          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    ADAM GORT and LISA FORMAN,
                            Appellants,

                                     v.

                             WILLIAM GORT,
                                Appellee.

                     Nos. 4D14-3830 and 4D15-398


                            [February 3, 2016]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No.
502013GA000575XXXXNB.

   I. Jeffrey Pheterson and Sally Still of Ward, Damon, Posner, Pheterson
& Bleau, West Palm Beach, for appellant, Adam Gort.

   Peter A. Sachs and Elizabeth K. Ehrlich of Jones, Foster, Johnston &
Stubbs, P.A., West Palm Beach, for appellee.

MAY, J.

    These appeals arise from guardianship proceedings involving two
brothers and a cousin. A brother and his cousin appeal two orders. The
first is a final summary judgment in favor of the older brother, who is the
petitioner. The second order awarded attorney’s fees to the petitioner. The
brother and his cousin argue the trial court erred in enforcing a settlement
agreement and awarding fees. We disagree and affirm.

    The petitioner petitioned to have his brother found incapacitated and
for appointment of a limited guardian and emergency temporary guardian
(ETG).    The petition alleged the brother is a diagnosed paranoid
schizophrenic and suffers from auditory hallucinations. The brother has
checked himself in and out of hospitals.            These hospitals have
recommended that he be committed to a state facility where he can receive
the proper care and treatment he requires. The petition alleged the brother
was incapable of exercising many rights including the right to contract.
   The brother and his cousin opposed the petition. The cousin petitioned
to determine the brother’s incapacity and sought to be appointed plenary
guardian of his person and property.

   The trial court entered an order setting an incapacity hearing,
appointed counsel for the brother, and appointed a three-member
examining committee.      All three members found the brother was
incapacitated and lacked the capacity to contract.

   The brother moved to substitute counsel, which the trial court granted.
The brother denied he was incapacitated and requested the court enter an
order reflecting he is capable of exercising all of his rights.

   Prior to the incapacity hearing, the court referred the parties to
mediation. All parties participated and were represented by counsel. The
meditation resulted in a settlement agreement, in which the petitioner and
the cousin would dismiss their pending petitions without the need for prior
court approval. The brother and cousin agreed to provide the petitioner
with: notice of the brother’s medical events, copies of his financial
statements, and the deed to the brother’s house. They agreed to designate
a neutral agency to evaluate the brother’s living situation every six
months, and open lines of communication between the petitioner and his
brother.

   Pursuant to the agreement, the petitioner and cousin voluntarily
dismissed their petitions. They filed the settlement agreement with the
court with attachments showing the brother’s compliance with some of the
agreement’s terms.

    Over one year later, the petitioner filed an action against the brother
and cousin in the probate division seeking a declaration that the
settlement agreement was valid and enforceable. The case was assigned
to a new judge. The brother responded by asserting affirmative defenses,
and filing a counter-petition seeking to have the agreement declared
invalid and unenforceable. The cousin also responded and asserted
affirmative defenses.

   The petitioner then moved for summary judgment. The brother filed a
response and affidavits in opposition to the motion. The cousin joined in
the brother’s response.

   The brother’s affidavit attested that he is estranged from the petitioner,
who lives in Ohio. He admitted himself to Fair Oaks Hospital in May 2012
for treatment of his schizophrenia. His condition began to improve

                                     2
immediately when he was placed on proper medication.                He was
discharged the following month.

    He lives with his aunt; his cousin lives around the corner from them.
At the court ordered mediation, he felt extremely vulnerable and pressured
to sign the settlement agreement. He was afraid that if he did not sign the
agreement, he would be sent to a state mental facility. He complied with
the agreement for some time but stopped doing so in 2013.

    He has no desire to have open communication with the petitioner
because the petitioner is overbearing, abusive, controlling, and
undermining his efforts to live independently. His mental and physical
health have improved since the settlement agreement. He lives a normal
life, and the cousin acts as his health care surrogate and has his power of
attorney.

   The trial court heard oral argument on the petitioner’s motion for
summary judgment in August 2014. At the court’s direction, the parties
submitted supplemental authorities and proposed orders. Both parties
received notice of each other’s proposed orders. On September 15, 2014,
the trial court adopted the petitioner’s order, and entered summary
judgment in his favor. The order contained extensive findings of fact and
conclusions of law.

   The trial court found, in part:

      (1) the agreement is silent as to its termination date, but it is
          reasonable to interpret the termination date as the
          brother’s death;

      (2) the petitioner relied to his detriment on the agreement
          when he voluntarily dismissed his petition to determine
          incapacity;

      (3) the brother did not sign the settlement agreement under
          coercion or duress because the petitioner did not engage in
          improper or illegal conduct; and

      (4) it was not improper for the parties to enter into the
          settlement agreement after a petition to determine
          incapacity had been filed but before an adjudicatory
          hearing because there is no requirement for an
          adjudicatory hearing every time a petition is filed.


