Appendix — Lucom v. Atlantic National Bank

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 1&>

No. 21088 | |

Vinita Wittys Lucom and Wison C. Luco,

: Appellants,

ain 0> hy

Atiantic Natrionat Bank oF West Pam Beacu, Fiona,

_ Appellee.

Appeal from the Daleid States District Girt for the

Southern District of Florida.

Fd

(December 10, 1965.)

Before Jonzs,.Wispom and Gewin, Circuit Judges.

Jones, Circuit Judge: In 1953 the appellant,’ then a

Florida resident; was adjudicated incompetent and restored

-a few months later. The“appellee bank was the guardian of

her propérty duri er incompetency. ° Shortly after. her

restorat) n, shé fe-entered a mental hospital in Philadel-

“It appears her children induced her to Philadelphia

without revealing the purpose of the trip. The children

then brought a habeas corpus proceeding in a Pennsylvania

- state court to establish the legality of her confinement, and

_she-was declaréd “mentally ill’? within the. meaning of the .

3 Viteinis Wiilys DeLanda: She tise since married Wilson C.

Lucom, who joins her in thig action. ..-

—~ yi Een

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Pennsylvania Mental Health Act of 1951.2 An adjudication. -

of ‘‘incompetency’’ would necessarily have been under a

different statute* A Florida county court’ reappointed

appéllee bank as. guardian of appellant’ Ss property on the

basis of the.’ Pennsylvania judgment. Appellant - was

restored in New York in 1954, She is now a nr of

--New York.

Appellant did not appeal the appointment of a gonrdigs

but attacked collaterally. by contesting the accounting ‘in

1954 and 1955 on the basis that the guardianship was invalid

~! for lack of compliance with Florida law.. ‘The .contest

reached the Supreme Court of Florida as-Lucom v. Atlantic

Nat’l Bank, Fla. 1957, 97 So. 2d 478, which held the bank

and its attorneys entitled to compensation whether or not °

the guardianship was valid. The court. expressly omitted

ruling on the validity of the appointment, holding that the

bank was at least a guardian de facto and, as such, was

entitled to be paid. 4 The accounting was approved and

_. discharge ordered in.1955 but final discharge was delayed.

by litigation until October 11, 1961.

' 2¢Mental illness” shall mean an illness which so lessens the

| ‘capacity of a person to use his ¢ustomary self-control, judgment

and. diseretion inf conduct of his affairs and social relations as

to make jt necessary or advisable for him as to be undef care. ©

The term shall: include ‘‘insanity,’’ ‘‘unsoundness of mind,’’

‘‘lunacy,”’ ‘‘mental disease,’ ‘‘mental disorder,’’ and all other :

types of mental cases, but the term shall not include ‘‘mental de-

fectiveness,’” ‘“‘enilepsy,’” ‘‘inebriety,’’ or ‘‘senility.”” Pa. P.L.

- 141, June 12, 1951 § 102(11).

ese Incompetent”? means a person, who, because of mental infirmi-

ties of old age, mental illness, mental deficiency, drug addiction or

inebriety, is unable to manage his property, or is liable to dissipate

‘it or ‘become. the victim of designing persons. It includes'a person’.

heretofore declared to be a lunatic,:an habitual drunkard, insane or

weak-minded, ‘Pa. P.L. 158, June 28, 1951, § 102(3).

.*The same cause reached. the Florida ‘Supreme Court again as

Lucom v. Potter, Fla. 1961, 121 So. 2d 724, which settled: a con-

_ troversy, as to. the amount of attorney’ 's fees.

—. a -_—_

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‘This case was brought in Federal distfict court on

October 8, 1962, for damages resulting from a taking of

property without due. process of law by way of the &lleged

_ ¢ inyalid guardianship, alleged disloyal and negligent actions

of the guardian, the withholding of appellant’s papers, and

fraud and conspiracy to accomplish all this. Jurisdiction

. was grounded on diversity and a claimed Federal question 7

under the Fourteenth Amendment: Summary judgment

was entered for the. bank on the grounds that the action

was barred by limitations and that the Florida adjudica-

‘tions were regpjudicata or that they collaterally estopped

the appellant on all questions except the count for produc-

tion of papers. The count for production was later dis-

missed for failure to comply with orders to specify the

documents desired. Four appeals are consolidated here:

from the summary judgment; from denial of relief from

the*summary judgment under Rule 60(b) of the Federal

Rules of Civil Procedure on the ground of newly discovered

evidence; .from the dismissal of the count for produetion;

Er from denial of disqualification of one of the bank’s

| incite on a claim of conflict of interests

Florida has two limitation statutes “which might be

relevant to this matter: Fla, Stat. Ann. § 95.11, which

provides a general four-year period and a three-year

period for actions for fraud; and Fla.: Stat.. Ann. § 746,

5 Aotions other than those for the recovery of real property can’

only becomfieiteed as follows: .

(4) Within four years. —Any. action for relief not specifically

_ provgded for in this chapter. 2. .

(5) Within three years.— .

(d) An action for relief gn the ground ‘of fraud, the cause

of action in such case not to be deemed to have accrued

until the diseovery by the aggrieved party 6 the facts con-

ny the fraud.

. f s r ; , ” tie, Bhai. Ann’$96.1)

(axe

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‘ which provides that no action may be brought. against a

guardian more than a year after discharge. Appellant

argues that Section 746.14, alone, applies and that, as suit

-was instituted within a year of final discharge, the action.

may: be maintained. lvoe find the Florida law to be to the

contrary.

Insofar as the briefs and our research have disclosed,

only one Florida case has considered the interaction of —

these particular statutes. That case, Beck v. Barnett Nat'l

Bank, Fla. 142 So. 2d 329, held that an action commenced

‘more than a year after discharge was barred by Section

746.14 notwithstanding that the period provided by

Section 95.11 had not run since the acts complained of.

Neither this holding nor any language in the opinion

implies that Section 95.11 cannot bar an action instituted

within a year of discharge. On the contrary, Florida cases

hold that when two statutes limit the time in which an

action may be brought, both apply and the dilatory litigant

in caught by whichever runs first.

In Palmquist v. Johnson, Fla. 1949, 41 So. 2d 313, the’

* Florida Supreme Court held that the owner of the record

title to real property under a tax deed was precluded from

maintaining a suit-for possegsion by a provision requiring

such suit to be brought within four years’ despite the

general statute,* amended subsequent to the tax deed statute .

®Upon the consideration of the application for discharge and

of the objections thereto, if any, and of the evidence, if the county

judge is satisfied that the guardian has faithfully and ‘completely

discharged his duties and has rendered complete and accurate —

final returns and has delivered ‘the assets of the ward to the person

entitled. thereto, the county judge shall enter an order of dis-

charge. Such discharge shall operate as a release from the duties

, of the guardianship and as a bar to any suit against said guardian

or his-surety, unless sueh suit is commenced within one year from

the date of the discharge. Fla. Stat. Ann. § 746. 14.

