       Third District Court of Appeal
                                State of Florida

                          Opinion filed September 7, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D14-3063
                            Lower Tribunal No. 14-405
                               ________________


                              Arthur Linde, etc.,
                                     Appellant,

                                         vs.

                           In re: Barrett M. Linde,
                                     Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.

       Carlton Fields Jorden Burt, P.A., and Steven M. Blickensderfer; Carlton
Fields Jorden Burt, P.A., and Peter D. Webster (Tallahassee), for appellant.

      Arnold R. Ginsberg, P.A., and Arnold R. Ginsberg, for appellees.

Before WELLS, FERNANDEZ and SCALES, JJ.

      SCALES, J.
      Appellant Arthur Linde (“Temporary Guardian”) appeals the final order of

the trial court restoring Appellee Barrett Linde’s (“Ward”) full capacity. We affirm

because the trial court did not abuse its discretion in both (i) restricting

communication between the independent physician and Temporary Guardian

throughout the physician’s examination of Ward, and (ii) precluding the

introduction of Ward’s prior medical records at Ward’s suggestion of capacity

hearing.

      I. Facts

      In early 2014, Temporary Guardian and his two sisters filed an emergency

guardianship petition pursuant to section 744.3201 of the Florida Statutes to

determine the capacity of their father, Ward. Pursuant to section 744.331, the trial

court appointed a three-person examining committee to assist the trial court in its

determination as to whether to appoint a guardian for Ward.

      Pursuant to section 744.3031, the trial court also appointed Temporary

Guardian as the emergency temporary guardian of Ward and appointed counsel for

Ward. Following the unanimous recommendation of the examining committee, the

parties entered into a mediated settlement agreement on April 2, 2014. In the

settlement agreement, Ward and Ward’s wife stipulated to the examining

committee’s finding of limited incapacity and to the admissibility of the examining

committee’s report in the guardianship proceedings.



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      Thereafter, on May 6, 2014, the trial court accepted the parties’ stipulation

and entered an order adjudicating Ward as having limited capacity. The trial court

removed some of Ward’s rights, including the rights to contract, manage property,

sue, and marry.

      The trial court retained Temporary Guardian as the limited, emergency

temporary guardian of Ward and proceeded to a hearing for permanent guardian

appointment. On May 30, 2014, however, Ward and his wife filed a motion for

disqualification of the trial judge, which the trial judge granted.

      Shortly thereafter, on June 24, 2014, Ward and his wife filed a suggestion of

capacity with the successor judge, essentially asking the successor judge to restore

Ward’s rights. Temporary Guardian filed a timely objection to the suggestion of

capacity, and the trial court appointed an independent physician to examine Ward

and report on Ward’s capacity pursuant to section 744.464 of the Florida Statutes.

      Before the examination took place, Ward and his wife filed an emergency

petition for an injunction to prevent Temporary Guardian from communicating

with the court-appointed physician. Ward’s motion alleged that ex parte

communications between Temporary Guardian’s attorneys and the examination

committee had tainted the committee’s report. Ward’s motion sought, inter alia, an

order prohibiting unsolicited communications between the Temporary Guardian

and the independent physician. The trial court granted the injunction, prohibiting



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any contact between the independent physician and all counsel and parties other

than Ward and Ward’s wife. The trial court’s order also established a collaborative

mechanism for all counsel to convene in response to any request for additional

information by the independent physician. After examining Ward, the independent

physician diagnosed Ward as having bipolar disorder and a neurocognitive

disorder. The independent physician, however, found Ward capable of exercising

all of the rights that had previously been limited by the prior judge.

      After the independent physician issued his report, Ward and his wife filed a

motion in limine to exclude all evidence of Ward’s mental health prior to the filing

of Ward’s suggestion of capacity, including the examining committee’s report,

Ward’s medical history and background, and all the circumstances leading up to

the filing of this action. The trial court orally granted the motion.

      In October and November of 2014, the trial court conducted a two-day

evidentiary hearing and, on November 26, 2014, entered the order on appeal that

fully restored Ward’s rights.

      Temporary Guardian asserts both that (i) the trial court’s injunction

impermissibly prevented the court-appointed independent physician from having

access to and considering all relevant information regarding Ward, and (ii) the trial

court’s order granting Ward’s motion in limine prevented Temporary Guardian

from presenting critical evidence bearing on Ward’s capacity.



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          II. Standard of Review

          As is often the case, this appeal rises or falls based on the standard of review

we employ. Temporary Guardian’s appeal of the trial court’s final order is

premised upon two pre-hearing orders entered by the trial court related to its

statutory adjudicatory obligation to determine whether to restore some of Ward’s

rights.

          Because both orders involve evidentiary issues, we review both orders under

an abuse of discretion standard. Cardona v. Nationstar Mortg., LLC, 174 So. 3d

491, 493 (Fla. 4th DCA 2015). A trial court’s injunction order will not be disturbed

absent an abuse of discretion, Jackson v. Echols, 937 So. 2d 1247, 1249 (Fla. 3d

DCA 2006); while a trial court’s evidentiary ruling on a motion in limine is also

subject to an abuse of discretion standard. Patrick v. State, 104 So. 3d 1046, 1056

(Fla. 2012).

