PATRICIA ASH v. IN RE: GUARDIANSHIP OF AARON ASH

Third District Court of Appeal
State of Florida

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

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No. 3D21-700
Lower Tribunal No. 82-2432
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Patricia Ash,
Appellant,

vs.

In re: Guardianship of Aaron Ash,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jorge E.
Cueto, Judge.

Ross & Girten and Lauri Waldman Ross; Duane Morris, LLP, Gutman
Skrande, and Marsha G. Madorsky, for appellant.

Sloto & Diamond, PLLC, and James R. Sloto, for appellee.

Before FERNANDEZ, C.J., and HENDON, and GORDO, JJ.

FERNANDEZ, C.J.
 Patricia Ash, the mother of the adult ward, is an “interested party” in

the underlying guardianship case and the petitioner below. Patricia appeals

the trial court’s final order denying her “Verified Petition for Successor

Guardian.” For the reasons that follow, we reverse the trial court’s order on

appeal and remand to the trial court for further proceedings.

The adult ward, Aaron Ash, was born in 1972, permanently physically

and mentally disabled due to medical malpractice. Patricia and her

husband/Aaron’s father, Hyman Ash, the respondent below, divorced after

Aaron’s birth. In 1992, the probate court adjudicated Aaron to be

incapacitated and required a plenary guardian for him. Patricia and Hyman

agreed it was in Aaron’s best interests that Hyman be appointed guardian,

with liberal visitation and equal decision-making rights for Patricia.

At the time of the underlying petition, Hyman and his current wife lived

in one townhome. Aaron lived with Nelson Almendarez (“Nelson”), Aaron’s

primary caregiver of thirty-two years, and Nelson’s family, in a second

adjacent townhome owned by Hyman.

On December 28, 2019, Hyman told Patricia he wanted Patricia to take

over the guardianship. Thus, on February 5, 2020, Patricia filed a “Verified

Petition for Appointment of Successor Guardian of the Person.” The petition

alleged that Hyman agreed to transitioning guardianship of Aaron from

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himself to Patricia. Patricia outlined the actions she would take upon her

appointment as successor guardian of Aaron. Hyman objected to the Verified

Petition. He contended that while he agreed to transitioning Aaron’s

guardianship to Patricia, he objected to her appointment until she completed

the steps she outlined in her Verified Petition.

On October 13, 2020, a hearing on Patricia’s petition was held before

the Honorable Yvonne Colodny. At the beginning of the hearing, the judge

stated:

So Patricia is requesting to be the successor guardian, it’s my
understanding that Hyman filed an objection stating that he does
not object to her becoming the successor guardian, just that at
this point, he does not believe that she has completed the
necessary steps for a seamless transition of those
responsibilities. Is that correct, [Hyman’s counsel]?

Hyman’s counsel replied, “Yes, Your Honor.”

At the hearing, Patricia testified that she sold her home in Palm Beach

County, had located a residence for herself in Miami-Dade, and was now

looking for a house with a bedroom on the first floor for Aaron and his

caregivers for easy ingress/egress, which they needed. Patricia had no

access to information about Aaron’s budget, government benefits, and

finances, nor did she have the authority to negotiate on the guardianship’s

behalf, thus she did not have the information she needed to secure Aaron’s

residence. Patricia testified that the house she was renting in Miami-Dade

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County was for her, and that Aaron would have his own separate house

where his support staff would care for him.

At the end of the hearing, Judge Colodny reserved ruling on Patricia’s

petition. In the probate court’s October 14, 2020 written order reserving ruling

on Patricia’s petition, the court directed the bank to provide Patricia with all

the details of Aaron’s budget and government benefits. The judge also

authorized Patricia to speak to Aaron’s current caretakers, doctors, physical

therapists, etc. “to establish a care plan and retain care for” Aaron and “to

pursue the acquisition or lease of a Miami Dade County residence” for Aaron.

On November 12, 2020, Patricia and her counsel met with the bank to

discuss Aaron’s expenses and income. In addition, on December 3, 2020,

Patricia, her accountants, and her counsel met with Hyman, his counsel, and

members of his bookkeeping staff. Following an agenda, Patricia’s counsel

took notes and emailed a “Summary & Wrap up” of the December 3 meeting

to Hyman’s counsel. Patricia’s counsel noted that at the beginning of the

meeting, Hyman stated his primary concern was that Aaron’s current

caregiver framework be maintained and that his residence be finalized by

Patricia “as the key components of a transition.” There was no mention of or

objection to Patricia living separately from Aaron. In his email to Hyman’s

counsel, Patricia’s attorney told Hyman’s counsel, “let me know if anything

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appears incorrect.” Hyman’s counsel did not notify anyone of any corrections

to the “Summary & Wrap up” email.

