Lombardo v. Huysentruyt
| Decision Date | 14 August 2001 |
| Docket Number | No. A092345.,A092345. |
| Parties | Pat LOMBARDO et al., Plaintiffs and Appellants, v. Kurt D. HUYSENTRUYT, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Jolm M. Drath, Ray Z. Bacerdo, Drath, Clifford, Murphy, Wennerholm & Hagen, Oakland, CA, for Respondent.
Attorney Kurt D. Huysentruyt represented Paul J. Winters when the latter attempted to amend a trust he had established to make appellants its beneficiaries. The amendment was ruled ineffective by the probate court. Subsequently, appellants sued Huysentruyt for malpractice. They now appeal the superior court's grant of nonsuit to Huysentruyt, contending that the superior court erred in finding that the probate court's ruling superseded Huysentruyt's negligence in causing their damages. Appellants further request sanctions against respondent for failing to timely file his brief on appeal. We reverse.
In May 1995, Paul Winters established a trust, naming as co-trustees himself and Regina Fellman, whom he had recently married. Winters was nearly 90 years old and Fellman was 72. The trust provided that if Fellman predeceased Winters, upon Winters' death all the trust assets would be distributed to Fellman's adult daughter from a prior marriage, Diane Mirviss. Winters reserved the right to terminate or amend the trust.
In late May 1996, Winters was hospitalized and diagnosed with dehydration, renal failure and Alzheimer-type dementia. Soon thereafter, Fellman petitioned for a conservatorship of Winters' person and estate, requesting orders to have Mirviss replace Winters as co-trustee and to restrict Winters' power to revoke or amend the trust without prior court approval. The court granted these orders and subsequently replaced Fellman as conservator with professional conservator Barbara deVries. The court entered an order which provided: "During the pendency of these proceedings, the conservatee shall not have the power either to amend or to revoke The Paul J. Winters Trust, U/T/A dated June 23, 1995, without the prior approval of this Court."
On August 2, 1997, Fellman died of colon cancer. Accordingly, Mirviss became the sole trustee and beneficiary of the trust. Winters had been telling deVries that he wanted to change his trust and she sought a court-appointed lawyer for him. Respondent accepted the appointment.
Respondent met with Winters on September 9 and 10, 1997. Winters was "adamant" that he did not want Mirviss to act as successor and trustee of the trust or benefit from his estate and remained adamant on this point until his death. Winters was in a convalescent hospital; respondent was aware he had been released from the hospital two days before and had a heart condition that respondent understood to be life threatening. Respondent told Winters there was "some sense of urgency" about making decisions on his estate plan. Respondent was aware of the order restricting Winters's power to amend the trust from his review of the case file and had not previously seen an order like it. He understood from the order that the court would prefer application be made to the court for authority to amend before a trust amendment was executed, although he felt the order was ambiguous as to whether court approval would be required before an amendment was signed and he did not think the court would "refuse to inquire into the circumstances of his signing the trust amendment prior to obtaining court approval." Appellants' expert, John Hartog, had also never seen an order like this and characterized it as "unique" and "ambiguous." Respondent's expert, Barbara Jagiello, had not seen an order like it either and found it "confusing," but did not see anything in the order to indicate the court would not consider the validity of a testamentary trust after the trustor's death. Respondent's other expert, Bruce Friedman, found the order "astonishing."
Respondent met with Winters again on September 25 and then on October 21, 1997. During this time, Winters was uncertain how he wanted to dispose of his estate. On October 21, Winters asked respondent to ask his friends, John Hult and Pat Lombardo, to call him about his estate plan. Respondent made these calls on November 12. Hult reported to respondent "almost immediately" that Winters wanted to leave his estate to appellants. When respondent next met with Winters on November 18, Winters showed him a piece of paper with five names, four matching the ones Hult had provided but the fifth being a Dr. Morabito and not Lombardo. Winters then indicated he wanted to give Lombardo $15,000 and have him be trustee, and was not sure he wanted to give anything to Morabito. Respondent suggested making deVries the trustee but Winters disagreed.
On November 20, respondent told the court investigator, John Cusher, and deVries that he thought Winters was coming to a decision on his estate plan. On November 24, deVries told respondent that Winters had had a heart incident and respondent felt it was more urgent to accomplish the trust amendment. On November 26, respondent prepared the trust amendment, providing for distribution of the trust assets in equal shares to John Hult, Pat Lombardo, Mary Dorcy, Albert (Butch) Winters and Maria Winters, and took it to Winters, but Winters was angry and refused to talk to him. Respondent returned to see Winters on December 5, on which date Winters signed the amendment and respondent notarized it. Respondent wanted to meet with Winters once more before seeking court approval of the amendment, both to be sure Winters remained consistent regarding his choice of beneficiaries and to resolve whom Winters wanted as trustee, and planned to meet with him in mid-December. Winters died on December 14,1997.
About a month after Winters' death, respondent filed a petition for approval of the trust amendment. Mirviss filed a petition to invalidate the amendment. By order of April 8, 1998, the probate court denied the petition for approval and granted Mirviss' petition, finding the amendment had been executed without the prior court approval required by prior court orders and was therefore invalid and void.
Appellants appealed the probate court's decision (In re Conservatorship of Winters, A082566), but while the appeal was pending settled with Mirviss for 55 percent of the trust assets. The appeal was dismissed on September 9, 1999. According to appellants, after deducting attorney fees, they received about $380,000 from Winters' $1,240,000 estate.
Meanwhile, on September 17, 1998, appellants Lombardo, Hult and Dorcy filed the present complaint for damages for professional negligence against respondent. Appellants claimed that respondent failed to take the steps necessary to cause the trust amendment to become effective upon Winters' death by failing to apply for court approval immediately upon receiving Winters' instructions, failing to immediately prepare the amendment, failing to immediately present the amendment to Winters for execution once it was prepared, failing to immediately apply for court approval after Winters executed the amendment and failing to apply for an order shortening time to have the court consider a petition for approval on an emergency basis. A first amended complaint filed on December 4, 1998, added appellants Albert Winters and Maria Winters as plaintiffs.
The matter came on for trial on February 10, 2000. A jury was empaneled on February 15. After considering the parties' motions in hmine, however, the court came to the conclusion on February 18 that the probate court had erred in ruling that the trust amendment was invalid because it was signed without prior court approval. According to the superior court, because a court "is required to interpret an order to maintain its validity and constitutionality if it is possible," a reasonable court would have interpreted the order "in such a way that it did not limit the testamentary capacity of Mr. Winters" and would have held a hearing "to at least explore the circumstances surrounding the proposed amendment" either before or after Winters' death. Given this conclusion, the court questioned whether any negligence by respondent could be viewed as having resulted in any damages suggesting that it would not have mattered if respondent had handled matters differently because the court should have held a hearing in any event. The court rejected as calling for speculation appellants' counsel's argument that actionable negligence could be proved because the probate court's erroneous ruling was foreseeable. Respondent's attorney responded with a motion for nonsuit, which the trial court granted. The court's order, filed on April 14, 2000, includes the following findings and determinations as a matter of law:
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