author: SALTER, J. ROTHENBERG, C.J.

text:
    Gilberto SARFATY, Appellant, v. In re: M.S., Appellee.
    No. 3D16-1419
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Miami, Dun-wody White & Landon, P.A., and Jeremy ■P. Leathe; Coral Gables, Markowitz, Rin-gel, Trusty & Hartog, P.A., and Joshua Rosenberg and Candis Trusty, Miami, for appellant.

      Akérman LLP, and Gerald B. Gope, Jr., Richard C. Milstein and Dale Noll, Miami, for appellee.
    Before ROTHENBERG, C.J., and SALTER and EMAS, JJ.
   ON MOTION FOR REHEARING OR CLARIFICATION

SALTER, J.

We grant in part the appellee’s motion for rehearing or clarification, withdraw our opinion issued May 10, 2017, and substitute the following opinion in its place.

Gilberto Sarfaty appeals the dismissal (without leave to amend) of his petition to determine incapacity of his adult brother, M.S. We reverse the order of dismissal and remand the guardianship case to the circuit court for further proceedings.

The Petition and Psychological Assessment Report Attached to the Petition

The verified petition alleged that 46-year-old M.S. is incapacitated and has been incapacitated his entire life. The petition attached a psychological assessment of M.S. prepared by a South Florida consulting psychologist prepared six months before the petition was filed. The assessment was based on personal clinical interviews of M.S., an interview of the petitioner, and cognitive evaluation tests. The assessment included background information that M.S. was diagnosed with intellectual disability secondary to neurocognitive deficits as a child in his native Peru. M.S. attended specialized training programs in Massachusetts and New Haven, Connecticut, for the development of independent living and work skills.

The verified petition and attached assessment report stated that M.S. lives in. a condominium in Aventura and receives assistance from a Peruvian aide and her husband with activities such as shopping, participating in a support group for outings such as movies, and keeping appointments. The psychologist reported that M.S.’s executive functioning “requires ongoing functional support,” and that his sister in New York City manages M.S.’s access to money. The assessment report further stated:

Given these deficits,' [M.S.] will require supervision in terms of managing his affairs, including health, finance, self-care and any business decisions. When questioned regarding his role in family business affairs, [M.S.] had no answer and indicated that he did not know. [M.S.]'is unable to comprehend issues related to assets and liabilities, corporate structure and organization, division of shares, power of attorney, voting rights, etc., and other-issues related-to financial management. This deficit places him at risk for financial exploitation. [M.S.] lacks informed decision making capacity and is in need óf assistance in the overall management of affairs and monitoring of his executive functioning capacity.
Summarily, the evaluation of '[M.S.] reflects the existence of pronounced personal, psychological and cognitive/intellectual deficits that augment his degree of susceptibility to undue influence. His poor capacity to resist suggestions would adversely impact upon his accurate perception of events and circumstances and render an informed decision. His inability to navigate situations and circumstances that require abstract and/or complex reasoning ability precludes his .acting in a knowing, intelligent and voluntary manner.

The verified petition further alleged that M.S.’s cognitive deficits have left him “susceptible to exploitation and undue influence.” The petitioner attached powers of attorney executed by M.S. in favor of any one Of four family members (the petitioner, M.S.’s brother, Gilberto Sarfaty; M.S.’s mother, a resident of Paris, France, Jeannette Sarfaty; and M.S.’s two sisters: Susie Sarfaty, a resident of New York City, and Lisette Sarfaty, a resident of Lima, Peru). The verified petition alleged that these powers of attorney had been utilized by. M.S.’s sisters and- mother to transfer M.S,’s shares in a family-controlled business from voting to non-voting status, in breach of their fiduciary duty to M.S. Corporate documents evidencing authority purportedly conferred by M.S. for corporate action were also attached to the petition. The petition complied with the statutory requirements of section 744.3201, Florida Statutes (2015).

The verified petition sought a plenary guardianship and the appointment of a “professional guardian” — not the petitioner or other family member of M.S. — to serve as plenary guardian of the person and property of M;S. In a matter of days following the filing of the verified petition and those attachments, the mental health division of the probate division of the Miami-Dade circuit court issued a standard order (signed by the circuit judge) appointing three credentialed and independent mental health‘professionals to serve as the examining committee for M.S. as the “allegedly incapacitated person” or “AIP,” In that order, the court also appointed an independent attorney to serve as counsel for M.S. and “to represent the AIP in all proceedings involving the verified petition.” The order further specified- that the court-appointed attorney “may not hereafter serve as guardian, nor as the guardian’s counsel.”

Private Counsel for M.S.

The attorneys for the petitioner/brother of M.S., Gilberto Sarfaty, and M.S. himself, promptly notified M.S.’s mother, two sisters, and M.S.’s aides of the commencement of the guardianship and the fact that the petitioner sought an independent guardian for M.S. In less than ten days from the service of the circuit court’s form order appointing the examining committee and independent, court-appointed counsel, the other family members retained counsel and appeared in the case.

Of particular note, and as detailed in the attached time line, attorneys and their law firm purporting to be appearing on behalf of M.S.- — -not M.S.’s mother or sisters, but M.S., the allegedly incapacitated person himself — immediately appeared in the case and moved to be substituted for the independent, court-appointed attorney representing M.S. That motion was signed by M.S. himself. ’

The independent, court-appointed attorney for M.S. was concerned that, though M.S. “may substitute her or his own attorney for the attorney appointed by the court, this is not an absolute right and certain factors must be taken into consideration when allowing this substitution.” (Emphasis in the original). The court-appointed attorney expressed concern regarding M.S.’s capacity, based on M.S.’s life-long medical history, the verified allegations in the petition, and the pre-petition assessment report of Dr. Toomer attached to the petition. The objections noted uncertainty as to who actually hired private counsel for M.S., and suggested that the court assure that private counsel for M.S. “is a disinterested third party, with [M.S.’s] best interests in mind.” The court-appointed attorney did not, however, press for an evidentiary hearing on her objections.

The day after the objections were filed, the circuit court entered two orders. The first found that M.S. is not indigent and ordered reassignment from the Office of Criminal Conflict and Civil Regional Counsel “as soon as we have resolved the issue of who should be the successor court-appointed attorney,” and a second order granted private counsel’s emergency petition to be substituted in place of the initially-appointed independent counsel.

Stipulation for Continuance; M.S.’s Motions to Strike and to Dismiss

The circuit court’s standard order of December 10, 2015 (served by mail the following day), scheduled the adjudicatory hearing on 'the petition for January 13, 2016. But on January 6, 2016, counsel for all of the interested persons and for M.S. stipulated to a motion for continuance of that hearing because of scheduling conflicts and ongoing settlement negotiations. The court granted the joint motion and directed counsel to coordinate a later date for the hearing on the petition to determine incapacity.

As of January 7, 2016, M.S. was represented by his private counsel, and the original, court-appointed attorney terminated her services on behalf of M.S. On January 13, 2016, M.S.’s private counsel filed a declaration that the petition for a determination of incapacity was adversary. Although M.S.’s court-appointed counsel had begun seeking information from the petitioner’s counsel regarding access to M.S. in December, and although M.S.’s mother and M.S.’s private counsel were present during a December 29, 2015, interview with Dr. Echavarria of the Examining Committee, M.S.’s private counsel next moved to dismiss the petition for procedural reasons. The motion to dismiss, filed January 20, 2016, asserted that M.S. “has been consistently denied the due process and procedures required in these proceedings,” that the petition is “fatally flawed,” and that the relief requested is “barred by the doctrines of unclean hands and estop-pel.”

The following day, M.S.’s private counsel filed a notice to require in person testimony of the three examining committee members, and a motion to strike all three examining committee member reports (each of which had recommended a limited guardianship based on M.S.’s inability to make informed decisions regarding a majority of the 13 categories assessed in the report).

Hearing and Dismissal Without Leave to Amend

Private counsel for M.S. amended the motion to dismiss on April 26, 2016, and the motion was heard' a week later. The hearing was non-evidentiary, and the thrust of the movants’ objections were (a) the alleged failure of court-appointed counsel to read the petition and form notice to M.S., and (b) the fact that the examining committee members did not file their reports within the fifteen day period allowed by the form notice and section T44.331(3)(e), Florida Statutes (2016). Private counsel for M.S. also addressed the alleged merits of the petition, moving beyond the four corners of the petition and its attachments. During that hearing, as here, private counsel for M.S. argued that less restrictive alternatives to guardianship should be considered — including a guardian advocate under section 393.12, Florida Statutes (2016), and a petition under section 709.2116, Florida Statutes (2016), for judicial relief regarding any alleged conflict of interest relating to the execution of powers of attorney by M.S. or family members.

Counsel for the petitioner argued that M.S.’s private counsel had stepped into the shoes of counsel for M.S., with the ability and duty to read the petition to him, explain its consequences, and assist him with scheduling timely meetings with the examining committee members so that their reports could be timely filed. The court determined, however, that the proceedings needed to begin anew and that the petitioner would not be allowed to amend the petition. The court expressed the well-intentioned hope that the family members might be reconciled and avoid the expense of further proceedings, though recognizing that the dismissal was “unusual.” The present appeal followed.

Analysis

Our standard of review for an order granting the dismissal of a petition without leave to amend is de novo. We review the allegations within the four corners of the petition and its attachments, assume them to be true, and construe all reasonable inferences from those allegations in favor of the petitioner. Greene v. Times Publ’g Co., 130 So.3d 724, 728 (Fla. 3d DCA 2014); Lonestar Alt. Sol., Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 10 So.3d 1169, 1172 (Fla. 3d DCA 2009).