Fla. Stat. Ann. § 196.06.”

8 Fla, Stat, Ann. § 95.16.

o

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- and so considered as more recent, which would have ‘allowed

the suit. It does not appear that the decision turned on

one section being a ‘‘special’’ statute and the other being

‘‘oeneral,’’ as the appellant contends here, but rather upon

duty of the court to harmonize apparently conflicting

statutes. be : ‘ ,

Similarly, the Florida court, in State. v. Haddock, Fa.,

149 So, 2d 552, considered a statute allowing the probate of

a, will to: be revoked ‘‘at any time before discharge’” and

one requiring petitions for revocation to be filed within

six months after a notice: required by statute.2°- No ir-

reconcilable conflict was found. As the notice had been

given and over six months had elapsed, the suit was barred

‘even though the other ‘section would have allowed it.

Of the cases which have come to our attention, the one

most nearly in point is Perry v. Reichert, 113 Fla. 125, 151

So. 403. Suit was brought against an -administrator to

recover on an account the decedent‘had owed.for just under: ”

four years at death. The general, three year statute™ had

run but .a special statute!2 stating that debts due from

decedents on accounts owing for more than»five years at

death would be expunged, was argued ‘to be controlling.

. The court found that the special statute was not intended

to allow suits otherwise barred. The same rationale jis

applicable | here to the appellant’s argument. .

Having determined that either statute might bar the

appellant’s action, we turn now to the question of the time

° Fla, Stat. Ann. § 732.30,

10 Fla. Stat. Ann. § 732.28,

11 Fla, Comp: Gen. Laws. § 4663(5) (5) (1927), now Fla. Stat.

Ann. § 95.11(5)(e). - ; vas

'2 Fla. Comp. Gen.. Laws § 5620 (1927).

j |

‘s

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from which the period began.to run under Section 95.11."

The appellant contends that the statute does not begin to

run until she has accrued a ‘‘complete cause of action.”’

If the adjective ‘‘completé”’ is intended to add anything to

‘thé meaning of the phrase ‘‘cause of action’’, the law of ©

Florida is otherwise.

- In Florida, a cause of action accrues and the statutory

limitation period commences when the invasiotrof a right’

- occurs,’ if there is notice, of the invasion, even though

' the damages may not materialize until later. 6 The only |

exceptions appear to be where there is no one to sue so

that no action may be brought’’ and where the party at a

fault fraudulently conceals the invasion of. right.!* The

invasions of the appellant’s rights, if invasions there were,

took plage, in 1953 when the guardianship was obtained

dnd should have been known to the appellant at that time. .

In any event, the invasions were known in 1954 when the |

ee: attacked the —er of the bank. It is not

- 18 We do not mean to seal that ‘the time we necessarily not

run under § 746.14. As noted by the trial judge; ‘‘substantial

reason$.can be advanced for holding that. the one year statute

started running no later than the compliance by the defendant

with the provisional order on discharge by the County Judge.”

See Davis v. Combination Awning & Shutter Co., Fla., 62 S. 2d 742,

14 Cristiani v. City of. Sarasota, Fla. 1953, 65 So. 2d 878.

= City of Miami v. Brooks, Fla. 1954, 70 So. 2d 306.

16 Cristiani v. City of Sarasota, supra. .

17 Berger v. Jackson, Fla. 1945, 23 So. 2d 265. That all the

elements necessary for a successful suit may not be available is’

insufficient to prevent the statute from running. Seaboard Air

Line R.R. v. Ford, supra.

28 Metcalf. v. Johnson, Fla., 113 So. 2d 864. It is the invasion”

itself which must be concealed, not merely the extent of the in-

vasion or the injury. Compare Buck v. Mouradian; Fla., 100 So.

2d 70, cert. den., 104 ‘So; 2d 592; with Proctor v. Schomberg, F'a., .

- 63 So. 2d 68,

7a

clear that the statute has been tolled at all in-this case™

but any tolling which may have occurred ceased in 1954

when the. appellant was adjudicated competent .in New

York. The four year statute has long since run on those

counts to which it is applicable. |

Appellant alleges fraud, to which a three year limitation

period running from the discovery of the facts constituting

_ the fraud applies. Proof of fraud or fraud:as a defense

Tequires a showing of certain -elements, without which

there is no cause of action.” It-is doubtful whether these

elements have been alleged or proven in this ease. In any

event, the fraud alleged was incident to the procurement

of the guardianship, which was in 1953. While it does rot

_ appear that fraud per se was alleged in the collateral attack

on the guardianship, virtually all the facts relied upon here

as constituting the fraud were’ asserted in that procéeding.

As the facts constituting the fraud were stated, it cannot —

be Said that they had not been discovered. If there was

fraud, it has long been barred by the three year statute.

' Appellant alleges that she has been deprived of the

possession of her property without due p of law as

required by the Fifth and Fourteenth Amgndments. If

this is an attempt to state a Federal cause of action, it is

-imvain. It is well settled that the Fourteenth Amendment

is a bar to state action, not individual misconduct. Any

reliance on the Civil Rights Act?.is equally futile as the

-

* See Flag Stat. ‘Ann. § 95.05; Faulk & Coleman v. Harper, Fla., |

62 So. 2d 62. : : “ai

0 See generally, Prosser, Torts, 3d Ed. § 100.

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit

“e Brite ot other proper proceeding for redress. 42 U.S.C.A. -

«if

“A, ; 4 8a

t# .

actions: complained of en be done under color of law.

- Dinwiddie v. Brown, 5th Cir. 1956, 230 F. 2d 465, cert. den.

351 U.S. 971, 76S. Gt. 1041, 100 L. Ed. 1490, reh. den., 352

U.S. 861, 77 S: Ct. 29, 1 L. Ed. 2d 72, settles this polit.

There -the ‘allegation of the obtaining of-a fraudulent

judgment by private individuals,’’ 230 F. 2d at 469, was held

to state no cause of action under the Constitution or the

Civil Rights Acts.:

‘Since there was no cause of action stated which was not

barred by limitation, the acai = below was

correet.22

The ok discovered evidence which formed: the basis

for the motion for relief from the summary judgment |

under Rule 60(b): is largely cumulative and relates to the

same causes of action we find to be barred by limitations.

There is ‘no evidence of frauduleyg acts‘ such as would

prevent the limitation statute for

the acts, themselves, have long been known even if it is

assumed that the precise part played by each actor ’.was

recently discovered. We find no abuse of —, ealling ©

for reversal,

» The count for production of documents -was dismissed’

for failure to specify the documents desired after repeated —

opportunities to do so. Such action is in the sound discre- ~

- tion of the trial judge, and this discretion was not abused.

Appellant contends that one of the attorneys for the bank

acted improperly in defending this action and should have

been disqualified for a conflict in interest. There is no

merit in this conténtion. Marco v. Dulles, S.D. N.Y. 1959, -

169 F. Supp. 622, appeal dis., 268 F'. 2d 192.

The a ceacra of the trial court are ¢ hereby

"Apne.

