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In re Guardianship of Bernsen

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 8, 2019

IN THE GUARDIANSHIP OF LEON R. BERNSEN, SR., AN ALLEGED INCAPACITATED PERSON

          On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Justices Benavides, Hinojosa, and Valdez [1]

          MEMORANDUM OPINION

          ROGELIO VALDEZ, JUSTICE.

         Dianna Bernsen and Lynn Bernsen Allison filed competing applications requesting appointment as Leon R. Bernsen's guardian. Dianna and Lynn also filed competing motions in limine challenging each other's standing to commence or contest Bernsen's guardianship. The trial court granted both competing motions in limine and found that Dianna and Lynn both lacked standing to participate in Bernsen's guardianship.[2] In appellate cause number 13-17-00593-CV, appellants Dianna and Bernsen (the proposed ward in this case)[3] contend we should reverse the trial court's judgment granting appellee Lynn's motion in limine because there was insufficient evidence to find Dianna lacked standing. In appellate cause number 13-17-00591-CV, appellant Lynn contends we should reverse the trial court's judgment granting appellee Dianna's motion in limine on the basis that Dianna lacks standing.[4] In both causes, we affirm the trial court's judgments.[5]

         I. Factual and Procedural Background

         A. Bernsen Farms and The Bernsen Family Trust

         Bernsen is a ninety-four-year-old male who is the proposed ward in the guardianship proceedings at the trial court. He owned a multimillion-dollar estate comprised of cash, real property, commercial farmland, and partnership interests including an entity known as Bernsen Farms, Ltd. (Bernsen Farms or Partnership). The Bernsen Family Trust funds Bernsen Farms.[6] Bernsen has two children: Leon Bernsen Jr. and Dianna. Lynn, Lea, and Garrick Bernsen are Bernsen's grandchildren, children of Leon Jr. Virginia Means is Bernsen's sister.

         B. Leon Jr. sues Bernsen

         On July 22, 2013, Leon Jr. sued his father in district court alleging fraud and breach of fiduciary duty in Bernsen's administration of his wife's will (Anna Marie Bernsen) and the Bernsen Family Trust (district court suit).[7] He sought relief not to exceed $30, 000, 000. Bernsen filed a counterclaim to the district court suit, seeking relief between $200, 000 to $1, 000, 000.[8] These claims are pending in district court.

         Lynn filed a petition in intervention on June 7, 2017 in the district court suit, asserting she is a beneficiary of The Bernsen Family Trust, and, thus, has an interest in the district court suit. Lynn testified that she felt compelled to intervene in the guardianship to protect Bernsen's best interest as an intervenor.

         C. Competing Applications for Guardianship

         Dianna filed her first amended application for appointment of permanent guardian of Bernsen's person and estate on November 25, 2015. She attached a letter dated September 2015 from Dr. Jorge Mendizabal, a board-certified neurologist, declaring Bernsen "totally without capacity" and "unable to provide food, clothing or shelter for himself or herself, to care for [his] own physical health or to manage [his] own financial affairs." He diagnosed Bernsen with Alzheimer's Dementia with progressive cognitive decline.

         On January 19, 2016, Leon Jr. contested Dianna's application and filed his own application seeking to become Bernsen's guardian while simultaneously suing Bernsen in the district court suit.

         On June 22, 2016, Leon Jr.'s son Garrick also applied to become Bernsen's guardian. Dianna filed a motion in limine contesting Garrick's application on the basis that Garrick lacked standing because he held Leon Jr.'s power of attorney, which in turn obligates Garrick to carry out Leon Jr.'s interests in the district court suit. The trial court granted Dianna's motion in limine and found that Garrick did not have standing to commence Bernsen's guardianship because he held an interest adverse to Bernsen. Garrick did not appeal. Thereafter, Virginia Means, Bernsen's sister, applied to be guardian, but she withdrew her application shortly after appearing in the guardianship proceeding.

         Leon Jr. filed his fifth amended petition in the district court suit on November 3, 2016, and an amended application for guardianship on November 29, 2016.

         On February 03, 2017, Lynn filed an application for appointment of permanent guardian of Bernsen's person and estate. Leon Jr. died three days later.

         D. Pleadings in the Guardianship and District Court Suit

         On February 15, 2017, Dianna filed a motion in limine challenging Lynn's standing to commence or contest Bernsen's guardianship. According to Dianna, Lynn: (1) holds a pecuniary interest in the proceeds of Leon Jr.'s district court lawsuit; (2) takes hostile action towards Bernsen for the sole purpose of advancing her own interest; and (3) promotes Leon Jr.'s pecuniary interest in both the guardianship and the district court suit.

