MAUGERI v. PLOURDE

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Docket Number

No. 80-1586.

Attorney(S)

Schwartz, Klein Steinhardt and Jay S. Weiss, Miami, for appellants. Adams Ward and Robert C. Ward, Miami, for appellees.

Judges

PEARSON, TILLMAN (Ret.), Associate Judge.

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Smart Summary

Factual and Procedural Background

Plaintiff Rose Etta Maugeri, suing individually, as personal representative of the decedent's estate, and as natural guardian of two minor children, brought a wrongful death action against John Plourde, Darlene Shipman and Allstate Insurance Company. During trial the parties reached a settlement that affected a minor survivor; the trial judge approved the settlement under Section 768.25, Florida Statutes (1977). The plaintiff moved to set aside the settlement; the motion was denied and she appealed. Jurisdiction was accepted under Fla.R.App.P. 9.130(a)(5) on the basis that the order was in the nature of a denial of a motion under Fla.R.Civ.P. 1.540.

Legal Issues Presented

Whether a trial judge who is a member of the general jurisdiction division of the circuit court lacks authority to approve the settlement of a minor's wrongful death claim in excess of $5,000 without a guardianship proceeding.
Whether approval of such a settlement must be made by a circuit court judge who is a member of the probate division of the circuit court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smith v. Langford, 255 So.2d 294 (Fla.1st DCA 1971)	Appointment of a guardian ad litem as a means of protecting a minor litigant (see Fla.R.Civ.P. 1.210(b)).	Referenced to show that protection for a minor in apportionment proceedings may be provided by appointment of a guardian ad litem rather than by requiring a probate-division proceeding.
Tucker v. Shelby Mutual Insurance Co. of Shelby, Ohio, 343 So.2d 1357 (Fla.1st DCA 1977)	Interpretation supporting that statutory provisions require protection of a minor's property after settlement approval (in context of § 744.301).	Cited as a supporting authority that § 744.301 addresses post-settlement protection of a minor's property and does not require a separate guardianship proceeding prior to court approval of the settlement.
In the Interest of Wendy Dee Peterson, 364 So.2d 98 (Fla.4th DCA 1978)	Principle that every judge of the circuit court possesses the full jurisdiction of that court; divisions operate for convenience.	Relied upon to support the proposition that a judge of the general-jurisdiction division may exercise the court's full authority to approve settlements affecting minors.
Guardianship of Bentley, 342 So.2d 1045 (Fla.4th DCA 1977)	Same jurisdictional principle regarding full powers of circuit judges and the administrative nature of divisions.	Cited to reinforce that approval of settlements by a general-division circuit judge is within that judge's jurisdictional authority.

Court's Reasoning and Analysis

The court analyzed the plaintiff's two points and rejected both. First, addressing the claim that only a probate-division judge may approve a minor's wrongful death settlement, the court examined the Wrongful Death Act (§ 768.25) and related statutes (§ 768.23 and § 744.387(3)(a)) and concluded the only court authorized to approve such a settlement is the court in which the action is pending. The court noted the procedural protection for minors may be provided by appointment of a guardian ad litem (citing Fla.R.Civ.P. 1.210(b) and Smith v. Langford).

Second, addressing the contention that a guardianship proceeding under Chapter 744 is required before approval when the settlement exceeds $5,000, the court cited § 744.301(2)-(3), explaining those provisions permit a natural guardian to manage amounts not exceeding $5,000 during minority and that the statutory scheme contemplates protection of the minor's property after settlement approval. The court cited Tucker as supportive authority and reiterated § 744.387's language that settlements require approval by the court having jurisdiction of the action.

Finally, the court observed that every judge of the circuit court possesses the full jurisdiction of that court and that the division structure in multi-judge circuits is for administrative convenience, citing In the Interest of Wendy Dee Peterson and Guardianship of Bentley, to support that a judge of the general jurisdiction division may approve the settlement.

Holding and Implications

Affirmed.

Direct effect: The trial court's denial of the plaintiff's motion to set aside the settlement was affirmed; the approval of the settlement affecting a minor by a judge of the general jurisdiction division was held proper under the cited statutory provisions and the court's interpretation of jurisdictional authority. The opinion recognizes that procedural protections for minors (e.g., guardian ad litem or guardianship provisions) remain available under the statutory framework cited.

