        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          KARIM H. SAADEH,
                              Appellant,

                                    v.

 MICHAEL CONNORS, COLETTE MEYER, DEBORAH BARFIELD, and
                     JACOB NOBLE,
                       Appellees.

                             No. 4D13-4831

                             [June 24, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Peter   D.    Blanc,     Judge;   L.T.   Case     No.
502010CA008347XXXXMB.

  Bryan J. Yarnell and Irwin R. Gilbert of Gilbert│Yarnell, Palm Beach
Gardens, for appellant.

  David J. Sales of David J. Sales, P.A., Jupiter, for appellee Colette
Meyer, Esq.

   Robert W. Goldman of Goldman Felcoski & Stone, P.A., Naples, Gerald
B. Cope, Jr. of Akerman LLP, Miami, Kenneth B. Bell of Gunster,
Tallahassee, and John W. Little III of Gunster, West Palm Beach, for
Amicus Curiae The Real Property Probate & Trust Law Section of The
Florida Bar.

CIKLIN, J.

    Karim H. Saadeh appeals the final summary judgment entered in favor
of an attorney he sued for professional negligence. The trial court based
its summary judgment on a finding that, as a matter of law, an attorney
representing Saadeh’s court-appointed guardian owed Saadeh no duty
under a third-party beneficiary theory. We disagree with the trial court’s
finding and reverse.

   This is not the first time the incapacitation proceedings involving
Saadeh have resulted in litigation, and ultimately, an appeal. Our opinion
in Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012), illuminates the
protracted path that has led the parties to this point.

   Mr. Saadeh is a wealthy man of advanced years. After his wife passed
away, a relative introduced him to a younger woman. Saadeh loaned
money to the woman, which alarmed his adult children. In response, the
children contacted attorney Colette Meyer who worked with a professional
guardian, Deborah Barfield (“guardian”).           The guardian filed an
incapacitation petition, attaching a neurologist’s report diagnosing Saadeh
with “dementia, probably Alzheimer’s.” Id. at 242-43.

   After a hearing, the court appointed the guardian because of an
“emergency.” Colette Meyer then became the [emergency temporary]
guardian’s attorney (and will be referred to hereinafter as the “guardian’s
attorney”). The court-ordered duration of the temporary guardianship was
ninety days, pending a full hearing on incapacitation. Id. at 244. Three
days after the guardian’s appointment—after two members of the
examining committee submitted reports finding Saadeh competent—the
guardian’s attorney and Saadeh’s court-appointed attorney “submitted to
the court an agreed order to ‘settle’ the guardianship,” agreeing that
Saadeh would execute a trust in lieu of plenary guardianship.1 Id. The
agreed order provided that Saadeh would execute the required trust within
seven days, and that “[a]ll pending incapacity proceedings . . . are hereby
dismissed . . . .” Id. at 244-45.

   The trial court never dismissed the underlying emergency temporary
guardianship (petition), and the parties and the court continued to
conduct themselves as though the subject guardianship proceedings had
never been dismissed, the agreed order notwithstanding. Id. at 245-46.

  Saadeh was again found competent by a newly-appointed examining
committee, and the incapacitation proceedings appear to have then finally
and formally come to an end. The litigation, however, continued.

   Saadeh sought an order from the trial court setting aside the
establishment of the trust originally required by the agreed order to “settle”
the guardianship. The trial court agreed with Mr. Saadeh and entered a
summary judgment setting aside the trust which this court affirmed. Id.

1 “Once formed, plenary guardianships grant all of the ward’s delegable rights
over person and property to the guardian, while limited guardianships grant only
that authority expressly set forth in the guardianship order.” Whiting v. Whiting,
160 So. 3d 921, 925 (Fla. 5th DCA 2015); see also § 744.344(5), Fla. Stat. (2009)
(“A plenary guardian shall exercise all delegable rights and powers of the
incapacitated person.”).

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at 249.

   Subsequently, in 2010, Saadeh brought suit against multiple players
in the guardianship proceedings, including the guardian’s attorney, the
guardian, and Saadeh’s court-appointed attorney. In count III of his
complaint, Saadeh pled a count of professional negligence and breach of
duty against the guardian’s attorney. It is this malpractice action against
the guardian’s attorney which is the primary issue now before us.

    Saadeh alleged the following. The guardian’s attorney represented the
guardian while the guardian was acting as a court-appointed emergency
temporary guardian for Saadeh. The guardian, Saadeh’s court-appointed
attorney, and the guardian’s attorney agreed that Saadeh would execute a
trust in return for the dismissal of the incapacity proceedings. They
engaged the services of an attorney to draft the irrevocable trust document.
The guardian’s attorney and Saadeh’s adult children met with Saadeh in
an attempt to pressure him to sign the document which established the
trust. The guardian’s attorney was aware Saadeh was elderly, lacked a
formal education, and spoke English as a second language, yet she advised
Saadeh regarding the mechanics of the trust. She led Saadeh to believe
he would remain in control of the trust and its contents, and would be able
to make decisions regarding the trust. Although Saadeh initially refused
to sign the document, he succumbed to the pressure. Afterward, Saadeh
discovered the trust was irrevocable and had actually granted all trust
control to his adult children. The guardian’s attorney failed to advise Mr.
Saadeh of the significant negative tax consequences of establishing such
a trust.