= Iti is unnecessary to decide whether the action is also barred .

by the prior tigation i in the state courts.

ud from running as.

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th sea Tur dgment

This cause came on to be heard on the transcript of the

record from the’ United States . District Court for the

Southern District of Florida, and was argued by counsel ;

On ConsmeratIon Wuereor, It is now. here ordered ‘aa

adjudged by this Court that the judgments of the said °

District Court in this cause be,’ and the same are hereby,

affirmed ; —

. It is farther ordered and’ ‘nears that the appellants,

Virginia Willys Iucom and Wilson €. Lucom, be con-

demned, in solidop to pay the costs of this cause in this

Ceurt for which execution may be mn out of the said

_ District’ Court.

: . a oe 10, 1965

—Tssued as Mandate: J anuary 4, 1966

U

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IN THE UN ITED STATES DISTRICT COURT FOR THE

EGUTHERN DISTRICT OF FLORIDA.

Opinion ok Motion for Summary Judgment

| " Filed August 8, 1963-

"(Title Omitted)

- This matter is presently before tis Court on the

. defendant’s motion for summary judgment. After hearing

argument, ° “examining: the exhibits, and gonsidering the

various briefs. filed herein, the Court is of the following —

opinion. :

_ StaTeMENT oF Fiore ,

There is no material disagreement between the parties

as to the factual background. né essary to consideration

Cie eae

10a

of the defendant’s motion for summary judgment. The

questions presented by that motion are principally whether

this action is barred by res judicata including estoppel by

judgment and/or the statute of limitations. Both of these

- questions are legal rather than factual in nature on the

state of this record.

The suit arises out of a former incompetency guardian-

- ship in the County J udge’s Court of Palm Beach County,

' Florida. The estate involved property in the value of

some $1,900,000. The former ward and her husband, both

currently citizens of New York, seck $1,205,000 compen-

satory and $1,000,000 punitive damages against the former

guardian bank.’ The defendant entered upon its guafdian-

ship of the property of the plaintiff by order of October 7,

1953@._Active guardianship was terminated by order of

May 25, 1955 wherein the guardian’s final accounting was

‘approved and discharge was’ directed upon turnover, -

- against receipt, of all property which was accomplished

within a few days following. this: order. The plaintiff-

ward took two appeals to the Supreme Court of Florida

from these orders of the County Judge’s Court.. The first

.of these appeals is of particular significance in determina- 8

tion of this cause.* The table in footnote below presents

. It i is s interesting to note that despite the suitiaital ad damnum

. that no actual allegations as to diminution of the estate ing the

‘ guardianship are made except certain allegations .of ‘negligent

failure to collect promissory notes and other administrative neg-

ligence trivial in comparison to the total damages sought, and the

plaintiff also seeks to recover extensive administration and litiga-

tion expense incurred.

_ 2 Other than a statutory Court cost reserve of $45.15 eat paid

out, and unspecified papers which plaintiffs allege and’ defendant

admits it still holds notwithstanding the receipt, but which defend- ,

ant offers to turn over against payment. for making: copies.

$Lucom v. Atlantic National Bank, 97 So. 2d. 478 (Fla. Sup. :

1957). The second appeal was Lucom v. Foner, 131 So. 2d 724

(Fla. Sup. wie nN

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lla

a capsuled history of the. events prior to the- instant

litigation.‘ |

* 4 Dec. 1952—Plaintiff was first adjudged incompetent by County

Judge of Palm Beach County. oe | i?

May 1953—Plaintiff judicially restored’ to competéncy by Cir-.

euit Court of Palm Beach County. |

9 ~ July 1953—Plaintiff re-entered: Pennsylvania hospital for mental

' “sickness! - ae . eee - |

|. Sept. 1953—Plaintiff found “‘mentally ill’’ in*habeas corpus pro-

‘ceeding in Pennsylvania Court, rom, ae

Oct. 1953—County Judge of Palm Beach County re-appointed

defendant as guardian after hearing (where ‘plaintiff was repre-

_ sented by guardian ad litem) on strength of the Pennsylvania

proceeding. © : us ; eas ;

Dec. 1953—Plaintiff released from ‘Pennsylvania hospital and

returned to her home in Palm Beach. ~

- . Spring, 1954—Plaintiff Started and abandoned restoration pro-

ceedings in Palm Beach Céunty.

Spring, 1954—Plaintiff married co-plaintiff Wilson C. Lucom

and moved to New York. ‘. . oe

' Summer, 1954—Plaintiff started restoration proceedings in New

York. ‘ d

.Oct. 1954—New York restoration proceedings terminated in

“ plaintiff’s favor, - . - ie . . |

Dee. 1954 & Jan. 1955—Plaintiff filed objections to periodic ac-

counting of defendant. :

May 1955—Defendant filed final accounting.

May 1955—County Judge 6f Palm Beach County. entered order

approving accountings, awarding fees, overruling objections and

ordering discharge. sj ee a)

May 1955—Plaintiff acknowledged est of her property from

defen : songs ae |

1 5—Plaintiff gave notice of appeal from County Judge’s

" ordér. ae |i

Feb. 1956—Cirenit Court affirmed County Judge. :

March 1956—Plaintiff gave notiée of appeal from Circuit Court.

» July 1957—Florida Supreme Court affirmed except as to certain

attorneys’ fees and disbursements. . ; -: .

a April 1960—Circuit Court awarded attorneys’ fees after trial on

May 1960—Circuit Court decision ‘appealed by plaintiff.

June 1961—Florida Supreme Court affirmed Circuit Court. .

? - Oet. 11, 1961—Final discharge. ee. 5 eT eee

4 - - Oct. 8, 1962—This suit instituted. hes a

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12a

In order to consider the defense of prior adjudication, it

is necessary to examine the allegations of the complaint as

amended.

Count lor THE CoMPLaINT -

\ Turtediction\ of the Court is invoked on both diversity i

of citizenship and as “arising. under”’’ the 14th Amend- —

ment. The first count in some ten pages of pleading may

be summarized by indicating that the plaintiffs -claims.

damages for the unlawful taking of her property without

due process op equal protection of the laws under the 14th

“Amendment to the Constitution. on the basis that the

- defendant either procured the seems proceeding and

ternative subsequently _

appointment thereto or im t

adopted thé proceeding, and hat he proceeding was void,

illegally procured and/or | “acted upon. in fraud .ef the

plaintiff’s' - rights. The/ entire, count in- essence is a

collateral attack on the/decision-of the Supreme Court of |

Florida in Lucom v. Atlantic National Bank, 97 So. 2d 478

(Fla. Sup. 1957): grounded on the theory that the Florida

proceedings were void for lack of: proéedural due process

. im that the proceedings did not sepiament to the Florida’ .

statutory requisites.

[-.

