Terri's Fight - (Daily Thread/Updates) November 8 -10

Clear Channel Communications owns the billboard space in Pinellas County. Just thought you might want to know that. Glenn Beck is on Clear Channel too.

Please no spoons. Please send cards and gifts through the Foundation Address which is at terrisfight.org. The family takes stuff to Terri when they visit her.

Your #12. Is that clickable?

You should probably get into the habit of visiting terrisfight.org. A new and improved web site. As soon as humanly possible, they put up court documents there.

Pro-Terri site: www.michaelschiavo.

By the way, there are now over 150 web sites with a Terri page or entirely devoted to Terri's fight. PRETTY AMAZING ISN'T IT?

A "Judge" didn't step in and resume the feeding. IT WAS THE FLORIDA HOUSE, SENATE AND GOVERNOR BUSH. Just thought I'd correct the record on that very important point. I held Jeb Bush's faxed E.O. in my hand when it came to an undisclosed location.

Further, if you visit sptimes.com, there's a little something about Jeb Bush seeking to WIDEN THE INVESTIGATION of what Terri's been through - I hope it means EVERYTHING.

What has been bothering me so much about this whole case is that stupid attorney, George Felos's, contention that people who want to die will naturally stop eating. I buried my mother 18 years ago today and I can tell you, she didn't stop eating so she would die. She stopped eating because her body was already dying and the because of the pain caused by the cancer raging its battle within her.

Having had other friends die of terminal illnesses, I know that Felos has his cause and effect mixed up. You stop eating because your body is dying. You don't stop eating to make your body die.

And this whole Hospice thing has me really riled up. My mother wasn't accepted into Hospice until the day before she died!!! The same thing happend to a woman I worked with, her husband wasn't admitted either until the day before he died. How can you have a non-terminally ill person living at a Hospice for 2 years!!

And finally, my best friend is a social worker who spent many years working at one of the top geriatric hospitals in the country, and she assisted 100's of patients in doing up living wills. My father is a very healthy 94 but she was telling us that he should get a living will because , at least here in Connecticut, I would not be allowed to make any life and death decisions for him because as the only child, I would have a financial benefit he died!!!

So how can a man, who would have obvious financial and personal gain, be allowed to kill his non-terminally ill wife, who is living in a hospice!!! How can anyone with a minimally functioning brain not see the evil and illegality in this!!!

Sorry to be preaching to choir here I've just had these thoughts in my head ever since finding out about this case. And November has been a bad month ever since my mother died.

Yes, on the "search records". Then, unfortunately, you have to type in the first and last names of the parties you want to search.

When I tried to post the link for actual search results I had performed, I kept getting an error message.....I guess that site won't allow a direct connection to search results. Had it allowed me to do that, I wouldn't have copied the search results and posted them here because it's just so "in your face."

That testimony helped a judge decide in 2000 ...George Felos, Michael Schiavo's attorney, said, (apparently sometime after Michael's testimony) "It's true Michael never affirmatively said Terri would never want to be kept alive if there was no hope. Then again, he didn't lie. Nobody ever asked him the question."

"I was trying to make decisions on what Terri would want," Schiavo said in late 1993, ... "I would never want to live like that. I would want to just die," Schiavo recalled his wife saying.

Within days of that testimony, a doctor first presented him the idea of pulling his wife's feeding tube. "This woman died four years ago," Schiavo said a doctor who examined his wife told him.

So, when did he first say what his wifes wishes were? This article sure muddies those waters. It would be amazing if not one single doctor ever asked him about this even in the first four years. But I guess he was never asked under oath so Felos' statement can be parsed as 'not technically a lie'.

there are now over 150 web sites with a Terri page or entirely devoted to Terri's fight. PRETTY AMAZING ISN'T IT?

Yes, actually. I think many people feel a connection to this....they know of people/family members who've been seriously ill; it's one thing to remove machines that make you breath...it's quite another to murder someone via starvation.

Re: your post. The right to die crowd is missing the point. TERRI IS NOT TERMINALLY ILL OR HOOKED UP TO MACHINES. SHE IS RESPONSIVE. We do not kill disabled people - or if we are, we need to stop!

Maybe when the "trolls" do a little work they will understand and decide that defending Schiavo is not worth their effort.

But this is the major reason of why they're trolls.....they don't read, research, use common sense, or try to understand. They are willfully ignorant and willfully stubborn.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

In re GUARDIANSHIP of Theresa Marie SCHIAVO, Incapacitated.
Robert Schindler and Mary Schindler, Appellants,
v.
Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.

Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellant,
v.
Robert Schindler and Mary Schindler, Appellees.

Nos. 2D00-1269, 2D01-1836, and 2D01-1891.

July 11, 2001.

Joseph D. Magri of Merkle & Magri, P.A., Tampa, for Appellants/Appellees,
Robert Schindler and Mary Schindler.

George J. Felos of Felos & Felos, P.A., Dunedin, for Appellee/Appellant, Michael
Schiavo.

ALTENBERND, Judge.

