Gebhart, 825 So.2d 442, 446 (Fla. 5th DCA 2002) (citing Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967)). Thus, a court of equity is authorized to expansively construe Chapter 744 to protect the interests of a ward.

Chapter Framework for Guardian of Property

Under Chapter 744, a guardian has broad powers to access a ward’s assets to act in the ward’s best interest. A guardian is a person “appointed by the court to act on behalf of a ward’s person or property, or both.” § 744.102(9), Fla. Stat. (2012). The guardian of a ward’s person “exercise[s] the rights of the ward that have been [so] delegated,” In re Guardianship of Sapp, 868 So.2d 687, 697 (Fla. 2d DCA 2004), and is discharged upon the filing of the ward’s death certificate. See § 744.521, Fla. Stat. (2012); Fla. Prob. R. 5.680(a). The guardian of the ward’s property, on the other hand, is entrusted with protecting and preserving the ward’s property, performing all duties required of him or her by law, and delivering, upon termination of the guardianship, all property to those so entitled. See § 744.361(6)(a)-(c), Fla. Stat. (2012).

A guardian of the property of a ward shall “[p]rotect and preserve the property and invest it prudently[,] ... apply it as provided in s. 744.397, and account for it faithfully.” § 744.361(6)(a), Fla. Stat. (2012). A court may authorize a guardian of property to “apply the ward’s income” to the “ward’s care, support, education, and maintenance”; “[i]f the income is not sufficient for these purposes, the court may authorize the expenditure of part of the principal for such purposes from time to time.” § 744.397(1), Fla. Stat. (2012).

For the performance of these duties, the guardian and the guardian’s attorneys are “entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” § 744.108(1), Fla. Stat. (2012). Such fees are “determined by the court and paid from the assets of the guardianship estate,” § 744.108(8), Fla. Stat. (2012), where the “guardianship estate” includes “the property of [the] ward subject to administration.” § 744.102(7), Fla. Stat. (2012).

The Oppenheimer Account Is a Joint Tenancy with Right of Survivorship

The circuit court’s January 10, 2012 order relied on the presumption created by Beal Bank, 780 So.2d at 48-58, to conclude that the Oppenheimer Account was a tenancy by the entireties. In Beal Bank, the Supreme Court held in part

that as between the debtor and a third-party creditor (other than the financial institution into which the deposits have been made), if the signature card of the account does not expressly disclaim the tenancy by the entireties form of ownership, a presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship.

Id. at 58 (emphasis added).

The designation of the account as a tenancy by the entireties was significant in this case because, where the ward is an incapacitated spouse, Chapter 744 appears to condition access to an entireties account on the consent of the spouse who is not incapacitated. Section 744.457(l)(a), Florida Statutes (2012), provides that

[a]ll legal or equitable interests in property owned as an estate by the entirety by an incapacitated person for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged in accordance with s. 744.447, if the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property.

(Emphasis added). Without the application of some equitable principle that would override the language of the statute, an estranged spouse would be able to block payment of a ward’s necessary expenses under section 744.457(l)(a), even though the ward was the source of the funds in the account and even though each spouse is “seized of the whole” of property held in a tenancy by the entireties account. Beal Bank, 780 So.2d at 53.

We need not address this conundrum with an equitable escape hatch because the trial court erred in relying on the Beal Bank presumption to find that the Oppenheimer Account was a tenancy by the entireties. The clear language of Beal Bank makes the presumption applicable only in a proceeding between a third-party creditor and the husband or wife as a debtor. Id. at 48-58. No such presumption applies in a guardianship proceeding or in a lawsuit where the husband and wife are opposing parties.