On December 10, 2020, Patricia filed a “Successor Guardian’s

Proposed Transition Plan,” along with the financial analysis and updated

guardianship budget created by her accounting firm. In the plan, Patricia

outlined how she had met each step listed in paragraph 12(a)-(e) of her

petition that Hyman had required before transitioning Aaron’s guardianship.

Also attached as an exhibit to the Proposed Transition Plan was a December

9, 2020 “Memorandum of Understanding as to Aaron Ash’s Housing & Care.”

In this Memorandum signed by Patricia and Nelson, Nelson agreed to

continue to serve as Aaron’s primary caregiver, and that Aaron would live

with Nelson and Nelson’s family in Nelson’s property that he owned in Miami-

Dade County.

On December 14, 2020, Hyman moved to continue the hearing on

Patricia’s petition and filed a “Response in Opposition to the Proposed

Transition Plan.” He now alleged that he should remain as co-guardian

because he found out for the first time that Patricia’s plan was to live

separately from Aaron. That same day, Judge Colodny recused herself sua

sponte. The December 14, 2020, hearing on Patricia’s verified petition was

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rescheduled to January 28, 2021, before the successor judge, the Honorable

Jorge E. Cueto.

On January 20, 2021, Patricia filed a “Reply in Support of Transition

Plan.” The plan outlined Patricia and Hyman’s agreement at the October 13,

2020 hearing and how Patricia complied with all the agreed-to terms. Patricia

contended that Hyman’s current position conflicted with his response to her

petition and the representations he made previously in open court to Judge

Colodny. Thus, Patricia argued, Hyman should be bound by his prior

pleadings and should be estopped from changing his position, as Patricia

had complied with everything Judge Colodny required.

Hyman then again moved for a continuance on Patricia’s petition

hearing and filed a “Declaration that Proceeding was Adversary.” Patricia

filed a response in opposition to Hyman’s motion for continuance, as well as

a motion to strike the adversary declaration.

Before the January 28, 2021 hearing on Patricia’s petition, the parties

stipulated to certain facts, including that Nelson has been Aaron’s caregiver

for thirty-two years, the details of Aaron’s current living and financial

situation, and Patricia’s ongoing involvement in Aaron’s life.

At the January 28, 2021 hearing before Judge Cueto on Patricia’s

petition, Patricia testified that her December 28, 2019 conversation with

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Hyman about Patricia taking over the guardianship led Patricia to hire her

counsel and file her petition. The same day she hired her attorneys, she put

her house in Palm Beach County on the market. Patricia testified that Aaron

has been the priority in her life. Patricia arranged for Aaron to reside with

Nelson and his family in the four-bedroom home owned by Nelson. Nelson

would continue to serve as Aaron’s primary caretaker.

Next, before Hyman testified at the hearing, Patricia again asked the

probate court to note her objection to Hyman’s response and asked that

Hyman not be allowed to contradict his previous pleadings and agreement.

Hyman then read a prepared statement where he contended for the first time

that Patricia approached him to be appointed successor guardian and that

he did not know that Patricia intended to live separately from Aaron. He

testified that he was going to try and save money by not keeping on Nelson

and his family. When his attorney asked him if he would have agreed to

transition Aaron’s guardianship to Patricia had Hyman known about

Patricia’s separate house intention, Hyman replied, “No.” Hyman then

testified that he was willing to stay on as guardian.

At the end of the hearing, the probate court did not make any ruling or

make any determinations on the credibility of the parties, nor did it make any

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determination about Aaron’s best interests. The court asked the parties for

proposed orders.

Thereafter, on February 8, 2021, the judge entered the order on appeal

(“Order Denying Verified Petition for Appointment of Successor Guardian of

the Person”), which adopted Hyman’s proposed order verbatim. The order

provides, “Hyman testified at the January 28, 2021 hearing that he would

never have started down the road of transitioning the guardianship to Patricia

if he knew about her intentions to live separately from Aaron,” and that

“Hyman at the January 28, 2021 hearing [sic] that he believed if Patricia

would be taking custody of Aaron, it would be in her home.” On this basis,

the court determined:

The principle of detrimental reliance is inapplicable to the instant case.
Hyman’s objections to Patricia’s Verified Petition and Proposed
Transition Plan clearly illustrate his lack of agreement on the terms by
which Patricia would assume the role of successor guardian of the
person. Any of Patricia’s undertakings prior to a court appointment
were solely her decision and at her risk.

Patricia moved for rehearing. While her motion was pending, Hyman

terminated Nelson as caregiver and evicted Nelson and his family from

Aaron’s condominium. Patricia then filed a “Petition to Appoint Emergency

Court Monitor to Reinstate the Ward’s Primary Caregiver,” which has not

been ruled on. Patricia’s motion for rehearing was denied. She then filed this

appeal.