          III. Analysis


             A. The Trial Court’s Injunction Order


          While Temporary Guardian concedes that the trial court’s ruling on Ward’s

motion in limine is reviewable under an abuse of discretion standard, Temporary

Guardian suggests that we employ a de novo review of the injunction. Temporary

Guardian argues that the trial court erred as a matter of law in limiting his

interaction with the independent physician appointed to evaluate Ward. Temporary

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Guardian posits that, as a practical matter – and, presumably, as a matter of law – a

physician provided with more information renders a better opinion than a physician

provided with less information. While the Temporary Guardian’s general

proposition obviously has abstract allure, it lacks applicability to the legal issues

involved in this case for at least two reasons: (i) it ignores the distinct statutes

involved in the relevant guardianship determinations; and (ii) it disregards the fact

that the trial court lawfully sequestered the independent physician, while

establishing an orderly mechanism for providing requested information to the

independent physician.

      To better understand why we are reviewing the injunction order under an

abuse of discretion standard, we briefly examine the relevant provisions of the two

statutes implicated in this case: (i) section 744.331 governing initial determination

of incapacity, and (ii) section 744.464 governing restoration proceedings.

      Upon receipt of a petition to determine incapacity, the trial court is required

to appoint a three-person examining committee to determine initially a person’s

alleged incapacity. § 744.331(3)(a), Fla. Stat. (2014). In pertinent part, the statute

provides:

      Each member of the examining committee shall examine the
      person…In addition to the examination, each examining committee
      member must have access to, and may consider, previous
      examinations of the person, including, but not limited to, habilitation
      plans, school records, and psychological and psychosocial reports
      voluntarily offered for use by the alleged incapacitated person . . . .


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§ 744.331(3)(e), Fla. Stat. (2014). (emphasis added)

      At any time after a ward is declared incapacitated pursuant to section

744.331, any interested person, including the ward, may file a suggestion of

capacity to have the trial court restore any rights previously removed. Pursuant to

the relevant statute, “[t]he suggestion of capacity must state that the ward is

currently capable of exercising some or all of the rights which were removed.” §

744.464(2)(a), Fla. Stat. (2014) (emphasis added). Upon the filing of a suggestion

of capacity, the trial court must immediately appoint a physician to conduct an

examination of the ward who must conduct an examination and file a report within

twenty days of appointment. § 744.464(2)(b), Fla. Stat. (2014).

       As the statute governing initial incapacity determinations makes clear, each

member of the examination committee must have access to prior examination

reports of the alleged incapacitated person. No such requirement is contained in

the statute governing examinations of a ward conducted upon the filing of a

suggestion of capacity. In fact, section 744.464(2) neither incorporates section

744.331’s examination requirements, nor contains any other specific requirements

for the independent physician’s examination.

       Temporary Guardian asserts that we should graft requirements onto section

744.464(2) that the Legislature did not include, and then, employing de novo

review, reverse the trial court’s injunction as if those requirements were contained



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in the statute. We decline Temporary Guardian’s invitation to add provisions to

section 744.464(2) that simply are not there. Hayes v. State, 750 So. 2d 1, 4 (Fla.

1999). Further, nothing in this record suggests that the trial court’s injunction

impermissibly frustrated the independent physician’s compliance with the

admittedly minimal examination requirements prescribed by section 744.464(2).

      A close and careful review of the trial court’s injunction order, and the

proceedings thereon, reveal that the trial court was concerned about the possible

effect of ex parte communications on the independent physician’s evaluation of

Ward. Recognizing Ward’s allegations regarding the examination committee’s

evaluations, the trial court prohibited ex parte communications between Temporary

Guardian and the independent physician, while establishing a mechanism for the

physician to obtain additional information that the physician deemed necessary.1

This mechanism merely facilitated the orderly dissemination of information to the

independent physician and in no way constituted an abuse of the trial court’s

discretion.2

1 If the independent physician determined that communication with a third party
was necessary, the third party would be contacted to arrange a conference call to be
attended by all counsel and the independent physician. If an agreement could not
be reached between both parties, then the parties were required to seek court
instruction.
2 In Florida, “[t]he trial court is afforded broad discretion in granting, denying,
dissolving, or modifying injunctions, and unless a clear abuse of discretion is
demonstrated, an appellate court must not disturb the trial court’s decision.”
Jackson, 937 So. 2d at 1249.

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          B. Order on Ward’s Motion in Limine

      Temporary Guardian also challenges the trial court’s order on Ward’s

motion in limine. The order precluded the admission of evidence not directly

related to Ward’s then current capacity.

      As section 744.464 makes clear, the purpose of the suggestion of capacity

evidentiary hearing is for the trial court to determine whether the ward has

regained capacity so that rights previously removed from the ward should be

restored. § 744.464(3), Fla. Stat. (2014). Indeed, the allegation that must be

established by a preponderance of the evidence is whether “the ward is currently

capable of exercising some or all of the rights which were removed.” §

744.464(2)(a), Fla. Stat. (2014).

      Temporary Guardian argues that the trial court abused its discretion by

precluding evidence of Ward’s prior capacity, the report of the evaluation

committee, and other historical evidence related to Ward’s mental health. While

such historical evidence may have some probative value for a trial court charged

with determining a ward’s current capacity, we cannot say on this record that the

trial court abused its discretion by precluding such evidence. We recognize that the

trial court is in a far better position than the appellate court to make such

evidentiary considerations and, therefore, we will not disturb the trial court’s ruling



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on Ward’s motion in limine. Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla.

4th DCA 2006).

      Based on the foregoing, we affirm the trial court’s final order restoring to

Ward those rights previously removed.

      Affirmed.




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