Appeals from the Superior Court of the District of Columbia (INT-184-02) (Hon. José M. López, Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
(Amended December 24, 2009)*fn1
Before REID, GLICKMAN, and OBERLY, Associate Judges.
Sally Jumper is dead, but a dispute arising out of the handling of her assets lives on. We must decide whether the trial court abused its discretion by sanctioning Allen Anderson, a friend of Ms. Jumper's, and William Rogers, Mr. Anderson's attorney, for the manner in which the pair conducted litigation over Ms. Jumper's assets. We affirm in part and vacate and remand in part the order awarding sanctions.
I. Facts and Procedural History
A. Background: Sally Jumper, Allen Anderson, and Jan Verfurth
Sally Jumper led an interesting life. Born in Detroit, Michigan, in the early 1920s, Ms. Jumper, an only child who never married, was educated at the Connecticut College for Women. As a young woman, Ms. Jumper worked as an interior designer, traveled in Europe, and went on to become an accomplished painter, sculptor, and musician. Although Ms. Jumper was stricken with blindness as an adult, she continued to be independent and worked as a psychotherapist until her retirement. In 2002, when the litigation that led to the present appeals began, Ms. Jumper lived at a continuing care facility in Washington, D.C.*fn2
We do not know precisely when she died, but the record tells us that by March 2004 Ms. Jumper had passed away.
Allen Anderson, one of the appellants in this case, was a long-time friend of Ms. Jumper's. At the sanctions hearing, Mr. Anderson described how he first saw Ms. Jumper decades before the proceedings began, when he was riding the bus to work. As Mr. Anderson recalled, he "saw this blind lady walking" with her seeing-eye dog and "wonder[ed]" whether "she would need books and articles and papers read to her." Mr. Anderson approached Ms. Jumper the next day, and they struck up a 30-odd year relationship that, according to Mr. Anderson, left people thinking that the two were husband and wife.
Ms. Jumper also had a long-standing, albeit less personal, relationship with Colonel Jan Verfurth. Col. Verfurth (who, as we shall learn, turned out to be a nemesis of Mr. Anderson's) testified that he first met Ms. Jumper in 1984 or 1985 when he was introduced to Ms. Jumper to serve as her stockbroker and financial adviser. According to Col. Verfurth, by 1995 Ms. Jumper's "portfolio had grown nicely," so Col. Verfurth recommended that Ms. Jumper "consider some trust planning documents." Ms. Jumper agreed with the suggestion, and Col. Verfurth set up a meeting for Ms. Jumper with I. Mark Cohen, an attorney specializing in estate planning.Mr. Anderson drove Ms. Jumper to the meeting where Ms. Jumper signed her estate-planning documents, but did not take part in that meeting himself. According to Col. Verfurth, Mr. Cohen advised Mr. Anderson, "sir, you will not be able to attend the signing because you are mentioned in the will and it would be inappropriate for you to be there."
B. The 1995 and 2001 Estate-Planning Documents
On October 6, 1995, as a result of her meetings with Mr. Cohen, Ms. Jumper executed several estate-planning documents, and Mr. Anderson figured prominently in each. For purposes of this case, the most important document that Ms. Jumper executed was the Sally A. Jumper Trust ("the 1995 Trust"). The 1995 Trust designated Ms. Jumper to serve as the initial Trustee, and provided that Mr. Cohen would assume the duties of Trustee if Ms. Jumper "cease[d] to serve as Trustee." The 1995 Trust provided that upon Ms. Jumper's death, 40% of her residual Trust Fund was to be distributed to Mr. Anderson.*fn3
Fast forward to January 2001,*fn4 when Ms. Jumper executed another set of estate-planning documents, including another iteration of the Sally A. Jumper Trust ("the 2001 Trust"). This time around, Ms. Jumper was represented by Cassandra Kincaid, not Mr. Cohen.
Although the 2001 Trust was similar for the most part to the 1995 Trust, the two trusts differed dramatically in their treatment of Mr. Anderson. As stated above, the 1995 Trust required the Trustee to distribute forty percent of Ms. Jumper's residual estate to Mr. Anderson. The 2001 Trust, by contrast, provided that upon Ms. Jumper's death and while Mr. Anderson was still alive, the Trustee was to "pay and distribute to or for Allen's benefit as much of the net income and as much of the principal of the Trust Fund as [the] Trustee, exercising sole discretion, may determine necessary or proper to provide for his health, education, support and maintenance." (Emphasis added.) The 2001 Trust directed that after Mr. Anderson's death, the Trustee was to distribute the balance of the Trust Fund among several charitable causes, including Ms. Jumper's alma mater, by then known as Connecticut College. See http://aspen.conncoll.edu/camelweb/index.cfm?fuseaction= offices&circuit=ehb&function=sec&action=1 (last visited Dec. 8, 2009).
