PATRICIA ASH

v.

IN RE: GUARDIANSHIP OF AARON ASH

Third District Court of Appeal

State of Florida

Opinion filed December 15, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-700 Lower Tribunal No. 82-2432

________________

Patricia Ash,

Appellant,

vs.

In re: Guardianship of Aaron Ash, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge. Ross & Girten and Lauri Waldman Ross; Duane Morris, LLP, Gutman Skrande, and Marsha G. Madorsky, for appellant. Sloto & Diamond, PLLC, and James R. Sloto, for appellee. Before FERNANDEZ, C.J., and HENDON, and GORDO, JJ. FERNANDEZ, C.J. Patricia Ash, the mother of the adult ward, is an “interested party” in the underlying guardianship case and the petitioner below. Patricia appeals the trial court’s final order denying her “Verified Petition for Successor Guardian.” For the reasons that follow, we reverse the trial court’s order on appeal and remand to the trial court for further proceedings. The adult ward, Aaron Ash, was born in 1972, permanently physically and mentally disabled due to medical malpractice. Patricia and her husband/Aaron’s father, Hyman Ash, the respondent below, divorced after Aaron’s birth. In 1992, the probate court adjudicated Aaron to be incapacitated and required a plenary guardian for him. Patricia and Hyman agreed it was in Aaron’s best interests that Hyman be appointed guardian, with liberal visitation and equal decision-making rights for Patricia. At the time of the underlying petition, Hyman and his current wife lived in one townhome. Aaron lived with Nelson Almendarez (“Nelson”), Aaron’s primary caregiver of thirty-two years, and Nelson’s family, in a second adjacent townhome owned by Hyman.

On December 28, 2019, Hyman told Patricia he wanted Patricia to take over the guardianship. Thus, on February 5, 2020, Patricia filed a “Verified Petition for Appointment of Successor Guardian of the Person.” The petition alleged that Hyman agreed to transitioning guardianship of Aaron from himself to Patricia. Patricia outlined the actions she would take upon her appointment as successor guardian of Aaron. Hyman objected to the Verified Petition. He contended that while he agreed to transitioning Aaron’s guardianship to Patricia, he objected to her appointment until she completed the steps she outlined in her Verified Petition. On October 13, 2020, a hearing on Patricia’s petition was held before the Honorable Yvonne Colodny. At the beginning of the hearing, the judge stated: So Patricia is requesting to be the successor guardian, it’s my understanding that Hyman filed an objection stating that he does not object to her becoming the successor guardian, just that at this point, he does not believe that she has completed the necessary steps for a seamless transition of those responsibilities. Is that correct, [Hyman’s counsel]? Hyman’s counsel replied, “Yes, Your Honor.” At the hearing, Patricia testified that she sold her home in Palm Beach County, had located a residence for herself in Miami-Dade, and was now looking for a house with a bedroom on the first floor for Aaron and his caregivers for easy ingress/egress, which they needed. Patricia had no access to information about Aaron’s budget, government benefits, and finances, nor did she have the authority to negotiate on the guardianship’s behalf, thus she did not have the information she needed to secure Aaron’s residence. Patricia testified that the house she was renting in Miami-Dade County was for her, and that Aaron would have his own separate house where his support staff would care for him.

At the end of the hearing, Judge Colodny reserved ruling on Patricia’s petition. In the probate court’s October 14, 2020 written order reserving ruling on Patricia’s petition, the court directed the bank to provide Patricia with all the details of Aaron’s budget and government benefits. The judge also authorized Patricia to speak to Aaron’s current caretakers, doctors, physical therapists, etc. “to establish a care plan and retain care for” Aaron and “to pursue the acquisition or lease of a Miami Dade County residence” for Aaron. On November 12, 2020, Patricia and her counsel met with the bank to discuss Aaron’s expenses and income. In addition, on December 3, 2020, Patricia, her accountants, and her counsel met with Hyman, his counsel, and members of his bookkeeping staff. Following an agenda, Patricia’s counsel took notes and emailed a “Summary & Wrap up” of the December 3 meeting to Hyman’s counsel. Patricia’s counsel noted that at the beginning of the meeting, Hyman stated his primary concern was that Aaron’s current caregiver framework be maintained and that his residence be finalized by Patricia “as the key components of a transition.” There was no mention of or objection to Patricia living separately from Aaron. In his email to Hyman’s counsel, Patricia’s attorney told Hyman’s counsel, “let me know if anything appears incorrect.” Hyman’s counsel did not notify anyone of any corrections to the “Summary & Wrap up” email.

On December 10, 2020, Patricia filed a “Successor Guardian’s Proposed Transition Plan,” along with the financial analysis and updated guardianship budget created by her accounting firm. In the plan, Patricia outlined how she had met each step listed in paragraph 12(a)-(e) of her petition that Hyman had required before transitioning Aaron’s guardianship. Also attached as an exhibit to the Proposed Transition Plan was a December 9, 2020 “Memorandum of Understanding as to Aaron Ash’s Housing & Care.” In this Memorandum signed by Patricia and Nelson, Nelson agreed to continue to serve as Aaron’s primary caregiver, and that Aaron would live with Nelson and Nelson’s family in Nelson’s property that he owned in Miami- Dade County.

On December 14, 2020, Hyman moved to continue the hearing on Patricia’s petition and filed a “Response in Opposition to the Proposed Transition Plan.” He now alleged that he should remain as co-guardian because he found out for the first time that Patricia’s plan was to live separately from Aaron. That same day, Judge Colodny recused herself sua sponte. The December 14, 2020, hearing on Patricia’s verified petition was rescheduled to January 28, 2021, before the successor judge, the Honorable Jorge E. Cueto.