In these three related cases involving the pending guardianship proceeding of
Theresa Marie Schiavo, we conclude that a final order entered in a guardianship
adversary proceeding, requiring the guardian to discontinue life-prolonging
procedures, is the type of order that may be challenged by an interested party at
any time prior to the death of the ward on the ground that it is no longer equitable
to give prospective application to the order. See Fla. R. Civ. P. 1.540(b)(5).
In most, if not all circumstances, the interested party should challenge the final
order by a motion for relief from judgment filed in the adversary proceeding in the
guardianship. In the rare event that an independent action might be required to
challenge such an order under Florida Rule of Civil Procedure 1.540, that
independent action must be filed as an adversary proceeding within the guardianship.

At this time, Robert and Mary Schindler, Mrs. Schiavo's parents, have not
filed a facially sufficient motion for relief from the order discontinuing
life-prolonging procedures. Thus, in appellate case number 2D01-1836, we affirm
the guardianship court's denial of the Schindlers' motion for relief from judgment
because the motion filed was facially insufficient. On remand, however, we provide
the Schindlers with an opportunity to file, if appropriate, a revised motion for
relief from judgment pursuant to rule 1.540(b)(5) on the basis that it is no longer
equitable that the order should have prospective application. We caution, however,
that any proceeding to challenge a final order on this basis is extraordinary and
should not be filed merely to delay an order with which an interested party
disagrees or to retry an adversary proceeding. The interested party must establish
that new circumstances make it no longer equitable to enforce the earlier order.
In this case, if the Schindlers believe a valid basis for relief from the order
exists, they must plead and prove newly discovered evidence of such a substantial
nature that it proves either (1) that Mrs. Schiavo would not have made the decision
to withdraw life-prolonging procedures fourteen months earlier when the final order
was entered, or (2) that Mrs. Schiavo would make a different decision at this time
based on developments subsequent to the earlier court order.

In appellate case number 2D01-1891, we reverse a temporary injunction entered by a
judge of the general civil division. That injunction was entered in a separate
action filed by the Schindlers against Mr. Schiavo, the ward's husband. The order
granting the injunction lacked the necessary findings. Moreover, the pleadings and
the evidence supporting the injunction were insufficient. To the extent that this
separate action was intended as an independent action seeking relief from the
guardianship order pursuant to rule 1.540, that action, and any motion seeking a
temporary injunction related to it, must be filed as an adversary proceeding within
the guardianship.

Finally, in appellate case number 2D00-1269, the case number for the original
appeal of the guardianship court's order authorizing the discontinuation of
life-prolonging procedures, we deny the motion to enforce mandate filed by Mr.
Schiavo.

As discussed at the end of this opinion, on remand, the guardianship court should
make all efforts to expedite these postjudgment challenges.

I. THE FACTS

On February 11, 2000, after Theresa Marie Schiavo had been in a persistent
vegetative state for nearly a decade, the guardianship court entered an order
pursuant to chapter 765, Florida Statutes (2000), and In re Guardianship of
Browning, 568 So.2d 4 (Fla.1990), determining by clear and convincing evidence that
Mrs. Schiavo would then elect to cease life-prolonging procedures if she were
competent to make her own decision. [FN1] The guardianship court authorized her
husband and legal guardian, Michael Schiavo, to discontinue the life-prolonging
procedures. Mrs. Schiavo's parents, Robert and Mary Schindler, were interested
parties in the guardianship proceeding and they appealed the order. This court
affirmed that decision in January 2001, and denied rehearing on February 22, 2001.
In re Guardianship of Schiavo (Schindler v. Schiavo), 780 So.2d 176 (Fla. 2d
DCA 2001). The Florida Supreme Court denied review of the case on April 23, 2001.
The guardianship court then authorized Michael Schiavo, as guardian, to discontinue
the life- prolonging procedures. Those procedures were discontinued on April 24.

FN1. "Life-prolonging procedure" is a statutorily defined term. See <section>
765.101(10), Fla. Stat. (2000). It includes the methods to provide sustenance
and hydration that are involved in this case.

Almost as soon as the procedures were discontinued, the Schindlers were informed of
new evidence that they believe establishes that their daughter would either not have
made that decision fourteen months earlier at the time the original order was
entered, or that she would make a different decision at this time. On April 26,
2001, the Schindlers filed a motion for relief from judgment in the guardianship
proceeding. That motion alleged that the Schindlers had discovered new evidence in
the form of testimony from a new witness. According to the motion, this witness
was a former girlfriend of Mr. Schiavo. She allegedly would testify that Mr.
Schiavo told her that Mrs. Schiavo and Mr. Schiavo never discussed what Mrs.
Schiavo's wishes would be in her present condition. The motion alleged that this
testimony was contrary to Mr. Schiavo's testimony at trial, and that it might prove
Mr. Schiavo committed perjury in the proceedings. The Schindlers attached two
affidavits to the motion. Neither of these affidavits was executed by the witness.

Instead, the affidavits were given by Mr. Schindler and by a private investigator
hired by Mr. Schindler, and contained hearsay allegations regarding what this
potential witness told them. [FN2]

FN2. Technically, the notary stated in each affidavit that the witness
"acknowledged" the "foregoing instrument." The notary did not use the normal
language "sworn to or affirmed and signed before me."

