January 3rd, 2012
There’s a well-respected, senior attorney I know who tells all beginning lawyers that, if you have a filing deadline, file 5 days early and you’ll never have to worry about cutting it too close to the deadline. As a practical matter, that may not always work, but that’s still good advice.
If that ‘rule’ was followed in Rothman-Browning v. Marshall, it may have avoided an appeal from an order by a Florida trial court prematurely approving a guardianship plan.To understand this appeal, we need to review and understand the timeline:
- April 4, 2011: guardian files guardianship plan with trial court;
- April 26, 2011: clerk of court completes its review of the guardianship plan and files its approval;
- April 29, 2011: trial court enters final order approving guardianship plan;
- May 4, 2011: co-trustee, individually and as fiduciary, files objection to guardianship plan;
- Some later date: at a hearing, trial court denies objection to guardianship plan as untimely.
On appeal, the co-trustee argued that the trial court prematurely approved the plan without first considering the objection. Section 744.367(4), Florida Statutes, provides that “[w]ithin 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.” Here, the co-trustee waited until the last day to file an objection – the thirtieth day after the guardianship report was filed (apparently “within 30 days” means including the thirtieth day). If an objection is timely filed, Section 744.369(7) provides that a hearing shall be held within 30 days of the objection being filed to consider the merits of the objection.
There was a little tension here in that Section 744.369(1) provides that “[t]he court shall review the annual guardianship report within 30 days after the filing of the clerk’s report of findings to the court.” Thus, the guardian argued that the trial court must review the guardianship plan within 30 days and because the trial court approved the guardianship plan within that time, it did not err.
The appellate court, however, applied the clear meaning of the applicable statutes. If an objection is filed within 30 days, the objector is entitled to a hearing before entry of a final order approving a guardianship plan.
Seems like pretty simple math and an easy decision for the appellate court, but an appeal which might have been avoided had the objector not waited until the last day to file an objection.