DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

THOMAS J. FOSTER, SR.,

an alleged incapacitated person,

Petitioner,

v.

CHRISTA RADULOVICH,

the emergency temporary guardian;

SUSAN FOSTER MELENDY;

THOMAS J. FOSTER, JR.; and

SHARON ROPER,

Respondents.

No. 2D20-2988

September 29, 2021

Petition for Writ of Mandamus to the Circuit Court for Pinellas 

County; Sherwood Coleman, Judge.

J. Ronald Denman, Latasha Lordes, and Victoria McLaughlin of 

Bleakley Bavol Denman & Grace, Tampa, for Petitioner.

Brandon D. Bellew, Caitlein J. Jammo, Caitlin M. Powell of 

Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for 

Respondent, Thomas J. Foster, Jr.
2

Edward C. Castagna, Jr., of Castagna Law Firm, P.A., Clearwater, 

for Respondent, Susan Foster Melendy.

Thomas G. Tripp of Law Offices of Thomas G. Tripp, Pinellas Park, 

for Respondent, Christa Radulovich.

No appearance for Respondent, Sharon Roper.

ATKINSON, Judge.

Thomas J. Foster, Sr., petitions this court for a writ of 

mandamus to quash the trial court's order denying his motion to 

substitute attorney J. Ronald Denman as his counsel for the 

underlying guardianship proceeding.1 We treat Mr. Foster's petition 

as a petition for writ of certiorari and grant the writ.

The Department of Children and Families (DCF) filed a petition 

for appointment of a plenary guardian over the person and property 

of Mr. Foster, an alleged incapacitated person. The trial court 

appointed counsel for Mr. Foster for the guardianship proceedings 

pursuant to section 744.331(2)b, Florida Statutes (2020). 

Appointed counsel attended the hearing on DCF's petition, but Mr. 

1

 Respondent Susan Foster Melendy filed a response in 

support of Mr. Foster's petition, and Respondents Thomas J. 

Foster, Jr. and Christa Radulovich filed responses in opposition to 

the petition. Foster, Jr., and Radulovich will be referred to 

collectively as Respondents throughout this opinion.
3

Foster was not present. The parties—including appointed counsel 

on behalf of Mr. Foster—stipulated to the appointment of Christa 

Radulovich (Temporary Guardian) as emergency temporary 

guardian over Mr. Foster's property. The emergency temporary 

guardianship letters delegated Mr. Foster's right to contract to the 

Temporary Guardian and were set to expire on September 20, 2020.

Thereafter, Attorney Denman filed a motion seeking 

appointment as Mr. Foster's counsel for the guardianship 

proceedings. DCF and Respondents opposed the motion, arguing 

that Mr. Foster could not hire Attorney Denman because the trial 

court had removed his right to contract through the emergency 

temporary guardianship. At a hearing on the motion, Mr. Foster 

explained to the trial court that he had met with Attorney Denman 

to discuss the guardianship proceedings and wanted Attorney 

Denman to serve as his attorney. The trial court denied the motion 

for appointment as counsel. 

After the hearing but before the trial court denied the motion 

for appointment, Mr. Foster filed a motion to substitute Attorney 

Denman as his counsel for the guardianship proceedings. The trial 

court did not immediately rule on the motion. On September 21, 
4

2020, the day after the emergency temporary guardianship letters 

expired, Attorney Denman filed a notice of appearance as Mr. 

Foster's attorney. The trial court then entered amended emergency 

temporary guardianship letters nunc pro tunc to September 20, 

2020, denied the motion to substitute Attorney Denman as counsel, 

and struck his notice of appearance as a nullity. Attorney Denman, 

on behalf of Mr. Foster, challenges the order denying the motion to 

substitute counsel and striking his notice of appearance. 

"To obtain a writ of certiorari, the 'petitioner must establish (1) 

a departure from the essential requirements of the law, (2) resulting 

in material injury for the remainder of the trial (3) that cannot be 

corrected on postjudgment appeal.' " Brundage v. Evans, 295 So. 