         Lynn similarly filed a competing motion in limine asserting Dianna is disqualified from serving as guardian because she is indebted to Bernsen, unsuitable to serve, and, in turn, lacked standing because she had an interest adverse to Bernsen. While Bernsen was suffering from Alzheimer's Dementia, Lynn claims Dianna took money and property from Bernsen. She attached evidence to her motion demonstrating Dianna's direct conflicts of interest, which Lynn claims preclude Dianna from serving as guardian because it would harm Bernsen and Dianna would owe fiduciary duties to multiple persons, a trust, and a legal partnership. Lynn prayed for the trial court to determine that Dianna lacks standing due to her debts, unsuitability, and disqualification.

         E. Evidentiary Hearing

         The trial court held a four-day evidentiary hearing to consider Lynn and Dianna's motions in limine and heard lengthy testimony. Numerous attorneys participated in the hearing including Don Ford, Robert Anderson, and Kenneth Krohn (each representing Dianna); Richard Crews (on behalf of Bernsen in the district court suit); Jeff Lehrman (on behalf of the Partnership), and Doug Allison (on behalf of Lynn and Leon Jr. in the district court suit and Lynn and Leon Jr. in the guardianship proceeding). Various exhibits were admitted into evidence, and several witnesses testified at the hearing and provided relevant evidence regarding Dianna and Lynn's lack of standing, including Dr. Nestor Praderio, M.D., Bernsen's brother Tommy Bernsen, Dianna, and Lynn. In addition, several of Dianna's e-mails were referenced to impeach Dianna's testimony.

         1. Lynn's Testimony

         Lynn testified that she did not see or interact much with Bernsen between 2012 and 2016 because of the ongoing dispute and pending litigation between Leon Jr. and Bernsen. According to Lynn, Bernsen called her a few times because he could not find his vehicle and wanted her to help him locate it at his house. Also, she went bird hunting in 2013, and when she showed him pictures of the birds, Bernsen "did not remember having a hunting place in Alice." She went over to his house a couple of times during this period, and she testified that each time he was really confused. According to Lynn, she would get calls from people who were concerned that Bernsen was lost, and Lynn needed to go get him. She last saw him at a family funeral in 2013 but claimed that "Dianna moved him out quickly . . . she didn't let him stay." At the funeral, Bernsen had a notebook with him and was taking down notes of who family members were.

         2. Dr. Praderio's Testimony

         Dr. Praderio testified by video that he is a psychiatrist specializing in geriatrics psychiatry. Bernsen appeared in his office for the first time on April 4, 2012. Dr. Praderio then evaluated Bernsen on July 25, 2012 and October 2, 2012. According to his documents, Richard Leshin, Bernsen's estate planning attorney, referred Bernsen to Dr. Praderio. His notes also indicated Dianna wanted an answer as far as Bernsen's capacity to make decisions.

         After reviewing Bernsen's treating physician's lab records and an MRI of Bernsen's brain, Dr. Praderio diagnosed him with a depressive disorder and a neurocognitive dementia disorder-an Alzheimer's type. As his treating physician, Dr. Praderio discussed prescribing Bernsen with medication, but Dianna did not want any medications administered. As part of his evaluation process, he referred Bernsen to Dr. Amanda McBride, Ph.D., a clinical psychologist, for more testing. Dr. McBride performed psychological testing (including but not limited to a clinical interview with Bernsen, behavioral observations, the Kaufmann Brief Intelligence Test, the Motor-Free Visual Perception Test, Cognistat, Dementia Rating Scale, Wisconsin Card Sort 64, and the Color Trails Tests), and her reports were consistent with Dr. Praderio's initial diagnosis.

         According to Dr. Praderio, Bernsen was at the end of the initial stage "almost getting into the moderate stage of the illness." It was his opinion that Bernsen was incompetent to: handle his bank accounts; enter into contracts; incur obligations; enter into formal legal documents of legal significance; pay, compromise, or defend legal claims made against him; collect on debts on rentals, wages, or claims owed to him; consent to governmental services; enroll in public or private residential care facilities; make employment decisions; consent to disclosure of medical records; and make decisions regarding insurance and other contracts for businesses. Dr. Praderio testified that given Bernsen's diagnosis of Dementia Alzheimer's and his incompetency, he would be susceptible to being coerced and was at risk for being unduly influenced with matters of property and wealth given that his condition was progressive and deteriorating. In fact, in just a four-month span, Bernsen had already lost about four points in his memory test, and "in six months, he had already deteriorate[d] remarkabl[ly]" and would continually get worse.