In addition, the 2001 Trust, while retaining Ms. Jumper as the initial Trustee, provided that Col. Verfurth, not Mr. Cohen (as under the 1995 Trust), was to be the alternate Trustee. Regarding this change, Col. Verfurth testified that Ms. Jumper had asked him to serve as the successor trustee in 1995, but that Col. Verfurth's employer instructed him to decline that invitation because Col. Verfurth at the time was Ms. Jumper's financial adviser, which raised a potential conflict of interest.By 2001, Col. Verfurth was retired and thus free to serve as the Trustee.
C. 2001: Things Turn Sour
About six weeks after the 2001 Trust fundamentally altered Mr. Anderson's stake in Ms. Jumper's estate, Mr. Anderson began documenting his concern for Ms. Jumper's mental state.*fn5 For instance, in a March 3, 2001 "Memo for the Record," Mr. Anderson wrote of how "deeply Sal [had] sunk into a mild dementia." Mr. Anderson wrote that when he visited her, "Sally was not completely dressed but was eating her breakfast." In addition, Mr. Anderson wrote that Sally had asked him, supposedly "in a tone that is used when one is not sure who they are talking to . . . 'Where do you live?'" Finally, Mr. Anderson had brought soft toilet paper and paper towels for Ms. Jumper's use, but reported that Ms. Jumper told him that "she [was] not used to having people deliver things to her, and that she [was] not used to [Mr. Anderson] delivering such things!!" Mr. Anderson found this statement suspicious because he in fact had "been delivering stuff [though not necessarily toilet paper] to her for many, many years (actually, decades)." In sum, Mr. Anderson's March 3, 2001 visit to Ms. Jumper caused him to "worr[y] . . . greatly" about "how easy it would be for any unscrupulous persons to take advantage of [Ms. Jumper], such as having her re-do her legal papers.""If I ever discover that such is in fact the case," Mr. Anderson concluded his Memo for the Record, "I will take appropriate action."
A letter that Mr. Anderson wrote on February 26, 2001, to a doctor of Ms. Jumper's sounded a similar note. Mr. Anderson wrote that Ms. Jumper apparently had asked him about her car, even though, according to Mr. Anderson, Ms. Jumper had not had a car in at least fifty years. Mr. Anderson was relieved that "[a]t least this time Sally did not ask me to set out a bowl of water for her (long dead) Seeing Eye dog, Trini." Mr. Anderson's observations led him to believe that "Sally [was] progressively descending into senile dementia." In light of Ms. Jumper's purported decline, Mr. Anderson found it "questionable whether she [was] capable of making any kind of decision that required sustained rational thought."
Mr. Anderson also wrote to Mr. Cohen, the successor trustee under the 1995 Trust. Whereas Mr. Anderson's Memo for the Record and letter to Ms. Jumper's doctor made oblique references to Ms. Jumper's ability to make important decisions, the letter to Mr. Cohen, an attorney, tied Mr. Anderson's concern over Ms. Jumper's mental state to her estate-planning documents. In that letter, Mr. Anderson wrote: "Sally Jumper's personal physician . . . recently stated that Sally is 'not mentally competent' (sic) to make decisions about her medical care and needs." ("sic" in original). In view of that alleged statement by Ms. Jumper's physician and Mr. Anderson's personal experiences with Ms. Jumper, Mr. Anderson "question[ed] [Ms. Jumper's] mental competence to have had all her documents re-written." Furthermore, Mr. Anderson wrote that he "no longer [had] any trust in or confidence in the Verfurths." "I find it interesting," Mr. Anderson wrote to Mr. Cohen, "that you too were not aware she had re-done her papers.....especially since you are the back-up trustee....or were. I have been her friend for 30 years." (Ellipses in original.) A few weeks after Mr. Anderson's letter to him, Mr. Cohen wrote to Col. Verfurth that he had learned that Ms. Jumper had "executed revised documents in which [he was] no longer her back-up Trustee."
Several months later, in August 2001, Mitchell J. Shapiro - Mr. Anderson's lawyer at the time - wrote to Col. Verfurth to express Mr. Anderson's concern about Ms. Jumper's finances. Noting that Mr. Anderson held a power of attorney for Ms. Jumper,*fn6 Mr. Shapiro wrote that Mr. Anderson was "concerned about possible dissipation of Ms. Jumper's assets" and asked that Col. Verfurth provide an accounting of Ms. Jumper's assets. Mr. Anderson eventually conceded that he did not have a legal basis to seek an accounting - indeed, he later sought to become Ms. Jumper's guardian precisely to have that power - and that he had no evidence that Col. Verfurth had mismanaged Ms. Jumper's funds or engaged in any other impropriety. In an attempt to explain why an accounting was necessary nonetheless, Mr. Anderson cited the "fiasco" at the accounting firm Arthur Andersen. See generally, e.g., Kurt Eichenwald, Enron's Many Strands: The Accountants; Miscues, Missteps and the Fall of Andersen, N.Y. TIMES, May 8, 2002, at C1.
According to Mr. Anderson, Col. Verfurth never replied to the request for an accounting of Ms. Jumper's assets.
