# Appendix — Lucom v. Atlantic National Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1674%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 385 U.S. 898 ## Text da 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 « \ } Qa ae a 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 -_—_ 3a a ‘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 eb Sf a), « 4a ‘ 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 5a - 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 ~«A ‘ 6a 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. . @ 9a 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 ‘aa B 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 : ” 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 - 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. [-. } 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. fy 3 13a » 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 : \ . \ . r 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 ~ ‘16a _ 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 ~ 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. ‘ ~ 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 ¥ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1674%3A2. Public record. Not legal advice.