Absent the presumption, the only evidence here was that the Oppenheimer Account was a joint tenancy with right of survivorship: (1) the account was entitled: “Jack Olshen & Irene Olshen JTWROS”— an acronym for joint tenants with right of survivorship; (2) in her objection to the Guardian’s petitions for payment, Irene described the account as being “held as joint tenants with right of survivorship,” and (3) the account was funded by the proceeds of the Ward’s sale of his premarital business and it would be unusual to place the funds in an account where the Ward did not have the right to his individual interest in the account. Irene did not testify or offer any contrary evidence.

Because the Oppenheimer Account was a joint tenancy with right of survivorship, the court could authorize the Guardian to access it to pay authorized expenses, including the Guardian’s fee and the fees for the Guardian’s attorneys. See §§ 744.397(1), 744.457(l)(b), Fla. Stat. (2012). “In a joint tenancy with right of survivorship, each person has only his or her own separate share (‘per my’), which share is presumed to be equal for purposes of alienation.” Beal Bank, 780 So.2d at 53. In such an account, “each tenant ‘has the right, against the other, only to his or her individual interest in the account’ during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit.” Joseph v. Chanin, 940 So.2d 483, 486 (Fla. 4th DCA 2006) (quoting Nationsbank v. Coastal Utils., Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002)). A guardian may properly make withdrawals from a joint account with right of survivorship for a “ward’s necessities.” Drozinski v. Straub, 383 So.2d 301, 304 (Fla. 2d DCA 1980). Such necessities include the professional fees necessary to maintain the guardianship.

The Death of the Ward Did Not Terminate the Guardian’s Access To the Oppenheimer Account

We disagree with Irene that the Guardian lost all ability to access the Oppenheimer Account once the Ward died. It is true that ownership of the account passed to Irene upon the Ward’s death, but Chapter 744 requires a guardian of property to perform tasks related to the guardianship after the death of the ward. Along with these post-death obligations, the Guardian retained “possession” of the account within the meaning of section 744.527(2) for the purpose of winding up the guardianship. It is as if Chapter 744 created a tacit equitable lien on a survivor-ship account to pay legitimate expenses of the guardianship.

Chapter 744 contemplates that a guardian will perform services and be able to access the guardianship estate even after the death of the ward. 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). The trial court was therefore authorized to approve the Guardian’s request for payments from the Oppenheimer Account.

If the ward’s death rendered a survivor-ship account inaccessible to a guardian of property, then serving as a guardian or the guardian’s attorney would be a risky financial proposition. Many wards are in frail health and a guardian’s compensation should not require a race to the courthouse to secure a court order prior to a ward’s death. Severe restrictions on access to survivorship accounts that are part of the guardianship estate would deter many qualified persons from serving as guardians, a result contrary to the public purpose of protecting wards. Chapter 744 should be construed liberally to ensure a compensation framework that encourages competent, qualified guardians to serve. See § 744.1012, Fla. Stat. (2012).

The Legislature Should Consider Amending Section 7kh-h57(l)(a) to Allow Access to a Tenancy By the Entireties Bank or Brokerage Account for the Necessary Expenses of the Ward, Even Where the Spouse of the Ward Does Not Agree

Although not crucial to the decision in this case, section 744.457(l)(a) could be read to block a guardian’s access to an entireties bank or brokerage account without the consent of a ward’s non-incapacitated spouse. The section is broadly written to apply to “[a]ll legal or equitable interests in property owned as an estate by the entireties”; it provides that such interests in property may not be “sold transferred, conveyed, or mortgaged” unless “the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property.” § 744.457(l)(a), Fla. Stat. (2012). Most likely, the statute was drafted with real property in mind and not bank or brokerage accounts. The statute is consistent with the Florida view of entireties ownership, that the husband and wife hold the property “per tout,” Bailey v. Smith, 89 Fla. 803, 103 So. 833, 834 (1925), such that both are treated as one person and “neither spouse can sell, forfeit, or encumber any part of the estate without the consent of the other.” Douglass v. Jones, 422 So.2d 352, 355 (Fla. 5th DCA 1982) (citations omitted).