         On November 29, 2012, Dianna called Dr. Praderio requesting Bernsen's results. Dr. Praderio informed her of Bernsen's incompetency, all of the details of his evaluation, and Dr. McBride's evaluation addendum: "I found him not capable and I offered to [Dianna] the finding and they disappeared . . . ." Dr. Praderio testified that he offered to prepare a letter to proceed with guardianship, but "they did not show up for it."

         3. Tommy Bernsen's Testimony

         Tommy Bernsen, Bernsen's brother, testified at the evidentiary hearing by deposition taken on April 5, 2017. Tommy was handed a document that was purportedly written by him and filed with the trial court on April 13, 2017-the same day that Dianna filed the "Trustee of the Bernsen Family Trust." Tommy testified that he did not know Dianna had applied to be Bernsen's guardian, yet the document he allegedly filed appears to be a handwritten letter from him addressed to the court. The letter states that Bernsen is not completely incapacitated and that Dianna had been taking care of him and his business for several years. Thus, Dianna should be appointed Bernsen's guardian because "she already does this job and is the best person to continue to do this guardianship." Tommy reiterated that he did not write that letter; only his signature at the bottom of the document was in his handwriting, and he was perplexed regarding how it it was obtained because he had never seen that letter before and certainly did not authorize anyone to write that letter on his behalf.

         4. Dianna's Testimony

         i) Dianna's Initial 2015 Deposition Testimony

         In January 2015, Dianna asserted "My father has not given anybody anything as a gift that has to do with farming . . . Everybody's got to earn it," yet in May of 2011, she claims that Bernsen handed her a check for $150, 000. "I do not know what it was for except my dad wrote a check and he handed it to me and he said, I want you to have this." The memo on the check read "real estate consulting," but she testified that she has not performed real estate services for Bernsen. Thereafter, Bernsen issued a second check for the same amount for accounting work, but again, Dianna did not know what it was for. She insisted the checks were not gifts but income to "even out" what her brother Leon Jr. was taking from Bernsen. Thus, Dianna received $300, 000 from Bernsen in one year-the most he had ever given her.

         Dianna testified that ever since the inception of Bernsen Farms in December of 2012 (one month after Dr. Praderio diagnosed Bernsen with Alzheimer's Dementia), she would review leases and bank statements for deposits made to Bernsen Farms. For the years 2007 to 2011, however, she was not involved in this process. When asked how she became a general partner of Bernsen Farms, she said, "because somebody had to do it. I mean I was given an opportunity to be a part of it; and I said yes." She insisted that Bernsen still ran Bernsen Farms in 2013 and 2014 (despite his medical declinations) and was "doing a great job"; she was merely a partner reviewing leases and bank statements.

         On November 29, 2013, Dianna claimed that Bernsen deeded properties to her to correct an error[9] when he realized those properties were not included in the formation of the partnership. "That's the only time there's ever been a gift to me," though she does not know all of what was conveyed to her in that gift. She purportedly did not know thousands of acres were conveyed to her. In fact, Dianna claimed the 2015 deposition was the first time she heard of such conveyance even though she signed all the relevant documents. Contrary to that testimony, in an e-mail to Leshin dated April 30, 2012, Dianna stated she reviewed the summary of the properties that would be conveyed to her, and the total acreage was 5260.89 acres.

         As of January 23, 2015, Dianna stated she did not think Bernsen needed any care or support insofar as judgments about his business or how to manage Bernsen Farms; she did not think Bernsen needed help or assistance in managing The Bernsen Family Trust; and she believed Bernsen had always been, and continues to be, "fully competent to manage all of his affairs" despite Dr. Praderio's diagnosis. When asked about her involvement with the creation of the partnership in 2012, she stated: "I didn't have anything to do with that. It was my dad's plan." When asked if her father had been to a doctor in the last five years, Dianna testified that she did not know although she physically accompanied him to Dr. Praderio's office. Similarly, she "did not know" if Bernsen had any sort of diagnosis with regards to Alzheimer's Dementia, contrary to Dr. Praderio's testimony. Yet on July 25, 2012, Dianna e-mailed attorney Leshin stating Bernsen saw Dr. Praderio at 12 noon and was scheduled for a follow-up appointment with Dr. McBride on Augusut 13 and another follow-up with Dr. Praderio in September. Dr. Praderio was also the subject of numerous other e-mails from Dianna to attorney Leshin contrary to her testimony that she was unaware whether he was seen by any treating physicians or was diagnosed with any medical conditions.

         ii) Dianna's 2017 Evidentiary Testimony

         At the evidentiary hearing in 2017, Dianna testified that there was no tax planning done by Bernsen between 1997 and 2012. She continued to assert that she was not involved in discussions with Bernsen or his attorney Leshin regarding the creation of a partnership, and when she was presented with multiple e-mail exchanges in ...


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