The guardianship proceeding had been assigned to Judge Greer for several years.
He is the judge who heard and evaluated the evidence in the proceeding to
discontinue life-prolonging procedures in February 2000. He reviewed the motion
for relief from judgment and entered an order denying it. The order denying the
motion found that the only two grounds for the motion were intrinsic fraud and newly
discovered evidence. The trial court did not reach the merits of this motion, but
denied it as untimely, because a motion made upon either of these two grounds must
be filed within a year of the entry of the final order or judgment from which relief
is sought. See Fla. R. Civ. P. 1.540(b)(2), (3).

After the guardianship court denied this motion, the Schindlers immediately filed a
separate action in the general civil division of the circuit court. The "verified
complaint" filed in this separate action appears to have been prepared by a lawyer,
but it was signed only by Mr. and Mrs. Schindler. Oddly, in the acknowledgment,
the notary affirmatively states that the Schindlers did not swear to the facts of
the complaint under oath.

In this complaint, the Schindlers attempted to bring suit as the "natural
guardians" of Theresa Marie Schiavo, even though they know she is an adult, married
daughter with an appointed legal guardian and a pending guardianship proceeding.
The complaint initially sued Mr. Schiavo, individually, and did not sue him in his
capacity as legal guardian. The complaint alleged that certain actions had been
taken by Mr. Schiavo in his care of Mrs. Schiavo. These actions appear to be matters
that had been presented at earlier times before Judge Greer. The complaint then
alleged that after the entry of Judge Greer's final order in February 2000, the
Schindlers had discovered a new witness, Mr. Schiavo's former girlfriend, who would
testify that Mr. Schiavo perjured himself during the initial trial when he
testified that he and Mrs. Schiavo had discussed her desires regarding extraordinary
life-prolonging procedures. According to the complaint, Judge Greer had found Mr.
Schiavo's perjured testimony credible and had relied upon it in making a decision
within the guardianship proceeding. After briefly setting forth the factual
allegations, the last two paragraphs of the complaint alleged, in pertinent part:
"Defendant has engaged in an intentional, outrageous, deceptive, and intolerable
course of conduct that amounts to perjury and fraud on the court.... This course of
conduct has caused the Plaintiffs a decade-long ordeal ... and has caused Plaintiffs
extraordinary mental anguish, suffering and virtually total disruption of their
lives." In the ad damnum clause, the Schindlers demanded "judgment for damages"
and requested a jury trial.

Along with the complaint, the Schindlers filed a motion for emergency temporary
injunction. This very terse motion, which was signed by an attorney, alleged that
Mrs. Schiavo was in imminent danger of death, which death would cause irreparable
injury to the Schindlers, and that Mrs. Schiavo should be kept alive until the court
could resolve the issues presented in the complaint. The motion sought an order
requiring Mr. Schiavo to resume the life-prolonging medical treatments.

Under the standard procedures for assignment of civil cases, this lawsuit was
assigned to Judge Quesada. He received the pleading during the afternoon of April
26, 2001. Judge Quesada provided immediate notice to Mr. Schiavo's attorney and
convened an emergency hearing at 7:15 p.m. that evening. During that hearing, the
trial court permitted the Schindlers to amend their complaint to sue Mr. Schiavo,
individually, and as guardian of Theresa Marie Schiavo. Mr. Schiavo moved to
transfer these proceedings, particularly as they related to the medical treatment of
Mrs. Schiavo, to the guardianship division of the court. The trial court denied
this request. The Schindlers presented the two affidavits that had been previously
filed in the guardianship court with the motion for relief from judgment. The
Schindlers also presented other court documents from the guardianship proceeding and
documents from a resolved medical malpractice case brought by Mr. Schiavo on behalf
of Mrs. Schiavo several years earlier. No other evidence was presented. At the
conclusion of the hearing, the trial court granted the request for an injunction.
The order entered by Judge Quesada contains no specific findings, but it required
Mr. Schiavo to take the necessary steps to restore life-prolonging procedures to
Mrs. Schiavo until further order of the court. Judge Quesada recognized that the
facts in the case were still developing, so he stressed that once further discovery
had been obtained, Mr. Schiavo could seek dissolution of the injunction.

In response to this injunction, Mr. Schiavo filed an emergency motion with this
court to enforce the mandate from our prior opinion affirming the guardianship
court's order. This motion sought an order from this court vacating the injunction
in the separate civil action filed by the Schindlers, and ruling that no circuit or
county judge would have any authority to enter any order under any claim or theory
pertaining to the life-prolonging procedures without first obtaining the permission
of this court.

This court questioned whether an order enforcing mandate could affect the judge and
parties in an action other than the case that had been appealed. Therefore, we
issued an order requiring further argument on the motion to enforce mandate.
Meanwhile, Mr. Schiavo filed a nonfinal appeal of the temporary injunction in the
separate civil action, and the Schindlers filed an appeal of the denial of their
rule 1.540 motion in the guardianship proceeding.

This court expedited briefing in all of these matters. In light of the procedural
complexities of the matter and the serious due process issues affecting life, we
also permitted oral argument on all three cases. We now consolidate these three
appellate proceedings solely for the purpose of this opinion.

II. APPEAL NUMBER 2D01-1836
DENIAL OF THE RULE 1.540 MOTION

The Schindlers sought relief from the order of the guardianship court pursuant to
rule 1.540 with allegations that suggest that they viewed the legal proceeding as a
typical lawsuit in which Mr. Schiavo was the plaintiff and they were the defendants.

