STATE OF FLORIDA DEPARTMENT OF ELDER AFFAIRS DEPARTMENT OF ELDER AFFAIRS, OFFICE OF PUBLIC AND PROFESSIONAL GUARDIANS, DOAH Case No.: 18-0811 Petitioner, vs. ELIZABETH SELDEN SAVITT, Respondent. __________________________________/ PETITIONER’S MOTION FOR LEAVE TO FILE AMENDED ADMINISTRATIVE COMPLAINT AND CONTINUE FINAL HEARING Pursuant to Rule 28-106.206, 28-106.303 and 28-106.304, of the Florida Administrative Code, Petitioner, the Office of Public and Professional Guardians (OPPG), within the Department of Elder Affairs, moves for leave to amend the Administrative Complaint filed in this action, and requests that the final hearing date be continued so that the parties are able to fully address the new allegations included in Petitioner’s proposed amended complaint, and states the following in support thereof: 1. This action arises out of a complaint against the Respondent, in her capacity as a professional guardian, that was submitted to the OPPG (OPPG Complaint). 2. An investigation related to the OPPG Complaint was commenced pursuant to section 744.2004, Fla. Stat., and the OPPG subsequently received an Investigation Report from Filed August 29, 2018 8:00 AM Division of Administrative Hearings the Clerk & Comptroller of Palm Beach County, Division of Inspector General (Clerk IG)1 that provided investigative findings pertaining to the complaint the OPPG received about Respondent. 3. One area of concern that was investigated by the Clerk IG was whether Respondent had vacationed with Judge David French (Judge French). Judge French sits in the 15th Circuit, and has been assigned to cases in which Respondent was appointed as a professional guardian or guardian advocate. 4. The Clerk IG was unable to substantiate whether Respondent had, in fact, travelled with Judge French; therefore, any allegations related thereto were not included in the Administrative Complaint initially filed by Petitioner in this action. 5. Petitioner explored this issue through initial discovery in this action, but was unable to substantiate that Respondent had vacationed with Judge French until receiving deposition testimony from Respondent confirming same, on August 17, 2018. 6. Therefore, Petitioner wishes to amend the Administrative Complaint currently at issue in this action, to include allegations related to these recently discovered facts. 7. Florida public policy strongly favors permitting amendments to pleadings so that cases may be resolved on their merits. See State Farm Fire and Cas. Co. v. Fleet Financial Corp., 724 So. 2d 1218, 1219 (Fla. 5th DCA 1998). Any doubts should be resolved in favor of allowing amendment. Id.; Rosario v. Procacci Commercial Realty, Inc., 717 So. 2d 148 (Fla. 5th DCA 1998) (Amendment should be permitted unless allowing the amendment would clearly prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile). Florida law allows a party to amend an administrative complaint even on the first day of the final hearing when ample time for discovery is allowed to the opposing party. Key Biscayne v. Department of Natural Resources, 579 So. 2d 293, 294-295 (Fla. 3d DCA 1991). 1 The Clerk IG, as a member of the Clerks’ Statewide Investigations Alliance, provides investigative services to the OPPG through a Memorandum of Understanding. 8. Additionally, the allegations Petitioner wishes to add were among the issues initially investigated in response to the OPPG Complaint and relate to causes of action pled in the initial Administrative Complaint. Leave to amend a compliant shall be freely given, particularly where the amendment is based upon the same conduct which serves as the basis of the original pleading. Florida E. Coast R. R. Co. v. Shulman, 481 So. 2d 965, 967 (Fla. 3d DCA 1986); see also Fla. R. Civ. P. 1.190(a) (leave of court [to amend a pleading] shall be given freely when justice so requires). 9. Petitioner asserts that Respondent will not be prejudiced by this court allowing Petitioner to file the proposed amended complaint. Petitioner contends the proposed amendments will require some additional discovery, but none of the discovery taken to date is obsolete, and experts for either party have yet to be deposed. 10. For these reasons, Petitioner respectfully requests the ALJ to enter an order permitting Petitioner to amend the Administrative Complaint, and to accept the Amended Administrative Complaint submitted with this motion. 11. Counsel for Petitioner has conferred with counsel for Respondent regarding the filing of an amended Complaint, and counsel for Respondent was agreeable to such a filing. Counsel for Petitioner e-mailed counsel for Respondent a copy of this motion for leave to amend, and the Amended Complaint referenced herein on the morning of August 28, 2018. However, counsel for Petitioner is unsure whether counsel for Petitioner has had the opportunity to review same. 12. In light of the foregoing, Petitioner requests a continuance of the final hearing currently scheduled for September 5 through 7, 2018. A continuance will allow Respondent sufficient time to respond to the proposed amended complaint, and will allow the Petitioner to conduct additional, limited, discovery. Respectfully submitted, /s/ Michael McKeon Michael McKeon Senior Attorney Florida Bar No. 0044620 Office of Public and Professional Guardians 4040 Esplanade Way Tallahassee, FL 32399-7000 Telephone: (850) 414-2032 Fax: (850) 414-2384 E-mail: mckeonm@elderaffairs.org Counsel for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by electronic mail and telefacsimile on this 29th day of August, 2018 to the following attorney of record for Respondent: Ellen S. Morris, Esq. Elder Law Associates PA 7284 W. Palmetto Park Road, Suite 101 Boca Raton, FL 33433 Fax: (561) 750-4069 E-Mail: emorris@elderlawassociates.com Secondary E-Mail: lrubin@elderlawassociates.com /s/ Michael McKeon Michael McKeon Senior Attorney Office of Public and Professional Guardians