In a situation such as this one, where a divorce is pending and the spouses are at odds, one spouse could undermine the purpose of guardianship law to deprive the ward/spouse of funds to cover necessary living expenses. It seems stunningly unfair to deprive a ward of funds of which he or she is clearly an owner. Moreover, spouses owe each other a duty of support “imposed by statute.” Fernandez v. Fernandez, 710 So.2d 223 (Fla. 2d DCA 1998); see also §§ 61.071, 61.08, 61.09, Fla. Stat. (2012); Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005) (recognizing “the continuing obligations of support [between spouses] before the marriage is dissolved”).

The purpose of the mandatory abatement of the dissolution proceeding under section 61.052(l)(b), which went into effect in this case, was to enforce the “legislature’s continued concern for the protection of incompetents” by “compelling” the competent spouse “to provide for the care and maintenance” of the incompetent spouse. Goldberg v. Goldberg, 643 So.2d 656, 658 (Fla. 4th DCA 1994). Absent the guardianship, Chapter 61 would have required access to the entireties account for necessary support. Yet, the Chapter 61 dissolution is stayed by the guardianship, supposedly to protect the ward. This created a Catch-22 situation where Irene attempted to use Chapter 744, designed to protect a ward, entirely to the ward’s detriment. Where spouses are prevented from divorcing by section 61.052’s abatement provision, for a spouse to deny an incapacitated spouse access to an entireties account for necessary expenses is to violate the clear duty of support imposed by Florida law and the public policy to protect the ward that is at the heart of guardianship law.

In light of this obligation of one spouse to another, the Legislature should authorize a court to allow access to an entireties bank or brokerage account for necessary guardianship expenses, even if the spouse of the ward does not agree. In the absence of legislative action, in the appropriate case, a court might well use equitable principles to achieve a just result. See Bencomo v. Bencomo, 195 So.2d 874, 875 (Fla. 3d DCA 1967) (“[EJquitable relief may be granted [to] a co-tenant by the entireties in cases of conflicting interests.” (footnote omitted)); Lacker v. Zuern, 109 So.2d 180, 182 (Fla. 2d DCA 1959) (recognizing the possibility of “granting equitable relief against a-husband, cotenant by the entireties, where he [wa]s draining off the profits arising from the property so held, and impairing the corpus”).

For the reasons stated above, we reverse the order in Case No. 4D12-451, affirm the orders in Case Numbers 4D12-2466 and 4D13-1083, and remand to the circuit court for further proceedings.

WARNER and CONNER, JJ., concur.

      . This case concerns petitions to access the Oppenheimer Account into which the proceeds of the sale were deposited. While these petitions were pending, on July 21, 2011, the Guardian and Olshen Overseas, Inc. petitioned to revoke the Oppenheimer Account on the grounds that it was created at a time when the Ward "lacked the capacity to contract.” Specifically, the petition alleged that prior to February 1, 2010, "the Ward's mental and physical health ... declined precipitously” to the point he "began to display uncharacteristic behavior” and could no longer "comprehend the general nature and extent of his assets.” According to the petition, with the Ward’s mental state so weakened, Irene then “took over control of the Ward's personal and business affairs,” culminating when she "improperly presented herself as a corporate officer” and “facilitated the sale of the Ward’s solely owned business assets” to create the Oppenheimer Account. The lawsuit also sought (1) injunctive relief to prevent Irene from receiving the proceeds from the sale of the Ward’s business, (2) recovery for unjust enrichment resulting from Irene’s noncompliance with court orders, (3) damages for breach of fiduciary duty, and (4) other relief. This petition was later stayed by a November 30, 2011 order and remains unresolved today. Since the guardianship must terminate as a result of the death of the Ward, this lawsuit must be pursued, if at all, by the Ward's estate.

      . Section 744.334, Florida Statutes (2012), provides that every petition for the appointment of a guardian "shall contain statements, to the best of petitioner’s knowledge and belief, showing,” inter alia, "the nature and value of property subject to the guardianship.”