In this emotionally charged proceeding, they apparently view themselves as the
defendants against whom some final judgment has been entered in law. Before this
court can determine the application of rule 1.540 to the guardianship order of
February 2000, it is necessary to take a more dispassionate view of the proceedings.

After the supreme court's decision in In re Guardianship of Browning, 568 So.2d 4,
the legislature wisely revised chapter 765 to better address the issues of
life-prolonging treatment. Ch. 92-199, Laws of Fla. The Florida Probate Rules
Committee created a new rule to allow rapid resolution of these issues when
necessary. See Fla. Prob. R. 5.900. This rule contemplates a quick proceeding in
which the trial court approves the decision already reached by the guardian.

In this case, as explained in our earlier opinion, Mr. Schiavo, as guardian, did
not file a petition under rule 5.900. Given years of bitter disagreement between
the Schindlers and Mr. Schiavo, he filed a petition requesting the trial court to
make an independent determination of Mrs. Schiavo's terminal condition and to make
the decision to continue or discontinue life-prolonging procedures. See In re
Guardianship of Browning, 568 So.2d at 16. Mr. Schiavo, as guardian, requested the
court to function as the proxy in light of the dissension within the family. [FN3]
Mr. Schiavo immediately and appropriately asked the trial court to treat the
petition as an adversary proceeding pursuant to Florida Probate Rule 5.025.

FN3. By statute, both Mr. Schiavo and the Schindlers could serve as the proxy
for this decision, but Mr. Schiavo had priority. See <section> 765.401(1),
Fla. Stat. (1997).

The Schindlers are not defendants from whom anything was requested in this
adversary proceeding. Although it would not appear that they qualified as "next of
kin," see <section> 744.102(12), Fla. Stat. (1997), they were "interested persons"
who were entitled to appear in the adversary proceeding and present their viewpoint.
See Fla. Prob. R. 5.025(b); <section> 731.201(21), Fla. Stat. (1997).

When the adversary proceeding concluded, the trial court entered an order
authorizing the guardian to discontinue life-prolonging procedures. Although the
Schindlers were undoubtedly disappointed by this order, no judgment was entered
against them like a judgment is entered against a defendant in a typical civil
lawsuit. Because the Schindlers are only "interested parties," it is not clear
that they have standing after the appeal to file a motion pursuant to rule 1.540.
Because the judgment directly affects the ward only, it is possible that the
right to seek postjudgment relief should be limited to the ward's legal guardian.
We have found no case addressing this issue, but in this unusual context affecting
the ward's due process interest in life, we conclude that interested parties should
have standing--not directly for themselves but in the interest of the ward--to
request relief from a judgment of a guardianship court when the final order requires
termination of life-prolonging procedures.

The Schindlers' motion for relief from judgment alleged only two grounds, newly
discovered evidence and intrinsic fraud. Although not specified in their motion,
these grounds request relief under Florida Rule of Civil Procedure 1.540(b)(2) and
(b)(3). It has long been well-established that such grounds must be filed within
one year of a final order. See Fla. R. Civ. P. 1.540(b) (stating that "[t]he
motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not
more than 1 year after the judgment, decree, order, or proceeding was entered or
taken"); Hartley v. Andriuli, 595 So.2d 311 (Fla. 2d DCA 1992); Wescott v.
Wescott, 444 So.2d 495 (Fla. 2d DCA 1984); Seven-Up Bottling Co. v. George Constr.
Corp. 153 So.2d 11 (Fla. 3d DCA 1963). The Schindlers' motion was filed more than
one year after the entry of the final order in the adversary proceeding.

The Schindlers ask this court to hold, for the purposes of rule 1.540, that the
one-year period commences upon resolution of any appeal of a final order and not
upon entry of the appealed order. This suggested rule is expressly contrary to
case law. Seven-Up Bottling Co., 153 So.2d 11; Flemenbaum v. Flemenbaum, 636 So.2d
579 (Fla. 4th DCA 1994). See also Fla. R. Civ. P. 1.540 (author's cmt., 1967)
(stating that "[f]iling of an appeal, however, does not toll the one year limitation
in which a motion to vacate a judgment must be filed"). The Schindlers rely
primarily upon Native Hammock Nursery, Inc. v. E.I. DuPont, 774 So.2d 727 (Fla. 3d
DCA 2000). Native Hammock Nursery, however, is distinguishable. It addresses the
separate question of when the one-year period commences if a trial court vacates a
final judgment and an appellate court thereafter reinstates the judgment. It is
doubtful that this court even has the power to rewrite the content of rule 1.540(b)
to extend the one-year period in which to challenge a final order based on grounds 1
through 3. We decline to make this change. [FN4] As a result, the one-year
limitation in rule 1.540(b) applies. The guardianship court properly denied the
motion because it was untimely on its face.

FN4. We have considered whether a limited exception to the one-year limitation
should apply in a guardianship context. In the context of a guardianship, the
trial court never loses jurisdiction over the ward, and the proceeding remains
pending in the circuit court. In contrast, in a typical civil action, the
trial court loses jurisdiction at some point after the entry of the final
judgment. Nevertheless, an adversary proceeding within the guardianship is
comparable to any other lawsuit. See Fla. Prob. R. 5.025(d). It has a
beginning and an end that is separate from the overall guardianship proceeding.
We are concerned that a rule that eliminated the one-year restriction for final
orders in such adversary proceedings could cause more mischief than merit.

