Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RAYFIELD M. McGHEE, JR., Appellant, v. IN RE ESTATE OF RAYFIELD M. McGHEE, SR., Appellee. No. 2D22-1721 November 3, 2023 Appeal from the Circuit Court for Hillsborough County; Monique M. Scott, Judge. William S. Pollack of William S. Pollack, P.A., Miami, for Appellant. No appearance for Appellee. KHOUZAM, Judge. In this probate appeal, Rayfield M. McGhee, Jr., the personal representative of the estate of Rayfield M. McGhee, Sr., timely challenges an order dismissing the administration of his father's estate. Because the trial court did so without notice, thereby denying Mr. McGhee due process, we reverse and remand for further proceedings. Background The decedent, Rayfield M. McGhee, Sr., died intestate in March 2017, leaving two heirs: his son, Mr. McGhee, and his granddaughter, Morgan Gabrielle McGhee Wangia. Both heirs petitioned for administration, and after two years of litigation, Mr. McGhee was appointed the personal representative of his father's estate. Thereafter, Ms. Wangia's counsel withdrew, and she was unrepresented for nearly two years. During that period, Mr. McGhee filed an inventory and various motions and petitions pursuing the administration of the estate. Several such requests were granted. In October 2020, new counsel appeared on behalf of Ms. Wangia, who remained represented throughout the remainder of the proceedings. In June 2021, the court issued an order to show cause for failure to complete procedural steps. The body of this order states in full: EXAMINATION OF THE ABOVE CAPTIONED COURT FILE INDICATES THE FOLLOWING PROCEDURAL STEPS HAVE NOT BEEN COMPLIED WITH AS REQUIRED BY FLORIDA STATUTE OR FLORIDA RULE OF PROBATE AND GUARDIANSHIP PROCEDURE: Final Accounting of PR/Waiver 12/31/2020 Order for Discharge Due 12/31/2020 Petition for Discharge Due 12/31/2020 THEREFORE, IT IS ORDERED AND ADJUDGED THAT THE ABOVE ATTORNEY AND PERSONAL REPRESENTATIVE SHALL CORRECT THE INDICATED DEFICIENCY NO LATER THAN 5 DAYS BEFORE THE DATE OF THE ORDER TO SHOW CAUSE HEARING HONORABLE MONIQUE M SCOTT IN PLANT CITY COURTHOUSE, COURTROOM 1, 301 N MICHIGAN AVE, PLANT CITY, FL 33563 ON AUGUST 25, 2021 AT 1:30 PM TO SHOW CAUSE WHY NOT. The order does not mention dismissal or closing of the case. 2 After the entry of the order but before the August 25, 2021, show cause hearing, Mr. McGhee filed a petition for authorization to liquidate a certain account and transfer it to the estate, and also served a second request for production of documents upon Ms. Wangia. Mr. McGhee also sought an extension of time to close the estate, asserting the delay was due largely to Ms. Wangia's contesting the estate but then declining to participate in the proceedings for nearly two years while she was pro se. Ms. Wangia responded by objecting to the petition and seeking Mr. McGhee's removal as personal representative. She also objected to producing some documents but represented that she would produce others before October 2021. She filed a motion for protective order but did not set it for a hearing. Although the record reflects that the August 25, 2021, show cause hearing occurred, no transcript of the hearing has been submitted. An amended order entered after the hearing says only: "90 days extension, if not resolved set hearing." Thereafter, Mr. McGhee filed several additional notices of intent to serve subpoenas upon banks and healthcare entities. He also filed a petition to determine homestead status of real property. In November 2021, he sought an additional extension of time to close the estate on the basis that Ms. Wangia had not responded to his homestead petition and had also failed to honor her promise to turn over certain documents by October. In March 2022, the trial court entered another order to show cause. The body of this order states in full: EXAMINATION OF THE ABOVE CAPTIONED COURT FILE INDICATES THE FOLLOWING PROCEDURAL STEPS HAVE NOT BEEN COMPLIED WITH AS REQUIRED BY FLORIDA 3 STATUTE OR FLORIDA RULE OF PROBATE AND GUARDIANSHIP PROCEDURE: Final Accounting of PR/Waiver 11/23/2021 Order for Discharge Due 11/23/2021 Petition for Discharge Due 11/23/2021 THEREFORE, IT IS ORDERED AND ADJUDGED THAT THE ABOVE ATTORNEY AND PERSONAL REPRESENTATIVE SHALL CORRECT THE INDICATED DEFICIENCY NO LATER THAN 5 DAYS BEFORE THE DATE OF THE ORDER TO SHOW CAUSE HEARING HONORABLE MONIQUE M SCOTT IN PLANT CITY COURTHOUSE, COURTROOM 1, 301 N MICHIGAN AVE, PLANT CITY, FL 33563 ON APRIL 27, 2022 AT 2:00 PM TO SHOW CAUSE WHY NOT. This order, like the previous one, does not mention dismissal or closing of the case. After issuing this order but before the show cause hearing, the trial court issued an order granting Mr. McGhee's then-pending petition to determine homestead property. The week before the April 2022 show cause hearing, Mr. McGhee filed a response to the March 2022 show cause order. The response identified the recent ruling on his homestead petition, as well as "numerous other matters pending before this Court preventing the closing of this estate administration," including Ms. Wangia's yet- unfulfilled promise to produce certain documents by October 2021. The morning of the April 2022 show cause hearing, Ms. Wangia filed a response to the March 2022 show cause order. Therein, she renewed her objection to any extension of time and again requested Mr. McGhee's removal as personal representative. Like the show cause orders, the response does not mention dismissal. Rather, it requests that the court appoint Ms. Wangia as successor personal representative. 