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In re Penning

July 12, 2007


Appeals from the Superior Court of the District of Columbia (INTVP. No. 324-02) (Hon. José M. López, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued January 18, 2007

Amended August 16, 2007

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.

The instant appeals are from an intervention proceeding that culminated in the appointment of Iris McCollum Green to serve as conservator of assets in the District of Columbia belonging to Ann Cooper Penning. Appellant Ugo Gramegna, who is Penning's husband, primarily contends that the court abused its discretion in concluding that he had an "apparent conflict of interest" that precluded him from serving as conservator of his wife's assets himself.

Appellants George J. Hughes, Elizabeth Hughes, and Hughes & Bentzen, PLLC (collectively, "Hughes & Bentzen") principally challenge the court's decision to disqualify them from serving as Penning's counsel on conflict of interest grounds. We reverse the court's rulings and remand for further proceedings.


Ann Cooper Penning is an American citizen who retired from the practice of law in the District of Columbia and moved to Malaga, Spain in the late 1980s. Although Penning made Spain her new domicile, she continues to own property in the District of Columbia.

In January 2002, while visiting the United States, Penning was examined by Dr. Perry Richardson, a neurologist in Washington, D.C., and diagnosed with probable Alzheimer's disease.*fn2 Six months later, Penning, who had returned to Spain, was hospitalized for a week for acute gastroenteritis and "[d]ementia syndrome with severe cognitive deterioration compatible with Alzheimer's disease."*fn3 Penning's brother, John Cooper, traveled to Spain to visit her. After seeing her condition, Cooper filed an intervention petition in the Superior Court of the District of Columbia, seeking the appointment of a guardian for his sister and a conservator for her property in the District. Cooper also filed a "petition for declaration of incompetence" with the Lower Court Number Two of Torrox in Malaga, Spain. The petition asked the Spanish court to declare Penning "totally disabled" and to appoint a "tutor" on her behalf.*fn4

In January 2003, while the petitions were pending, Penning married her longtime friend, appellant Ugo Gramegna.*fn5 Around that time, Penning reportedly asked appellant Hughes & Bentzen, PLLC, a District of Columbia law firm that was assisting her in various matters, to represent her in the intervention proceedings in Superior Court. Appellants George J. Hughes and Elizabeth Hughes, attorneys in that law firm, thereupon moved to dismiss Cooper's petition. The motion was supported by Penning's affidavit, in which she described her background and current circumstances, denied that she was incapacitated or in need of a guardian or conservator, and, in conclusion, stated:

I vehemently oppose my brother, John H. Cooper or any member of his family being appointed as my conservator, guardian, trustee, and/or receiving power of attorney. Should I, in the future, have need of any assistance, my husband Ugo Gramegna, is able and willing to provide such services.*fn6

With the assistance of Hughes & Bentzen, Penning also executed a durable power of attorney designating Ugo Gramegna as her primary attorney-in-fact and Hughes & Bentzen lawyers as secondary attorneys-in-fact.*fn7 In addition, she executed a deed transferring her property in the District of Columbia to ACPG, LLC, an entity newly created by Hughes & Bentzen specifically to hold her assets.*fn8 Appellants have represented that Penning owns all of the membership units in the limited liability entity.

Thereafter, on July 10, 2003, the lower court in Malaga, Spain, issued its decision on the petition to declare Penning incompetent. Finding that Penning had become "totally disabled" as a result of "irreversible and progressive mental deterioration" consistent with Alzheimer's disease, the Spanish court chose to appoint the Andalucian Guardianship Foundation to serve as her tutor. The court refused to appoint Gramegna to be Penning's tutor, even though he was her husband, because it concluded that he had a "conflict of interest." The basis for that conclusion is not entirely clear from the court's opinion, but the court deemed it troubling that Penning's marriage to Gramegna took place after she was diagnosed with Alzheimer's disease, and that she reportedly was confused about how long she had been married to him.

As Cooper's intervention petition in Superior Court was still pending,*fn9 his counsel informed the court of the Spanish decision, and of the fact that it had been appealed. Upon receiving that information, the court requested the parties to file briefs addressing the significance of the Spanish decision for the proceedings in the District of Columbia. Unfortunately, Cooper's counsel became ill and failed to respond to the court's request. Penning filed a second motion to dismiss the intervention petition, which the Superior Court granted on October 9, 2003.

Cooper then retained new counsel, who moved pursuant to Superior Court Rule of Civil Procedure 60 (b) to set aside the order of dismissal. Among other things, the Rule 60 (b) motion asserted Cooper's belief that Hughes & Bentzen had been hired by Gramegna, not Penning, and that the firm had transferred Penning's assets to a limited liability company either to enrich Gramegna or to divest the Superior Court of jurisdiction over the intervention petition. After receiving the motion, the court appointed Robert Gazzola, an attorney not affiliated with Hughes & Bentzen or related to any of the parties, to act as Penning's counsel and to investigate Cooper's allegations. The court set the Rule 60 (b) motion down for a hearing on January 28, 2004.

Prior to the hearing, Gazzola filed a pleading setting forth his initial determinations and recommendations. Gazzola stated that he had reached Penning by telephone, though his initial call to her had been returned by Gramegna, who invited him to travel to Spain at his wife's expense to see her. Gazzola reported that Penning did not know if she had engaged counsel in the District of Columbia and "was not too sure whether . . . she had spoken with [appellant Elizabeth] Hughes." She also told Gazzola that she and Gramegna had been married for eight years. In light of her apparent confusion, Gazzola recommended that the ...

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