SCOTT LEVINE, APPELLANT,
v.
NORMAN P. LEVINE, ETC., APPELLEE
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Dr. Scott Levine appealed from orders dismissing his petition to determine his father's incapacity and requiring him to pay the examining committee's fees. The court affirmed the dismissal but reversed the fee award, holding that absent a finding of bad faith, a petitioner cannot be required to pay examining committee fees when a good faith incapacity petition is dismissed.
The dismissal of the incapacity petition was proper and affirmed, as the statute clearly requires dismissal when a majority of the examining committee concludes no incapacity exists. However, the order requiring Dr. Levine to pay examining committee fees was reversed, as the statute only allows assessment of such costs against a petitioner if the petition was filed in bad faith, and no such finding was made here.
[1] A court shall dismiss a petition to determine incapacity if a majority of the examining committee concludes that the alleged incapacitated person is not incapacitated.
[2] A party is not entitled to an evidentiary hearing to challenge the opinions of an examining committee in an incapacity proceeding when the committee unanimously finds no…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the mandatory nature of dismissal when examining committee concludes no incapacity exists
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Join FLexlaw to unlock all legal intelligenceDr. Scott Levine filed a petition to determine his father Norman P. Levine's incapacity. A three-member examining committee was appointed as required …
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In this incapacity proceeding, Scott Levine, M.D. (“Dr. Levine”), the petitioner *731below, appeals from two orders, the first dismissing his petition to determine the incapacity of his father, Norman P. Levine (“Mr. Levine”), and the second requiring that he pay the fees charged by the members of the examining committee. We affirm the trial court’s order dismissing the incapacity petition, but reverse the order requiring Dr. Levine to pay the fees of the examining committee.
Dr. Levine and his sister, Bonnie Stim-mel, are Mr. Levine’s adult children. Dr. Levine filed a petition to determine his father’s incapacity. As required by statute, the trial court entered an order appointing a three-member examining committee. See § 744.331, Fla. Stat. (2008). After the examining committee members concluded that Mr. Levine was not incapacitated, Ms. Stimmel moved to dismiss the incapacity petition pursuant to section 744.331(4), which provides “[i]f 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.” The trial court dismissed the petition and Dr. Levine now appeals.
Dr. Levine contends that the language of the statute notwithstanding, he should have the right to an evidentiary hearing to challenge the opinions of the examining committee members, either individually or collectively. We disagree, as the language of the statute is clear and unambiguous. Once a majority of the examining committee concluded that Mr. Levine was not incapacitated, the trial court was correct in dismissing the petition to determine incapacity and the petition for the appointment of a guardian. See Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999) (holding once examining committee concluded that alleged incapacitated person had full capacity, trial court was required to dismiss petition to determine incapacity); see also In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977).1
The trial court also ordered Dr. Levine to pay the examining committee’s fees. Ms. Stimmel concedes error. While section 744.331(7)(a) allows the trial court to award members of the examining committee reasonable fees, subparagraph (c) of that section provides that the cost and attorney’s fees of a dismissed petition are to be assessed against the petitioner only if the court finds the petition to have been filed in bad faith. The court made no such finding here. We recognize that the statute has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed. See Ehrlich v. Severson, 985 So.2d 639, 640 n. 1 (Fla. 4th DCA 2008). As did the Ehrlich court, we urge the Legislature to specify who pays the examining committee fees in this circumstance.
For these reasons, the trial court’s order dismissing the petition for a determination of incapacity is affirmed. However, the order requiring Dr. Levine to pay the costs associated with the examining committee is reversed.
*732AFFIRMED in part and REVERSED in part.
SAWAYA and LAWSON, JJ., concur.
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Rothman v. Rothman, 93 So. 3d 1052 (Fla. 4th DCA 2012)…aulkner v. Faulkner, 65 So. 3d 1167, 1168 (Fla. 1st DCA 2011) (“If the majority of the committee determines that the alleged incapacitated person is not incapacitated, the court must dismiss the petition to determine incapacity.”); Levine v. Levine, 4 So. 3d 730, 731 (Fla. 5th DCA 2009) (rejecting a request for an evidentia-ry hearing to challenge the opinion of the examining committee); Mathes v. Huelsman, 743 So. 2d 626, 627 (Fla. 2d DCA 1999) (“[OJnce the examining committee concluded that Mathes had ful…
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Faulkner v. Faulkner, 65 So. 3d 1167 (Fla. 1st DCA 2011)…d. See § 744.331(3), Fla. Stat. If the majority of the committee determines that the alleged incapacitated person is not incapacitated, the court must dismiss the petition to determine incapacity. § 744.331(4), Fla. Stat.; see also Levine v. Levine, 4 So. 3d 730, 731 (Fla. 5th DCA 2009); Mathes v. Huelsman, 743 So. 2d 626, 627 (Fla. 2d DCA 1999). Otherwise, the case proceeds to an adjudicatory hearing for the court to determine based on clear and convincing evidence whether the person is incapacitated. § 74…
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In re Guardianship OF Mary W. Klatthaar. Marion Yazdzik v. Scott, 129 So. 3d 482 (Fla. 2d DCA 2014)…sponsibility for the payment of fees of the court-appointed attorney and the examining committee when a good faith petition is dismissed. See Faulkner v. Faulkner, 65 So. 3d 1167, 1169 (Fla. 1st DCA 2011); Allen, 10 So. 3d at 1211; Levine v. Levine, 4 So. 3d 730, 731 (Fla. 5th DCA 2009); Severson, 985 So. 2d at 640. Though section 744.331(7)(a) specifically entitles court-appointed attorneys and examining committee members to reasonable fees, said fees cannot' be paid by the guardian from the ward’s propert…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Keene, 343 So. 2d 916 (Fla. 4th DCA 1977)
- Ehrlich v. Karen Severson, M.D., 985 So. 2d 639 (Fla. 4th DCA 2008)
- Mathes v. Huelsman, 743 So. 2d 626 (Fla. 2d DCA 1999)