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 DISCUSSION

Patricia contends, in part, that the probate court erred in refusing to

limit Hyman to his original position and in failing to consider Aaron’s best

interests. 1 “An appellate court reviews a probate court’s appointment of a

guardian under an abuse of discretion standard.” Acuna v. Dresner, 41 So.

3d 997, 999 (Fla. 3d DCA 2010). However, any issues of law are subject to

de novo review. Drelich v. Guardianship of Drelich, 201 So. 3d 15, 17-18

(Fla. 3d DCA 2013).

Equitable Estoppel

Under Florida law, parties are bound by the allegations in their

pleadings. Carvell v. Kinsey, 87 So. 2d 577, 579 (Fla. 1956). “[A]dmissions

contained in the pleadings as between the parties themselves are accepted

as facts without the necessity of supporting evidence.” Id. Furthermore,

“’litigants are not permitted to take inconsistent positions.’” Bove v. Naples

HMA, LLC, 196 So. 3d 411, 413 (Fla. 2d DCA 2016), quoting Federated Mut.

Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41 (Fla. 1st DCA

1970). The First District Court of Appeal in Griffin held:

The general rule has long been established in Florida and other
jurisdictions that litigants are not permitted to take inconsistent

1
We decline to address the other issue on appeal.

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 positions in judicial proceedings and that a party cannot allege
one state of facts for one purpose and at the same action or
proceeding deny such allegations and set up a new and different
state of facts inconsistent thereto for another purpose.

Id. at 41. Moreover, “a pretrial stipulation limiting the issues to be tried is

‘binding upon the parties and the court and should be strictly enforced.’”

LPI/Key West Associates, Ltd v. Beachcomber Jewelers, Inc., 77 So. 3d 852,

854 (Fla. 3d DCA 2012) (quoting Lotspeich Co. v. Neogard Corp., 416 So.

2d 1163, 1165 (Fla. 3d DCA 1982). Furthermore:

‘Equitable estoppel’ precludes a person from maintaining a
position inconsistent with another position which is sought to be
maintained at the same time or which was asserted at a previous
time; and, as a general rule where a person has, with knowledge
of the facts, acted or conducted himself in a particular manner,
or asserted a particular claim or right, he cannot afterward
assume a position inconsistent with such act or conduct to the
prejudice of another who has acted in reliance on such conduct.
The doctrine requires of a party consistency of conduct, when
inconsistency would work substantial injury to the other party.

United Contractors, Inc. v. United Const. Corp., 187 So. 2d 695, 701-02 (Fla.

2d DCA 1966).

Here, equitable estoppel prevents Hyman from objecting to Patricia

becoming the successor guardian because Hyman previously maintained

the position that he supported transferring the guardianship to Patricia, but

only objected to whether she was prepared to take over as guardian, due to

Aaron’s housing issue not yet being resolved at the time of the first hearing

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before Judge Colodny. In what was initially a non-adversary proceeding,

Hyman agreed to Patricia being appointed as successor guardian if she

completed the steps outlined in her petition, specifically the steps in

paragraph 12(a)-(e). Patricia’s Verified Petition stated that Hyman had

requested to relinquish serving as guardian so Patricia could be the

successor guardian. Hyman agreed to this in his Response filed February

19, 2020, and on the record during the October 13, 2020, hearing before

Judge Colodny. In addition, the “Summary & Wrapup” email sent by

Patricia’s counsel to Hyman’s counsel on December 10, 2020, was admitted

into evidence at the hearing before Judge Cueto without objection. Further,

Patricia clearly testified during the October 13, 2020, hearing before Judge

Colodny that she would not be living with Aaron and that he would be living

in separate housing with his caregiver of 32 years and the caregiver’s family.

Hyman and his counsel were present at that hearing, heard that testimony,

and did not object.

Thus, the court and everyone at the October 13, 2020 hearing were

already aware that Patricia and Aaron would be living separately.

Accordingly, the only issue to be tried was whether Patricia completed the

steps listed in her petition. That is why Judge Colodny in her written order

authorized Patricia to receive financial information from the guardianship and

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to discuss a budget with Hyman’s budget staff and the bank, while also

specifically authorizing her to find a residence for Aaron in Miami-Dade

County. The court thus directed Patricia to undertake the requisite steps to

find Aaron housing and decide his caregiver issue before Patricia could be

appointed successor guardian of Aaron. After Patricia completed all the

steps and Judge Colodny recused herself, Hyman changed his position

when he argued to Judge Cueto that he never knew Patricia would be living

in a separate home from Aaron. We conclude that Hyman cannot now

change his position and object to Patricia becoming the successor guardian.

This is the type of inconsistent position that equitable estoppel is intended to

prevent. United Contractors, Inc., 187 So. 2d at 701-02.