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Court II oF THE CoMPLAINT

A summary of thé. pleading i in Count IT needs somewhat .

‘more detailed analysis since itcombines several matters.

Paragraph 1 realleges the allegations of Count I, Para-

graphs 2, 3, 4 and:8 seek. damages for adverse and ‘disloyal

- ‘aetions of the defendant ‘in the ‘abandoned restoration -

proceedings i in Palm Beach County in the’ ‘Spring of . 1954

and in the restoration proceedings in October, 1954 in

Ni ew “York. Paragraphs 3d, 6 and 9 complain of. negligent

failure to collect two promissory notes, and negligent failure

to secure the return of the plaintiff’s Personal check which

_ allegedly should have been returned.to the plaintiff under

_an executory agreement with the payee thereof. Paragraph.

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3

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» is a shotgun allegation of wrongful disbursement of ,

‘sums belonging to the estate and actually is again a |

collateral attack on the accounting approved by the:Florida

‘ Courts. Paragraphs 11 and 12 attack the guardian’s .

loyalty in. regard to the payment to and. conduct of the -

previously appointed guardian of a minor daughter of the

plaintiff, and paragraph 11 also charges a libel on co-

plaintiff husband, Wilson C. ‘Lucom. Paragraph 7 charges

_ that the bank is holding certain unspecified papers of the

plaintiff. | | Ses |

Count IIlorrae Comprar _ |

oe oo ; 2 : ,

+. Count III restates the allegations of Count I, and of

' paragraphs 2, 3; and 4 of Count -II as a, conspiracy

between the bank and its attorneys, the plaintiff’s. personal

attorney, the plaintiff’s two

_ plaintiff’s doctor. ) cn

Lucom v. ATLANTIC NATIONAL BANK IN THE State Courts

The ward unsuccessfully objected to the approval of

defendant’s accounting before the. County Judge, sand

in her assignments of error before the Circuit Coutt of

Palm Beach County on appeal she excepted to the defend-

ant’s accounting, complained that the Pennsylvania Couit’s

fmding that she. was ‘‘mentally ill’? was not a finding of

incompetency, and that the appointment. of A guardian

was therefore without due process of law and without

jurisdiction. She’ also attacked the Pennsylvania pfoceed-

ing ‘as fraudulent and beyond that Court’s jurisdiction,

attacked the: bank’s’ attorneys’ compensation for*repre-

senting adverse interests, and attacked all. allowances of

compensation. The Ciréuit Court overruled all exceptions

--and affirmed. | cio:

The ward again appealed and -in her assignments of |

error before the Supreme Court of Florida renewed all

of these objections with particularity as to the jurisdictional

adult children, and the:

4

‘14a en ase

and, proced base for the appointment of the guardian,

and specifically raised the due process question under the

14th Amendment. of the United States Constitution.

mA comparison of plaintiff’s. assignments of, error on

eh the state Courts with the more prolix pleading.

in 1 Co

I of the present complaint establishes: that in

substance they are identical. In additidn, the assignments

of error as to attorneys’ fees make it clear that the question

of loyalty i in paragraphs 2, 3, 4, 8, 1] and 12 was raised in

‘ the prior proceedings as well as the question of the

proprivty of the accounting which is questioned generally i in

paragraph 10 of the present complaint.

Thus, it can be seen -that by the assignments of error

the state Courts had before them all of the allegations

of the present complaint except those allegations of.

_~ negligent .action containeg in paragraphs 5, 6 and 9 of ..

Count II and of failure to return papers in paragraph 7

of Count Il. As will be seen below an essential element

_ of Count III was also before th® state Courts.

Orrsi0n

Dzrexse or Res Jupicata

_ The decision - the Supreme Court of ‘Waodils at

97 So. 2d 478 in the face of these contentions decided three |

- things which are salient to our consideration of the matter.

First, the bank *‘. . . accepted the guardianship i in good

faith, and has executed the trust to the best of its ability

: (T)he bank . . . is entitled to an: equitable credit .

for’ expenditures which were made in good faith for the

ward.’’, and “*. . . is entitled to compensation for its

services rendered i in good faith . . .’”? Second, the Court

while not reaching an absolute decision on plaintiff’s...

contention that the Pennsylvania adjudication of ‘‘mentally.

ill’? was insufficient to ground Florida incompetency pro- .

ceedings because mental illness is not necessarily tanta-

mount to incompetency said, ‘“But this question need not

At tal ae ete a cP ellie NaS Bal te WP tise

“15a

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be decided . . . Even if not a guardian de jure, the _

bank was a guardian dé facto.”? In other words -the

Court found a valid guardianship whether in exact con-

formity to the Florida statutes or not.. Finally, the Court *

indicates that it has considered all of the points raised by

the: plaintiff here and rejected them, i.e., ‘‘The othe: ques.

tions pres&hted here by the appellant have been considered

- and no reversible error has been found.’?

This Court need not approve or disapprove the dectsion °

of the Supreme Court_of Florida. That Céurt necessarily.

decided that the proceedings below were not absolutely

_ void.’ It rejected the plaintiff’s contention of. denial of due

‘ process made at every level of: the proceeding, ‘and it

_ approved the good faith of the guardian bank in entering _

- upon and-acting upon the guardianship, its accounting, and

2

its proper discharge.

The decision of the. Supreme Court of Florida is res

judicata between these parties in'so far as it (1) rejected

| _ the argument that~the’ guardianship Proceedings weré |

absolutely void and a nullity and in fact. held that they si:

were valid as a.guardianship de facto which proceeding -

_ the Court expressly sanctioned and recognized,as subsisting

under Florida law, and (2) denied the contention of the.

Plaintiff that the proceedings were -void for lack of due

process under the federal constitution. " ad

The plaintiff has urged, since the ‘state Court: opinion —

has no. express mention of the constitutional ground, that »

n. 15. The Court suggests that the very result in the state Court -

proceedings puts these ‘‘scholars’’ in the situation of proclaiming a

logical and semantic absurdity. Their error probably stems from

the confusion ever inherent in the problem of void as opposed to

“a

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_ therefore as to that matter the judgment is not res judicata.

However, the Supreme Court of the United States has

expressly - rejected .such argument where, as here, the

question. of the constitutional validity of the proceeding

was distinctly presented by the appellant to and necessarity

was resolved against her by the judgment of the state —

appellate Court.. Grane v. , Public Utilities Comm., 281 US..

470, 477 (1930). ~ °

‘Nor does’the plaintiff ’s further contention that the causes

of action involved in the present case lack “identity”? with

the cause of action asserted ‘by the plaintiff in objections

to the accounting’ in the state Courts furnish any greater ~

comfort. The identity of the facts presented to the state

Court and the facts pleaded i in this action is apparent on

their face. Apparently, the ‘plaintiff confuses ‘‘cause of

action’’ with relief ‘sought. This is not the law in this

circuit or in this state. As was said sale one of the great

judges of our circuit :

* ‘What is ‘important and determinative now, as to the

identity.of cause of actio ion, is = nr of form, but of

grounds.