4 At the hearing, Ms. Wangia's counsel asserted that Mr. McGhee was not timely administering the estate. Counsel identified that prior orders to show cause had been issued but the case remained pending. Counsel specifically objected to the petition for extension of time and asked for removal of Mr. McGhee as personal representative. She did not request dismissal of the action. In response, Mr. McGhee's counsel identified several issues precluding the closing of the estate. Among these were the pending document requests. In Mr. McGhee's counsel's words: "So we're trying to move ahead, but what we need to do in the face of the opposition that we've received, we need to get documents. We need to move forward." When the court asked counsel "Did you need those documents to close out the estate?" counsel responded "We certainly do, Your Honor." After some further argument, the court sua sponte struck all motions filed more than thirty days prior on the basis that the court's policies and procedures required any motions to be heard within thirty days of filing. The court then said: Additionally, the last time we were here, I do recall ordering that this estate be closed, and I was under the impression that the two parties were going to work to come to some sort of an agreement or, in the alternative, set it for hearing in front of the [c]ourt, which has not been done. So for those reasons, this case is administratively dismissed and the letters are revoked. Mr. McGhee's counsel responded stating that he had not set the motions for hearing because "[w]e were waiting for opposing counsel to give us responses and never got that." The court responded that it had policies for when opposing counsel is nonresponsive and counsel could have moved to compel. The court then again stated: "All right. So it's 5 administratively dismissed. The letters are revoked. This concludes today's hearing. Thank you both very much." This appeal followed. Analysis "Our review of whether a trial court complied with the requirements of due process is de novo." Nationstar Mortg., LLC v. Weiler, 227 So. 3d 181, 183 (Fla. 2d DCA 2017) (citing Crescenzo v. Marshall, 199 So. 3d 353, 355 (Fla. 2d DCA 2016)). "Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice," and "[t]o allow a court to rule on a matter without proper pleadings and notice is violative of a party's due process rights." Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244, 1252 (Fla. 2008) (alteration and emphasis in original) (quoting Carroll & Assocs., P.A. v. Galindo, 864 So. 2d 24, 28-29 (Fla. 3d DCA 2003)); see also Weiler, 227 So. 3d at 183 ("[A] trial court may violate a party's 'due process rights by hearing and determining matters that were not the subject of appropriate notice.' " (quoting Levitt v. Levitt, 454 So. 2d 1070, 1071 (Fla. 2d DCA 1984))). Here, the record reflects a fatal deficiency of notice that the action was subject to dismissal before the court dismissed the case. The orders to show cause in the record do not mention dismissal, nor do they cite to any legal authority to that effect. Indeed, even Ms. Wangia's responses opposing various requests by Mr. McGhee did not seek such relief; rather, she requested to succeed him as the personal representative. It is true that the court stated at the April 2022 hearing that it recalled ordering that the estate be closed at the last hearing, and our record does not include the transcript of that previous hearing in August 2021. There may have been some confusion, as evidenced by an order entered the day of that prior hearing that contained irreconcilably 6 conflicting rulings: the court checked boxes saying both that the time to close the estate was extended by ninety days and that the cause was also hereby dismissed.1 But that initial order was soon superseded by the operative amended order, which simply states "90 days extension, if not resolved set hearing." It does not mention anything about dismissal. Thus, at bottom, the record is clear that the trial court dismissed the action without sufficient notice that dismissal was at issue. Moreover, it did so despite what appear to be plausible grounds for the delay in administration. Accordingly, we reverse the order of dismissal and remand the action for further proceedings. Reversed and remanded. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. __________________________ Opinion subject to revision prior to official publication. 1 That order also conflicted with the clerk's minutes dated the same day, which reflect only that the extension was granted—not that the case was dismissed. 7