The order of dismissal, and the oral ruling that amendment would not be allowed, 'are grounded on (1) an alleged failure of due process; (2) the allegedly untimely filing of the examining committee member reports; and. (3) the objection by the initial, court-appointed counsel to the appointment of M.S.’s private counsel, alleged to have been prejudicial to M.S. While these arguments may constitute defenses to the petition, they fail to establish the legal insufficiency of the petition. They are also circular arguments because of the unusual procedural developments in the case.

Within days of independent, court-appointed counsel’s receipt of the standard order appointing her, M.S. had signed a paper prepared by his proposed, private counsel asking that court-appointed counsel be discharged. This occurred because counsel for the petitioner immediately (and properly) disseminated the petition and its attachments electronically to M.S.’s family members. M.S., his mother, and his two sisters then immediately hired four separate Miami law firms to represent them. As soon as private counsel was substituted for court-appointed counsel, the normal urgency in guardianship cases apparently diminished, because all counsel stipulated to the continuance of the originally-set evi-dentiary hearing.

In light of this unusual record, M.S.’s reliance on strict adherence to the time and notice requirements in section 744.331(3)(e) and in the circuit court’s standard notice and order mailed December 11, 2015, is not persuasive; M.S.’s own counsel and his family could have immediately asked the Court (but did not) to defer the examining committee member assessments, or to expedite them. Instead, counsel for M.S. made him available for the examining committee member examinations and sat with M.S. as each professional assessed M.S. M.S. now complains of actions not taken by the court-appointed attorney he petitioned to discharge, and then purportedly not taken by his own private counsel.

We have identified no Florida case holding that the timing set forth in the statute cannot be waived by an AIP or the AIP’s private counsel. Nor have we identified a case holding that the timing set forth in the statute is so significant to the process and parties that a petition must be dismissed, without leave to amend, if the time requirements are not strictly fulfilled.

Instead, M.S. and three family members persuaded the trial court months later that substantial compliance with the statute and rule were insufficient, citing such cases as In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993), and Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002). Although In re Fey holds that “compliance with section 744.331 and rule 5.550 is mandatory,” 624 So.2d at 772, the non-compliance in that case involved the failure to appoint independent counsel for the AIP until “the commencement of the final hearing,” “long past the pleadings and trial preparation stage.” Id. No such failure occurred in the present case, in which the court’s initial order, mailed only days after the petition was filed, appointed independent counsel and the members of the examining committee. And no final hearing has begun, much less occurred, in this case.

Similarly, in Borden, the AIP’s daughter (who had petitioned for a determination that her mother was incapacitated) and the AIP’s court-appointed independent attorney were not notified of a hearing on a motion by the AIP’s husband. “The hearing was not recorded, no examining committee reports were considered because the examining committee had not yet completed the required examinations, and [the AIP’s] court-appointed attorney did not participate because he was not notified of the hearing.” 818 So.2d at 606. Nevertheless, at the conclusion of that hearing, the trial court found that the AIP was competent and dismissed the petition. Id.

Unsurprisingly, the Fifth District in Borden reversed the order of dismissal, based on the lack of any notice to the petitioner and the AlP’s counsel. In doing so, that court also found that the trial court should not have dismissed the facially sufficient petition without considering examining committee reports and conducting an adjudicatory hearing. These were the flagrant departures, from the mandatory requirements of section 744.331 in Borden. What occurred in the present case — a few days of delay in the filing of the examining committee member reports during the end-of-year holiday season, following a change in counsel sought by the AIP himself — is entirely distinguishable.

The Dissent

Our dissenting colleague argues forcefully that the order below must be affirmed because of “fundamental error” regarding the petition and the fact that the initial, court-appointed attorney “completely-ignored her duties as Elisor .” Dissent, op. at 1087. A brief and specific response is appropriate. . ..

No fundamental error occurred, What occurred is unique to the.present case and is not a feature -of any -of the statutes, rules, or cases relied upon by the appellees and our colleague. That occurrence is that the court-appointed attorney and elisor, Ms. Valdes, was served by mail on December 11, 2015, with the order appointing her! Over a week- before the deadline for her to read the petition to M.S., Ms. Valdes- had already been served with an emergency petition for her substitution by M.S.’s current counsel, and the petition was signed by - M.S. - himself. Surely the dissent and M.S.’s current counsel cannot be suggesting that M.S. signed the motion for substitution without reading the copy of the notice mailed to him, or another copy provided by his chosen private counsel, or having it read to him by his personal counsel. As no evidentiary hearing has been held on this point (or on any other issue in the case), the record does not establish that the notice was not read to M.S. as provided by Florida Probate Rule 5.550(b)(2).

The attached timé line demonstrates that Ms. Valdes sought information from petitioner’s counsel regarding access to M.S. on December 26, 2015, which is over a week after M.S.’s personal counsel had begun advising M.S. Ms. Valdes’s time records, which are in the record, refer to an email and a letter from M.S.’s personal counsel as early as December 18, 2015. Thereafter, (1) the court granted the motion for substitution of counsel, and (2) M.S.’s private counsel, not Ms. Valdes, attended the meetings with M.S. and each of the three members of the examining committee, and (3) a scheduled adjudicatory hearing was continued by agreement among counsel. Any error which occurred in moving the petition toward an adjudicatory' hearing was not a fundamental error (of the kind apparent in the reported cases), but rather an invited error.

Turning next to the examining committee reports, apparently the appellees and the dissent would allow dismissal of’a petition without leave to amend if a single examining committee report was filed a single day after the 15-day- period allowed in section 744.331 (3)(e). Such a draconian interpretation must be rejected after considering the express purpose of the statute and rule — providing the AIP and parties sufficient time before an adjudicatory hearing to understand and contest the reports if that is considered appropriate. No case has held that missing the 15-day period by a few days warrants dismissal of the petition without leave to amend.

The dissent’s quotations -from Fey and Borden have already been addressed; in this opinion — a broadly-written statement in Borden that “[cjompliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error,” 818 So.2d at 609, was not referring to an AIP represented by his own counsel after the AIP signed a motion and apparently authorized the filing of numerous pleadings, or to an AIP whose counsel attended his meetings with all members of the court-appointed examining committee (as occurred in the present case).

Rather, Borden involved a petitioner who was given “wo notice, reasonable or otherwise, that dismissal of the incapacity proceedings would be considered by the court” at a hearing, when: dismissal had not even been sought by an adverse party; an attorney appeared on behalf of the AIP without obtaining an order of substitution for the court-appointed attorney; no court reporter recorded the proceedings; and the court dismissed the petition having never obtained the examining committee’s report. Id. at 607-609. Those are the departures from the statute and rules referred to by the Fifth District in Borden, not the fact that the examining committee reports were a few days late, or that successor counsel for the AIP criticized the court-appointed counsel’s failure to read the initial notice to the AIP (following the delivery to the AIP of copies of both the petition and the notice).

Another case cited by the dissent for the principle that proceedings to determine competency must strictly comply with the statute, Rothman v. Rothman, 93 So.3d 1052, 1054 (Fla. 4th DCA 2012), ordered dismissal of a guardianship petition because two of three examining committee members concluded that the AIP was not incapacitated. The trial court had granted the petition, despite the fact that the statute requires dismissal of the petition if a majority of the examining committee members conclude that the alleged AIP is not incapacitated. This is in sharp contrast to the present case, in which all three of the independent examining committee members concluded that M.S. could not make informed decisions in a majority of categories assessed, such that a limited guardianship is appropriate. And these three reports followed a similar evaluation by Dr. Toomer, discussed earlier and detailed in a written report attached to the verified petition.

Similarly, the dissent’s citation to Adelman v. Elfenbein, 174 So.3d 516, 518 (Fla. 4th DCA 2015), for propositions that the guardianship statutes must be strictly construed and that failure to adhere to the requirements of section 744.331 constitutes fundamental error, must also be considered against the record in that case. Adel-man involved two- separate petitions by a grand-niece for the appointment of a plenary guardian for the petitioner’s great uncle. In the first, the trial court dismissed the petition after determining that the AIP’s advance directive documents “provided a less restrictive alternative to guardianship.” The petitioner/grand-niece did not appeal those final orders.

“Several months later, the grand-niece filed a ‘petition to reopen’ the guardianship,” and the trial court conducted a trial and appointed a professional plenary guardian for the AIP. Id. at 517. The Fourth District found that the trial court lacked jurisdiction to enter the order because the petition to reopen the case “is not premised on any rule or statute, and Appellee cites no statutory authority to reopen an incapacity proceeding where no guardianship was ordered.” Id. at 518. No such lack of jurisdiction and complete absence of statutory authority is evident in the record in the present case. The dissent’s reliance on Adelman is misplaced.

Finally, the dissent cites a case involving defects in personal service and due process. The issue of the sufficiency of service in the present case is readily resolved through an evidentiary hearing, if truly in doubt, rather than summary dismissal without leave to amend. There is abundant evidence that the petition was delivered to M.S. His counsel has not denied, in promptly appearing with the consent of M.S. to defend his interests, that counsel discussed the verified allegations in the petition with him. This is a far cry, in short, from a plaintiffs attempt to accomplish service by mailing the summons and complaint to a corporate employee “at the private mailbox registered to the corporation” (versus the registered homestead address in Florida of the corporate principals), in the case cited by the dissent. McDaniel v. FirstBank Puerto Rico, 96 So.3d 926, 929 (Fla. 2d DCA 2012).

Conclusion

The petition and its attachments are facially sufficient to allege that M.S. is incapacitated. We thus reverse the trial court’s dismissal of the petition without leave to amend, and remand with direction to permit the petitioner to amend the petition, should he choose, and to permit M.S. and the other co-respondents to raise such defensive matters as each may consider appropriate. M.S.’s motions to require in-person testimony of the examining committee members and to strike the examining committee reports were dismissed as moot rather than heard and determined; if renewed, those motions may be heard before the adjudicatory hearing.