Wilson Cypress Co. v. Atlantic ‘Coast Line R. Co.,’

109 F. 2d 623, 637 (5th Cir. 1940).

The Courts: of Florida have consistently held that

wan ee identity of causes of action . . . means an

identity of the facts vanare: ad the maintenance of the ,

action.’’

City of Miami Beach v. Prevatt, 97 So. 2d 473, 477

(Fla. Sup. 1957). See also Gordon v. Gordon, 59 So., 2d

40, 44 (Fla. Sup. 1952) ; Murphy v. Murphy, 10 So. 2d 136, _

137 (Fla: Sup. 1942).

We conclude that there is ‘identity of issnes in so. far:

as the plaintiff’s complaint rests upon the denial of due

process and the void as opposed to, viodable nature of the

-' state Court proceedings. As. demonstrated above the fact

@

2

.

Se ean Gln hi eines 4 corns

“ag.

, | 7a

that relief sought “differs from that sought in the state

‘Court is of no consequence. Angél v. Bullington, 330 U.S.

183 (1946), is determinative of the case in so fat as juris-

diction and due process are concerned. The plaintiff failed

to appeal from the adverse decision of, the state Supreme

Court to the United States Supreme Court and having

accepted the verdict of that Court (even though it might

be erroneous’) (cannot relitizate the same issues in a:

Federal District Court.

‘“The ‘merits’ of a claim are disposed of when it is:

refused ‘enforcement. If an asserted federal claim is denied ~~

. enforcement on a professed local ground, but a so-called

, ~. ‘local ground which: is subject to review here because it is

in fact’ the adjudication of a’ federal question, then the

_ ‘merits’ of that claim were adjudicated in the only sense

that adjudication of the ‘merits’ is relevant ta the principals’ |

_ of res judicata. A State Court“cannot sterilize federal’

claims by putting on the adjudication of local Jabel.’’

330 U.S. at 190-91. a : . tcl .

| Nor is the fact that the County Judge’s Court is a Court dingy

of _limited jurisdiction _of any comfort_to the—plaintiffs-——

It is none the less a Court with authority to determine

whether or not it has jurisdiction to entertain the cause

and for this purpose to. construe and apply the statute

‘ulgier which it is called to act. Its determination of such

| °F.S.A. 744.06(1)(a) “The county judge shall have jurisdic- --

+ \ tion overall matters pertaining to guardian and ward... .’’

_FS.A. 744.06(1)(b) “The county judge may hear and deter-

mine complaints of wards against their guardian. ...’’ See United-.-

_ States v. Silliman, 167 F. 24 607 (3rd Cir. 1948) ,-cert. denied, 335 |

U.S. 825 (1948) which involved issues very analogous to those sub |”.

judice where the original litigation was in the New York Sur-

‘ rogate’s Court and the subsequent litigation’ occurred in the Fed-

eral District Court of New Jersey. See also Geracy, Ine. v. Hoover,

133 F. 2d 25 (D.C--Cir. 1942) where defensive.matter asserted in,

Municipal Court precluded subsequent assertion of same claim in

District.Court and in an amount which would have been in excess

of Municipal Court jurisdiction. a he

«

v

e

v

mt 2 : - is < . : ev

questions while open to direct review, mtay not bé assailed

-collaterally.. Chicot County. Drainage District v. Baxter

State Bank, 308 U.S. 371, 376 (1940).

Plaintiff seeks to apply the doctrine that a void judgment

is open to collateral attack at any ; time.” But this doctrine

is itself subject to the limitation that there can be only one

attack on even a void judgment, for an unsuccessful or

-abandoned attack becomes. itself an adverse: adjudication.

When plaintiff, ‘after her alleged mistreatment. by the

County Judge’s Gourt, chose not to make a collateral attack .

. by coming then to this Court, but instead initiated review -

through the state Court system, she ‘became bound by her

choice of remedy. As in Angel v. Bullington, supra, her

. failure to seek United States Supreme Court review of the

- adverse decision of. the Florida Supreme Court bars her

from United States District Court, : American Surety Co.

v. Baldwin, 287; U.S, 156, 164-66 (1932) ; Warriner v. Fink,

307 F. 2d 933 (5th Cir. 1962). |

“As already - noted Plaintiff g Couiit I allegations, Dt ae

_procedural irregularity, as_distinguished from her allega-

tions there of: fraud, all involve the assertion that the

Pennsylvania finding ‘of ‘‘mentally ill’? was an insufficient

predicate. for a Florida proceeding turning on ‘‘incom-

; | petency.’? That contention must fail for still another

reason of Florida ‘law, quite ‘apart from prior adverse.

‘Florida adjudication. The Florida Guardianship Law

provides in the case of a ‘‘non-réesident’’—a term which, _

‘as construed in In re Cameron’s Estate, 158 Fla. 91, 28 ©

~ So. 2d 110 (Fla. Sup. 1948), includes plaintiff as a per-

manent Florid resident temporarily in Pennsylvania under

hospital treatment-—that an adjudication of ‘‘unsoundness

e

cn ee ae

48

“-

¢

19a

of mind” in the state of hospitalization is “prima facie:

proof of such incompetency.’” -

Although plaintiff offers here her own affidavit that she *

was at ail material times competent, she doesnot show here

_that she tendered any proof of competency in theeFlorida.

proceedings:, Were the issue of actual competency now —

open to her, her.affidavit proof might raise a question of

fact precluding summary judgment, notwithstanding the

record of the Pennsylvania proceedings, which is part both

of the Florida proceedings and this proceeding here. The *

Pennsylvania record includes the testimony of her attend.

ing psychiatrist to the effect that while hospitalized she: |

was suffering from paranoid delusions® and she had‘

difficulty in knowing what property she had and what. was

being done with it. But the quoted statute, because it turns

_-the Pennsylvania ‘adjudication of “menfal illness’? into’

_. “*prima facie proof’’ of “‘incompetency,’’ tloses that. issue

oY . { rr v a . re i

__ ™ES.A. 744.19 “Petition for appointment of resident guardian

for the property of non-resident incompetent ... (2) if it is alleged. ~

that the incompetency is due to mental or physical incapacity, the

petition shall be accompanied by a duly certified or exemplified: -

copy of the adjudication of unsoundness of mind or of physical _

_. .inéapacity from the qualified authorities in the state, territory or

country where such incompetent }s domiciled, and shall state .

whether said incompetent is in“the custody of any person or in-

stitution, and if sé, shall give the name and address of the cus-

todian. _Sueh adjudication shall constitute prima facie proof of

~ such incompetency.’’

