Adversarial Proceedings in Florida Guardianship – Right to Amend?

When can a litigant in a Florida guardianship proceeding amend a petition?  An amendment to the initial pleading is allowed once, as a matter of right, before the responsive pleading is filed.

In Reed_v._Long , 111 So. 3d 237 (4th DCA 2013), the guardian improperly held himself out as the husband of the ward and was able to procure for himself loss of consortium damages in his capacity as the husband.  The daughter of the ward filed a declaratory action with the guardianship court in which the the court declared him not to be the husband.

The daughter then filed a motion for leave to seek supplemental relief.  Attached to the motion was a proposed petition in two counts – removal of the (non) husband as guardian, and surcharge.  The court allowed the supplemental petition for removal to proceed, but denied the supplement petition for surcharge, holding that the court failed to see a viable cause of action.   Eventually, the guardianship court removed the guardian as a result of his improper behavior.

The appellate court held that the daughter should have been allowed to amend her petition on the surcharge count, based on the Florida Rule of Civil Procedure pertaining to amendments of pleadings.

Surcharge of a guardian is considered an adversary proceeding under the Florida Probate Rules, which is conducted “similar to suits of a civil nature” and “[t]he Florida Rules of Civil Procedure govern.” Fla. Prob. R. 5.025(a), (d)(2). Under Florida Rule of Civil Procedure 1.190(a), “a plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment.” Boca Burger, Inc. v. Forum, 912 So. 2d 561, 563 (Fla. 2005). “A judge’s discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once.” Id. at 567. The trial court summarily dismissed the count, expressing that there is no viable claim, before allowing Reed the opportunity to amend her pleading to support the claim. This was error. See id.; Hawkins v. Crosby, 910 So. 2d 424, 425 (Fla. 4th DCA 2005) (because no responsive pleading had been filed, the trial court had no discretion to deny a request to amend the complaint); Williams v. Gaffin Indus. Servs., Inc., 88 So. 3d 1027, 1030 (Fla. 2d DCA 2012) (where a responsive pleading is permitted, a trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once).

If a proceeding in the guardianship court is considered to be adversarial in nature, whether because the rules make it adversarial or because a litigant files a notice that the proceeding is adversarial in nature, the regular rules of civil procedure apply, not just the guardianship rules of procedure (which confusingly are found within the Florida Probate Rules.)

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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