   The guardian’s attorney moved for summary judgment, arguing that
there was no privity of contract between her and Mr. Saadeh (the ward),
and thus she owed no duty directly to Mr. Saadeh. She also argued that
Saadeh’s interests were adverse to the interests of the children and the
guardian.

    After a hearing, the court granted summary judgment in favor of the
guardian’s attorney, rejecting the argument that Saadeh was an intended
beneficiary. The court noted that Saadeh’s court-appointed attorney
invited the guardian’s attorney to speak to Saadeh, and it compared this
situation to a criminal defense attorney and his client engaging in plea
negotiations with a prosecutor.       The court also relied on section
744.331(2)(c), Florida Statutes, which precludes an attorney for the alleged
incapacitated person from serving as either the guardian or the attorney
for the guardian.


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   Here, the claim against the guardian’s attorney was for professional
negligence, and the court’s entry of summary judgment was based on the
element of duty. Our standard of review is de novo. Chhabra v. Morales,
906 So. 2d 1261, 1262 (Fla. 4th DCA 2005).

   ‘“[W]here a defendant establishes as a matter of law, that no duty is
owed to the plaintiff, the trial court may properly grant summary judgment
in favor of the defendant.’” Hanrahan v. Hometown Am., LLC, 90 So. 3d
915, 917 (Fla. 4th DCA 2012) (citation omitted). “An attorney’s liability for
professional negligence is generally limited to clients with whom the
attorney shares privity of contract.” Dingle v. Dellinger, 134 So. 3d 484,
487 (Fla. 5th DCA 2014). However, “[i]f the parties are not in privity, to
bring a legal malpractice action, the plaintiff must be an intended third-
party beneficiary of the lawyer’s services.” Id. at 487-88.

   Saadeh asserts that he was a third party beneficiary insofar as he was
the ward and thus, by definition, the intended beneficiary of everything
connected with the underlying guardianship proceeding. Even though
legal services were technically provided to the guardian, Mr. Saadeh urges
that since his guardianship estate was compensating both the guardian
and the guardian’s attorney, the attorney owed him a duty of care. Mr.
Saadeh urges that as the “incapacitated ward,” he was the intended
beneficiary of services provided by the guardian’s attorney. He vigorously
argues that it would be an oxymoron to consider him, as the ward of the
estate, to ever be rendered as nothing more than an incidental third party
beneficiary.

   Generally, “[t]o assert a third-party beneficiary claim, the complaint
must allege: (1) a contract; (2) an intent that the contract primarily and
directly benefit the third party; (3) breach of the contract; and (4) resulting
damages to the third party.” Id. at 488. “Florida has extended the third
party beneficiary exception to the privity requirement in legal malpractice
actions to very limited circumstances, mainly in the area of will drafting,
where it can be demonstrated that the intent of the clients in engaging the
services of the lawyer was to benefit a third party.” Brennan v. Ruffner,
640 So. 2d 143, 146 (Fla. 4th DCA 1994). However, although the “privity
requirement has been relaxed most frequently in will drafting situations,”
the third-party beneficiary exception to the rule of privity may apply in
other contexts. Dingle, 134 So. 3d at 488 (citation omitted). It must be
“apparent” that the “intent of the client” is “to benefit a third party . . . .”
Hewko v. Genovese, 739 So. 2d 1189, 1191 (Fla. 4th DCA 1999) (citation
omitted).

   In determining whether the attorney for the emergency temporary

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guardian owes a duty to the alleged incapacitated person under a third
party beneficiary theory, we first turn to the guardianship statutes. Upon
the filing of a petition to determine incapacity, the court must appoint an
attorney to represent the alleged incapacitated person. § 744.331(2)(b),
Fla. Stat. (2009). “Any attorney representing an alleged incapacitated
person may not serve as guardian of the alleged incapacitated person or
as counsel for the guardian of the alleged incapacitated person or the
petitioner.” § 744.331(2)(c), Fla. Stat. (2009).

   While the petition is pending, the court may appoint an emergency
temporary guardian to protect the alleged incapacitated person and any
property from imminent harm. See § 744.3031(1), Fla. Stat. (2009). The
court must appoint counsel to represent the emergency temporary
guardian. See id. During the temporary guardianship, the emergency
temporary guardian is the alleged incapacitated person’s fiduciary to the
extent defined by the court. See Maxwell v. First Union Bank, 782 So. 2d
931, 933-34 (Fla. 4th DCA 2001) (“Express fiduciary relationships are
created by contract, such as principal/agent, or can be created by legal
proceedings in the case of a guardian/ward.”); Centrust Savings Bank v.
Barnett Banks Trust Co., N.A., 483 So. 2d 867, 869 (Fla. 5th DCA 1986)
(“The term fiduciary includes not only court appointed guardians,
executors, and administrators, but every person acting in a fiduciary
capacity for another and includes a trustee under any trust, express or
implied, an officer of a corporation, and many others.”). Even though there
is no lawyer-client relationship between the alleged incapacitated person
who is a temporary ward and the lawyer for the emergency temporary
guardian, counsel for the emergency temporary guardian owes a duty of
care to the temporary ward.