® The record of the Pennsylvania proceeding indicates that at the

», time of that hearing the physicians in charge of the plaintiff had

~“ seen fit to give her a matter of 14 insulin shock treatments for wliat

_ the testimony \indicated was a schizophrenic paranoia. 7

* tk : a

«*

4 yar. :

8 90a

*

‘to her. here if only because she dia not ices here that: she

oe rebutted that “prima facie proof’? in Floyida.°

Not only the issnes of jurisdiction and due process, but .

an_ essential element: of the issues of fraud, disloyalty, and

conspiracy has been: litigated’ between. these parties and

execution of -the trust negates ‘the ‘commission of any

‘'-tortious acts toward the plaintiff which requirq intent as

an essential element. - ‘The Court concludes that the plain-,

tiff cannot re-litigate in this Court paragraphs 1, 2; 3, 4, 8,

count, suffers from the same infirmity. Paragraph‘10 of |

Count II is barred. since this was obviously the subject

matter of the acco ting litigation between the parties.

Paragraphs 5, 6, ‘and 9 of: Count’ Ti involve negligent

. administration | of the: trust. These allegations ‘were ‘not

‘before the state Court. It is the Court’s feeling that they —

‘properly could have been alleged in the objections to the

accounting and claimed as a surcharge and were proper -

a 8 to have heen considered wm, the County oe s h .

%

PS «/

i

* ®This Court will not attempt de go a the Supreme a :

easoning, but it appears.obvious ,

decision to guess at tlie Court’s

to this Court that very cogent support for the Florida decision

might lie in the simple fact that if, in fact, the plaintiff was not

: incompetent, she could have made direct attack on the guardian- |

‘ship at any time during its pendency in the County Judge’s Court.;

Instead she chose to accept its benefits . and then (significantly:

after her marriage) made her delayed attack in the form of: objec-

tions to the accounting after having acceptéd ihe benefits of the

‘accounting. If she was in fact incompetent, then the equity of |

‘the guardianship for her benefit would be unquestioned. It should

also be noted that we are dealing with an in rem guardianship of

property within the jurisdiction of ‘the Court, not an in 1 personam

proceeding.

War.

4

‘has been decided adversely to the plaintiff.. The Florida

Supreme -Court’s. finding of good faith acceptance- and

11, and 12 of Count II. Likewise CountIII, the conspiracy .—

a.

aia

Court in exercise of its jurisdiction.° However, as ‘will

appear below it-is not, necessary:for the Court to determine

- whether-or not a plea in bar is applicable to these allega-

_—tions..of negligent ‘administration: ae ,

: nasil Tr . *

+... | Derensz or Limitations OOF

_ -As.the chart in footnote 3, supra, clearly indicates this’

suit was instituted 8 years after the plaintiff was réstored

to dompetency. It: was instituted almost 74 years after —

“p + the defendant filed 2 final accounting and.71% years after

. the County judge entered order approving this accounting,

.. and provisionally ordered discharge. * Yet the plaintiff con-

'. . fends that nonetheless the general statutes.of Jimitations"

© Although the negligence contentions are appropriately dis-

posed of by such considerations of law, it may be noted that two

/ of .the three negligence paragraphs, alleging failure to. collect’.

_/ promissory notes, are met in point of fact. by undisputed affidavit -

es, @ proof that the ‘one note complained of was an installment note

a kept currently paid throughout the administration in the same

manner and amount that the ward had accepted before the start,

__ of the administration ; and the other note did not mature pntil after

defendant’s' administration terminated. Moreover, in- the course

of the Florida proceedings before the County Judge, between the

first and second appeals to the Florida Supreme Court, plaintiff’s

’ attorney ‘made an explicit signed waiver of all fsurcharge claims

>

~

te

except one‘not here involved, in consideration of defendant’s con--

1 . ,. Sent to defer execution of its judgment agailist plaintiff for guar-

so - dilan fees. eo we a tage 7 ,

; ., FSA. §95.11, ‘Actions other than those for the recovery of

Teal property can only be commenced as follows: .. . (3) Within:

five years.—An action upon any contract, obligation or riabititt

_ founded upon an instrument of writing not under seal. (4) Within

four years.—Any action for relief. not specifically previded for in

this chapter. (5) Within three years.—(a&) An action upon a

- liability ereated by statute, other than a penalty or forefeiture;

(b) An action for trespass upon real property; (c) An action

for taking, detaining or injuring any .goods or chattels, including

actions for the specific recovery of personal property; (d) An

action’ for relief on ‘the ground of fraud, the cause of action in

such case not to be deemed as having accrued unfil the discovery

by the aggrieved party of the facts constituting the fraud ; (e) And

LAB taal Statin pe At

2

22a es ae a

were tolled by the - ovisions of F.S.A.- Sec. 746.14, pro- a

- viding a one year limitation from date of discharge. This |

Court cannot: agree with this contention, The one year ..

' . special statute is on its face a statute of additional limita-

tion. . It wowild’ be a strained construction to hold that it '

__-was intended to exclude or toll the operation of the general

statutes of limitation.

Tt is the duty of the Court to find for —s con-

flicting statutes a- ‘reasonable field of operation which may

preserve the force and effect of each statute and to har-

monize them if possible. Ideal Farms Drainage District v.

Certain Lands, 154 Fla. 554, 19 So. 2a 234 (1944). ‘This

Court does not have any great difficulty in ascertainin the

purpose of the legislature in the enactment of F-.S. A.

746.14 and reconciling it -with F.S.A. See. -95. 11. The

former, : special statute, is-an additional statute of limita-

tion. It \does not displace .the general statute in’ any way, ©

but adds\to it. Thas, if. the one year period has expired,

but the general statute has not yet run, the special statute

will bar the action against the guardian. This is the holding

of Beck v. Barnett National Bank of Jacksonville, 142 So.

2d 329 (Fla. App. 1962). However, no Florida ease has

Suggested that F.S.A. Sec. 746:14 should be given the effect, :

. an action upon a contract, obligation or liability not founded upon

an instrument in writing, including ar action for goods, wares,

‘ and merchandise sold and delivered, and on .store* accounts.

- (6) Within two years——An action by another than the state upon

a statute for a penalty or forfeiture; an action for libel, slander,

assault, battery or false imprisonment ‘an action arising upon ac-

' * eount of an act causing a wrongful re

“12 The statute in full is: “Upon the consideration of the ayiili-

cation for discharge and of the objections thereto, if any, and of

the evidence, if the county judge is satisfied that the guardian has

faithfully and. completely discharged his duties and has rendered

@6mplete and accurate final returns and -has delivered’ the assets

of; the. ward to the person entitled thereto, the county judge shall ©

enter an order of discharge. Such discharge shall operate as a

“ release from the duties of guardianship and as a bar to any suit

‘against said guardian or his: surety, unless such suit is commenced

within one year irom the date of ee

ee

er

4 =

he 6 ae Rie es

" of/ extending the general period of limitations as urged °

here ky the plaintiff. As this Court views the mattér the |

harmony of the legislative scheme both in the’ general .

limitation section and in the Florida guardianship law.‘ :

__ would-be perverted if, under the- particular facts of this .

"- ease, it should be held that the special statute operated as.