3d 300, 303 (Fla. 2d DCA 2020) (quoting Parkway Bank v. Fort 

Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 

1995)). We have jurisdiction because an erroneous denial of a 

motion for substitution of counsel causes the kind of irreparable 

harm for which certiorari lies because the litigant is deprived of his 

or her choice of counsel for the entire proceeding and this 

deprivation cannot be remedied on appeal. See Nader v. Fla. Dep't 

of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012) 
5

(explaining that a court must first examine the second and third 

prongs of the test for certiorari, often referred to as "irreparable 

harm," to determine whether it has jurisdiction to hear the petition); 

cf. Holmes v. Burchett, 766 So. 2d 387, 388–89 (Fla. 2d DCA 2000) 

(granting an alleged incapacitated person's petition for writ of 

certiorari to quash a trial court's denial of her motion for 

substitution of counsel).

After an interested person initiates guardianship proceedings 

by filing a petition to determine incapacity pursuant to sections 

744.3201 and 744.331(1), the trial court is required to appoint an 

attorney for the alleged incapacitated person. § 744.331(2)b. 

Section 744.331(2)b provides that "[t]he alleged incapacitated 

person may substitute her or his own attorney for the attorney 

appointed by the court." An alleged incapacitated person is 

permitted to substitute counsel until the trial court determines 

incapacity by clear and convincing evidence. See id.; cf. Holmes, 

766 So. 2d at 388–89 (holding that an alleged incapacitated person 

subject to an emergency temporary guardianship is presumed 

competent to contract and has a right to substitute counsel during 

guardianship proceedings until incapacity is established); In re 
6

Guardianship of Bockmuller, 602 So. 2d 608, 609 (Fla. 2d DCA 

1992) (holding that counsel for an incapacitated person must be 

contracted for by a guardian or appointed by the court); 

§ 744.1012(3) ("[I]t is the purpose of this act to promote the public 

welfare by establishing a system that permits incapacitated persons 

to participate as fully as possible in all decisions affecting them 

. . . ."). 

After a petition to determine incapacity has been filed, but 

before a guardian has been appointed, the trial court may appoint 

an emergency temporary guardian for the person, property, or both, 

of an alleged incapacitated person. § 744.3031(1). While the trial 

court must make specific findings that there is an imminent danger 

to the health of the "alleged incapacitated person" or that the 

person's property is in danger of being wasted, the trial court is not 

required to determine that the person is incapacitated to appoint an 

emergency temporary guardianship. § 744.3031(1). Rights that are 

not specifically enumerated by the trial court in emergency 

temporary guardianship letters are retained by the alleged 

incapacitated person because the "powers and duties of the 
7

emergency temporary guardian must be specifically enumerated by 

court order." See § 744.3031(1). 

Respondents acknowledge that section 744.331(2)b permits 

Mr. Foster to substitute counsel to represent him in proceedings to 

determine his incapacity. However, they argue that Mr. Foster 

cannot personally exercise his statutory right to substitute counsel 

because the trial court removed his right to contract and delegated 

it to the temporary guardian through the emergency temporary 

guardianship. They argue that permitting an alleged incapacitated 

person whose right to contract has been removed pursuant to an 

emergency temporary guardianship to contract with an attorney 

would undermine the purpose of an emergency temporary 

guardianship—to protect the alleged incapacitated person and his 

or her property. See § 744.3031(1). Respondents conclude that if 

Mr. Foster wanted to substitute his court-appointed counsel, he 

should have expressed his wishes to his temporary guardian who 

would make the ultimate decision regarding whether to retain 

Attorney Denman, subject to the trial court's review for breach of 

fiduciary duty. See Jacobsen v. Busko, 262 So. 3d 238, 239 (Fla. 3d 

DCA 2018) ("Only the ward's plenary guardian . . . has the capacity 
8

to enter into a contract with an attorney on behalf of the ward [after 

the removal of the ward's right to contract following a determination 

of incapacity]." (citing In re Guardianship of Bockmuller, 602 So. 2d 

at 609)).

Section 744.3031(1) gives the trial court the general authority 

to delegate certain rights of the alleged incapacitated person to a 

guardian who has the power to exercise those rights on the alleged 

incapacitated person's behalf. The statute confers "authority" on 

the temporary guardian but makes no express mention of the 

removal of a temporary ward's rights. See § 744.3031. Delegation 

of specifically delineated authority has the consequence of removing 

corresponding rights from the alleged incapacitated person subject 

to an emergency temporary guardianship to protect the person or 

property of the individual from danger that may result from the 

person's alleged incapacity if immediate action is not taken. See

§ 744.3031(1). Among those rights removed from the alleged 

incapacitated person might be the right to enter into contracts.