Reversed and remanded for further proceedings.

EMAS, J., concurs.

Attachment

ROTHENBERG, C.J.

(dissenting).

Florida’s guardianship law establishes very specific and detailed procedures which must be followed to determine incapacity, including but not limited to the giving of notice, providing independent counsel, the appointment of a committee to examine the alleged incapacitated person, and the setting of the time limitations for the filing of the examining committee reports. Because many of those requirements. were not satisfied in this case, the probate court correctly dismissed the guardianship petition without prejudice for the filing of a new petition.

THE NOTICE REQUIREMENTS

With regard to notice to the alleged incapacitated person after a petition to determine incapacity is filed, section 744.331, Florida Statutes (2015), provides;

(1) NOTICE OF PETITION TO DETERMINE INCAPACITY. — Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the.petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition....

(bolded emphasis added).

Florida Probate Rule 5.550(b)(2), entitled Petition to Determine Incapacity, provides in relevant part:

Service on Alleged Incapacitated Person. The notice and a copy of the petition to determine incapacity shall be personally served by an elisor appointed by the court, who may be the court appointed counsel for the alleged incapacitated person. The eli-sor shall read the notice to the alleged incapacitated person, but need not read the petition, A return of service shall be filed by the elisor certifying that the notice and petition have been served on and the notice read to the alleged incapacitated person. No responsive pleading is required and no default may be entered for failure to file a responsive pleading. The allegations of the petition are deemed denied.

(bolded emphasis added)...

An “elisor” is a person appointed by the court to perform a specified duty. Elisor, Black’s Law Dictionary (9th ed. 2009).

On December 3, 2015, Gilberto Sarfaty (“Gilberto”) filed a petition seeking a determination that his forty-six year old brother, M.S., is incapacitated and the appointment of a plenary guardian for M.S. The petition alleges that M.S. is incapacitated due to “comprehension disabilities” that have existed M.S.’s entire life. M.S. lives in Aventura, Florida; Gilberto lives in Lima, Peru; M.S.’s mother lives in Paris, France; and M.S.’s sisters live in New York City and Peru.

On December 9, 2015, the probate court issued a Notice and Order which: (1) appointed a three member committee to examine M.S.; (2) appointed a general magistrate to conduct hearings and make recommendations to the probate court; (3) appointed Irama Valdes to represent M.S. as M.S.’s attorney; and (4) appointed Ms. Valdes as the Elisor. The Notice and Order specifically instructed Ms. Valdes to personally serve M.S. with the Notice and the petition and, thereafter, to file a return of service within fifteen days from the date of the Notice and Order certifying that the Notice had been read to M.S.

The portions of the Notice and Order relevant to the appointments of Ms. Valdes as M.S.’s attorney and as the Elisor provides as follows:

This cause having come before the Court on a petition to (determine incapacity of) and/or (appoint a guardian for) the above-named Respondent, the Court hereby NOTIFIES the Petitioner, the Respondent (an alleged incapacitated person [M.S.], the Respondent’s known next of kin, and all attorneys of record that the following has been ADJUDGED:
2. Court Appointed Attorney
Irama Valdes
19 W. Flagler St.
Miami, FL 33130
a member of the Florida Bar in good standing, whose telephone number(s) is/are (306) 358-1771 hereby appoint ed counsel to and will represent [M.S.] in all proceedings involving the Petition to Determine Incapacity and Appointment of Guardian, and, if there is an adjudication of incapacity, said counsel shall review the initial guardianship report and shall represent the Ward during any objection thereto. The appointed counsel may not hereafter serve as guardian, nor as the guardian’s counsel. This appointment may be terminated, per court order, if [M.S.] seeks to substitute his or her own counsel for the counsel herein appointed. Appointed counsel will be compensated for services rendered to [M.S.] pursuant to Florida Law.
3. Service by Elisor
[M.S.’s] above-named court appointed attorney is also appointed Elisor in this matter. The Elisor shall personally serve this notice and the petition(s) filed herein on, and read the notice to, [M.S.]. The Elisor shall file a return of service, no later than fifteen (15) days from the date of this Order, certifying that the notice and petition(s) have been served, and that the notice has been read to, [M.S.].

(emphasis added in paragraph 3).

The Notice clearly appoints Ms. Valdes to serve in two different capacities: (1) as appointed counsel to represent M.S. unless and until private counsel is substituted to represent M.S.; and (2) as the Elisor, who is charged with the responsibility to serve and read the Notice to M.S. and, thereafter, to file a return of service no later than fifteen days from the date of the Notice, certifying that the Elisor has served the petition and Notice on M.S. and that she read the Notice to M.S. Ms. Valdes was thus required to file a return of service by December 28,2015.

It is undisputed that Ms. Valdes completely ignored her duties as the Elisor and the directives of the probate court’s Notice and Order, as well as Florida Probate Rule 5.550(b)(2) and section 744.331(1). She did not serve the petition or Notice on M.S.; read the Notice to M.S.; or file a return of service in the probate court by December 28, 2015.' In fact, she has not to this day performed these court-ordered and statutory duties.

It is also undisputed that, although the probate court ultimately granted M.S.’s motion for substitution of Ms. Valdes with privately retained counsel to represent M.S. as his attorney, M.S. never sought, and the probate court has never granted, a motion to discharge Ms. Valdes as the Elisor.

THE EXAMINING COMMITTEE REQUIREMENTS

As with the notice provisions already addressed, section 744.331(3)(e) is written in mandatory language and states that “[ejach member of the examining committee must submit a report within 15 days after appointment.” Additionally, the Notice and Order places a similar requirement on each member of the examining committee:

At least five (5) days before the hearing, or within fifteen (15) days of the date of this Order, whichever is earlier, a written report that confirms [sic] to the requirements of section 744.331, Florida Statutes, must be filed with the Clerk of this Court with copies sent to [M.S.], the Petitioner, and all attorneys of record. Again, it is undisputed that none of the committee member’s reports were filed within the fifteen days mandated by the probate court’s Notice and Order and section 744.331(3)(e).

M.S.’S OBJECTIONS TO THESE PROCEDURAL DEFECTS,

The record reflects that M.S. immediately and repeatedly objected to the above-procedural defects, alleged that his due process rights were violated, and alleged that he was prejudiced. The record reflects the following.

The petition to determine incapacity was filed by Gilberto on December 3, 2015. On December 10, 2015, the probate court issued its Notice and Order appointing Ms. Valdes as counsel for M.S.; appointing Ms. Valdes as Elisor; appointing an examining committee; appointing a general magistrate; setting the requirements for the1 service and notice to M.S.; setting the time limitations related to the notice to M.S., the filing of the return of service, and the filing of the committee members’ reports; and setting the hearing date for January 13, 2016.

On December 18, 2015, M.S.’s privately retained counsel, Richard C. Milstein and R. Dale Noll (collectively, “private counsel”), filed an emergency petition for substitution of counsel, which was signed by Richard Milstein and M.S. This petition specifically noted that although the petition to determine incapacity had been filed on December 3, 2015, as of the filing of the petition for substitution of counsel, M.S. had not been notified of the name of his court-appointed counsel. On December 18, 2015, private counsél also filed an emergency motion for authorization to review and copy the court file.

On January 7, 2016, the probate court granted the petition for substitution of counsel and the motion for authorization to review and copy the court file. The court also entered an agreed order- continuing the January 13, 2016 hearing on the petition to determine'incapacity, which specified that “[t]he continuance 'does not waive any rights that the alleged incapacitated person or any interested person has with regard to any objections or defenses to be raised in the proceedings.” (emphasis added).

On January 20, 2016, private counsel filed the following; (1) a motion to dismiss the petition to determine incapacity, which will be addressed more fully below; (2) a motion to strike the reports of the examining committee as untimely filed; (3) a motion to strike the report of examining committee member Neda Picuric because it was both untimely and the examination was primarily conducted in English despite M.S. advising her that his primary language is Spanish; and (4) a declaration that the proceedings are adversary.

The amended motion to dismiss the petition to determine incapacity was premised, in part, on the failure of the Elisor to personally serve the Notice and Order on M.S. and to file the requisite return of service; the failure of appointed counsel to meet with M.S. to notify him of the proceedings or to meet with M.S. prior to the filing of her objection to the retention and substitution of private counsel selected by M.S.; and the failure of the examining committee members to file their reports within the time prescribed by section 744.331(3)(e) and the probate court’s Notice and Order. The amended motion to dismiss argued that these requirements are mandatory, and therefore, the failure of the Elisor, appointed counsel, and the examining committee members to comply with these mandatory requirements constituted fundamental error, denying M.S. of due process and resulting in prejudice to him. The relevant paragraphs of the amended motion to dismiss are'as follows:

4. [M.S.] has been consistently denied the appropriate due process and .procedures required in these proceedings under Chapter 744 of the Florida Statutes, the Florida Probate Rules, and case authority. In addition, the Petition is fatally flawed and the-.relief requested barred by the doctrines of unclean hands and estoppel. As a result, the Petition must be dismissed.
5. Courb-Appointed Counsel was appointed the Elisor and required to personally serve the Notice and Order on [M.S.], read the Notice and Order to [M.S.], and file a return of service within fifteen days of the date of the' Notice and Order. (Ex. 1, ¶ 3).
6. Court-Appointed Counsel failed to accomplish any of these required tasks.
7. Court-Appointed Counsel met with [M.S.] for the first time on January 7, 2016, the date of a hearing on [M.S.’s] Emergency Motion for Substitution of Counsel, just minutes prior to the hearing'and after filing a pleading adverse to [M.S.] without his permission. She spoke with [M.S.] briefly for the first time on January 6, 2016 by telephone, although her billing records demonstrate that she communicated mth counsel for Petitioner on inore than one occasion.
8. The Court-Appointed Counsel filed an objection to the retention of private counsel" selected by [M.S.] that contained within the pleading statements adverse to [M.S.]. The Court entered an Order on January 7, %016 authorizing the retention of private counsel and discharging the Court-Appointed Counsel.
9. [M.S.J is entitled to proper notice under Florida-law and the Florida Probate Rules, as are consistent with due process and [M.S.’s] fundamental Constitutional rights. § 744.331(1), Fla. Stat. (2015); § 744.881(5)(a), Fla. Stat. (2015); In re Fey, 624 So.2d 770, 771-72 (Fla. 4th DCA 1993) (finding that failure to follow the “very specific procedures” outlined in § 744.331 of the Florida Statutes created a violation of the alleged incapacitated person’s due process and equal protection of the laws); Fla. Prob. R. 5.550(b)(2).
10. The Court-Appointed Counsel also failed to file a notice of adversary proceeding within the timeframe allotted under the Notice and Order. (See Notice and Order, ¶ 4 (providing that any party contemplating that the proceedings will be adversarial must file a notice, pursuant to Rule 5.025 of the Florida Probate Rules within five (5) days of receipt of the Notice and Order).
11. As of the date of the filing of the initial Motion to Dismiss, January 13, 2016, more than thirty days after the Petition was filed, [M.S.] had not received proper service of notice for these proceedings, nor a certification that notice was served upon him as ordered by this Court.
12. As a result of these irregularities and failure to follow the dictates of Florida Statutes, Florida Rules, and Florida case authority, the Petition must be dismissed.
13. The examining committee members had 15 days from appointment to examine [M.S.] and submit their individual reports with the Court. “Each member of the examining committee must submit a report within 15 days after appointment.” § 744.331(3)(e), Fla. Stat. (2016) (emphasis added).
14. Taking into consideration that the fifteenth day following their appointr ment, December 25, 2015, was a legal holiday, the examining committee reports were to have been submitted to the Court by' December 28, 2015, the first business day following the legal holiday.
15. One of the examining committee members, Dr. ‘David Echavarria, met with [M.S.] on December 29, 2015 and submitted his report on that-same day— one day after the 15th day cutoff period. As of the date of filing the initial Motion to Dismiss, January 13, 2016, that was the only examining committee report filed with the Court and received by [M.S.],
16. Dr. Manuel E. Alvarez met with [M.S.] on January 5, 2016, twenty-six (26) days after appointment and certainly not within the timeframe required. The report of Dr. Alvarez was first received by the Court on January 11, 2016, a date still beyond any timeframe permissible in this proceeding.
17. Dr, Neda Picuric had her first appointment to meet with [M.S.] on January 7, 2016, but rescheduled the time to the following day, January 8, twenty-nine (29) days after her appointment. The report of Dr. Picuric was first received by the Court on January 13, 2016, a date still beyond any timeframe permissible in this proceeding.
18. Because the examining committee reports are all untimely, the procedural requirements of § 744.331 of the Florida Statutes (2015) have not been met and the Petition should be dismissed.

The amended motion to dismiss the petition to determine incapacity argued that the failure to comply with section 744.331 constituted fundamental error and provided the relevant statutory and case law authority in support of this argument. As additional grounds for dismissal, the motion claimed that the petition to determine incapacity, which was issued under penalty of perjury, was “riddled with factual errors” requiring dismissal. For example, the petition to determine incapacity attests that English is M.S.’s primary language when the “Petitioner knows fully well that [M.S.’s] primary language is Spanish.” This allegation is relevant, as it is alleged in the separate motion to strike the examining committee report of Neda Picuric, filed on the same date, that Ms. Picuric conducted the bulk of her examination of M.S. in English despite M.S. clearly indicating to Ms. Picuric that Spanish is his primary language.

The record thus reflects that the grounds raised in the appeal were timely and properly raised and considered below.

DISMISSAL OF THE PETITION TO DETERMINE INCAPACITY

After conducting a properly noticed and fully litigated hearing on M.S.’s amended motion to dismiss the petition to determine incapacity, the probate court issued an order granting the motion. The hearing transcript reflects and counsel for M.S. properly conceded at oral argument before this Court that, although the probate court denied Gilberto’s motion for leave to amend the petition to determine incapacity, the dismissal of the petition to determine incapacity was without prejudice to file a new action in the event the parties are unable to reach a settlement of the issues.

The probate court’s order dismissing the petition to determine incapacity was based on the following three stated grounds:

A. These proceedings have failed to satisfy [M.S.’s] due process rights or to comply with the procedural requirements of § 744.331, Florida Statutes.
B. The reports filed by the examining committee members were not filed within the time prescribed by § 744.331 of the Florida Statutes or the Notice and Order issued by this Court on Court on [sic] December 10, 2015.
C. The court-appointed counsel, prior to being substituted by private counsel for [M.S.], made arguments in a filing with this Court and in a prior hearing that were against the interests of [M.S.’s] and were prejudicial to [M.S.], which statements were objected to by private counsel for [M.S.].

As all three grounds are supported by the record and Florida law, the order must be affirmed.

It is undisputed that Ms. Valdes, as the court appointed Elisor, failed to comply with section 744.331(1), Florida Probate Rule 5.550(b)(2), and the probate court’s Notice and Order. She did not meet with, serve, or read the Notice and Order to M.S., or file a return of service within fifteen days certifying that she had complied with these directives. Although Ms. Valdes was appointed as Elisor on December 10, 2015, the first time she met with M.S. was on January 7, briefly and just moments prior to the scheduled hearing on M.S.’s motion for substitution of counsel. During this brief contact, Ms. Valdes did not attempt to serve or provide M.S. with the requisite notice. The record suggests that this brief contact was made in Ms. Valdes’ capacity as M.S.’s appointed counsel and was related to the motion for substitution of counsel.

It is also undisputed that the reports were untimely filed in violation of section 744.331(3)(e) and the probate court’s Notice and Order. Thus, the first two grounds found by the probate court in its order granting the amended motion to dismiss are clearly supported by the record. Although not necessary for affirmance of the probate court’s order, the record also supports the third finding — that prior to the substitution of private counsel, the court appointed counsel (Ms. Valdes) made arguments in a court filing that were against M.S.’s interests and prejudicial to M.S. Based on these findings, the probate court declined to address the various other objections levied by M.S.

LEGAL ANALYSIS

The only remaining issue is whether the probate court erred by dismissing the petition to determine incapacity on the above stated and proved grounds for dismissal. The Legislature has made its intent clear in section 744.1012, which provides as follows:

The Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary. The Legislature further finds that it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing' abilities, the Legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance - that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.

(emphasis added)

In addition to its stated intent to allow incapacitated persons to participate as fully as possible and to interfere as little as possible with the legal capacity of an alleged incapacitated person, section 744.3201,' Florida Statutes (2015), which establishes the petition requirements, and section 744.331, which establishes the procedures for determining incapacity, both use mandatory terms such as “must” and “shall.” For example, section 744.3201(2) states that “[t]he petition must be verified and must” include specific identification information of the alleged incapacitated person, the factual information being relied on to believe the person is incapacitated, and the primary language of the alleged incapacitated person, among other things, (emphasis added.).

Nearly every provision ,in section 744.331 contains mandatory language. Relevant to this appeal are the following provisions:

(1) NOTICE OF PETITION TO DETERMINE INCAPACITY. — Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and. that an attorney has ■been .appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.
(3) EXAMINING COMMITTEE.—
(a) Within 5 days after a petition for determination .of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician.... Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate. The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court’s appointment.
(e) Each member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person’s ability to exercise those rights specified in s. -744.3215.... Each member of the examining committee must submit a report within 15 days after appointment.
(h) A copy of each committee member’s report must be served on the petitioner and on the attorney for the alleged incapacitated person within 3 days after the
report is filed and at. least 5 days before the hearing on the petition.

(words “shall” and' “must” emphasized). Rule 5.550 also contains mandatory language:1

(a) Co'ntents, The petition to determine incapacity shall be verified by the petitioner and shall state:
(b) Notice.
(1) Contents. The notice of , filing the petition to determine incapacity’ shall state: ¡
(2) Service on Alleged Incapacitated Person. The notice and a copy of the petition to determine incapacity shall be personally served by an elisor appointed by the court, who may be the court appointed counsel for the alleged incapacitated person. The elisor shall read the notice to the alleged incapacitated person, but need not read the petition. A return of service shall be filed by the elisor certifying that the notice and petition have been served on and the notice read to the alleged incapacitated person. No responsive pleading is required and no default may be entered for failure to file a responsive pleading. The allegations of the petition are deemed denied.
(3) Service on Others. A copy of the petition and the notice shall also- be served-on counsel for the alleged incapacitated person, and on all next of kin.

(words'“shall” emphasized).

The probate court’s Notice'and Order uses mandatory language as--well.