The discussion at oral argument in this case was fruitful. It caused the
court to realize that the parties in this emotional case have overlooked the nature
of the order entered on February 11, 2000. Although guardianship law is now
predominately statutory, the statutes evolved from the equitable powers of chancery.
See 39 Am.Jur.2d Guardian and Ward, <section> 34, at 37 (1999); SunTrust Bank v.
Nichols, 701 So.2d 107 (Fla. 5th DCA 1997). The order requiring the termination
of life-prolonging procedures is not a standard legal judgment, but an order in the
nature of a mandatory injunction compelling certain actions by the guardian and,
indirectly, by the health care providers. [FN5] Until the life-prolonging
procedures are discontinued, such an order is entirely executory, and the ward and
guardian continue to be under the jurisdiction and supervision of the guardianship
court. As long as the ward is alive, the order is subject to recall and is
executory in nature.

FN5. The final order of February 11, 2000, stated that it "authorized" the
guardian "to proceed with the discontinuance of said artificial life support for
Theresa Marie Schiavo." At oral argument in these cases, the parties
recognized that despite the somewhat permissive nature of this language, the
trial court was not actually giving the guardian discretion on whether to
discontinue the life-prolonging procedures. The guardian was obligated to obey
the circuit court's decision and discontinue the treatment. Because the order
was appealable, the trial court simply did not specify the date and time for
this mandated action.

Rule 1.540(b)(5) has long permitted a party to challenge a judgment without
time limitation if "it is no longer equitable that the judgment or decree should
have prospective application." In order to preserve the finality of judgments,
this ground has been rather narrowly construed. See Hensel v. Hensel, 276 So.2d
227 (Fla. 2d DCA 1973). [FN6] This ground was modeled after Federal Rule of Civil
Procedure 60(b)(5). In federal cases, it has been applied specifically to
mandatory injunctions, consent decrees, and other ongoing or executory judgments.
DeWeerth v. Baldinger, 38 F.3d 1266 (2d Cir.1994). See also Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Paul
Revere Variable Annuity Ins. Co. v. Zang, 248 F.3d 1 (1st Cir.2001); Evans v.
Williams, 206 F.3d 1292 (D.C.Cir.2000). We conclude that this ground should apply
to an order of a guardianship court that requires the termination of life-prolonging
procedures.

FN6. In many cases, courts have determined the rule to be inapplicable. See,
e.g., State, Dep't of Health & Rehab. Servs. v. Wright, 498 So.2d 1008 (Fla. 2d
DCA 1986) (refusing to apply rule where basis for motion was potential defense
to underlying action; rule contemplates equities arising after final judgment);
Gregory v. Connor, 591 So.2d 974 (Fla. 5th DCA 1991) (same); Ellis Nat'l Bank
v. Davis, 379 So.2d 1310 (Fla. 1st DCA 1980) (affirming denial of rule 1.540
motion when issue could and should have been raised as affirmative defense,
particularly when underlying action is not injunctive in nature); Gimbel v.
Int'l Mailing & Printing Co., 505 So.2d 631 (Fla. 4th DCA 1987) (affirming
denial of rule 1.540 motion when trial court had previously considered same
arguments during merits of trial and rejected them); Curtiss-Wright Corp. v.
Diaz, 507 So.2d 1197 (Fla. 3d DCA 1987) (holding that money judgments do not
have "prospective application" necessary to invoke relief under this rule); Am.
Fire & Cas. Co. v. Dawson, 400 So.2d 849 (Fla. 2d DCA 1981) (same); Pollock v.
T & M Invs., Inc., 420 So.2d 99 (Fla. 3d DCA 1982) (affirming denial of rule
1.540 motion; although rule 1.540 is to be liberally construed to effect relief
from an unjust judgment, this relief is available only in extraordinary
circumstances); Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91 (Fla.
3d DCA 1971) (same).

Like federal rule 60(b)(5), this rule provides "extraordinary relief" reserved
for "exceptional circumstances"; it requires the trial judge to strike the
"delicate balance" between the sanctity of final judgments and the need for ongoing
or executory equitable remedies to remain equitable. See Zang, 248 F.3d at 5;
Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988). This
ground does not allow a party to retry a case merely because the judgment provides
equitable relief and the party has found additional evidence. Instead, the
rule requires the movant to establish that significant new evidence or substantial
changes in circumstances arising after the entry of the judgment make it "no longer
equitable" for the trial court to enforce its earlier order.

Hypothetically, in a case involving life-prolonging procedures, if the ward's
condition dramatically and unexpectedly improved after trial, it might no longer be
equitable to conclude that the ward was in a terminal condition, see <section>
765.101(17), Fla. Stat. (2000), or that the ward would have exercised her informed
consent to withdraw the life-prolonging procedures. Likewise, if an interested
party discovered the ward's advance directive [FN7] or her written designation of a
health care surrogate [FN8] hidden in a desk after the trial, and it conflicted
with the court's judgment, that might be grounds for relief from the prospective
nature of the judgment. Certainly, if medical research suddenly discovered a
complete cure for what had previously been thought to be a terminal condition as
defined in section 765.101(17), Florida Statutes (2000), we would treat that new
circumstance as a matter warranting relief from such a judgment.

