MAGILL & MAGILL V. DRESNER, ET AL.

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Third District Court » 2010 » MAGILL & MAGILL V. DRESNER, ET AL.

State: Florida

Court: Florida Third District Court

Docket No: 09-2982 / 09-2031

Case Date: 08/04/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D., 2010
Opinion filed August 04, 2010. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D09-2982 & 3D09-2031 Lower Tribunal Nos. 09-2285 & 09-1817 ________________

Marianne Magill Acuna & Marilyn Magill,
Appellants, vs.

Jack Dresner, et al.,
Appellees.

Appeals from the Circuit Court for Miami-Dade County, Maria M. Korvick, Judge. Pepe & Nemire and Thomas F. Pepe, for appellants. Tew Cardenas and Jeffrey Tew and Andrew B. Thomson, for appellee Jack Dresner; Welbaum Guernsey and Hung V. Nguyen and Melissa J. Gomberg, for appellee Hung Nguyen.

Before GERSTEN, SHEPHERD, and LAGOA, JJ. LAGOA, J. The appellants, Marianne Magill Acuna and Marilyn Magill ("appellants"), appeal an order of the probate court appointing the appellee, Jack Dresner

("Dresner"), as plenary guardian for their mother. They also appeal an order granting attorney's fees to the attorney ad litem, appellee Hung V. Nguyen ("Nguyen"), and an order denying a motion for disqualification of the trial judge. We affirm both the order granting attorney's fees to Nguyen and the order denying the motion for disqualification.1 However, because there was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian, we reverse the order appointing Dresner plenary guardian. I. FACTUAL AND PROCEDURAL HISTORY The ward, Shirley Magill ("Shirley"), has three daughters: the appellants, Marianne Magill Acuna and Marilyn Magill, and Maureen Tew ("Maureen"). Maureen is married to the petitioner below, Jeffrey Tew ("Tew"). On June 23, 2006, Shirley executed a Declaration Naming Preneed Guardian (the "Declaration"), which stated in relevant part: If I am determined at any time to be incapacitated, as that term is defined in the Florida Guardianship Law as it now exists or may hereafter be amended, I declare that Concerning the appellants' claim that the trial court erred when it awarded attorney's fees to Nguyen, we find that the appellants lack standing to challenge the order. See Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006) (holding that family members of the ward do not have standing to participate in guardianship proceedings concerning attorney's fees under section 744.108, Florida Statutes (2009), unless they have filed a written Request for Notice under Florida Probate Rule 5.060). We also affirm the order denying the motion for disqualification because the motion was untimely. See Fla. R. Jud. Admin 2.330(e) ("A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion . . . ."); J.M.P.U. v. Dep't of Children & Family Servs., 862 So. 2d 752 (Fla. 3d DCA 2003). 2
1

my three (3) children MARIANNE ACUNA, MARILYN MAGILL, AND MAUREEN TEW, together, or the survivor thereof, are to serve as guardian of my person and property, to exercise all delegable legal rights and powers and to perform all the tasks necessary to care for me and my property. If none of my children are able or willing to serve as Guardian of my person and property, for any reason, then I appoint my son-in-law, JEFFREY TEW, to act as Guardian of my person and property. Subsequently, on May 12, 2009, Tew filed a petition to determine incapacity seeking the appointment of a guardian of the property of Shirley. Tew later filed a motion to amend, seeking the determination of Shirley's total incapacity and the appointment of a plenary guardian. At the hearing on the petition, the probate court heard testimony from the examining committee concerning Shirley's mental capacity. Additionally, Tew presented evidence that the appellants and Maureen were in disagreement as to Shirley's living arrangement: the appellants sought to rotate caring for their

mother in each of the daughters' homes, while Maureen believed that Shirley should remain in her home and be cared for by medical aides. At the conclusion of the hearing, the probate court found Shirley to be incapacitated and, at the suggestion of Tew, appointed Dresner, Shirley's long-time accountant, as her plenary guardian.2 The probate court appointed Dresner, rather than Shirley's
2

Dresner, who had been acting as the emergency temporary guardian of Shirley's property, expressed reservations about being the guardian of Shirley's person. At the hearing, he stated, among other things: "In terms of being her guardian for her person I have some reservations about that. I'm an accountant by profession and I don't know if I could be the

Download MAGILL & MAGILL V. DRESNER, ET AL..pdf