The examining committee shall determine [M.S.’s] ability to exercise. the rights .the Petitioner, seeks to have removed. The committee is therefore required to secure [M.S.’s] presence and conduct a comprehensive examination that will enable it to thoroughly ascertain [M.S’s]' abilities. Accordingly, the committee shall have access to, and may consider, [M.S.’s] previous examinations, including but not limited to, habilitation plans, school records, psychological and psychosocial reports voluntarily offered for use by [M.S.]. At least five (5) days before the hearing, or within fifteen (15) days of the date of this Order, whichever is earlier, a written report that confirms to- the requirements of section 744.331, Florida Statutes, must be filed with the Clerk of this Court with copies sent to [M.S.], the Petitioner, and all attorneys of record. Absent a declaration of adversary proceedings pursuant to paragraph four (4) of this order, the Court shall consider the examining ■ committee members’ written reports when making a determination of incapacity. If the Court finds [M.SJ is incapable of exercising certain rights, a guardian may be appointed.
(3) Service by Elisor
[M.S.’s] above-named court appointed attorney is also appointed Elisor in this matter. The Elisor shall personally serve this; notice and the petition(s) filed herein on, and read the notice to, [M.S.]. The Elisor shall file a return of service, no later than fifteen (15) days' from the date of this Order, certifying that the notice and petition(s) have been served, and that the notice has been read to, [M.S.].

(words “shall,” “must,” and “required” emphasized).

Despite this mandatory language, the majority contends, without specifically stating so, that the requirements of section 744.331 and rule 5.550 are not really mandatory and that because M.S. later became aware that a petition to determine his capacity had been filed, that somehow obviated the clear mandate of the above statute and rule which require personal service of the petition .upon M.S.- by the elisor who must actually read the petition to him and-file a return of service with the probate court verifying that personal service was effectuated. But that is not the law either in probate court or any court. See McDaniel v. FirstBank Puerto Rico, 96 So.3d 926, 929 (Fla. 2d DCA-2012) (holding that “actual knowledge of a suit will not cure insufficient service of process ... [b]ecause of the fundamental constitutional implications of service of process, ‘statutes governing service of process are to be strictly construed and enforced.’”) (quoting Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla. 2001)).

A review of the case law- addressing section 744.331 and rule 5.550 reflects that the appellate courts have concluded that compliance with the statute and the rule is mandatory. In In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993), the Fourth District Court of Appeal noted both that the legislative intent, and Florida’s guardianship law “sets forth very specific ■ procedures which shall be followed to determine incapacity, including but not limited to the giving of notice, providing independent counsel, appointing an examining committee, [and] submitting a committee report.” Id. at 771-72. The In re Fey court concluded that the language of section 744.331 and rule. 5.550 was clear and that compliance was mandatory. Id. at 772.

In Rothman v. Rothman, 93 So.3d 1052 (Fla. 4th DCA 2012), the Fourth District Court of Appeal granted a petition for a writ of mandamus filed by an alleged incapacitated person to require the trial court to dismiss a petition to determine his capacity. In granting the writ, the Fourth District relied on its previous holding in In re Keene, 343 So.2d. 916, 917 (Fla. 4th DCA 1977), that “proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, that statute must be strictly followed.” Id at 1054 (emphasis added). The portion of section 744.331 at issue in Rothman was subsection (4) which provides that, “if a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.” Because the Fourth District concluded that the statute must be strictly followed, and two of the examining committee members had concluded that the alleged incapacitated person was not incapacitated, the Fourth District ordered that the petition to determine incapacity be dismissed.

The Fifth District has also found that “[c]ompliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error.” Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 609 (Fla. 5th DCA 2002) (emphasis added); see also Adelman v. Elfenbein, 174 So.3d 516, 518 (Fla. 4th DCA 2015) (holding that “[t]he statutes governing the adjudication of incapacity and the appointment of a guardian for an incapacitated person are to be strictly construed” and “compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure to adhere to those requirements constitutes ‘error of fundamental proportions’”) (internal citations omitted).

The majority further concludes that to require compliance with the strict mandates of section 744.331 and rule 5.550 is “draconian.” However, the majority’s displeasure with the mandatory language and requirements is not grounds to ignore them. Any changes to the mandatory language contained in section 744.331 and rule 5.550 must come from the Legislature, not the Bench.

CONCLUSION

The language of section 744.331, rule 5.550, and the probate court’s Notice and Order is clear, unambiguous, and mandatory — and for good cause. A determination of incapacity may result in the loss of a person’s legal rights and the freedom to make basic life choices, such as financial decisions.

The probate court, therefore, correctly determined that if it allowed the proceedings to proceed “the court would be affecting the due process rights of [M.S.]. They’ve already been put on a rough path by what happened with the court appointed attorney who made disclosures that were objected to.” Therefore, the trial court correctly concluded: “So I think that if we have a petition to determine capacity, we need to start over.” As the Fourth District aptly noted: “In our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights.” Adelman, 174 So.3d at 518-19 (quoting In re McDonnell, 266 So.2d 87, 88 (Fla. 4th DCA 1972)).

Accordingly, I cannot agree with an opinion that ignores clear and unambiguous mandatory language and concludes that simply because the petition was facially sufficient, strict compliance with these mandatory directives is not required. I also do not agree that an amendment of a “facially sufficient” petition can cure the procedural infirmities in this case. M.S. was entitled to notice prior to the proceedings that ensued. Timely notice potentially could have protected M.S. from the prejudice he has alleged.

      . Dr. Toomer, a Ph.D. psychologist and dipló-mate of the American Board of Professional Psychology.

      . In the event of an adjudication of incapacity, the court-appointed attorney for the AIP was also directed to review the initial guardianship report and to represent the ward dur- ' ing any objection to that report,

      . M.S.’s motion for substitution of counsel was filed on December 18, 2015 — 15 days after the petition was filed, and only seven days after the circuit court’s order appointing the examining committee and court-appointed attorney was served by mail.

      .§ 744.331, Fla. Stat. (2016). See also Holmes v. Burchett, 766 So.2d 387, 388 (Fla. 2d DCA 2000) (AIP presumed competent to contract and retain counsel of his or her choice unless and until it has been proven, based on clear and convincing evidence, that the AIP. is incapacitated with respect to the exercise of that right),

      . The amended motion to dismiss, like the original, was joined by M.S.’s Mother and both sisters.

      . The day after the notice of appeal was filed in this case, private counsel for M.S., joined by counsel for family members other than the petitioner in the present case, executed a separate petition for the appointment of one of those family members as a limited guardian advocate for M.S. When the petitioner in the present case (M.S.'s brother) sought leave to intervene in that case, M.S.’s counsel opposed, and moved to strike, that motion. The trial court granted the motion and has recognized Gilberto Sarfaty as an interested party.

      . As private counsel assuming the representation of M.S., it was counsel’s professional obligation to help M.S. understand the petition so as to mount a defense to the allegations in the petition (if that was M.S.’s informed decision). As already noted, M.S. signed the motion to substitute private counsel, and private counsel was present at each of the three assessment meetings between examining committee members and M.S.

      .All other motions, including M.S.’s motions to strike the examining committee reports, were held to be moot in the order of dismissal.

      . According to the petition and its attached assessment by Dr. Toomer, M.S. only has access to a small amount of money managed by his sister, who resides in New York. "Finances are controlled and managed by family members.” The petition alleged that M.S. owns assets exceeding millions of dollars but has no ability to understand or manage the funds. M.S.’s ability to retain his private counsel would -seem to have required assistance from the very family members alleged in the petition to have conflicts of interest in the use of powers of attorney presented to M.S. for his execution.

      . It bears noting that the standard order appointing independent counsel and the three examining committee professionals was served by mail on December 11th, with the deadlines falling during the end-of-year holidays.

      . That this is not a “lack of notice” case is further illustrated that the certifícate of ser- - vice by mail by the Deputy Clerk also certifies that a copy of the order of appointment and the petition itself were mailed to the petitioner (Gilberto Sarfaty), M.S. himself, his family members indicated in the petition, all attorneys of record, and each member of the examining committee on December 11, 2015.

      . M.S. has not answered the petition; his amended motion to dismiss, after declaring the petition an adversary proceeding, is not a “responsive pleading” for purposes of the petitioner’s "absolute right to amend the complaint before a responsive pleading is served.” Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla. 2005).

      . M.S., through his private counsel, is already deemed to have denied the allegations within the petition. Fla. Prob. R. 5.550(b)(2).

      . The fifteen-day deadline was extended to December 28, 2015, due to the Christmas holiday.

      . The Notice and Order also indicates that the examining committee reports must be filed "at least five days before the hearing [on the Petition], or within fifteen (15) days of the date of this order, whichever is earlier.” (Ex. 1, ¶ 1 (emphasis added)). Although the language makes clear that the deadline of December 28 is the cutoff for the filing of the exámination committee reports, a very liberal interpretation would provide that the reports might have been able to be filed by January 8, 2016 — 'within five days of the hearing set in the Notice and Order for January 13, although his was not the earlier of the times specified in the Notice and Order. Only one of the examining committee reports met that hypothetical deadline.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alberto Dalva MALZONE, et al., Appellants, v. Andres URIBE, et al., Appellees.
    No. 3D16-2608
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Law Offices of David S. Harris, and David S. Harris; Jennifer A. Kerr, P.A., and Jennifer A. Kerr, for appellants.
    Ronald I. Strauss, P.A., and Ronald I. Strauss, for appellees.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Williams v. Miami-Dade Cty. Public Health Tr., 17 So.3d 859, 859 (Fla. 3d DCA 2009) (holding the trial court did not abuse its discretion when its sanctions order was well-supported by the evidence); P.B. v. Dep’t of Children & Family Servs., 709 So.2d 590, 591 (Fla. 4th DCA 1998) (“We do not consider the question of adequate notice because Appellants did not object to the lack of notice in the proceedings below or request a continuance. The first time they raised the issue was on appeal. By failing to object and by proceeding on the matter at the hearing, Appellants waived their objections to the lack of notice.).


author: SALTER, J.

text:
    Hermine RICKETTS and Laurence Carroll, Appellants, v. VILLAGE OF MIAMI SHORES, Florida, et al., Appellees.
    No. 3D16-2212
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017.

