Wilson v. Tedesco (In re Conservatorship of Estate of Tedesco)
| Decision Date | 19 September 2019 |
| Docket Number | E070316 |
| Parties | Conservatorship of the Estate of THOMAS S. TEDESCO DAVID WILSON, as Conservator, etc., et al. Petitioners and Respondents, v. THOMAS S. TEDESCO, Objector and Appellant. |
| Court | California Court of Appeals Court of Appeals |
The court has reviewed the petition for rehearing filed October 2, 2019. The petition is denied. The opinion filed in this matter on September 19, 2019, is modified as follows:
On page 2, in the last full paragraph, delete "heard on the merits" and replace with "considered." The last full paragraph should read:
Because a conservatorship over Thomas's estate had been established, the probate court possessed exclusive concurrent jurisdiction to discharge nonappointed counsel and to interfere in the civil court's appointment of a GAL. We further discern the court did not violate its duty to assure Thomas's claims against defendants (see fn. 6) and his daughters were considered. We therefore affirm the orders on the petitions for instruction.
There is no change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J.
RAMIREZ
P. J.
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D. Marshall; Swann, Carpenter, Wallis & McKenzie and Kevin McKenzie for Objector and Appellant.
Holland & Knight, Stacie P. Nelson, Jonathan H. Park, Robert Barton and Roger B. Coven for Petitioner and Respondent David M. Wilson.
Sheppard, Mullin, Richter & Hampton, Adam F. Streisand, Nicholas J. Van Brunt and Valerie E. Alter for Petitioners and Respondents Laura K. White, Julie M. Bas and Sandra L. Kay.
Objector and appellant Thomas S. Tedesco (Thomas),1 a conservatee, appeals from the orders on petitions for instructions regarding the administration of the conservatorship of his estate. He contends the probate court2 (1) had no authority to discharge legal counsel selected by him, (2) had no jurisdiction to interfere with the civil court's appointment of a guardian ad litem (GAL) for him, and (3) violated its duty to assure that his claims for misappropriation of funds were heard on the merits.3
Because a conservatorship over Thomas's estate had been established, the probate court possessed exclusive concurrent jurisdiction to discharge nonappointed counsel and to interfere in the civil court's appointment of a GAL. We further discern the court did not violate its duty to assure Thomas's claims against defendants (see fn. 6) and his daughters were heard on the merits. We therefore affirm the orders on the petitions for instruction.
Thomas is a wealthy nonagenarian, having amassed in excess of $30 million. He and his late wife Wanda Tedesco (Wanda) created an estate plan to benefit their three daughters, petitioners and respondents Laura White (Laura), Sandra Kay (Sandra), and Julie Bas (Julie), and their grandchildren. Following Wanda's death, Thomas married Gloria Basara (Gloria), who had two daughters from a prior relationship, Wendy Basara (Wendy) and Debra Wear5 (Debra). For the first six years of their marriage, no issueswere raised regarding Thomas's estate plan, which favored his biological heirs. However, in 2013, after undergoing multiple surgeries, Thomas became intellectually impaired and susceptible to being unduly influenced. He ended his decades long relationship with his family/estate plan attorney, Burton A. Mitchell (Mitchell), limited contact with his daughters and, for the first time, expressed a desire to leave 75 percent of his estate to Gloria and 25 percent to charity.
Given the sudden, radical change in Thomas's mental functioning and behavior, in 2014, a conservatorship over his estate was established, along with court-appointed counsel to represent Thomas. Subsequently, Thomas, influenced by outside sources and represented by nonappointed counsel, initiated a civil action in the Superior Court of Orange County against his daughters and grandchildren, alleging they had misappropriated his assets. Petitioner and respondent David M. Wilson (Wilson), who had been appointed permanent conservator, retained specialized counsel to investigate the allegations. Based on the investigation, the allegations were determined to be baseless, and Wilson caused the action to be dismissed with prejudice.