October 2001 marked another important moment in the saga. One day that month, Mr. Anderson allegedly learned that Ms. Jumper's legs and buttocks were covered with reddish-black bruises and that she had become incontinent during the night. Mr. Anderson blamed the incident on Col. Verfurth and his family because, as Mr. Anderson explained, "they were the ones who were disbursing, releasing money from Sally's funds, and in my opinion they should have been more diligent in seeing that her needs were taken care of." Mr. Anderson acknowledged that "by that time [he] was not on the best of terms" with Col. Verfurth. That was an understatement.
On October 18, 2001, Mr. Anderson wrote a colorful letter to Col. Verfurth, viciously attacking him for his treatment of Ms. Jumper. After recounting the bruises and the incontinence incident, Mr. Anderson accused Col. Verfurth of embezzling money from Ms. Jumper. "I understand that the other day," Mr. Anderson wrote, "your buddy Linda Thompson [the person in charge of paying Ms. Jumper's bills and handling her monthly expenses] presented Sal with a check made out to you." Mr. Anderson continued: "I hope it [i.e., the check] will help finance your next vacation, Mr. Verfurth." After pointing out that he did "not charge Sally Jumper ANYTHING" for the countless things that he brought her, Mr. Anderson concluded: "I am fully aware that you really do not give a s..t about any of these things, but while you are burning in Hell, I would like you to reflect on why you are there." (editing in original).
D. Mr. Anderson Files a Guardianship Petition
So things stood until May 2002, when Mr. Anderson - still with no evidence of any wrongdoing on Col. Verfurth's part - hired attorney William Rogers. Mr. Rogers testified that he asked Mr. Anderson for all documents that Mr. Anderson had concerning Sally Jumper, but that the only document that Mr. Anderson showed him was a "general power of attorney with a durable provision" from April 1995. Mr. Rogers further testified that he thought that that document gave Mr. Anderson "a general power . . . to act on [Ms. Jumper's] behalf," that is "[f]ull power and authority to sell, buy, trade, and on and on and on." The only document in the record from April 1995, however, is a medical power of attorney that gave Mr. Anderson authority "to make decisions about [Ms. Jumper's] medical care if there ever [came] a time when [she could not] make these decisions [herself]." See also supra, note 5. And at any rate, the power of attorney that Mr. Anderson gave Mr. Rogers had limited practical force - in Mr. Rogers' view, that power of attorney "wasn't truly operative, because it required two physicians, one being the attending physician, to declare [Ms. Jumper] to be incompetent," and that had not happened.
Mr. Rogers testified that prior to proceeding further, he spoke with Nancy Ludewig (a friend of Ms. Jumper's), Mamie Boyd (later, the court-appointed visitor for Ms. Jumper), and twice with Ms. Jumper's doctor, Marta Schneider. According to Mr. Rogers, Dr. Schneider told him that Ms. Jumper was "lucid part of the time but not consistently lucid." Mr. Rogers did not speak with Ms. Jumper to determine whether she wanted a guardian appointed for her, and made no independent effort to determine whether she had counsel.
Feeling that Col. Verfurth was "stonewalling" Mr. Andersonand that another letter demanding an accounting would be a waste of Mr. Rogers' time and Mr. Anderson's money, Mr. Rogers suggested that Mr. Anderson consider having himself appointed as guardian for Ms. Jumper. Mr. Anderson agreed. Accordingly, on June 18, 2002, Mr. Rogers filed in the Probate Division of the Superior Court a verified Petition in which Mr. Anderson sought to have himself appointed as Ms. Jumper's guardian and conservator.
The Petition alleged that Mr. Anderson was entitled to serve as Ms. Jumper's guardian and conservator because he was "her closest and oldest friend." Mr. Anderson also alleged that he was filing the Petition because of Ms. Jumper's "lack of consistent lucidity and comprehension of her situation," and added that Ms. Jumper was "totally blind." In a blank in the Petition that asks about "[a]ny counsel to the subject known to petitioner," Mr. Rogers wrote "unknown (but almost certainly NONE)." As the concrete reasons for why a conservator should be appointed, Mr. Rogers checked the following two boxes: (1) "the subject of the proceeding has property that will be wasted or dissipated unless property management is provided"; and (2) "money is needed for the support, care and welfare of the subject." After receiving the Petition, the trial court appointed Fiona Druy as Examiner, see D.C. Code §§ 21-2041 (d) and 21-2054 (a) (2001); Mamie Boyd as Visitor, see D.C. Code § 21-2033 (c); and Sheryl Ellison as Counsel for Ms. Jumper, see D.C. Code § 21-2033 (b).
Ms. Ellison's Response to the Petition painted a markedly different portrait of Ms. Jumper than the Petition. Asked about Mr. Anderson's attempt to become her guardian, Ms. Ellison quoted Ms. Jumper as saying: "he (Allen) has a nerve to apply for this petition." According to Ms. Ellison, "Ms. Jumper stated that Allen Anderson is not her oldest and closest friend; that Jean Howard is." (Emphasis added.) Accordingly, Ms. Jumper indicated that if someone had to be "responsible for her ...