> a toll."*. Under this view, the Court need not reach the

question of when the one year statute started to run.. Th

' ° plaintiff has urged-that it did not run until.the final order”

of discharge was entered after the completion.of all litiga- ©

tion:in the state Court. But it is noted that substantial

- reasons ¢an be advanced for holding. that. the one year :

statute started rynning ino later.than the conipliance’ by

_ . “the defendant with the provisional order of discharge | by *:

the County Judge. This order was ultimately vindicated

by the ‘Sttpreme Court: of Florida and even the second”

~ judgment of the high Court affirming the lower Court was

dated more than one year prior to the institution of this,suit.

ay The defendant has cited many cases to the’ effect that

disability at_and after the accrual of the cause of action

. did -not toll the limitation statute. The Court need not —

express its view of this argument. ight years. elapsed ~

from plaintiff’s restoration to ompetency before this suit

: was instituted. Her husband, éo-plaintiff, has never been

, incompetent, “The trust relationship in a to. the :

‘property terminated some 7% years prior to ‘institution of

_ this action by the turnover of the property by the bank to

the. plaintiff. Even if this was not true, the plaintiff is

embroiled in the net of ‘circular argument whereby she

“argues on one hand that -she was never incompetent,’ and

‘on the other endeavors with self-defeating- sophistry to

maintain that the statute was tolled by her disability. See.

cases annotated at 166 A.L.R. 960. a ie es

4 ‘ ea °

8 This Court is faced with the specific. question as a matter of

first impression in this state. ‘However, we find that the Supreme ’

Court of Florida in analogous situations has applied similar rea-_ .

' -soning. ‘See c.f., Palmquist v. Johnson, 41 So. 2d 313 41d" 7

1949) ; Perry v. Reichert, 113 Fla, 125, 151 So. 403 .(1933),

: | Whe

In summary, the weakness of the plaintiff’s position. is

plainly demonstrated. if the problems ef res judicata are

‘ignored. If it is assumed arguéndo that the plaintiff’s con-

tentions as to the nature of this action are accepted, it -

‘indeed would be an anomaly for this Court to also hold that-~

a‘ person sui juris could be precluded by a void probate

proceeding from -bringing this action for fraud and: con-

-_ spiracy at any time after the cause of action arose.‘ If. +

plaintiff’s contention is right, she has slept upon her alleged

rights for a period considerably i in excess of the statutory

| period of limitations. :

ie foregoing considerations will result i in ‘the sie of

summary,judgment for defendant on all issues other than ©

the matter of withholding papers, ‘paragraph 7 of Count IT.

The papers withheld are not specified in the complaint.

The answer sets out a general denial, while the affidavit of

_. the defendant’s trust -officer admits possession of papers

but asserts that defendant is willing to turn any of plain-

tiff’s papers over on payment of copying charges. Thus, —

this issue is not ripe for disposition on motion for summary

_ judgment. Therefore the motion for summary judgment is -

granted as to all issues and all counts with the exception

of paragraph 7 of Count II; the defendant may within

five (5) days from the entry hereof notice for pgs: a its |

state a

motion to dismiss said aragraph for failure ‘to

cause of .action, which motion was filed. but has not beén

noticed for hearing, and with.leave to plaintiff’s within

ten (10) days from entry hereof to amend paragraph 7

of Count IT to specify the papers withheld.

Entered at Miami, Florida this the pass day of August,

1963. a

ed _ Emerr C. Cuoate,

United States District Judge.

ee

.

14 See F.9,A. Sec. 744.61. And see Ritter v. Ritter, 219 Ind. 487,

38 N.E. 2d 997 (1942), Dye v. Dodd, 226 N.W. 565 (S. Dak. 1929).

. as

A

“a

APPENDIX C naire

IN THE SUPREME COURT OF FLORIDA

JULY TERM, A. D. 1957:

Case No. 28,614

Vimcrnta Wittys Lucom (Formerly Virginia Willys de

: Landa), Appellant,

=

_ Artantic Nationa Banx or West Pat Beacn, Porrer, —

Lanasein & Burpiokx, J . W. Sauispury, ‘Appellees.

Opinion filed July 10,1957. (97 So. 2d 478]

An appeal from the Circuit Court for Palm Beach County,

Aquilino. Lopez, Judge. = sete -. .

Clyde Trammell, Jr., and Charles M. Tranimell, for |

Appellant. ee nat

J. W. Salisbury, for Appellees.

Roserrs, J.

This. appeal brings here for review an order of the

Circuit’ Court.of Palm Beach County affirming ari order of

the County Judge approving a final accounting. of: the

appellee, Atlantic National Bank of West Palm’ Beach, as

guardian of the property of the ‘appellant during her

allegéd incompetericy, and awarding fees and costs to the

guardian and its attorneys. The appellant’s principal ¢on-

tenfions here are (1) that neither the guardian nor its

attorneys are entitled to compensation because the entire ©

guardianship proceedings were null and void ; and (2) that,

even if compensation is allowable, the County Judge

erroneously applied a straigtit percentage of the gross:

value of the estate in fixing the amount of compensation

payable to the guardian and its attorneys without ¢on-

_. sidering the actual value of the services rendered.

*

26a | |

The background against which these questions must be :

decided is as follows: Appellant was first adjudicated in- — i

competent by the County Judge of Palm Beach County,

Florida, in December 1952 during her confmement in the

Pénnsylvania Hospital i in Philadelphia, Pa., for treatment

of a mental illness. She was released from ‘the hospital in

April 1953 and was judicially restored to competency by

order of the Circuit Court of Palm Beach County in May .

1953. The appellee bank was appointed and acted as co-

guardian of appellant’s property during this period of in-

- competency. In July of 1953 her illness recurred and she

«voluntarily returned to the same hospital for further treat-

ment. In ‘what was apparently an attempt to’follow the

procedure approved in In re Cameron’s Estate, 158 Fla. °

91, 28 So. 2d 110, for obtaining the appointment of a

guardian of the property in this state of a Florida resident

whois adjudged incompetent by the Court of another state

while temporarily residing there, a habeas corpus pro-

ceeding was initiated in a Pennsylvania Court by Appel-

lant’s son and daughter, allegedly on behalf of appellant,

under the provisions of the Pennsylvania Mental. Health

Act of 1951, Sec. 1072 et seq., Purdon’s Penna. Law. This

_ proceeding ‘culminated in an order of the Pennsylvania —

Court, dated Sept. 15, 1953, finding that appellant was

‘‘mentally rl’? within the meaning of that Act defining

‘mental illness’’-as ‘an illness which so lessens the capacity .

of a person to use his customary self-control, judgment.

and discretion iri the conduct of his affairs and socia] rela-. -

tions as to make it necessary or advisable for him to be

under eare’’, and declining to release appellant from the

Pennsylvania Hospital. Upon the basis of this order and

- the transcript of the habeas corpus proceedings in which

it was entered, the County Judge of Palm Beach County,

. by order dated October 7, 1953, reappointed the appellee

bank as guardian of the property of the appellant, the ..

petition ‘for such appointment having been filed -by the

appellants son and daughter, both sui juris. The appellant:

4

’

rad

sd 27a

was released from the Pennsylvania Hospitakin December

' 1953 and returned to her home in Palm Beach, Florida.