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ROSE ETTA MAUGERI, AS PERSONAL REPRESENTATIVE OF THE DECEDENT, THOMAS JAMES MAUGERI, JR.; THE ESTATE OF SAID THOMAS JAMES MAUGERI, JR., DECEASED; ROSE ETTA MAUGERI, AS SURVIVING SPOUSE OF SAID THOMAS JAMES MAUGERI, JR. AND THOMAS MAUGERI, III AND MELINDA MARIE MAUGERI, BOTH MINORS, BY AND THROUGH THEIR NEXT FRIEND, ROSE ETTA MAUGERI, APPELLANTS. v. JOHN PLOURDE, DARLENE SHIPMAN AND ALLSTATE INSURANCE COMPANY, APPELLEES.

PEARSON, TILLMAN (Ret.), Associate Judge.

Plaintiff Rose Etta Maugeri, suing as an individual, as the personal representative of her husband's estate and as the natural guardian of the two minor children of the marriage, brought an action against defendants John Plourde, Darlene Shipman and Allstate Insurance Company for the wrongful death of her husband. Because the subsequent settlement of the action — reached during trial — affected a minor survivor, the trial judge approved the settlement as provided in Section 768.25, Florida Statutes (1977), of the Wrongful Death Act. Thereafter, the plaintiff' motion to set aside the settlement was denied and this appeal followed.

§§ 768.16-.27, Fla. Stat. (1977).

Under the provisions of Fla.R.App.P. 9.130(a)(5), we have accepted jurisdiction in this matter — filed with us as a plenary appeal — upon a holding that the order sought to be reviewed is in the nature of a denial of a motion ". . . filed pursuant to Fla.R.Civ.P. 1.540. . ."

In her motion to set aside, the plaintiff argued that the settlement was not ". . . properly sanctioned and approved according to law by the appropriate courts. . ." In support of her position, the plaintiff has presented two points on appeal, urging (1) that a trial judge who is a member of the general jurisdiction division of the circuit court lacks the authority to approve the settlement of a minor's wrongful death claim in excess of $5,000 without a guardianship proceeding and (2) that under such circumstances, approval must be by a circuit court judge who is a member of the probate division of the circuit court. We cannot agree with either argument and, accordingly, we affirm the appealed order.

Taking the plaintiff's second point first, i.e., that only a circuit court judge who is a member of the probate division may approve such a settlement, we find that the plaintiff's position is contrary to the plain language of the Wrongful Death Act. Section 768.25, Florida Statutes (1977), thereof provides:

Court approval of settlement. — While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

Section 768.23, Florida Statutes (1977), provides:

Protection of minors and incompetents. — The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law.

In Section 744.387(3)(a), Florida Statutes (1977), of the Florida Guardianship Law, concerning the procedures for the settlement of a minor's claim, it is stated:

No settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action.

It is clear from this language that the only court having jurisdiction to approve the settlement of a minor's claim in a pending action is the court in which the action is pending. Although the plaintiff claims that a minor litigant may need protection from the estate or the natural guardian in the apportionment proceedings, nonetheless, the law provides for such protection through the appointment of a guardian ad litem when the court thinks such protection is advisable. See Fla.R. Civ.P. 1.210(b) and Smith v. Langford, 255 So.2d 294 (Fla.1st DCA 1971).

The plaintiff's first point in effect claims that there must be a proceeding under the Florida Guardianship Law, Chapter 744, Florida Statutes (1977), before there can be an approval of the settlement of a minor's claim, where the amount of the settlement is more than $5,000. In this case, the important statutory provisions are found in Section 744.301, Florida Statutes (1977), which states:

(2) The natural guardian or guardians may collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust or proceeds from a life insurance policy to the child during minority, or otherwise owed by the child during minority, when the amount involved in any instance does not exceed $5,000, without appointment, authority or bond.

(3) All instruments executed by a natural guardian under the powers provided for in subsection (2) shall be binding on the ward.

This statutory section obviously requires protection of the minor's property after the settlement has been approved by the trial court. Cf. Tucker v. Shelby Mutual Insurance Co. of Shelby, Ohio, 343 So.2d 1357 (Fla.1st DCA 1977). This is reinforced by Section 744.387, Florida Statutes (1977), of the Florida Guardianship Law, which is quoted from above in our discussion of point two and which specifically provides for approval of settlements by ". . . the court having jurisdiction of the action."

We think it appropriate to comment that every judge of the circuit court possesses the full jurisdiction of that court in his of her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits' judicial business. See In the Interest of Wendy Dee Peterson, 364 So.2d 98 (Fla.4th DCA 1978); and Guardianship of Bentley, 342 So.2d 1045 (Fla.4th DCA 1977).

Affirmed.