Moreover, in the order on appeal, the probate court found a lack of

reasonable reliance. However, Hyman initially required that Patricia

undertake preparations before she could become successor guardian, so he

cannot now contend that those undertakings were “solely her decision and

at her risk,” as Hyman’s counsel argued at the January 28, 2020 hearing and

as the judge found in the order on appeal. Patricia should not be penalized

for acting on the probate court’s ruling and Hyman’s request to implement

the Transition Plan, especially when completing the outlined steps was the

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prerequisite to Patricia being appointed as Aaron’s successor guardian,

which was in Aaron’s best interest.

Best Interests of the Ward

Under chapter 744, Florida Statutes, Florida’s Guardianship Law, in

any guardianship proceeding, the public policy and purpose is the protection

of the ward. Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla.

2006). The “polestar in any guardianship proceeding” is the ward’s best

interests. In re Guardianship of Stephens, 965 So. 2d 847, 852 (Fla. 2d DCA

2007). The legislative intent of the guardianship statute is, in pertinent part,

“…meeting the essential requirements for their physical health and safety, in

protecting their rights, in managing their financial resources, and in

developing or regaining their abilities to the maximum extent possible…” §

744.1012(3), Fla. Stat. (2019). In addition, chapter 744 is to “be liberally

construed to accomplish this purpose. Id.

Moreover, historically, guardianship courts are courts of equity.

Romano v. Olshen, 153 So. 3d 912, 918 (Fla. 4th DCA 2014). Guardianship

courts “have wide discretion in fashioning remedies to satisfy the exigencies

of the circumstances.” Schroeder v. Gebhart, 825 So. 2d 442, 446 (Fla. 5th

DCA 2002). “Thus, a court of equity [and a guardianship court] is authorized

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to expansively construe Chapter 744 to protect the interests of the ward.”

Romano, 153 So. 3d at 918; § 744.1012(3), Fla. Stat. (2019).

Finally, the guardian of an incapacitated person is a fiduciary and “shall

act within the scope of authority granted by the court and as provided by

law.” § 744.361(1) and (2), Fla. Stat. (2019). “A guardian may not act in a

manner contrary to the ward’s best interests under the circumstances.” §

744.361(4), Fla. Stat. (2019).

During the January 28, 2021 hearing before the probate court on

Patricia’s petition, the court neither analyzed Aaron’s best interests, nor does

the order on appeal entered by the probate court contain any analysis or

consideration of Aaron’s best interests. Patricia presented unrebutted

evidence to the probate court that her proposed transition plan provided

substantial benefits to Aaron as it related to his current living plan with

Hyman as guardian. Patricia and Hyman stipulated that while Hyman was

Aaron’s guardian, Aaron lived on the second floor of his condominium, had

to use a chairlift to go up and down from his room, had a noncompliant ADA

ramp, and had not been outside since 2019, except for hospitalizations. The

parties further stipulated that Hyman had not maintained Aaron’s social

security checks in a segregated account and that disbursements from the

bank for Aaron’s benefit were also not maintained in a separate account.

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Nelson, who was Aaron’s caregiver for 32 years, was so familiar with Aaron

that he could anticipate Aaron’s seizures. The successor judge did not

consider Aaron’s best interests, even when put on notice that Hyman had

fired Nelson as Aaron’s caregiver and evicted Nelson and his family from

one of Hyman’s condominiums. In contrast, Hyman had previously stressed

numerous times throughout the underlying proceedings before the probate

court the importance of maintaining Aaron’s living conditions with Nelson as

his primary caregiver. As the Fifth District Court of Appeal in Sun Bank and

Trust Company v. Jones, 645 So. 2d 1008, 1017 (Fla. 5th DCA 1994); rev.

denied, 658 So. 2d 991 (Fla. 1995) recognized, “Courts must scrupulously

oversee the handling of the affairs of incompetent persons under their

jurisdiction and err on the side of over-supervising rather than indifference.”

Accordingly, the probate court erred in not considering Aaron’s best

interests.

CONCLUSION

An appellate court defers to a circuit court’s findings of fact when they

are based on competent substantial evidence. State, Fla. Highway Patrol v.

Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980) in U.S.

Currency, 802 So. 2d 1171, 1172 (Fla. 3d DCA 2001). However, this

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“presumption of correctness never requires an appellate court to disregard

record evidence that disproves the lower court's findings or that reveals its

ruling to be an abuse of discretion.” In re Doe, 932 So. 2d 278, 284 (Fla. 2d

DCA 2005). Here, the evidence before this Court does not support

paragraphs five, six and eight in the order on appeal, stating that Hyman did

not know that Patricia would be living separately from Aaron and that

Patricia’s undertakings prior to the court appointing her as Aaron’s guardian

were solely her decision and taken at her own risk. Accordingly, the trial court

abused its discretion in allowing Hyman to change his position to the

detriment of Aaron. For these reasons, we reverse the probate court’s order

on appeal and remand the case for further proceedings.

Reversed and remanded for further proceedings.

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