FN7. See <section> 765.101(1), Fla. Stat. (2000).

FN8. See <section> 765.203, Fla. Stat. (2000).

However, at this time, the Schindlers have not seriously contested the fact
that Mrs. Schiavo's brain has suffered major, permanent damage. In the initial
adversary proceeding, a board-certified neurologist who had reviewed a CAT scan of
Mrs. Schiavo's brain and an EEG testified that most, if not all, of Mrs. Schiavo's
cerebral cortex--the portion of her brain that allows for human cognition and
memory--is either totally destroyed or damaged beyond repair. Her condition is
legally a "terminal condition." <section> 765.101(17), Fla. Stat. (2000). Although
it is conceivable that extraordinary treatment might improve some of the motor
functions of her brain stem or cerebellum, the Schindlers have presented no medical
evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of
function within the cerebral cortex that would allow her to understand her
perceptions of sight and sound or to communicate or respond cognitively to those
perceptions.

The new information the Schindlers provided to the guardianship court in the
hearsay affidavits supporting their motion for relief from judgment is not as
forceful as the evidence described in our hypothetical scenarios. [FN9] The
affidavits concern alleged statements by Mr. Schiavo several years ago. We note
that the guardianship court's original order expressly relied upon and found
credible the testimony of witnesses other than Mr. Schiavo or the Schindlers. We
recognize that Mrs. Schiavo's earlier oral statements were important evidence when
deciding whether she would choose in February 2000 to withdraw life-prolonging
procedures. See <section> 765.401(3), Fla. Stat. (2000); In re Guardianship of
Browning, 568 So.2d 4, 16. Nevertheless, the trial judge, acting as her proxy,
also properly considered evidence of Mrs. Schiavo's values, personality, and her own
decision-making process.

FN9. The deposition of the witness referred to in the affidavits was taken after
these appeals were filed. Although Mr. Schiavo has filed a copy of that
deposition with this court as part of his motion to enforce mandate, for the
purposes of this specific appeal the court concludes that it should consider
only the information available at the time the guardianship court denied the
motion for relief from judgment.

This case is not the usual case in which a proxy makes a decision about life-
prolonging procedures. Often, the decision to discontinue such procedures is
made within weeks or months from the time the ward is competent to make such a
decision. Often the ward has lived to such an age that he or she has had ample
opportunity to reflect upon and discuss these issues of mortality. In this case,
the proxy had to make a decision for a woman in her mid-thirties when she had not
been competent since her mid-twenties. It would be unrealistic to expect the proxy
to pretend that the ward was not aging and remained twenty-five. The proxy had to
use the best available evidence to ascertain the decision that Theresa Marie Schiavo
would have made in February 2000 if she had remained competent to assess her own
terminal condition and make her own informed decision. We are confident that the
guardianship court understood this difficult task when it made its decision in
February 2000.

Thus, although we conclude that the Schindlers have the right to seek relief
from judgment under rule 1.540(b)(5) for the benefit of the ward, we caution that
any such motion must allege new circumstances affecting the decision made by the
trial judge as the ward's proxy in February 2000, and those circumstances must make
it no longer equitable for the trial court to enforce its earlier decision.

A motion for relief from judgment does not operate to stay a judgment. Fla.
R. Civ. P. 1.540(b) (stating that "[a] motion under this subdivision does not affect
the finality of a judgment or decree or suspend its operation"). Under the unique
circumstances of this case, however, we direct the guardianship court to refrain
from any attempt to enforce its original order until Monday, July 23, 2001, to give
the Schindlers an opportunity to file a facially sufficient motion pursuant to
Florida Rule of Civil Procedure 1.540(b)(5). [FN10] The Schindlers are authorized
to file such a motion in the guardianship proceedings on or before the regular close
of court on Friday, July 20, 2001. The trial court shall exercise its own judgment
and discretion concerning the resolution of any such motion. See Cutler Ridge
Corp. v. Green Springs, Inc., 249 So.2d 91 (Fla. 3d DCA 1971).

FN10. To avoid any confusion, we expressly give jurisdiction to the guardianship
court to consider either a motion filed pursuant to Florida Rule of Civil
Procedure 1.540(b)(5) or an independent action for relief from the order prior
to the issuance of any mandate by this court.

To avoid any confusion arising from the various proceedings since April of this
year, the trial court shall issue an order that either expressly enforces its
earlier order or vacates it. If the trial court elects to enforce its earlier
order, it should enter an order informing all interested parties of the day and time
that the guardian must instruct the health care providers to discontinue
life-prolonging procedures.

III. APPEAL NUMBER 2D01-1891
THE TEMPORARY INJUNCTION

Judge Quesada was given an unenviable task in this case. Late in the day he
received an emergency motion involving the life of a young woman. The pleadings
were poorly drafted and the affidavits were little better. He did not have the
benefit of any case law squarely addressing the issues presented to him. None of
the lawyers involved in the hearing had had adequate time to prepare and reflect
upon these difficult issues. We cannot fault him for wanting to enter some type of
stay order to give himself and the parties the opportunity to review this matter in
a more deliberate fashion. However, the record presented on that day was
insufficient to support the entry of a temporary injunction, and the temporary
injunction order entered is deficient in its content. Moreover, we conclude
that any action challenging the final order of the guardianship court must be filed
as an adversary proceeding within the guardianship. In light of our ruling
permitting an interested party to file a motion under rule 1.540(b)(5), we doubt
that an independent action is necessary in this matter.