      Institute for Justice and Ari -Bargil and Allison Daniel and Michael Bindas (Belle-vue, WA), for appellants.
    Genovese Joblove & Battista and -Richard Sarafan and Nina Greene, for appel-lees. ■ ' •
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   SALTER, J.

As the initial brief in this appeal frames the issue: ,

Miami Shores homeowners may have virtually anything in their front yard. Theymay decorate with garden gnomes, pink flamingos and trolls. They may park their boats and jet skis. And they are free to grow whatever trees,, flowers, shrubs, grasses, fruits and berries they desire. There is, however, one thing forbidden:
Vegetables.
In Miami Shores, maintaining a vegetable garden in your own front yard is illegal and punishable by fines of $50 per day. But Americans have been growing vegetables on their property since precolonial times. This appeal:seeks to vindicate the constitutional rights of Floridians to continue to do so today.
Appellants, Hermine Ricketts and'Tom Carroll (“Hermine and Tom”), a married Miami Shores couple in their 60s, designed and maintained a vegetable garden, peacefully and without incident, in thq front yard of their modest Miami Shores home for over 17 years. After nearly two decades without a complaint (but quite a few compliments), they were abruptly ordered to stop.' Facing' the threat of fines of $50 per day, Hermine and Tom destroyed their beloved garden and, along with it, uprooted a significant source of both material sustenance and personal joy. Today, where flowers and colorful plants once abounded, there -sits a decidedly less vibrant (but fully compliant) patch of land. All of this, according to Miami Shores, in the name of aesthetics. ■
Hermine and Tom- desire to once again grow vegetables for their own consumption, methodically and attractively as before,- in their own front' yard. -But the ordinance at issue in this case prohibits this historically recognized, productive usé of property. And despite ■ Miami Shores’ purported interest in promoting aesthetics, the ordinance bans only vegetable gardens — thus allowing virtually any other type of landscape, regardless of how it looks. As a result, Hermine and ‘ Tom filed this lawsuit, challenging the ban on front-yard vegetable gardens as a violation of the Florida Constitution’s Due Process and Equal Protection Clauses.
Hermine and Tom also challenged the ban on front-yard vegetable gardens as a violation of two of their fundamental rights under the Florida Constitution— the right to acqúire, possess and protect property and the right of privacy.

Though these claims seem compelling, the trial court’s well-reasoned, ten-page final order rejecting the appellants’ claims correctly acknowledged the difficult procedural posture confronting the appellants and dutifully applied controlling precedent. We affirm that final order in all respects.

Procedural Posture — Facial vs. “As-Applied” Constitutional Claims

The appellants’ circuit court lawsuit attacking the constitutionality of the applicable zoning ordinance followed an earlier, unsuccessful administrative proceeding in which the appellants contested a notice of violation pertaining to their front-yard vegetable garden. That notice (which followed a written courtesy notice issued'four weeks earlier requesting removal of the vegetable garden from the front yard) was issued by a code inspector with the Village’s code enforcement department.

The appellants ultimately appeared at two hearings before the code enforcement board, presenting testimony and evidence regarding their objections. The objections did not include constitutional challenges. The Village code enforcement board issued a written notice of disposition sustaining the violation, authorizing a fine of $50.00 per day for non-compliance,- allowing another month within which- the appellants could comply, and notifying them of their rights to appeal the ruling to the circuit court.

The appellants then appealed to the appellate division of the circuit court. Subsequently, the appellants removed the vegetable garden and voluntarily dismissed their appeal. The Village did not impose any fines regarding the violation.

Less than a month after the circuit court’s dismissal of that case, however, the appellants (then represented by their current counsel rather than pro se) filed a new circuit court lawsuit seeking declaratory and injunctive relief. challenging the constitutionality'of the design, standard in section 536(e) of the Village’s zoning code, “Vegetable gardens are permitted in rear yards only.”

The significance of the earlier proceeding is that, for purposes of judicial review by this Court in the present case,- that first proceeding conclusively determined, that a violation occurred based on the evidentiary record presented to the Village’s code enforcement board. Any attempt to present an “asrapplied” constitutional challenge to the statute, as opposed to a “facial” constitutional challenge, is barred as a matter of res judicata and waiver. Kirby v. City of Archer, 790 So.2d 1214 (Fla. 1st DCA 2001); Charles v. Citizens Prop. Ins. Corp., 199 So.Sd 495 (Fla. 3d DCA 2016) (res judicata applies even to those matters which were not, but could properly have been, raised in a prior action between the parties); Holiday Isle Resort &Marina Ass’n v. Monroe County, 582 So.2d 721 (Fla. 3d DCA 1991) (constitutional claims may be raised in an appeal to a circuit court from a final order of a code enforcement board).

A facial challenge to legislation, as in the case of the ordinance and this second proceeding, “is more difficult than an ‘as applied’ challenge because the challenger must establish that no set of circumstances exists under which the statute would be valid.” Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004); Ogborn v. Zingale, 988 So.2d 56 (Fla. 3d DCA 2008).

Recognizing that more difficult hurdle facing the appellants in this second proceeding — attacking the statute on the grounds that it cannot be validly enforced under any set of circumstances — we turn next to the level of constitutional scrutiny. The appellants claim that the ordinance must survive the more stringent test, “strict scrutiny,” rather than the less stringent “rational basis” level of scrutiny.

Rational Basis versus Strict Scrutiny

The trial court correctly determined that the ordinance did not infringe upon the appellants’ fundamental rights and that strict scrutiny is not required. The appellants first posit a fundamental right to use their front yard to grow food for their own consumption, based on arti-ele I, section 2 of the Florida Constitution’s Declaration of Rights (the right “to acquire, possess and protect property”), based on such cases as Shriners Hospitals for Crippled Children v. Zrillic, 563 So.2d 64, 67 (Fla. 1990) (right to devise one’s own property is a right protected by article I, section 2).

The Florida Supreme Court said more in Zrillic, however — “even constitutionally protected property rights are not absolute, and ‘are held subject to the fair exercise of the power inherent in the State to promote the general welfare of the people through regulations that are necessary to secure the health, safety, good order, [and] general welfare.’ ” Id. at 68 (quoting Golden v. McCarty, 337 So.2d 388, 390 (Fla. 1976)). And the ordinance challenged below and here only prohibits vegetable gardens in a front yard, not anywhere or everywhere on a residential lot.

The appellants’ second claim that the ordinance violates a fundamental right and should thus be subjected to strict scrutiny also fails. Article I, section 23, of the Florida Constitution provides a right of privacy (“to be let alone and free from governmental intrusion into the person’s private life”), and it was relied upon by the Florida Supreme Court in one case involving a “choice concerning food,” as the appellants suggest. In that case, In re Browning, 568 So.2d 4 (Fla. 1990), the issue presented was the withdrawal of nutrition from an 86-year-old, incompetent, incurably ill person in accordance with a previously-signed living will.

The patient’s right of self-determination under consideration in In re Browning is not akin to the “choices concerning food” sought to be invoked as a fundamental right by the appellants in this case. It takes a leap of the imagination to suggest that the right of privacy applies to all choices concerning food. Zoning and design ordinances prohibiting chicken coops or turkeys in the front yard may relate to sustenance and food choices, but no Florida case suggests that such a prohibition runs afoul of the right of privacy.

Rational Basis

Having correctly determined that strict scrutiny was not warranted, the trial court considered the constitutionality of the ordinance under the rational basis level of scrutiny. The trial court correctly applied this Court’s decisions in Membreno & Florida Ass’n of Vendors, Inc. v. City of Hialeah, 188 So.3d 13 (Fla. 3d DCA 2016), and Kuvin v. City of Coral Gables, 62 So.3d 625 (Fla. 3d DCA 2010).

In Membreno, we detailed the heavy burden borne by a party challenging the constitutionality of a legislative enactment under the rational basis test:

• “[T]he burden is on the one attacking the legislative enactment to negate every conceivable basis which might support it.” Id. at 20 (quoting Haire v. Fla. Dept. of Agric. & Consumer Servs., 870 So.2d 774, 782 (Fla. 2004)).
• The “deferential standard” applicable to rational basis scrutiny requires the reviewing court to uphold the enactment if it is “fairly debatable” whether the purpose of the law is legitimate and whether the methods adopted in the law serve that legitimate purpose. Id at 25.
• Under this test, a legislative choice is not subject to courtroom fact-finding, because such laws “‘may be based on rational speculation unsupported by evidence or empirical data.’ ” Id. at 26 (quoting City of Fort Lauderdale v. Gonzalez, 134 So.3d 1119, 1121 (Fla. 4th DCA 2014)).
• A legislative enactment can pass the rational basis test even if purely experimental. Id. at 28.
•. The Constitution, does not prohibit a legislature from passing a law striking a judge as unwise or unfair. Id; at 29.

Applying these principles, ■ grounded in the core concept of separation of powers between the judicial branch and the political branches, to the present case, the ordinance is rationally related to the Village code’s design standards and landscaping regulations. The preamble to the pertinent section of the code states that the purposes of the design and landscaping provisions include the “protection and promotion' of the ... appearance ... of the village,” the protection :of “the distinctive character of Miami Shores Village that has resulted from ... [t]he application and careful administration of protective regulations,” and the 'protection of “property values and the enjoyment of property rights by minimizing and reducing conflicts among various land uses .... ” Village of Miami Shores, Fla., Code of Ordinances § 100.

It is at least fairly debatable that a vegetable garden occupying most of the appellants’ front yard and including, according to the appellants’ complaint, some 75 different varieties of vegetables, could signify a conflict between the Village’s decorative standards for front yards (green space planted with grass, sod, low growing plants, and a minimum of two trees) and an agricultural use based on the cultivation of vegetables for consumption. The appellants assert, however, that the Village’s ban -on front yard vegetable gardens is based on ambiguous and undefined “aesthetic” requirements, “inviting arbitrary and subjective enforcement.”