      . See § 744.102(17), Fla. Stat. (2012) (defining "professional guardian”); see also §§ 744.1083, 744.1085, Fla. Stat. (2012) (involving the registration and regulation of professional guardians).

      .Section 6i.052(l)(b), Florida Statutes (2012), provides that "no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years.”

      . Such expenses included the unpaid fees of the Guardian, his attorneys, and other professionals hired by the Guardian for the services they performed for the benefit and protection of the Ward during his lifetime.

      . We note that in setting a "reasonable fee” under section 744.108(1), Florida Statutes (2012), the guardianship court’s broad equitable powers include the ability to take into consideration the extent to which proposed fees deplete the guardianship estate. Thus, section 744.108(2)(e) requires a court to consider, among other things, the "nature and value of the incapacitated person's property [and] the amount of income earned by the estate”; section 744.108(2)(g) makes the "time limits imposed by the circumstances” another relevant factor for consideration. A guardianship court’s discretion "includes the ability to rely on common sense and experience to adjust the time claimed for common or routine tasks” and to "deduct excess time claimed due to the guardian's own inefficiency.” In re Guardianship of Shell, 978 So.2d 885, 889 (Fla. 2d DCA 2008). Chapter 744 thus takes a holistic approach to setting a reasonable fee similar to that described by the Supreme Court for Chapter 61 proceedings in Rosen v. Rosen, 696 So.2d 697, 701 (Fla. 1997) (holding that “a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16”).


author: NORTHCUTT, Judge.

text:
    Jaime LOPEZ, Jr. and Viviana Lopez, Appellants, v. BANK OF AMERICA, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP, Appellee.
    No. 2D12-1270.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.

      Nancy Jack of Korte & Wortman, P.A., West Palm Beach, for Appellants.
    Elizabeth T. Frau of Ronald R. Wolfe & Associates, P.L., Tampa, and Trida J. Du-thiers and J. Randolph Liebler of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellee.
   NORTHCUTT, Judge.

When Bank of America voluntarily dismissed its foreclosure action against Jaime and Viviana Lopez, the Lopezes sought attorney’s fees pursuant to Florida Rule of Civil Procedure 1.420(d), which addresses costs awardable to a defendant when a plaintiff voluntarily dismisses a case. But they had not pleaded entitlement to attorney’s fees in their answer to the bank’s complaint. The circuit court denied their motion for fees, and we affirm.

The Lopezes contend that they should be awarded attorney’s fees under rule 1.420(d) notwithstanding their failure to plead entitlement to fees because their contracts with the bank included attorney’s fees as part of recoverable costs. They rely on Wilson v. Rose Printing Co., 624 So.2d 257 (Fla.1993), which at first glance might appear to support their argument. In that case, Wilson voluntarily dismissed his suit against his employer, Rose Printing, which then sought attorney’s fees. The employment contract between the parties stated that “[i]n connection with any litigation arising out of this agreement the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney’s fees for such litigation and any subsequent appeals.” Id. at 258 (emphasis supplied).'

The circuit court refused to award Rose Printing prevailing party attorney’s fees because it found that Wilson dismissed his suit for strategic reasons and that a prevailing party could not be determined. Rose Printing Co. v. Wilson, 602 So.2d 600, 602 (Fla. 1st DCA 1992), approved, 624 So.2d 257. As a general rule, when a plaintiff voluntarily dismisses a complaint, the defendant is deemed to be the prevailing party for purposes of attorney’s fees. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla.1990); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002). Also, contractual prevailing party fees generally are sought by filing a motion under Florida Rule of Civil Procedure 1.525. In Wilson, however, the supreme court observed that the contractual prevailing party requirement was irrelevant because Rose Printing was seeking fees as part of its recoverable costs under rule 1.420(d), not under the contract’s fee provision. Wilson, 624 So.2d at 258. This was made possible because the parties’ contract included attorney’s fees in its definition of costs. Id.