However, section 744.331(2)b specifically provides that an 

alleged incapacitated person has the right to substitute appointed 

counsel with counsel of his or her choice during proceedings to 
9

determine incapacity; this right, by logic and practicality, must 

entail the right to enter into an agreement with the attorney of his 

choosing.2 Thus, while section 744.3031(1) is broad enough to 

allow removal of the right to contract generally, section 744.331(2)b 

effectively prohibits the trial court from removing the alleged 

incapacitated person's right to contract with an attorney. In other 

words, because the statute confers on the alleged incapacitated 

person the right to contract with and substitute counsel, this 

constitutes an exception from the general authority of the trial court 

to remove the alleged incapacitated person's rights by conferring 

authority on an emergency temporary guardian. See Fla. Virtual 

Sch. v. K12, Inc., 148 So. 3d 97, 102 (Fla. 2014) ("When reconciling 

statutes that may appear to conflict, the rules of statutory 

construction provide that a specific statute will control over a 

general statute . . . ."). 

2

 While an attorney-client relationship might be capable of 

formation absent an explicit and express agreement, such an 

arrangement typically occurs as a consequence of the attorney's 

representations made or services rendered to the client. Here, the 

issue is whether the client may be permitted to act on his own 

behalf to procure counsel—an endeavor that we presume for 

purposes of this opinion to most likely entail a contract, in some 

form or another, entered into with chosen counsel.
10

Respondents' reliance on Jacobsen and In re Guardianship of 

Bockmuller is misplaced. The wards in these cases were 

incapacitated persons subject to plenary guardianships. Jacobsen, 

262 So. 3d at 239; In re Guardianship of Bockmuller, 602 So. 2d at 

609. The right to substitute counsel in section 744.331(2)b only 

applies to alleged incapacitated persons, not to individuals whose 

incapacity has been determined by clear and convincing evidence. 

Unlike the wards in Jacobsen and In re Guardianship of Bockmuller, 

Mr. Foster was an alleged incapacitated person and, as such, had a 

statutory right to substitute counsel pursuant to section 

744.331(2)b which the trial court is not authorized to remove 

pursuant to section 744.3031(1). 

Respondents also suggest that Holmes, 766 So. 2d 387, one of 

the cases relied on by Mr. Foster, undermines Mr. Foster's position 

because the trial court had not removed the alleged incapacitated 

person's right to contract in that case. See id. at 388, 388 n.2. In 

Holmes, this court concluded that the trial court departed from the 

essential requirements of the law by prohibiting the alleged 

incapacitated person from substituting appointed counsel for the 

counsel of her choice because the trial court had not removed her 
11

right to contract and, thus, she was presumed competent to 

contract. Id. at 388. However, our conclusion in this case is not 

undermined by our earlier decision in Holmes because we did not 

consider in that case whether the general authority given to the trial 

court pursuant to section 744.3031(1) allows the trial court to 

prevent an alleged incapacitated person from exercising his or her 

explicit right to contract with and substitute counsel pursuant to 

section 744.331(2)b. A person subject to an emergency temporary 

guardianship remains an alleged incapacitated person until such 

time as he is adjudicated incapacitated and is free to exercise all 

rights not otherwise delegated to a guardian pursuant to an 

emergency temporary guardianship, including the right to 

substitute counsel. See §§ 744.3031(1), .331(2)(b).3 

3

 After this case was perfected, Mr. Foster's court-appointed 

attorney for the guardianship proceedings below filed documents 

with this court indicating that the trial court determined Mr. Foster 

to be incapacitated. However, this postperfection determination of 

incapacity does not prevent this court from concluding that the trial 

court departed from the essential requirements of the law by 

denying Mr. Foster's motion to substitute counsel to represent him 

during proceedings to determine incapacity at a time when his 

incapacity was merely alleged.
12

As an alleged incapacitated person, Mr. Foster had a right to 

substitute his court-appointed attorney with the attorney of his 

choice until the trial court determined his incapacity. See

§ 744.331(2)b. By denying his motion to substitute counsel, the 

trial court departed from the essential requirements of the law. We 

consider Mr. Foster's petition as one for a writ of certiorari, grant 

the writ, and quash the trial court's order denying his motion to 

substitute counsel. 

Petition for writ of certiorari granted; order quashed.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.