This Court addressed the relevance and validity of zoning regulations based on aesthetics in Kuvin, 62 So.3d at 634-35. We cited with approval numerous Florida cases in which zoning regulations based on aesthetics have been upheld as preserving the residential look and feel ■ of a community-

Finally, the trial court conscientiously surveyed four dictionary definitions of each of the terms “vegetable” and “gar-, den,” concluding that the plain meaning of these words when used together connotes the cultivation of plants to be eaten as part of á meal, as opposed to the cultivation of plants for ornamental reasons, i.e., aesthetics. We agree.

Conclusion

Following the ineluctable conclusion that the Village ordinance does not restrict a fundamental right or suspect class, Mem-breno and Kuvin control the analysis in this case. The ordinance is constitutional. We agree with the trial court’s parting observation that the appellants “still have a remedy. They can petition the Village Council to change, the ordinance, They can also support candidates for Council who agree with them view that the ordinance should be repealed.”

Affirmed.

      . The appellants have been ably represented in the trial court and here by the Miami and Bellevue, Washington, offices of the Institute for Justice, a national non-profit which "litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.” http://ii.ora'about-us/ (site last visited October 3, 2017).

      . The appellants also challenge the trial court's order sustaining the Village's objections to certain pretrial discovery requests (including, for example, requests for information and documents regarding the Village Council’s reasons for, and any investigation of, the ordinance amendment in question). We reject the appellants' arguments on this point. Rainbow Lighting, Inc. v. Chiles, 707 So.2d 939 (Fla. 3d DCA 1998) (City commissioners' motives in adopting ordinances are not subject to judicial scrutiny).

      .Before an amendment in 2013, the design standard stated "Vegetable gardens are permitted in rear yards.” The amendment added the word "only.”

      . A facial challenge to the ordinance is not barred by the prior issues and determinations in the parties’ code enforcement case because the requisite identity of causes of action necessary to invoke res judicata is absent. Wilson v. County of Orange, 881 So.2d 625 (Fla. 5th DCA 2004); see also City of Ft. Lauderdale v. Scott, 773 F.Supp.2d 1355 (S.D. Fla. 2011).

      . The appellants complain that they cannot cultivate a vegetable garden in their backyard because of the shade from overhanging trees and because of their backyard swimming pool. These are particular circumstances that may reflect personal choices, vary from resident to resident, and are inappropriate considerations when the facial challenge claims invalidity as to all residents and all residential lots.

      . Such a result actually occurred in the aftermath of Kuvin. Coral Gables’ ban on private (non-commercial) pickup trucks in front of a home was liberally amended by City voters following .a November 2012 referendum on the issue, http://www.coralgables.com/index. aspx?recordid=672&page=30 (City Code Enforcement Release posted November 6, 2012; site last visited October 3, 2017).


author: ROTHENBERG, C.J.

text:
    Leda OBREGON, Appellant/Cross-Appellee, v. ROSANA CORP. d/b/a Original Uncle Tom’s Barbeque, Appellee/Cross-Appellant.
    No. 3D16-2104
    District Court of Appeal of Florida, Third District.
    Opinion filed November 01, 2017

      .•Wasson & Associates, .Charteredj and Annabel C. Majewski; Rubenstpin Law, P.A., and Miriam Fresco Agrait, for appellant/cross-appellee.
    Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Edgardo Ferrey-ra, Jr. and Shana P. Nogues, for appel-lee/cross-appellant.
    ■Before ROTHENBERG, C.J., and. FERNANDEZ and SCALES, JJ.
   ROTHENBERG, C.J.

Leda Obregon, the plaintiff in a slip and fall case filed against Rosana Corp. d/b/a/ Original Uncle Tom’s Barbeque (“Uncle Tom’s”), appeals the trial court’s order dismissing her complaint with prejudice for fraud on the court. Because the trial court’s order, is supported by clear and convincing evidence, see Empire World Towers, LLC v. CPA Creances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3d DCA 2012) (“The proponent of a motion to strike pleadings must prove, by clear and convincing evidence, ‘that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability .impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”), we affirm, We - additionally treat Uncle Tom’s cross-appeal as a timely filed notice of appeal of the trial court’s ord.er denying Uncle Tom’s motion for entitlement to attorney’s fees based on its proposal for settlement, and because we find no ambiguity, we reverse the October 17, 2016 order denying the motion for entitlement to attorney’s fees and remand for further proceedings.

Obregon allegedly slipped and fell at Uncle Tom’s on May 14, 2012, and she filed a complaint against Uncle Tom’s on September 24, 2015, seeking damages for injuries to her neck, back, right leg, right shoulder, and right arm. The record reflects that although Obregon revealed some of the medical providers who had treated her prior to the 2012 slip and fall, in response to the slip and fall interrogatories and collateral source interrogatories, she failed to disclose numerous health care providers who had treated her for injuries and pain directly related to the injuries she is seeking damages for in the lawsuit against Uncle Tom’s.

During Obregon’s May 10, 2016 deposition, Uncle Tom’s learned that Obregon had medical insurance through Medica Healthcare, a fact not previously disclosed by Obregon in her responses to the collateral source interrogatories. Uncle Tom’s also learned that Obregon had received treatment at Mercy Hospital and had been treated by Dr. Rheinhardt Reyes and Dr. Gonzalez. Obregon omitted these healthcare providers from her responses to the slip and fall interrogatories. As a result of the information discovered during Obre-gon’s deposition, Uncle Tom’s subpoenaed records from Medica Healthcare, Mercy Hospital, Dr. Reyes, and Dr. Gonzalez. As a result of this investigation, Uncle Tom’é uncovered sixteen additional treating facilities and healthcare providers that had not been disclosed in Obregon’s written discovery responses or during her deposition.

A review of the records of the various healthcare providers Obregon failed to disclose revealed that although Obregon had denied presenting for payment or receiving any payment from any insurance company or third party for damages flowing from the slip and fall at Uncle Tom’s, this statement was false. The records reflect that numerous payments had been made to numerous different healthcare providers. But, more importantly, a review of these records revealed that although Obregon denied during her deposition that she had been diagnosed with a herniated disc, she had been diagnosed with a herniated disc in her neck as early as 2009, and this diagnosis was confirmed in 2010 and 2011. Additionally, although Obregon denied being involved in any auto accidents since 2008, these undisclosed records revealed that she was involved in an auto accident on January 26, 2011 that resulted in injuries; Obregon filed a PIP claim for injuries to her back, neck, and left shoulder as a result of that accident; and she was treated forty-one times by healthcare providers not disclosed in either discovery or during Obregon’s deposition.

When Uncle Tom’s learned that Obre-gon was receiving social security disability benefits, Uncle Tom’s subpoenaed the non-privileged records of the attorney who represented Obregon in conjunction with her disability claim and discovered nine more physicians and facilities that had treated Obregon, which she also failed to disclose. These records revealed that Obregon had a pre-existing disc herniation, which was documented by several of her treating physicians and was reflected in their reports, which Obregon herself had submitted to the lawyer representing her in her disability claim. For example, a follow-up note from Dr. Reyes dated September 29, 2010, notes a cervical spine herniation diagnosis; a medical record from Complete Medical Care Associates, dated November 5, 2010, states that Obregon’s medical issues include “[n]eck pain radiating down both upper extremities with a C6-C7 herniated disc as the patient indicated”; and a record from Dr. Richard Fernandez, dated October 29, 2010, states that Obregon’s chief complaints include two herniated discs.

Lastly, when asked during her deposition what the basis for her disability claim was and whether her disability was related to her fall at Uncle Tom’s, Obregon stated-that her disability was as a result of chronic migraines and fibromyalgia, and was not at all related to her fall at. Uncle Tom’s. The December 19, 2012 disability determination and transmittal form, however, indicates that the primary diagnosis was for a “back disorder (disc degernative)” and that Obregon’s initial claim for disability on September 25, 2012 was due to “[f]orami-nal stenosis L4 and SI; [v]ertical radiculo-pathy C6 and C7; [m]igraines; [f]ibro-myalgia.”

Based on the relevant and material information undisclosed by Obregon and discovered by Uncle Tom’s, much of which contradicted Obregon’s responses' to discovery and her sworn deposition, Uncle Tom’s filed a motion to strike Obregon’s pleadings for fraud on the court and set the motion for a hearing. Obregon, who attended the hearing, did not testify or present any counter record evidence, although her counsel did argue against the motion. The trial court deferred ruling on the motion and, on the following day, issued its order granting the motion.

Arguments on Appeal

A. The Order striking Obregon’s pleadings

Obregon seeks reversal of the trial court’s order striking Obregon’s pleadings for fraud on the court (1) based on the trial court’s failure to conduct an evidentiary hearing, and (2) because Uncle Tom’s did not prove by clear and convincing evidence that Obregon’s non-disclosures and misrepresentations were willful. We find that the hearing was properly noticed and Obregon was provided with an opportunity to be heard. Obregon, however, failed to present any counter evidence or object to the nature of. the hearing or to the trial court rendering its ruling on the motion based on the evidence and arguments by-counsel presented at the hearing. Thus, the issue of the form of the hearing was not preserved for appellate review. See McKnight v. Evancheck, 907 So.2d 699, 701 (Fla. 4th DCA 2005) (affirming a dismissal for fraud on the court based on medical records and where neither party requested an evidentiary hearing); Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001) (affirming dismissal of the complaint with prejudice for fraud on the court after the trial court conducted a hearing and reviewed the plaintiffs medical records and deposition); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997) (affirming dismissal for fraud on the court and finding that the plaintiff failed to preserve for review the absence of an evidentiary hearing).