The Lopezes’ contracts with the bank also define attorney’s fees as costs. There is, however, a crucial distinction between Wilson and this case. Unlike the Lopezes, Rose Printing had pleaded its entitlement to attorney’s fees; it had requested “taxation of costs and attorney’s fees against Wilson” in its answer to the complaint. See Rose Printing, 602 So.2d at 601. Therefore, the case before us poses a question that Wilson did not reach— whether parties may recover attorney’s fees as part of their costs under rule 1.420(d) if they have not sought attorney’s fees in their pleadings. The answer is found in Stockman v. Downs, 573 So.2d 835 (Fla.1991), a case decided several years before Wilson.

In Stockman, the following question was certified to the Florida Supreme Court:

MAY A PREVAILING PARTY RECOVER ATTORNEY’S FEES AUTHORIZED IN A STATUTE OR CONTRACT BY A MOTION FILED WITHIN A REASONABLE TIME AFTER ENTRY OF A FINAL JUDGMENT, WHICH MOTION RAISES THE ISSUE OF THAT PARTY’S ENTITLEMENT TO ATTORNEYS FEES FOR THE FIRST TIME?

Id. at 836. The court held that all claims for attorney’s fees, whether based on statute or contract, must be pleaded. The court noted that modern pleadings must notify an opposing party of the claims being raised in order to avoid unfair surprise, and a potential obligation to pay fees could be determinative in an opposing party’s decision “to pursue a claim, dismiss it, or settle.” Id. at 837.

Stockman described only one exception to this rule, when a party has notice that its opponent is claiming fees and by its conduct “recognizes or acquiesces to that claim.” Id. at 838. Later decisions have recognized another exception in cases involving involuntary dismissals: If the complaint is “dismissed before the defendant has filed a responsive pleading, a request for fees is deemed properly pleaded if it was either asserted in a motion to dismiss or in a separate motion filed within thirty days of the dismissal of the action.” See, e.g., Ajax, 824 So.2d at 1029. Neither of those exceptions apply here.

Wilson did not create an exception to Stockman; it had no reason to do so because Rose Printing had followed Stock-man’s dictates by pleading its right to fees and therefore placing Wilson on notice that it would be seeking them. Thus, Wilson simply does not support the proposition that entitlement to fees need not be pleaded in the context of a voluntary dismissal because that issue was not present in that case.

In summary, we hold that when a plaintiff voluntarily dismisses a complaint, a defendant may be awarded attorney’s fees as costs under rule 1.420(d) if the parties’ contract or a statute defines fees as an element of costs and the defendant either had given notice that he was claiming fees in his responsive pleading or falls within the exceptions outlined in Stockman and Ajax.

In reaching this result, we are cognizant that we have held that a party is not required to plead entitlement to costs. See First Protective Ins. Co. v. Featherston, 978 So.2d 881 (Fla. 2d DCA 2008). That opinion, however, specifically distinguished costs from attorney’s fees:

In considering the appropriate pleading requirements, there is a material difference between attorney’s fees and costs. Unlike costs, ordinarily attorney’s fees are not recoverable and thus are not at issue. There is no generally applicable statute which entitles a prevailing party to a recovery of attorney’s fees. Accordingly, where there is a statutory or contractual basis for an award of attorney’s fees, proper pleading requires that a party seeking attorney’s fees put the other party or parties on notice that attorney’s fees are at issue in the litigation.

Id. at 884. The Featherston court addressed the costs allowed pursuant to statute, generally referred to as court costs, that are inherent in every lawsuit. See id. (pointing to various statutes authorizing costs and noting that “[although the standard for the award of costs may — based on specific statutory provisions — vary from the general standard set forth in section 57.041, it is universally true that costs are at issue when a lawsuit is brought”); cf. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612 (Fla.2005). Wilson makes it clear that parties, by contract, may expand the ordinary definition of costs to include attorney’s fees. But a contract between parties cannot abrogate the requirement that entitlement to attorney’s fees must be pleaded.

