June 6, 2004


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Judge  George W. Greer    


July 6, 2004

UCN 521990GA002908XXGDXX

Ref No. 90-2908-GD-003

Order Dissolving Writ of Quo Warranto and

Dismissing Petition for Writ of Quo Warranto

 THIS CAUSE came before the Court for hearing on June 16, 2004, on the Respondent’s Amended Motion to Dismiss the Petition for Writ of Quo Warranto and Amended Motion to  Dissolve the Writ of Quo Warranto filed June 11, 2004.  Patricia Fields Anderson, Esq,  appeared for the Petitioners and George J. Felos, Esq, appeared for the Respondent.

The Court, having reviewed the motions and case law presented and having considered the arguments presented by counsel for the  parties, now finds that the Petitioners have an adequate remedy at law since they previously filed on November 15, 2002, a Petition to Remove Guardian and to Appoint Successor Guardian.  Logic and reason wuld lead us to conclude that an extraordinary remedy should not be afforded where an ordinary remedy is available. See State ex rel. Gibbs v. Bloodworth, 134 Fla, 369, 184 So. 1 (1938) (“The writ of quo warranto will not be issued where there is another ample and sufficient remedy provided by law for the relief sought. State ex rel. Landis v. Duval County, 105 Fla. 174, 141 So. 173, 176[1932].”)  While these authorities are old and predate the current Rules of Civil Procedure, they are nonetheless still good law and are controlling.

Petitioners have implicitly acknowledged that there is a remedy available to them through the usual statutory and rule procedure by previously filing the petition for removal of the guardian. It has not been shown to the Court that there is any relief it may grant through the quo warranto writ procedure that could not be granted by  means of the pending petition for removal of the guardian or by amendments to that petition. Additionally, extraordinary relief will not be granted in cases where the granting of it will result in confusion and disorder.  See State ex rel. Pooser v Wester, 126 Fla. 49, 180 So. 736(1936). The fact that both the petition to remove the guardian and the quo warranto writ are actively being pursued can only lead to procedural confusion.

When the Court issued the writ, it was of the opinion that the guardian, being appointed by the court, was acting pursuant to state authority,  and believed that further amplification of this status could be brought forward through filings by the attorneys. Such has been done and the  court is now persuaded by the Middle District  of Florida’s holding in Hicks v Lewis, 1996 WL 172994 (M.D. Fla. April 5, 1996), that the court’s appointment of a guardian  does not provide a sufficient basis for attributing the guardian’s conduct to state action. While this is not the predicate upon which this Order is based, it is nonetheless additional authority for it.

For the foregoing reasons, it is therefore

ORDERED AND ADJUDGED that the Amended Motion to Dismiss the Petition for Quo Warranto and the Amended  Motion to Dissolve Writ of Quo Warranto are GRANTED.






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