CLEMENTE LOPEZ AND BARBARA LOPEZ, HIS WIFE, INDIVIDUALLY, AND AS NEXT FRIENDS, GUARDIANS AND NATURAL PARENTS OF CARLOS LOPEZ, A MINOR, AND IRA M. ELEGANT, AS GUARDIAN AD LITEM, APPELLANTS,
v.
VARIETY CHILDREN'S HOSPITAL, ET AL., APPELLEES
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Parents of a minor plaintiff in a medical malpractice action sought to vacate a settlement and voluntary dismissal, arguing the settlement was void because no guardian ad litem was appointed for the minor before court approval. The Florida appellate court affirmed the settlement, holding that failure to appoint a guardian ad litem does not render a settlement void and that no conflict of interest existed requiring such appointment.
The court held that failure to appoint a guardian ad litem does not render a settlement void because no due process violation is established by such omission. Additionally, the court held that where no conflict of interest exists between parents and their minor child, no guardian ad litem appointment is required before approving a settlement.
[1] A failure to appoint a guardian ad litem for a minor before approving a settlement, where such appointment is required, does not render the settlement and subsequent dism…
[2] A due process violation is not established solely by the failure to appoint a guardian ad litem prior to the approval of a minor's settlement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the failure to appoint a guardian ad litem to represent a minor prior to the court approving a settlement in a lawsuit brought on behalf of the minor, where such appointment is required, does not render the settlement and subsequent voluntary dismissal void [as opposed to voidable] so as to subject it to a motion to vacate under Fla.R.Civ.P. 1.540(b)(4). This is so because a due process violation is not established by such a showing.”
Establishes the primary holding that absence of required guardian ad litem appointment creates a voidable, not void, settlement lacking due process violation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClemente and Barbara Lopez, as guardians and natural parents of Carlos Lopez, a minor, settled a medical malpractice action on his behalf. The trial c…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by Clemente and Barbara Lopez, as guardians and natural parents of Carlos Lopez, a minor, and Ira M. Elegant, as guardian ad litem, from the denial of Mr. and Mrs. Lopez’ motion to vacate a voluntary dismissal based on a settlement agreement which had previously been entered in a medical malpractice action. The sole legal basis urged below for vacating this voluntary dismissal and settlement was that such dismissal was void, and therefore subject to vacation under Fla.R.Civ.P. 1.540(b)(4), because a guardian ad litem was not appointed to represent Carlos Lopez at the time the settlement of the medical malpractice action was approved by the trial court. We affirm for two reasons.
First, the failure to appoint a guardian ad litem to represent a minor prior to the court approving a settlement in a lawsuit brought on behalf of the minor, where such appointment is required, does not render the settlement and subsequent voluntary dismissal void [as opposed to voidable] so as to subject it to a motion to vacate under Fla.R.Civ.P. 1.540(b)(4). This is so because a due process violation is not established by such a showing. Savage v. Rowell Distrib. Corp., 95 So. 2d 415 (Fla.1957); McDaniel v. McElvy, 91 Fla. 770, 813, 108 So. 820, 835 (1926).
Second, in any event, no conflict of interests was ever alleged below between Mr. or Mrs. Lopez and their son Carlos sufficient to trigger the appointment of a guardian ad litem for Carlos. No showing was ever made that the Lopezes sought to enrich themselves from the subject settlement to the detriment of their son; to the contrary, the showing below is clear that the Lopezes have throughout this litigation acted to protect the interests of their son, and have even sought to set aside the settlement below in that endeavor. The mere fact that the settlement may have arguably been inadequate to pay for Carlos’ nursing home care does not, as urged, create retroactively a conflict of interests between Carlos and his parents. Absent such a conflict of interests, the trial court was not required to appoint a guardian ad litem to represent Carlos prior to approving the settlement below. Burden v. Dickman, 547 So. 2d 170, 172 (Fla. 3d DCA), rev. denied, 557 So. 2d 866 (Fla.1989); § 744.391, Fla. Stat. (1985).
Affirmed.
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Wilson v. Griffiths, 811 So. 2d 709 (Fla. 5th DCA 2002)…that would require appointment of a guardian ad litem under the statute. Therefore, we find that Wilson had no potential interest adverse to Shaber that would necessitate the appointment of a guardian ad litem. See Lopez v. Variety Children’s Hosp., 600 So. 2d 506 (Fla. 3d DCA) (holding that absent a conflict of interest between the parent acting as guardian and the minor, the trial court is not required under the statute to appoint a guardian ad litem to represent the minor prior to approving the settlement)…
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Schmidt v. Liza Nipper (Fla. 1st DCA 2020)…. White, 661 So. 2d 940, 940-41 (Fla. 5th DCA 1995). However, the failure to appoint a guardian ad litem renders a judgment voidable, not void. See Brown v. Ripley, 119 So. 2d 712, 715 (Fla. 1st DCA 1960); see also Lopez v. Variety Children’s Hosp., 600 So. 2d 506, 506 (Fla. 3d DCA 1992). As to the appellant’s arguments concerning his own due process rights, they revolve around the trial court’s failure to consider the proper evidence and standards to resolve his paternity case. For instance, he asserts that…
Authorities Cited
- Nannie McDaniel v. McElvy, 108 So. 820 (Fla. 1926)
- Savage v. Rowell Distrib. Corp., 95 So. 2d 415 (Fla. 1957)
- Burden v. Robert J. Dickman Ad Litem of Adam Paul Burden, 547 So. 2d 170 (Fla. 3d DCA 1989)