                                     3
From that order, the brother and cousin now appeal.

   We have de novo review. Pitcher v. Zappitell, 160 So. 3d 145, 147 (Fla.
4th DCA 2015) (citing Chhabra v. Morales, 906 So. 2d 1261, 1262 (Fla. 4th
DCA 2005)). “‘The movant’s burden [in a summary judgment proceeding]
is to come forward with competent evidence to demonstrate the non-
existence of a material issue of fact.’” Id. (alteration in original) (quoting
Bratt v. Laskas, 845 So. 2d 964, 966 (Fla. 4th DCA 2003)).

    The brother and cousin argue the trial court erred in enforcing the
settlement agreement because it is void under Florida law and public
policy. Specifically, they argue the petitioner cannot voluntarily dismiss
his petition without the statutorily required adjudicatory hearing on the
brother’s incapacity. See § 744.331(4), Fla. Stat. (2012). They also argue
that the petitioner is estopped from arguing that his brother had the
capacity to enter into the agreement because it was contrary to the
allegations in his petition, and the examining committee found the brother
lacked capacity.

   The petitioner responds that his brother was presumed to have capacity
because he was never adjudicated incapacitated and the examining
committee’s reports are not properly considered because they are
inadmissible hearsay. The petitioner also responds that the agreement
does not violate due process because he voluntarily dismissed his petition,
and the doctrine of judicial estoppel does not apply.

    “‘Proceedings to determine the [incapacity] of a person are generally
controlled by statute and where the statute prescribes a certain method of
proceeding to make that determination, the statute must be strictly
followed.’” In re Guardianship of Klatthaar, 129 So. 3d 482, 484 (Fla. 2d
DCA 2014) (quoting Rothman v. Rothman, 93 So. 3d 1052, 1054 (Fla. 4th
DCA 2012)). Section 744.331, Florida Statutes (2012), provides that when
a petition to determine incapacity is filed, a court must appoint an attorney
to represent the alleged incapacitated person, and within five days of the
petition, the court shall appoint an examining committee of three members
to examine the alleged incapacitated person, all of whom are to file their
reports with the court. § 744.331(1)–(3), Fla. Stat.

   A plain reading of the statute indicates that once a petition is filed, the
court shall set the matter for hearing within certain time constraints. Id.
§ 744.331(5)(a). The statute also provides that a court shall dismiss a
petition if the examining committee members conclude the person is not
incapacitated. Id. § 744.331(4). But, the statute is silent on whether a
court is required to hold an adjudicatory hearing every time a petition is

                                      4
filed. It is also silent on whether a party may voluntarily dismiss a petition
to determine incapacity.

   While the rules are silent on whether a petition can be voluntarily
dismissed prior to an adjudicatory hearing, common sense dictates that a
petitioner has that ability. Katke v. Bersche, 161 So. 3d 574 (Fla. 5th DCA
2014), is helpful. There, in ruling on a petition for a writ of prohibition,
the Fifth District implicitly recognized the voluntary dismissal of a petition
to determine incapacity prior to an adjudicatory hearing. Id. at 575–76.

      “A party may voluntarily dismiss any claim, and such a
      dismissal, if accepted by the trial court, deprives the court of
      jurisdiction over the subject matter of the claim dismissed.”
      Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012). The
      plaintiff’s right to voluntarily dismiss its own lawsuit is almost
      absolute, with exceptions for fraud on the court and child
      custody. Tobkin v. State, 777 So. 2d 1160, 1162 (Fla. 4th DCA
      2001).

Id. at 576.

   The brother argues that our decision in Jasser v. Saadeh, 97 So. 3d
241 (Fla. 4th DCA 2012), prohibits the voluntary dismissal of a petition
prior to an adjudicatory hearing. The dissent agrees that Jasser is
dispositive. We disagree.

   Jasser is distinguishable.     There, the children of the alleged
incapacitated person, through a professional guardian, petitioned to
determine incapacity. Id. at 243. The petition alleged the ward suffered
from Alzheimer’s. Id. The guardian also petitioned for the appointment of
an ETG. Id. The court appointed an attorney to represent the alleged
incapacitated person and an examining committee. Id.

   At a hearing, the court appointed the guardian as the ETG, removed
the ward’s rights, and delegated them to the ETG because the ward was
diagnosed with Alzheimer’s and in danger of financial abuse. Id. at 244.
But, the court did not make a formal determination of incapacity. Id.

   Three days after the guardian’s appointment, the guardian’s attorney
and the ward’s court-appointed attorney “submitted to the court an agreed
order to ‘settle’ the guardianship,” agreeing that the ward would execute a
trust in lieu of a plenary guardianship. Id. The agreed order provided that
the ward would execute the required trust, and that “[a]ll pending
incapacity proceedings . . . are hereby dismissed.” Id. at 244–45. The trial

                                      5
court never dismissed the underlying ETG petition. Id. at 245–46.