Sometime after May 1953 ‘she established residence in the

state of New York and, in October 1954, was adjudicated

to be competent to manage her property by a Court of that

jurisdiction. The questions presented hese _and in the

‘Court below arose upon objections filed by the appellant

to. the bank’s final accounting of its administration of her

estate and application for compensation for itself and its

attorneys. . ?

There is some merit to the appellant’s contention that an

order adjudicating that a person is so thentally ill as to

require further treatment ‘in a hospital is not-an adjudica-

tion of ‘‘incompetency’’ insofar as the ability to manage

property is concerned. Cf. In re Weightman’s Estate

- (Pa. Super. .1937) 190 A: 552;,In re Refior (Pa. Super.

1947) 50 A. 2d 523, 527; In re Lambert (N. J. Super.

1954) 109 A. 2d 423; Fleming v. Bithell (Idaho 1935) °

52 P. 2d 1099; People v.. McConnell (Cal. Dist. App. 1927)

252 Pac. 1068; Manello v. Bornstine (Wash. 1954) 270

P, 2d 1059. But this question need not be decided, since

we are here dealing with’a fait accompli—the appellee bank

was re-appointed by the County judge, accepted the

guardianship in good faith, and has executed the trust to. |

the best .of-its ability. Even if not a guardian-de jure, the

bank was a guardian de facto of the appellant’s property

and, as such, is entitled to an equitable credit for .

expenditures which were made in good faith for the ward,

- Alexander v. Hillebrand (Mich, 1905) 103 N. W. 849; Smith

* v, Cameron (Mich. 1909) 122 N. W. 564; Pemberton -v. .

Leatherwood (Tex. Civ. App. 1949) 218 S. W- 2d 500;

Maryland Casualty Co..v. Lawing (N. C. 1945) 33 8. E. 2d.

. 609; In re Beisel’s Estate (Cal. 1895) 40 Pac. 961; and,

in the proper circumstances, a guardian de facto is entitled

to reasonable compensation for its services in behalf of ’

the ward. See Kelly v. Kelly (Mont. 1931) 297: Pac. 470; ©

Jessup v. Jessup (Ind. App: 1897) 46 N. E. 550; Harwood

~

4

»,

;>

28a

v. Boardman (1866) 38 Vt. 554. But'see Powers v. Chisman

Ark. 1950) 231 S. W. 2d 598.

* In all the circumstances here, we think the appellee bank

ig entitled to compensation for its services,rendered in good

faith to the appellant and that the lower Courts did not

err in so holding. The same thing is true of the services’

of counsel employed by the appellee bank. ‘

<P

ut the compensation allowable to the bank, as guardian,

must be ‘‘just and reasonable”’, Sec. 745.32, Fla. Stat. 1955 ;

and’ those allowable to the attorneys must have been |

rendered ‘‘to the, ward or to the guardian in the ward’s

behalf’’, Sec. 745. 33, Fla. Stat..1955.° In the absence of .

. statutory authorization therefor, the Court cannot arbi- |

trarily fix a fee schedule and, without evidence of reason-

able value of the services ‘Rndered, determine what is

‘¢just and reasonable’’ compensation. See In re. Messer’s

Guardianship (Wis. 1943) 7 N. W. 2d 584.

_ Insofar as the compensation awarded the appellee bank

is concerned, it appears that the Court’s determination may

have been based, in part, upon a. consideration of com-

parable fees allowed by statute to executors and adminis- —

trators for the administration of decedent’s ‘estates, Sec.

734.01, Fla. Stat. 1955. But there was other evidence as

to the services, rendered by the appellee bank and the

reasonable value thereof, sufficient to support the award

- of compensation. Accordingly, the appellant’s contention .

that the compensation awarded to the appellee bank was

q * gross abuse of discrétion’’ cannot be sustained.

As to. the amount of the fee awarded to the appellees |

Potter, Langbein and Burdick, as counsel for the bank, an

entirely different situation is presented. The record shows

_ that in all litigation instituted or defended by the appellee

bank in behalf of the ward the bank was represented by

other counsel ; and j jn most of the litigation these appellees

acted as counsel for the appellant’s son or daughter, or

?

>

~

29a —C« : i :

the statute the only services’ compensable are those

‘ rendered either to the ward or to oe guardian in the ward’s

behalf. : .

The appellant also questions here certain items of costs

claimed. by the appellee bank and ‘the appellees Potter,

Langbein and Burdick. Three @f the items relate to the

activity of the appellee counsel in attending the New York ©

proceedings by which-appellant sought and obtained an

adjudication of her competency, in which the appellee

counsel represented the appellant’s son and daughter (not :

the appellee bank, which employed other counsel) and un-

_. Successfully ‘opposed the appellaiit’s petition. Clearly, .

these are not proper items of expense incurred on behalf of

the ‘appellant. Two -of the items are attorney’s fees for

out‘of-state counsel employed by’ the bank—one for the

New York counsel who was employed by the appellee bank

’

a 30a

to ‘stand by’’ and observe the New York proceedings

referred to above, the bank taking a position of strict

neutrality in the proceedings; and the other for Phila-

delpiia counsel: who successfully opposed the appellant’s

suit for a declaratory decree as to the effect of the

. September 1953 order entered in the habeas corpus pro-

ceedings which formed the basis for the appointment of

_ the bank as guardian of appellant’s ‘property. Both of |.

‘these expense items appear to have been incurred solely

for the benefit and protection. of the guardian itself,.and_ -

not for the appellant’s benefit or protection. They were

not, therefore, items of i aan properly chargeable against

appellant.

“The remaining item is a charge of $50 irieurred by. ,

appellee counsel as a fee to. an attorney employed by them |

to. investigate Wilson C. Lucom, whom the appellant

married -in May of 1954, some five months after her

_” release from the hospital. Appellee counsel contend that

this is a proper, charge against appellant because it was

to the interest of appellant’s minor child (who was under

the guardianship of appellant’s son) to have information

concerning her mother’s new husband and it was thus a

proper charge against appellant ‘‘for the .care, support

and maintenance of the dependents, if any, of. the ward,’’

as authorized by Sec. 744.64, Fla. Stat. 1955. This con-

‘tention is obviously without. merit, and no’ other basis -for

this charge has been suggested nor can be conceived. .

_. he other questions presented here by the anoint es

have-been considered and no reversible error has been

f ound.

Affirmed in part and reversed in part ‘and the cause « ~

A remanded for. further proceedings not inconsistent herewith. —

TERRELL, C. J.; THOMES, THORNEL and oDexnmes, JJ.,

&

Concur. ee , Sa

¥