    An opinion of this court in a case involving incapacitation, albeit in the
context of adoption of a minor, supports the proposition that the attorney
for the emergency temporary guardian in incapacitation proceedings owes
a duty to the ward. In Rushing v. Bosse, 652 So. 2d 869 (Fla. 4th DCA
1995), a professional negligence complaint was brought on behalf of a child
against the attorneys who handled the private adoption proceeding which
removed her from Florida and the care of relatives for a nine-month period.
One of the attorneys for the adoptive parents also acted as intermediary
for the child’s placement. The complaint alleged, among other things, that
the attorney counseled the adoptive parents to falsify Florida residency
and that he induced the mother of the child to give up any rights to the
child by paying her money. This court reversed the dismissal of this count
of the complaint, finding that privity of contract was not necessary where
the child was the “intended beneficiary of the adoption” and the defendants
were the attorneys for the adoptive parents, “who evidently intended to

                                      5
benefit the child by adopting her.” Id. at 873. This court also reasoned
that the attorney “served as an intermediary for the child,” and thus had
other responsibilities he owed her. Id. We noted that adoption proceedings
are “unique” in that, under the adoption statutes, the intended beneficiary
of the proceeding is the child to be adopted. Id.

    Here, as in Rushing, the proceedings were rooted in a Florida statute
that involves the protection of incapacitated persons. Chapter 744, Florida
Statutes, governs guardianship proceedings. The purpose of the act is “to
protect the public welfare” by protecting the rights of incapacitated
persons. § 744.1012, Fla. Stat. (2010).2 Mr. Saadeh was the apparent
intended beneficiary of the guardian’s attorney’s services. It would be
antithetical to suggest that a guardian—appointed for the sacrosanct
reason of providing protection to the ward and at the ward’s expense—
could ever take any action which would knowingly be adverse to the
alleged incapacitated person.

   In a 1996 opinion of former Attorney General Robert Butterworth, the
existence of this duty of care is explained:

         Under the state’s guardianship statutes, it is clear that the
         ward is the intended beneficiary of the proceedings. Section
         744.108, Florida Statutes, authorizes the payment of
         attorney’s fees to an attorney who has “rendered services to
         the ward or to the guardian on the ward’s behalf[.]” Thus, the
         statute itself recognizes that the services performed by an
         attorney who is compensated from the ward’s estate are
         performed on behalf of the ward even though the services are
         technically provided to the guardian.       The relationship

2   The statute provides in pertinent part:

         Recognizing that every individual has unique needs and differing
         abilities, the Legislature declares that it is the purpose of this act to
         promote the public welfare by establishing a system that permits
         incapacitated persons to participate as fully as possible in all
         decisions affecting them; that assists such persons in 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; and that accomplishes these objectives through providing,
         in each case, the form of assistance that least interferes with the
         legal capacity of a person to act in her or his own behalf.

§ 744.1012, Fla. Stat. (2009).

                                            6
      between the guardian and the ward is such that the ward
      must be considered to be the primary or intended beneficiary
      and cannot be considered an “incidental third-party
      beneficiary.”

      ....

      Since the ward is the intended beneficiary of the
      guardianship, an attorney who represents a guardian of a
      person adjudicated incapacitated and who is compensated
      from the ward’s estate for such services owes a duty of care to
      the ward as well as to the guardian.

Fla. AGO 96-94, 1996 WL 680981.

   In its amicus brief that we invited and appreciate, the Real Property
Probate & Trust Law Section of the Florida Bar indicates agreement with
the Attorney General opinion. The Section reminds us that the lack of
privity does not foreclose the possibility of a duty of care to a third party
intended to benefit from a lawyer’s services. The Section points out that
the reasoning in the Attorney General opinion is supported by section
744.1012, Florida Statutes (2009), in which the Legislature states its
willful intent to protect incapacitated persons.

   Based on the foregoing analysis, we find that Saadeh and everything
associated with his well-being is the very essence i.e. the exact point, of
our guardianship statutes. As a matter of law, the ward in situations as
this, is both the primary and intended beneficiary of his estate. To tolerate
anything less would be nonsensical and would strip the ward of the dignity
to which the ward is wholly entitled. Whether there was a breach of the
duty which caused damages obviously remains to be determined. But Mr.
Saadeh has a viable and legally recognizable cause of action against the
guardian’s attorney which is available to Mr. Saadeh and which we direct
be immediately reinstated.        Accordingly, we remand for further
proceedings.

   Reversed and remanded for further proceedings.

WARNER and GERBER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.


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