The record also clearly reflects that the trial court’s order was supported by clear and convincing evidence. Our review of the ease law also reflects that, in similar cases, the ultimate sanction of dismissal of a plaintiffs complaint has been upheld after appellate review. See McKnight, 907 So.2d at 701 (affirming the dismissal of McKnjght’s complaint, for fraud on the court based on McKnight’s omission of an extensive medical history, which, if it had gone undiscovered, would have interfered with the jury’s ability to fairly adjudicate the issues); Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574-575 (Fla. 1st DCA 2003) (concluding that dismissal with prejudice of the plaintiffs complaint was an appropriate sanction where the plaintiffs omissions and misrepresentations did not result from mere oversight or forgetfulness and were about matters bearing.directly on the issue of damages); Metro. Dade Cty. v. Martinsen, .736 So.2d 794, 796-96 (Fla. 3d DCA 1999) (reversing a-jury verdict and remanding for dismissal of the plaintiffs case because, although the plaintiff had provided some truthful information about her treating doctors, she did not provide full and complete information during the discovery process).

We, therefore, affirm the trial court’s order striking Obregon’s pleadings for fraud on the court.

B. The order denying Uncle Tom’s motion for attorney’s fees

Following the rendition of the underlying final judgment, Uncle Tom’s filed its motion for entitlement to attorney’s fees in the trial court on August 26, 2016. The trial court entered an order on October 17, 2016, denying the motion. On November 14, 2016, Uncle Tom’s filed a notice of cross-appeal of the October 17, 2016 order in the instant case. Obregon argues, and we agree, that this post-judgment , order denying Uncle Tom’s motion for attorney’s fees was improperly filed as a cross-appeal and that the order should have been appealed separately. See Webb Gen. Contr., Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058, 1060 (Fla. 3d DCA 1981) (holding that “[i]t is not. the function of a cross-appeal to seek review of a distinct' and. separate judgment, albeit rendered in the same case below, favorable to the appellant”).

However, we conclude that Uncle Tom’s incorrect designation of its appeal as a cross-appeal does not warrant a dismissal of its appeal where the appeal was timely filed, Obregon has plainly been advised of the order being appealed, and Obregon has suffered no prejudice or inconvenience. Austin v. B.J. Apparel Corp., 527 So.2d 206, 206-07 (Fla. 3d DCA 1987). See also Milar Galleries, Inc. v. Miller, 349 So.2d 170, 171-72 (Fla. 1977) (holding that dismissal is improper where there is no prejudice to appellee from deficiencies or ambiguities in the notice of appeal); Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78, 80 (Fla. 1972) (holding that “a notice of appeal is sufficient if it gives the Appellate Court and the adverse party information adequate to identify in the record the judgment intended to be appealed. But primarily, the party moving to dismiss the appeal must show some prejudice of - inconvenience caused by the deficiency in the-notice of appeal”).

The notice filed by Uncle Tom’s clearly and plainly identified the order being appealed, it was timely filed, the notice attached a copy of the order, and Obregon has not been prejudiced or inconvenienced by the improper characterization of the appealed order as a cross-appeal. We therefore treat the notice of cross-appeal as a notice of appeal and address the arguments raised on appeal on the merits.

The motion for attorney’s fees was filed pursuant to section 768.79, Florida Statutes, and Florida Rule, of Civil Procedure 1.442, based on Uncle Tom’s proposal for settlement and Obregon’s rejection of the proposal. Section 768.79 provides that a party has the right to recover reasonable attorney’s fees if all dictates of the statute and rule 1.442 have been followed. In MGR Equipment Corp. v. Wilson Ice Enterprises, Inc., 731 So.2d 1262, 1263 (Fla. 1999), the Florida Supreme Court interpreted this language as mandatory if tbe statutory prerequisites have been met. See also Ariderson v. Hilton Hotels Corp., 202 So.3d 846, 856 (Fla. 2016); Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So.3d 718, 721 (Fla. 3d DCA 2015).

However, the trial court found that the language contained in the general release attached to the proposal for settlement was ambiguous and thus unenforceable, Specifically, the language the trial court was concerned about was the inclusion of Obregon’s “legal representatives” as a releasing party. The Fourth District Court of Appeal previously addressed this very same language contained in the general release in Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507, 509-10 (Fla. 4th DCA 2003), and concluded that the inclusion of the parties’ legal representative in the definition of releasing parties did not render the proposal for settlement unenforceable. The Bowman court found that the language of the release was typical of a general release, and while needlessly expansive, was clear and unambiguous. Id.

Although we do not go so far as to agree that the language of the general release was typical, we do agree that the release was clear, unambiguous, and enforceable. See also Alamo Fin., L.P. v. Mazoff, 112 So.3d 626, 629 (Fla. 4th DCA 2013) (finding that the. reference to “subsidiaries” in the release did not make the proposal ambiguous); Jessla Constr. Corp. v. Miami-Dade Cty. Sch. Bd., 48 So.3d 127, 130 (Fla. 3d DCA 2010) (concluding that the inclusion of non-parties in the release did not render the proposal unenforceable). Accordingly, we reverse the trial court’s order denying Uncle Tom’s motion for attorney’s fees and remand for further proceedings.

Conclusion

We find that the trial court’s order striking Obregon’s pleadings for fraud on the court is supported by clear and convincing evidence. Accordingly, we affirm the order striking Obregon’s pleadings and dismissing her lawsuit with prejudice. We, however, reverse the trial court’s order denying Uncle Tom’s motion for attorney’s fees based on Obregon’s rejection of Uncle Tom’s proposal for settlement and remand for further proceedings.

Affirmed in part; reversed in part; and remanded. ■


author: LINDSEY, J.

text:
    Elisabeth GONZALEZ-CARONE, Petitioner, v. In re: The LANCE AND LINDA NEIBAUER JOINT TRUST, BY AND THROUGH Lance NEIBAUER, as Trustee v. Michael J. Kurgan, etc., Respondent.
    No. 3D17-1842
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Elisabeth Gonzalez-Carone, in proper person.
    Payton & Associates, LLC, for respondent.
    Before EMAS, LOGUE and LINDSEY, JJ.
   LINDSEY, J.

Elisabeth Gonzalez-Carone seeks, by way of a petition for writ of certiorari, review of the trial court’s order denying her motion for protective order as moot, on August 14, 2017. The trial court’s order was rendered on July 10,2017. Pursuant to Florida Rule of Appellate Procedure 9.100(c)(1), a petition for certiorari “shall be filed within thirty days of rendition of the order to be reviewed.” The thirty day time period is jurisdictional. Under section 59.081(2), Florida Statutes (2017), the failure to timely invoke the jurisdiction of a reviewing court “shall divest such court of jurisdiction to review such cause.” See Miccosukee Tribe of Indians of Fla. v. Lewis, 122 So.3d 504, 505-06 (Fla. 3d DCA 2013) (holding that because the petition for writ of certiorari was filed thirty-five days after rendition of the order to be reviewed, the petition is untimely and this Court is therefore without jurisdiction).

Here, Rule 9.100(c) required the instant petition to be filed within thirty days of the order rendered on July 10, 2017. Because the petition was filed on August 14, 2017, thirty-five days after rendition of the order sought to be reviewed, the petition is untimely. This Court therefore lacks jurisdiction over the petition. Accordingly, we dismiss the petition for lack of jurisdiction.

Petition dismissed.


author: EMAS, J.

text:
    AIM RECOVERY SERVICES, INC., Appellant, v. Quincy WILLIAMS, Appellee.
    No. 3D17-172
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Stok Folk + Kon, Robert A. Stok, Sho-ham Segal and Jamey R. Campellone, for appellant.
    Wasson & Associates,. Chartered and Annabel C. Majewski, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   EMAS, J.

Appellant, AIM Recovery Services, Inc., appeals a nonfinal order vacating a default and default final judgment. We review the trial court’s order for a gross abuse of discretion, Gables Club Marina, LLC v. Gables Condo. & Club Ass’n, Inc., 948 So.2d 21 (Fla. 3d DCA 2006) (citing N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852 (Fla. 1962)), and affirm.

Florida Rule of Civil Procedure 1.500(b) authorizes entry of a default by the court, but where the party has filed or served any document in the action, “that party must be served with notice of the application for default.” In the instant case, Williams alleged in his motion to vacate that the default and default final judgment were void as having been rendered without notice to him or an opportunity to be heard.

At an evidentiary hearing on Williams’s motion to vacate, the trial court weighed the testimony, considered the other evidence presented, and concluded, inter alia, that Williams did not receive notice of the application for default or notice of the motion for default final judgment, and did not have an opportunity to be heard. These determinations are supported by the record.

Because Williams established that he did not receive notice and was not provided an opportunity to be heard, the default and default final judgment were void and properly vacated. As we held in Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007) “[a] violation of the due' process guarantee of notice and an opportunity to be heard renders a judgment void.” “Notice is the first and most essential element of due process and failure to give notice of a default, when required, makes a default void.” M.W. v. SPCP Group V, LLC, 163 So.3d 518, 522 (Fla. 3d DCA 2015). “This court has repeatedly held that a judgment entered without notice to a party is void ab initio.” State, Dep’t of Revenue ex rel. Prinzee v. Thurmond, 721 So.2d 827, 828 (Fla. 3d DCA 1998) (and cases cited).

Affirmed.

      , In response to the complaint, Williams filed a motion to dismiss.

      . At the commencement of the action, Williams was represented by counsel; counsel subsequently withdrew and, at all times relevant to this appeal, Williams was unrepresented.