The action filed by the Schindlers in the general civil division did not
actually state a cause of action for an "independent action" as that term is used in
rule 1.540. An independent action is filed to "relieve a party from a judgment."
See Fla. R. Civ. P. 1.540(b). At least under the circumstances in this case, such
an independent action must allege an extrinsic fraud upon the court. See DeClaire
v. Yohanan, 453 So.2d 375 (Fla.1984); Winston v. Winston, 684 So.2d 315 (Fla. 4th
DCA 1996). The fraud must be alleged with specificity. See Fla. R. Civ. P.
1.120(b); Daugharty v. Daugharty, 456 So.2d 1271, 1274 (Fla. 1st DCA 1984) (noting
rule of specificity is even more important in independent action). The action filed
by the Schindlers sought monetary damages from Mr. Schiavo in his individual
capacity. It failed to state a cause of action that would allow
anyone--particularly on behalf of the ward--to obtain relief from the judgment of
the guardianship court. [FN11]

FN11. We do not need to decide whether the complaint stated a cause of action
for intentional infliction of emotional distress entitling the Schindlers to
damages from Mr. Schiavo. Such a complaint must allege conduct "so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency and to be regarded as atrocious, and utterly intolerable in a civilized
community." See Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79
(Fla.1985) (quoting Restatement (Second) of Torts <section> 46 (1965)). We
note that parents generally have no common law or statutory right to recover
damages for pain and suffering, grief, or emotional loss in the event that their
married, adult daughter is the victim of a wrongful death. See <section>
768.21(4), Fla. Stat. (2000). As a result, it is questionable whether they would
be able to establish entitlement to those same types of damages in an action for
infliction of emotional distress.

The Schindlers' motion for a temporary injunction and the evidence they
presented to support it was also deficient. In order to be entitled to a temporary
injunction, a movant must establish four elements, including a substantial
likelihood of success on the merits of the case. Duryea v. Slater, 677 So.2d 79
(Fla. 2d DCA 1996). The trial court abused its discretion in determining that the
content of this record established this element, particularly when the complaint
itself did not appear to state a valid cause of action. Moreover, an order
granting a temporary injunction must contain clear, definite, and unequivocal
findings to support the four elements required for entry of an injunction. Snibbe
v. Napoleonic Soc'y of Am., 682 So.2d 568 (Fla. 2d DCA 1996). This order contains
no such findings. Accordingly, we reverse the temporary injunction.

We conclude that any independent action seeking relief from the order
entered in the guardianship proceeding, or any effort to obtain an injunction
contrary to the guardianship court's order, must be filed as an adversary proceeding
within that guardianship. As we explained earlier in this opinion, the Schindlers
take this action as interested parties for the benefit of the ward. Given that the
guardianship is still pending and that the guardianship court has continuing
jurisdiction over the ward, it is simply inconceivable that another circuit judge
can or should be given the power to override an order entered in the pending
guardianship. As a general rule, one trial court judge does not have the
power to review the final order of another trial judge. See Groover v. Walker, 88
So.2d 312 (Fla.1956); Davis v. Fisher, 391 So.2d 810 (Fla. 5th DCA 1980). Although
the independent action allowed by DeClaire, 453 So.2d 375, may occasionally be an
exception to this general rule, when the initial action involves a guardianship that
is still pending and that court has not lost jurisdiction over the ward, we see no
basis to allow a deviation from the general rule. Thus, although Judge Quesada had
jurisdiction to initially consider the merits of the pleadings placed before him,
upon learning of the pending guardianship proceedings, he was compelled to transfer
any independent action for relief from the guardianship order and any request for
temporary injunction related to the guardianship order to the guardianship court for
resolution.

It is unclear to this court whether the Schindlers maintain that they can now
allege in good faith a fraud upon the court as required for an independent action by
DeClaire. If they wish to plead such a fraud with the necessary specificity, that
action should be filed in the guardianship court within the same period that this
court has provided for the filing of a motion pursuant to rule 1.540(b)(5). The
filing of such an action will not stay the February 11, 2000, order. To stay the
earlier final order, the Schindlers would need to apply for, and prove entitlement
to, a temporary injunction in the guardianship court.

Because we have permitted the Schindlers time to file a new independent action in
the guardianship proceedings, to the extent that the complaint filed before Judge
Quesada seeks this relief, that portion of the complaint should be dismissed. Our
scope of review in this case does not include the question of whether the complaint
filed before Judge Quesada states a cause of action for money damages against Mr.
Schiavo personally. Thus, that portion of the complaint is not affected by this
appeal and remains pending in the general civil division.

IV. CASE NUMBER 2D00-1269
MOTION TO ENFORCE MANDATE

It is extremely rare for a trial court or a trial lawyer to disobey the order
of an appellate court when the matter returns to the trial court after the appellate
court issues its mandate. In those rare cases where compliance is an issue, a
motion to enforce mandate can be filed in the appellate court. See Blackhawk
Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825 (Fla.1975). We can
at least envision the possibility of a situation in which an appellate court might
issue an order on a motion to enforce mandate that was directed to someone other
than a party to the appeal or a judge or court clerk involved in that proceeding on
remand in the trial court. Such an order, which would be similar to a contempt
order, should be rarely, if ever, issued.