On January 20, 2021, Patricia filed a “Reply in Support of Transition Plan.” The plan outlined Patricia and Hyman’s agreement at the October 13, 2020 hearing and how Patricia complied with all the agreed-to terms. Patricia contended that Hyman’s current position conflicted with his response to her petition and the representations he made previously in open court to Judge Colodny. Thus, Patricia argued, Hyman should be bound by his prior pleadings and should be estopped from changing his position, as Patricia had complied with everything Judge Colodny required. Hyman then again moved for a continuance on Patricia’s petition hearing and filed a “Declaration that Proceeding was Adversary.” Patricia filed a response in opposition to Hyman’s motion for continuance, as well as a motion to strike the adversary declaration.

Before the January 28, 2021 hearing on Patricia’s petition, the parties stipulated to certain facts, including that Nelson has been Aaron’s caregiver for thirty-two years, the details of Aaron’s current living and financial situation, and Patricia’s ongoing involvement in Aaron’s life. At the January 28, 2021 hearing before Judge Cueto on Patricia’s petition, Patricia testified that her December 28, 2019 conversation with Hyman about Patricia taking over the guardianship led Patricia to hire her counsel and file her petition. The same day she hired her attorneys, she put her house in Palm Beach County on the market. Patricia testified that Aaron has been the priority in her life. Patricia arranged for Aaron to reside with Nelson and his family in the four-bedroom home owned by Nelson. Nelson would continue to serve as Aaron’s primary caretaker. Next, before Hyman testified at the hearing, Patricia again asked the probate court to note her objection to Hyman’s response and asked that Hyman not be allowed to contradict his previous pleadings and agreement. Hyman then read a prepared statement where he contended for the first time that Patricia approached him to be appointed successor guardian and that he did not know that Patricia intended to live separately from Aaron. He testified that he was going to try and save money by not keeping on Nelson and his family. When his attorney asked him if he would have agreed to transition Aaron’s guardianship to Patricia had Hyman known about Patricia’s separate house intention, Hyman replied, “No.” Hyman then testified that he was willing to stay on as guardian. At the end of the hearing, the probate court did not make any ruling or make any determinations on the credibility of the parties, nor did it make any determination about Aaron’s best interests. The court asked the parties for proposed orders.

Thereafter, on February 8, 2021, the judge entered the order on appeal (“Order Denying Verified Petition for Appointment of Successor Guardian of the Person”), which adopted Hyman’s proposed order verbatim. The order provides, “Hyman testified at the January 28, 2021 hearing that he would never have started down the road of transitioning the guardianship to Patricia if he knew about her intentions to live separately from Aaron,” and that “Hyman at the January 28, 2021 hearing [sic] that he believed if Patricia would be taking custody of Aaron, it would be in her home.” On this basis, the court determined: The principle of detrimental reliance is inapplicable to the instant case. Hyman’s objections to Patricia’s Verified Petition and Proposed Transition Plan clearly illustrate his lack of agreement on the terms by which Patricia would assume the role of successor guardian of the person. Any of Patricia’s undertakings prior to a court appointment were solely her decision and at her risk. Patricia moved for rehearing. While her motion was pending, Hyman terminated Nelson as caregiver and evicted Nelson and his family from Aaron’s condominium. Patricia then filed a “Petition to Appoint Emergency Court Monitor to Reinstate the Ward’s Primary Caregiver,” which has not been ruled on. Patricia’s motion for rehearing was denied. She then filed this appeal.

DISCUSSION

Patricia contends, in part, that the probate court erred in refusing to limit Hyman to his original position and in failing to consider Aaron’s best interests.¹ “An appellate court reviews a probate court’s appointment of a guardian under an abuse of discretion standard.” Acuna v. Dresner, 41 So. 3d 997, 999 (Fla. 3d DCA 2010). However, any issues of law are subject to de novo review. Drelich v. Guardianship of Drelich, 201 So. 3d 15, 17-18 (Fla. 3d DCA 2013).

Equitable Estoppel

Under Florida law, parties are bound by the allegations in their pleadings. Carvell v. Kinsey, 87 So. 2d 577, 579 (Fla. 1956). “[A]dmissions contained in the pleadings as between the parties themselves are accepted as facts without the necessity of supporting evidence.” Id. Furthermore, “’litigants are not permitted to take inconsistent positions.’” Bove v. Naples HMA, LLC, 196 So. 3d 411, 413 (Fla. 2d DCA 2016), quoting Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41 (Fla. 1st DCA 1970). The First District Court of Appeal in Griffin held: The general rule has long been established in Florida and other jurisdictions that litigants are not permitted to take inconsistent

CONCLUSION

An appellate court defers to a circuit court’s findings of fact when they are based on competent substantial evidence. State, Fla. Highway Patrol v. Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980) in U.S. Currency, 802 So. 2d 1171, 1172 (Fla. 3d DCA 2001). However, this “presumption of correctness never requires an appellate court to disregard record evidence that disproves the lower court's findings or that reveals its ruling to be an abuse of discretion.” In re Doe, 932 So. 2d 278, 284 (Fla. 2d DCA 2005). Here, the evidence before this Court does not support paragraphs five, six and eight in the order on appeal, stating that Hyman did not know that Patricia would be living separately from Aaron and that Patricia’s undertakings prior to the court appointing her as Aaron’s guardian were solely her decision and taken at her own risk. Accordingly, the trial court abused its discretion in allowing Hyman to change his position to the detriment of Aaron. For these reasons, we reverse the probate court’s order on appeal and remand the case for further proceedings. Reversed and remanded for further proceedings.