Clinesmith v. Temmerman (In re Clinesmith)
| Decision Date | 09 January 2013 |
| Docket Number | No. 31,230.,31,230. |
| Citation | 298 P.3d 458 |
| Parties | In the Matter of Bruce C. Clinesmith, an Adult Incapacitated Person (now deceased). Ruth CLINESMITH, Interested Party–Appellant, v. Cathe TEMMERMAN, Petitioner–Appellee, and Decades, LLC, Conservator–Appellee Intervenor, and Moody Bible Institute of Chicago, Intervenor–Appellee. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Peter B. Shoenfeld, P.A., Peter B. Shoenfeld, Sawtell, Wirth & Beidscheid, P.C., Peter F. Wirth, Santa Fe, NM, for Appellant.
Hurley, Toevs, Styles, Hamblin & Panter, P.A., Gregory W. MacKenzie, Albuquerque, NM, for Appellee Cathe Temmerman.
Pregenzer, Baysinger, Wideman & Sale, PC, Ruth O. Pregenzer, Albuquerque, NM, for Conservator–Appellee Decades, LLC.
Keleher & McLeod, P.A., W. Spencer Reid, Thomas C. Bird, Gary J. Van Luchene, Albuquerque, NM, for Intervenor–Appellee Moody Bible Institute of Chicago.
{1} In early 2005, Bruce Clinesmith was suffering from Alzheimer's disease. The district court appointed a guardian and conservator to protect his person and assets. After the conservator was appointed, Ruth Clinesmith (Wife) and her attorney met with Mr. Clinesmith at the locked assisted care facility where he had been admitted. The conservator unsuccessfully tried to stop the meeting. During the meeting, Mr. Clinesmith executed a new estate plan giving Wife control of his estate. In response to a motion by the conservator to prevent interference with its duties, the district court voided the estate plan. This case presents two issues. Did the district court have jurisdiction over the new estate plan? This appeal was filed over five years after the district court voided the estate plan. Is the appeal timely? Answering the former question in the affirmative and the latter in the negative, we dismiss.
{2} In March 2005, Mr. Clinesmith's daughter, Cathe Temmerman, filed a verified petition for the appointment of a guardian and conservator, asserting that Mr. Clinesmith suffered from dementia such that he was incapable of managing both his declining health and his estate of over $11 million. At the time the petition was filed, Mr. Clinesmith was eighty-seven years old and living with his Wife in a private residence, but after a hospital stay he was moved into the dementia/Alzheimer's unit at an elder care facility in late May 2005. Mr. Clinesmith and Wife, initially both represented by attorney Stuart Stein, opposed the petition.
{3} Starting in 1992, Mr. Clinesmith had arranged for the bulk of his estate to go to Moody Bible Institute of Chicago (Moody). The estate was spread among three revocable trusts; two administered by Moody and the third by a commercial trust—Salomon Smith Barney. The trust provisions allowed Mr. Clinesmith to draw on the trust assets for his expenses. In separate but parallel proceedings commenced in federal court while this guardianship/conservatorship action in state court was pending, Wife attempted to gain control of the trust assets. In addition, Wife sought to have the monies held in trust for Moody transferred to her pursuant to a power of attorney signed by Mr. Clinesmith in early 2004.
{4} In compliance with NMSA 1978, Section 45–5–407 (1998) of the Uniform Probate Code (UPC), the district court appointed a guardian ad litem on March 4, 2005, to represent Mr. Clinesmith. SeeNMSA 1978, §§ 45–1–101 to –7–612 (1975, as amended through 2012). On August 5, 2005, the district court appointed Decades, LLC, an elder care management organization, as a temporary guardian and conservator with “full” powers to manage Mr. Clinesmith's assets. The same order disqualified Mr. Stein from representing Mr. Clinesmith on the ground that his interests and Wife's interests were adverse and, therefore, Mr. Stein could not represent both. The order also revoked the 2004 power of attorney granted to Wife by Mr. Clinesmith.
{5} Disregarding the order and its effects, Mr. Stein and Wife met with Mr. Clinesmith at the elder care facility on August 18, 2005, without notifying the district court, Decades, or the guardian ad litem of the meeting. Staff at the elder care facility notified Decades that Mr. Stein and Wife, along with several of Mr. Stein's staff, were meeting with Mr. Clinesmith in a private room. A social worker and an attorney representing Decades arrived at the facility shortly thereafter. The Decades staff attempted unsuccessfully to stop the meeting altogether and were unable to discuss the documents with Mr. Clinesmith.
