Third District Court of Appeal

State of Florida

Opinion filed November 12, 2020.

Not final until disposition of timely filed motion for rehearing.

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No. 3D19-2431

Lower Tribunal Nos. 15-4749 & 18-5423

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Gary Warlen, Trustee,

Appellant,

vs.

Catherine Badeaux, et al.,

Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade 

County, Jorge E. Cueto, Judge.

David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Law Office 

of Steven Friedman, and Steven Friedman (Pembroke Pines), for appellant.

Billbrough & Marks, P.A., and Geoffrey B. Marks; Spiegelman Law, and 

Guy G. Spiegelman, for appellees.

Before SCALES, LINDSEY and BOKOR, JJ. 

SCALES, J.
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Appellant Gary Warlen appeals a November 1, 2019 non-final order in a trust 

and guardianship dispute with appellee Catherine Badeaux. For the following 

reasons, we affirm.

I. Relevant Background

Badeaux is the ward of a guardianship. Warlen is the trustee of a trust (the 

“Trust”) that granted a life estate in a house to Badeaux, the Trust’s main 

beneficiary. When the house fell into disrepair, Warlen sought to terminate 

Badeaux’s life estate in the house and to make the guardianship responsible for the 

house’s repairs. 

After conducting a two-day, evidentiary hearing, the trial court entered the

November 1, 2019 non-final order that is the subject of this appeal. The trial court’s

detailed, twelve-page order: (i) found that extensive repairs and mold remediation 

are required at the house; (ii) allocated the costs of the repairs between the Trust 

($35,000) and the guardianship ($15,000); and (iii) required Warlen to make the 

repairs identified in the order. Specifically, this order “direct[s] . . . Warlen . . . to 

immediately retain a licensed, mold remediation company and to remove all from 

the residence” at Warlen’s sole expense. The order further directs Warlen to make 

other repairs to the residence that are identified in an inspection report. Regarding

the life estate termination issue, the November 1, 2019 order ratified and elaborated 

upon an earlier order that dismissed Warlen’s effort to terminate the life estate. The 
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order also made the related factual finding that Badeaux, who relocated temporarily 

to an assisted living facility, lacked resources to continue to reside in the assisted 

living facility and “needs to return to her homestead and life estate in the subject 

residence, which is more affordable” than the assisted living facility. 

Warlen moved for rehearing. On November 21, 2020, the trial court entered 

an unelaborated order denying Warlen’s rehearing motion. This appeal timely 

ensued. We affirm.1

II. Analysis

A. Termination of Life Estate

Our initial consideration is whether we have jurisdiction to review that portion 

of the trial court’s November 1, 2020 non-final order that denies Warlen’s motion 

to terminate Badeaux’s life estate. Warlen argues that we have jurisdiction under 

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) because the order determines 

“the right to immediate possession of property.” We agree. Had the trial court 

1 Warlen also filed with the lower court a motion seeking an order appointing a 

receiver to manage the subject property. As part of this appeal, Warlen seeks 

appellate review of what Warlen characterizes as the trial court’s denial of this 

motion. While we would normally have jurisdiction to review a non-final order 

denying a motion to appoint a receiver, see Fla. R. App. P. 9.130(a)(3)(D), our 

review of the record indicates that the trial court has not entered a written order on 

Warlen’s motion to appoint a receiver. We, therefore, dismiss Warlen’s appeal of 

the receivership issue, without prejudice to Warlen timely appealing a properly 

rendered written order that adjudicates the motion. See Slizyk v. Smilack, 901 So. 

2d 999, 1000 (Fla. 4th DCA 2005).
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terminated Badeaux’s life estate, the Trust would have assumed immediate

possession of the house, particularly because Badeaux had moved to an assisted 

living facility.

On the merits, we conclude that Warlen has not met his significant burden to 

establish that no reasonable trial judge would have left the life estate intact.

Canakaris v. Canakaris, 382 So 2d 1197, 1203 (Fla. 1980). The trial court’s 

November 1, 2019 order contemplates Badeaux’s return home from an assisted 

living facility once the repairs are performed. The trial court assigned to the 

guardianship $15,000 for the cost of those repairs. The trial court’s declining to 

terminate the life estate was compatible with these findings. We discern no abuse of 

discretion.

B. Allocation of Repair Costs

Again, our initial consideration is whether we have jurisdiction to review this 

portion of the trial court’s November 1, 2019 non-final order. The order requires 

Warlen to “immediately retain a licensed, mold remediation company and to remove 

all mold from the residence . . . .” The order also requires Warlen to make 

approximately $35,000 in repairs to the house. This portion of the order is injunctive 

in nature; therefore, we have jurisdiction to review it. See Fla. R. App. P. 

9.130(a)(3)(B); People’s Tr. Ins. Co. v. Bravo, 300 So. 3d 314, 315 (Fla. 3d DCA 

2020).
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On the merits, Warlen argues that the allocation of repair costs between the 

Trust and the guardianship is inequitable because Badeaux’s allowing the house to 

fall into disrepair distorts the Trust’s financial responsibility toward the house. Our 

review, though, is not based upon whether we agree or disagree with the trial court’s 

conclusions, but whether those conclusions are supported by competent, substantial 

evidence. Underwater Eng’g Servs., Inc. v. Util. Bd. of City of Key West, 194 So. 

3d 437, 444 (Fla. 3d DCA 2016). The trial court conducted an evidentiary hearing 

over the course of two days. The resulting order contains specific findings, supported 

by the record, that delineate: (i) the necessary, outstanding repairs to the house; (ii) 

the cost of each of those repairs; and (iii) the repairs for which the Trust is 

responsible. Further, competent, substantial evidence supported the conclusion that 

the Trust bore both a greater responsibility for the outstanding repairs and full 

responsibility for the mold remediation. See Coconut Grove Acquisition, LLC v. S 

& C Venture, 240 So. 3d 92, 95 (Fla. 3d DCA 2018) (“The trial court’s finding is 

supported by competent substantial evidence, and thus, we will not second guess the 

trial court on appeal.”).

We therefore affirm the trial court’s allocation of repair costs and the related 

injunctive portion of the order because the trial court’s findings and conclusions are 

supported by competent, substantial evidence. 
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III. Conclusion

To the extent that Warlen has sought review related to his motion to appoint 

a receiver, we dismiss the appeal, without prejudice to Warlen seeking timely review 

of a properly rendered written order on the motion. We otherwise affirm the trial 

court’s November 1, 2019 non-final order and its November 21, 2019 order denying 

Warlen’s rehearing motion.

Affirmed in part; dismissed in part without prejudice.