Michael John Cruz v. Helen Waishkey and In Re: Guardianship of James Vincent Cruz, an alleged incapacitated person

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2025-0232
LT Case No. 27-2022-GA-118
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MICHAEL JOHN CRUZ,
Appellant,
v.
HELEN WAISHKEY and IN RE:
GUARDIANSHIP OF JAMES
VINCENT CRUZ, an alleged
incapacitated person,
Appellee.
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On appeal from the Circuit Court for Hernando County.
Pamela Stinnette Vergara, Judge.
Rachel Batten, Spring Hill, for Appellant.
Brandon S. Vesely and Robert E. Biasotti, of The Florida
Appellate Firm, P.A., St. Petersburg, for Appellee.
November 21, 2025
HARRIS, J.
Appellant, Michael John Cruz, and Appellee, Helen
Waishkey, the natural parents of James Vincent Cruz (“Vinny”),
filed a joint petition to determine the incapacity of Vinny pursuant
to chapter 744, Florida Statutes. The petition asserted that Vinny,

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age 27 at that time, had been diagnosed with autism spectrum
disorder, and he is non-verbal and unable to function on his own.
Along with their petition to determine incapacity, the parties also
filed a joint petition for appointment of a plenary guardian of the
person and property of Vinny.
Several months later, Cruz filed a notice of voluntary
dismissal of his portion of the joint petition for incapacity. He did
not, however, dismiss his portion of the joint petition to appoint
plenary guardian. Instead, he filed a petition for appointment of
guardian advocate, listing himself as the proposed guardian
advocate. Waishkey thereafter filed her counter-petition for
appointment of a guardian advocate, listing herself as the
proposed guardian advocate, alleging that she has been Vinny’s
primary caregiver since the parties’ divorce.
Waishkey then filed a motion to dismiss for lack of
jurisdiction, arguing that Vinny has resided in Arizona, not
Florida, since September 2022; therefore, the court lacked
jurisdiction over Vinny. Prior to her motion being heard, Waishkey
voluntarily dismissed her portion of the joint petition to determine
incapacity and the joint petition for appointment of plenary
guardian. The court then held a hearing on the motion to dismiss
for lack of jurisdiction.
After taking the matter under advisement, the court entered
its order granting Waishkey’s motion to dismiss, finding that
because the original joint petition to determine incapacity was
withdrawn by the parties, the court lost jurisdiction to consider all
subsequent petitions. Relying on this Court’s opinion in Katke v.
Bersche, 161 So. 3d 574 (Fla. 5th DCA 2014), the court dismissed
both petitions for appointment of a guardian advocate. Cruz
appeals, arguing that the trial court never lost jurisdiction and
therefore erred in dismissing the case. We agree and reverse.
Whether a trial court has jurisdiction over a case is reviewed
de novo. See Ispass v. Ispass, 243 So. 3d 453, 455 (Fla. 5th DCA
2018). A trial court’s interpretation of procedural rules and
precedents are subject to de novo review. See Toorak Cap.
Partners, LLC v. Cap. Servicing Co., LLC, 401 So. 3d 536, 539 (Fla.
2d DCA 2024).

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Cruz argues that Katke, cited by the trial court, does not
apply to the facts in this matter and that the court misinterpreted
that opinion. We agree. In Katke, Linda Bersche filed a petition to
determine incapacity for her mother, Betty Katke. 161 So. 3d at
575. The trial court appointed Bersche as the emergency
temporary guardian, a position from which Bersche resigned one
week later. The following day, Maria Kardos, a professional
guardian unrelated to Katke, applied and was appointed as the
new emergency temporary guardian. Katke filed a motion to
dismiss the original petition, after which Bersche withdrew her
petition by filing a “Notice of Withdrawal of All Pending Pleadings
and Motions and Requests for Discovery.” Subsequently, Kardos
filed a second petition to determine incapacity in the same case
number. Despite the withdrawal of the first petition and the
court’s acceptance of the withdrawal, the trial court allowed
Kardos to proceed under the second petition. Upon Katke’s petition
for writ of prohibition, this Court determined that following the
withdrawal of the only pleading then pending, the trial court lost
jurisdiction over the case. We granted Katke’s petition to prohibit
the trial court from proceeding on Kardos’ petition.
Here, the parties voluntarily withdrew their original joint
petition to determine incapacity under chapter 744 to instead
pursue petitions for guardian advocacy under chapter 393. At the
time Cruz’s petition for guardian advocacy was filed, there
remained pending before the court the petition for appointment of
plenary guardian. At the time Waishkey filed her guardian
advocacy petition, there remained pending the plenary
guardianship proceeding as well as Cruz’s guardian advocate
petition. Thus, unlike in Katke, the court never lost jurisdiction
and therefore erred in dismissing the case for lack of jurisdiction.
We reverse the order of dismissal and remand for further
proceedings.

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REVERSED and REMANDED.
JAY, C.J., and EDWARDS, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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