Affirmed.

MORRIS and BLACK, JJ., Concur.


author: LaROSE, Judge. BLACK, J.,

text:
    In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
    No. 2D14-2467.
    District Court of Appeal of Florida, Second District.
    June 3, 2014.
    Larry Cangro, Tampa, for Appellant.
   LaROSE, Judge.

Jane Doe, a minor, petitioned the circuit court for a waiver of parental notice of termination of pregnancy. See § 390.01114, Fla. Stat. (2013) (providing that physicians performing abortions must notify a parent or legal guardian before the procedure unless the notice requirement is waived by the circuit court). The circuit court dismissed the petition, finding that she had not shown sufficient maturity to decide whether to terminate her pregnancy or that the termination was in her best interest. See § 390.01114(4)(c)-(d). We must reverse.

A minor seeking judicial waiver must prove, by clear and convincing evidence, that she is mature enough to decide whether to terminate her pregnancy and that termination is in her best interest. See id.; In re Doe, 67 So.3d 268, 268 (Fla. 2d DCA 2011); In re Doe 13-A, 136 So.3d 723 (Fla. 1st DCA 2014) (Makar, J., dissenting). The minor need not possess the same maturity as an adult, but she must demonstrate that she is sufficiently mature to make this important decision. See In re Doe, 113 So.3d 882, 882 (Fla. 2d DCA 2012); see also § 390.01114(4)(c) (listing statutory factors the circuit court must consider).

Jane Doe is almost eighteen years old and a high school honors student. She plans to attend college in the fall. She testified that her current condition would impact adversely her future plans. She also testified that her parents were strict, controlling, and demanding. At times they acted out of spite toward her. She feared that they would disown her if notified of her pregnancy.

The circuit court noted that Jane Doe appeared anxious at the hearing. Yet, it did not declare her testimony unbelievable. The circuit court expressed concern that Jane Doe had not seriously considered the medical risks of the procedure, sought independent counseling, or seriously considered alternatives. It disregarded Jane Doe’s testimony that she had undertaken independent medical research concerning the procedure and its risks. The circuit court apparently discounted her testimony that she had considered alternatives to termination.

Seemingly, Jane Doe met her burden; the circuit court found otherwise. We cannot and do not reweigh evidence. § 390.01114(4)(b)(2); see also, e.g., In re E.D., 884 So.2d 291 (Fla. 2d DCA 2004); Lahodik v. Lahodik, 969 So.2d 533, 535 (Fla. 1st DCA 2007). Rather, we must assess whether the circuit court abused its discretion in dismissing the petition. § 390.01114(4)(b)(2); In re Doe, 113 So.3d at 886.

So, too, the circuit court was bound to apply the law as dictated by the legislature to the facts of Jane Doe’s case. See Wilson v. Robinson, 917 So.2d 312, 313 (Fla. 5th DCA 2005). Unfortunately, we are firmly convinced that the circuit court strayed from the statutory mandate. The order oh appeal extensively expresses the circuit court’s misgivings and concerns about the manner in which the statutory proceedings are conducted. It is evident that the circuit court relied on its perceived flaws in the statutory procedure, rather than on an individualized assessment of Jane Doe’s case, in dismissing the petition. This was an abuse of discretion that compels reversal.

Reversed and remanded with directions to grant the petition.

WALLACE; J., Concurs.

BLACK, J., Dissents.

BLACK, J.,

dissenting.

Given the concerns expressed in the majority opinion regarding the circuit judge’s objectivity, which I understand, I would remand for a new hearing before a different circuit judge pursuant to the remand provision in section 390.01114(4)(b)(2).

      . We use this pseudonym to protect appellant’s privacy.

        . Contrary to the dissent's suggestion, section 390.01114(4)(b)(2), in our view, authorizes remand only where the circuit court failed to make adequate findings.