{6} At the meeting, Mr. Clinesmith signed a new will naming Wife as personal representative and a new trust document naming Wife as trustee. We refer to these documents as the “new estate plan.” The effect of these modifications was to revoke the previous trusts and “create a new trust with [Wife] as trustee with all the power ‘that an absolute owner of such property would have.’ ” In re Stein, 2008–NMSC–013, ¶ 12, 143 N.M. 462, 177 P.3d 513 (per curiam). “These documents had the additional effect of removing all of the assets belonging to [Mr. Clinesmith] from the jurisdiction of the court in the guardianship and conservatorship proceeding.” Id.
{7} Decades and Ms. Temmerman (Appellees) filed a motion and sought an emergency hearing to prevent Mr. Stein from “interfer[ing] ... with Decades' performance of its duties and the exercise of its powers as temporary guardian and conservator of [Mr.] Clinesmith.” The specific relief requested was an order
preventing [Mr.] Stein from having any contact with Mr. Clinesmith, ordering [Mr.] Stein to produce all documents that were presented or involved in the meeting at [Mr. Clinesmith's residence in the Alzheimer's ward at an elder care facility] on August 18, 2005, ordering [Mr.] Stein to produce all documents or records pertaining to his representation of Mr. Clinesmith, and for all such other and further relief as the Court deems just and proper.
At the emergency hearing on the motion, Decades requested orally that the new estate plan be voided. Mr. Stein objected that this request was not made in writing in the motion and, therefore, he did not have notice of such request. The district court orally granted the motion and Decades' request to void or hold “frozen” the new estate plan. The district court voided the new estate plan “for a variety of reasons, not the least of which is that [the court thought] that they were improperly—the signatures were improperly gained.” The district court denied Mr. Stein's oral request for an interlocutory appeal of this order. The district court's order was filed on August 29, 2005. Wife did not file a motion for rehearing or reconsiderationof this order. After another hearing, the district court disqualified Mr. Stein from representing Wife “and [a]ll [o]ther [p]ersons with [i]nterests [a]dverse to [Mr.] Clinesmith.” Finally, on October 7, 2005, the district court appointed Decades as permanent guardian and conservator for Mr. Clinesmith.
{8} Wife timely filed a notice of appeal from this order on November 4, 2005. The notice stated that she appealed “from the final [o]rder entered ... on October 7, 2005, ... and from all orders and rulings that preceded, led to, and produced said [o]rder.” Wife then voluntarily dismissed the appeal in February 2006. Mr. Clinesmith died on May 9, 2010, and the district court accepted the recommendations of a special master and approved Decades' final report on March 4, 2011. The present appeal was timely filed on April 4, 2011, over five years after entry of the October 7, 2005, order.
{9} As a result of his conduct in this matter, Mr. Stein was disbarred for five years. Id. ¶¶ 19, 73. The Supreme Court held that Mr. Stein's conduct violated the New Mexico Rules of Professional Conduct, including, inter alia, Rule 16–402 NMRA (); Rule 16–804(C) NMRA (misconduct); Rule 16–109(A) NMRA (). In re Stein, 2008–NMSC–013, ¶¶ 27, 32, 39, 143 N.M. 462, 177 P.3d 513. Recognizing that Mr. Stein had described Mr. Clinesmith in pleadings as suffering from early stages of dementia and otherwise expressed doubt as to Mr. Clinesmith's competency, the Court wrote, “[w]hat is so reprehensible to this Court is that [Mr. Stein], acknowledging that [Mr. Clinesmith's] mental capacity was in question, attempted to take money from him and transfer it to [Wife,] while purporting to represent both of them.” Id. ¶ 25.
{10} Appellees argue that Wife failed to timely appeal and, therefore, the appeal should be dismissed. The parties appear to agree that the August 29, 2005, order invalidating the new estate plan was not a final order. While we are not convinced that this is the case, we accept this premise consistent with our interest in facilitating the right to appeal and because we do not pursue arguments the parties do not make. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); Headley v. Morgan Mgmt. Corp., 2005–NMCA–045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (). Appellees argue that the October 7 order was final because it resolved all of the issues in Ms. Temmerman's initial petition and incorporated all previous orders such that appeal of the August 29 order should have been filed within thirty days of the October 7 order.
{11} Wife maintains that the October 7 order did not make the order voiding the new estate plan final and appealable. As we understand her argument, Wife argues that (1) the district court did not have jurisdiction to void the new estate plan because such relief was not requested in Decades' motion, or the issue could not be considered until after Mr. Clinesmith's death; and (2) because the court had no...
To continue reading
Request your trial