   The ward then petitioned to revoke the trust originally required by the
agreed order to “settle” the guardianship, and moved for summary
judgment. Id. The court agreed with the ward, reasoning that he lacked
legal capacity to enter into the trust because of the appointment of the
ETG and his transfer of his legal rights to her. Id. at 246–47. The court
entered summary judgment setting aside the trust, from which the
trustees appealed. Id. at 247.

   On appeal, the co-trustees attacked the final judgment arguing that the
agreed order was final, but not appealed, and the trial court was without
jurisdiction to vacate the order because there was no incapacity petition
pending. Id. We disagreed. Id.

   We distinguished a voluntary dismissal from an agreed settlement and
mutual dismissal. Id. We then discussed the importance of insuring that
the person alleged to be incapacitated is protected. Id. at 247–48. We did
not hold that a person cannot voluntarily dismiss a petition once filed.

   While the policy discussion in Jasser supports the brother and cousin’s
position, the facts and issue in Jasser were different from this case. Here,
the brother is not suffering from Alzheimer’s, but has a mental health
disorder, which appears controllable when properly medicated. The
brother attests to that fact. Instead of proceeding with the adjudicatory
hearing, the trial court sent the parties to mediation to resolve their
dispute. They resolved it, and the brother did not complain about the
settlement agreement until more than one year after dismissal of the
petition to determine incapacity.

   Although three examining committee members concluded the brother
lacked capacity to contract in June 2012, the reports were never
considered at a formal adjudicatory hearing. And, there was never a trial
court determination that the brother was incapacitated. In fact, the
brother maintained that he was NOT incapacitated.

   Because our guardianship and probate rules do not prohibit a party
from voluntarily dismissing a petition to determine incapacity, and section
744.311 does not mandate an adjudicatory hearing, the trial court did not
err in finding the settlement agreement did not violate Florida law or public
policy.

   The brother and cousin next argue that the brother signed the
settlement agreement under the illegal and improper threat of being

                                     6
institutionalized. They suggest there was an issue of fact precluding
summary judgment. We disagree.

   To establish duress a party must prove two elements: “(1) that the act
was effected involuntarily and was not an exercise of free choice or will,
and (2) that this condition of mind was caused by some improper and
coercive conduct by the other side.” AMS Staff Leasing, Inc. v. Taylor, 158
So. 3d 682, 687 (Fla. 4th DCA 2015). As the trial court found, there was
no evidence that the petitioner exerted any improper or coercive conduct.
This agreement was reached at a mediation where all parties were
represented by counsel. The court correctly found this argument lacked
merit.

    In their third attack on the summary judgment, the brother and cousin
argue the settlement agreement is unenforceable because it has no
termination date. The trial court: (1) acknowledged the agreement did not
contain a terminate date; (2) examined the agreement as a whole and the
surrounding circumstances; and (3) determined the agreement did not
contain unequivocal language necessary to interpret it as conferring
infinite duration.

   “When a contract does not contain an express statement as to duration,
the court should determine the intent of the parties by examining the
surrounding circumstances and by reasonably construing the agreement
as a whole.” City of Homestead v. Beard, 600 So. 2d 450, 453 (Fla. 1992).
“The general rule is that a contract which contains no express provision
as to duration, or which is to remain in effect for an indefinite period of
time, is not deemed to be perpetual, but instead may be terminated at
will.” Perri v. Byrd, 436 So. 2d 359, 361 (Fla. 1st DCA 1983). The facts
giving rise to the petition to determine incapacity provided the reasonable
interpretation that the settlement agreement was to terminate upon the
brother’s death.1

   Because the trial court did not err in concluding that the settlement
agreement was enforceable as a matter of law and there was no genuine
issue of material fact, we affirm the summary judgment. We also affirm
the fee award without further explanation.


1 We find no merit in the last two attacks on the summary judgment: (1) finding
the agreement terminable at death is not the least restrictive form of
guardianship; and (2) the court erred in adopting the petitioner’s proposed final
judgment.


                                       7
   Affirmed.

DAMOORGIAN, J., concurs.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

   I would reverse the summary declaratory judgment on the authority of
Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012). I do not think that
a petition for determination of incapacity may be voluntarily dismissed by
a petitioner once the trial court has appointed an examining committee,
unless a majority of the examining committee finds that the alleged
incapacitated person is not incapacitated. See § 744.331(1)–(3), Fla. Stat.
(2014). This is for the protection of the alleged incapacitated person, as
noted in Jasser. 97 So. 3d at 247–48. In this case, the court permitted
dismissal of the petition to determine incapacity of appellant pursuant to
a settlement agreement signed by the appellant, even though he was found
by the examining committee to lack the ability to contract. If the appellant
was actually incompetent, then the settlement agreement would be invalid.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     8
