Posted by Nydia Streets of Streets Law in Florida Domestic Violence
When a person is determined to be legally incompetent in Florida, that person is afforded certain protections as it relates to lawsuits filed against the person. In the case Edwell v. Trainor, 5D19-1115 (Fla. 5th DCA October 11, 2019), a Florida domestic violence court’s order was challenged by a party deemed to be incompetent by a court.
A Florida restraining order against stalking was entered against a party deemed to be incompetent after that party did not appear at the hearing on the stalking allegations. The evidence showed the party was personally served with the petition, but unbeknownst to the court, several years earlier, a different division of the same court adjudicated the party incompetent and assigned a guardian to him. According to the appellate opinion, “Among the rights removed from [the party] was the right to ‘make informed decisions regarding the right to sue, or assist in the defense of suits of any nature against him.’”
Accordingly, a lawyer for the party filed a motion to set aside the judgment based on the fact that the party’s court-appointed guardian had not been served with notice of the proceeding. The motion was denied and the party appealed. The appellate court reversed the denial, holding “When a legal guardian has been appointed for the incompetent person, process against the incompetent person must be served on the legal guardian as provided in section 48.031, Florida Statutes. § 48.042(1)(a), Fla. Stat. (2017). That did not occur here. Proper service of process is indispensable for the court to have personal jurisdiction over the incompetent person, unless properly waived, even though the court may have subject matter jurisdiction. Until proper service of process is made on the incompetent person, there can be no determination of the parties' adverse claims. The trial court never properly obtained personal jurisdiction over [the party] in this matter. As a result, the final injunction should have been set aside pending proper service of process. For these reasons, we reverse the trial court's order and remand for further proceedings.” (internal citations omitted).
If you have been served with a petition for injunction against domestic violence in Florida or you are seeking an order of protection, discuss your case with a Miami family law attorney. Doing so may help you form the best plan in moving forward.