Undeterred by Wilson's actions, Thomas, again represented by nonappointed counsel, petitioned the probate court for permission to retain nonappointed counsel and pursue a civil action against his daughters, individually and as trustees of various trusts, Wells Fargo Bank, N.A. (Wells Fargo), and his former attorneys Mitchell and Jeffer, Mangels, Butler & Mitchell (Jeffer Mangels) (collectively defendants)6 for, inter alia, misappropriation of assets. Wilson successfully opposed the petition. Nonetheless, Thomas filed the first of two actions in the civil court alleging cancellation/rescission of documents and transfers, breach of fiduciary duty, elder financial abuse, fraud and misrepresentation, negligence, conversion, and declaratory relief against defendants. Defendants successfully moved to strike the first complaint on the grounds Thomas could not retain counsel or initiate litigation without Wilson's or the probate court's permission. In a separate appeal, we affirm that order. (See Tedesco v. White et al., supra, E069438.)
Thomas, represented by nonappointed counsel, petitioned the probate court for the appointment of Stephen G. Carpenter (Carpenter) as GAL, for the purpose of filing an identical second civil action against defendants. Before the probate court could rule on Carpenter's petition, he withdrew it and submitted an ex parte application in the civil court to be appointed GAL for Thomas in the second civil action. The civil court granted the application, and the second civil action was filed.
Wilson and Thomas's daughters returned to the probate court. Thomas's daughters, as cotrustees, petitioned the court for instructions declaring void all purported legal services agreements between Thomas and nonappointed counsel. Thomas's daughters argued that Thomas was subject to a conservatorship and thus lacked the legal capacity to enter into any legal transactions. Separately, Wilson, as the appointedconservator, filed an ex parte petition in the probate court for instructions/order (1) affirming his power to initiate and maintain litigation on Thomas's behalf, (2) instructing him to intervene in the second civil action for the purposes of dismissing it, and (3) limiting the initiation of litigation on behalf of Thomas to Wilson and court-appointed counsel, including specifically barring nonappointed counsel and Carpenter from initiating or pursuing litigation on behalf of Thomas. The probate court granted both petitions. This appeal followed.
Thomas obtained his wealth through the sale of the family business and the purchase of commercial properties. Thomas and Wanda were married in 1951, and theyhad three daughters (Laura, Sandra, & Julie). On July 28, 1988, Thomas and Wanda created the Tedesco Family Trust (Family Trust). In 1993, they requested Mitchell of Jeffer Mangels set up TW Tedesco Properties, L.P., a California limited partnership (Tedesco Properties). Tedesco Properties became the owner of various assets and real estate previously controlled by Thomas. Initially, Thomas was the sole owner of the one percent general partner's interest and 98 percent limited partner's interest, and Wanda owned the remaining one percent limited partner's interest; however, Thomas transferred his 98 percent limited partner's interest into the Family Trust and, in early 1995, assigned his general partner's interest to the Family Trust.
In April 2002, Wanda died, and the Family Trust was divided into five separate trusts, including a survivor's trust, which was renamed the Thomas S. Tedesco Living Trust (the Living Trust).8 Thomas is the sole beneficiary of the Living Trust, whose primary asset is Tedesco Properties. On February 11, 2011, Thomas executed the complete amendment and restatement of the Living Trust, and he subsequently amended it on February 23 and May 2, 2012, and again on June 29, 2013.
Between 1993 and 2013, Thomas (and Wanda during her life) annually transferred small percentages of Tedesco Properties' limited partnership interest (valued at or less than the annual gift-tax exclusion) to his daughters and grandchildren. On February 11, 2011, Thomas appointed his three daughters as his "true and lawful attorneys in fact . . .to act in any lawful way for [him] and in [his] name, place and stead and for [his] use and benefit as authorized." They were authorized to transfer trust assets and file any necessary tax returns. If a conservatorship was needed, he nominated his daughters to serve, acting by majority vote.
On September 6, 2012, W. Mae, LLC, a California limited liability company (W. Mae), was created. On December 26, 2012, Thomas gifted the Living Trust's general partner's interest in Tedesco Properties to W. Mae; however, the amendment to the certificate of limited partnership, which evidences this transfer, was not filed with the Secretary of State until April 4, 2013. On or about February 20, 2013, Thomas's daughters authorized Wells Fargo to change the signer on the Tedesco...
To continue reading
Request your trial