In this case, Judge Greer has not disobeyed this court's mandate. Because we
conclude that the Schindlers have standing to file motions or proceedings pursuant
to rule 1.540(b) to challenge the February 2000 order, that action does not violate
our mandate. At this point, we are unwilling to conclude that the filing of any
such motion would be so baseless or frivolous as to constitute a violation of our
mandate. The merits of the motion or action are better left to the trial court
that actually made the factual determinations supporting the February 11, 2000,
order. Accordingly, the motion to enforce mandate and any pending amendment to
that motion is denied.

V. FUTURE APPELLATE REVIEW

This court recognizes that if the Schindlers file a renewed motion or
independent action seeking relief from the guardianship order, an order resolving
that motion or action is appealable. An order by the guardianship court granting
or denying a temporary injunction would also be subject to appeal. This court is
very aware that the postjudgment proceedings and the appellate process could delay
implementation of an order for many months. Accordingly, we encourage the
guardianship court to resolve this matter with all deliberate speed. We will
expedite any appeal of a future order in this case. Moreover, if the guardianship
court enters an order that is appealed, and the guardianship court is confident in
its own decision and is convinced that an appeal is sought merely to delay its
order, the guardianship court can use its discretion in determining whether to grant
or deny a stay pending the appeal. This court would review the grant or denial of
a stay on an expedited basis. See Fla. R.App. P. 9.310(f).

Because we have not consolidated these appeals, any motion for rehearing concerning
this opinion should be filed in the specific appellate case. We elect to expedite
the rehearing process. Thus, any motion for rehearing must be filed and delivered
to opposing counsel before the regular close of court on July 16, 2001. Any
response to such a motion for rehearing must be filed before the regular close of
court on July 18, 2001. The filing of such a motion will not stay or automatically
extend the period set forth in this opinion within which a motion or independent
action must be filed to seek relief from the guardianship order.

Despite all of the published opinions and public interest in this case, it should
not be overlooked that the courts in this case are attempting to honor Theresa Marie
Schiavo's constitutional right of privacy as it affects her medical decisions. See
In re Guardianship of Browning, 568 So.2d 4. The judicial process must be sufficient
to assure the accuracy of the proxy's decision, but not so slow as to deprive the
ward of a final decision--one way or the other.

Affirmed in part, reversed in part, and remanded for further proceedings consistent
with this opinion.

BLUE, C.J., and PARKER, J., concur.

Is there a point to that spam other than to clog up the thread? Not even a highlighted section to narrow in on some percieved point you're trying to make?

I guess some "rolls" are blissfully ignorant (their "belief" in "right-to-die") and others are informed but deceitful. In Terri's case, the "trolls" sound just like Satan tempting Jesus with all the riches of the world (Schiavo's reward).

Thank you, sweetliberty, for nominating my post #461 for quote of the day.

Today my post is post of the day!

That is a first as far as I know. Too cool!!! /horn tooting

Thanks, RJayneJ and JohnHuang2!

DISCLAIMER TO POSTS 94 AND 96!

Just so everyone knows....I posted the information in post #94 about a radio program that I was alerted to via e-mail. It was not one that I was familiar with. I also posted the link in post 96 based on an e-mail I received from someone who is involved in the fight for Terri. The information is good on that page, and set up in a way that makes it easy to find specific items. I posted the link thinking it would be a good reference. It was after I had posted it that I looked at the page and scrolled all the way to bottom to click on on their main website. It looks to be pro Hitler, anti-semitic and just downright awful. There was a link to a streaming radio broadcast which I also clicked on, and it was more anti-American, neo-Nazi sounding stuff, so while the Terri information, and perhaps even the radio interview I posted the announcement about may be very good, I'm not sure that we want a link on FR connecting to that website.

I have asked the moderators to take a look and decide whether the posts relating to it should be pulled. It is also linked again in MSCASEY's #98.

FOR THE RECORD: SWEETLIBERTY OF FREE REPUBLIC IS IN NO WAY ASSOCIATED WITH THE WEBSITE, SWEETLIBERTY.ORG!

Dr. Gema G Hernandez is former secretary of the department of elder affairs.

And the elderly of Florida rejoice that her reign is over. Watch out, she'e here for your liver.

I'm sorry about your Mother. My Mother died in 1998 and I still think of her everyday.

I just got done reading the whole thing and found it very informative as to the perspective of the Florida Supreme Kangaroo court and the history of the assertions made by MS, and what the courts are relying upon as "facts" that Terri would rather die than be fed.....most interesting is the fact that everything is relying upon the "words of MS" which HE ATTRIBUTES to Terri allegedly saying.

Also, it points out the UTTER LACK of GOOD REPRESENTATION by counsel had by Terri's parents to this point......the Schindler's counsel was out of their league fighting Felos.

Now, I think, the tables have turned and Felos will be battling with top notch attorneys.....so, it would now come down to outrageous conduct/decisions on the part of the Kangaroo Court, once again.