Antonella Apuzzo DiPortanova and Paul Piero DiPortanova v. James Patrick Smith ( Court Appointed Guardian), Tina Lamatta, ( Court Appointed Guardian of the Person), and Richard E. Monroe, Jr. ( Court

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2012 » Antonella Apuzzo DiPortanova and Paul Piero DiPortanova v. James Patrick Smith ( Court Appointed Guardian), Tina Lamatta, ( Court Appointed Guardian of the Person), and Richard E. Monroe, Jr. ( Court

State: Texas

Court: Texas Northern District Court

Docket No: 01-10-01019-CV

Case Date: 11/30/2012

Plaintiff: Antonella Apuzzo DiPortanova and Paul Piero DiPortanova

Defendant: James Patrick Smith ( Court Appointed Guardian), Tina Lamatta, ( Court Appointed Guardian of the Pe

Preview:Opinion issued November 30, 2012.

In The

Court of Appeals
For The

First District of Texas
------------------------

NO. 01-10-01019-CV ---------------------- ANTONELLA APUZZO DI PORTANOVA AND PAUL PIERO DI PORTANOVA, Appellants V. RICHARD E. MONROE, JR., GUARDIAN OF THE ESTATE OF UGO DI PORTANOVA, WARD, A PARTIALLY INCAPACITATED PERSON; JAMES PATRICK SMITH, GUARDIAN AD LITEM FOR UGO DI PORTANOVA, WARD, A PARTIALLY INCAPACITATED PERSON; AND TINA LAMATTA, GUARDIAN OF THE PERSON OF UGO DI PORTANOVA, WARD, A PARTIALLY INCAPACITATED PERSON, Appellees

On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Case No. 94467438

OPINION In this appeal, we consider whether a suit for non-dispositive administrative consolidation of several trusts, filed by guardians of a partially incapacitated person pursuant to Section 112.054 of the Texas Property Code, triggered an in terrorem1 clause in the wills creating the trusts, thus resulting in a forfeiture of the ward's interest in the trusts. We affirm. BACKGROUND The Parties Ugo Di Portanova is the 74-year-old grandson of H.R. and Lillie Cullen. Ugo is partially incapacitated2 and has lived with Annunziata and Umberto LaMatta since 1974. In 1998, Tina LaMatta was appointed as guardian of Ugo's person. Richard Monroe is the guardian of Ugo's estate. James Patrick Smith is Ugo's guardian ad litem. Collectively, we refer to LaMatta, Monroe, and Smith as "the Guardians." Paul Piero Di Portanova and Antonella Apuzzo Di Portanova ["the Di Portanovas"] were adjudicated to be Ugo's half-siblings by a 1996 judgment in a paternity suit filed in an Italian court. The Di Portanovas and Ugo share the same
1

2

An in terrorem or "no contest" clause in a will is a clause that provides that a beneficiary who contests the will forfeits his interest thereunder. See Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex. App.--Fort Worth 2003, pet. denied). The trial court has described Ugo as a person "of limited mental capability," but has nonetheless recognized that he is sufficiently competent to exercise testamentary capacity. 2

father--Paolo Di Portanova, but Ugo's mother is Lillie Cullen Di Portanova, the daughter of H.R. and Lillie Cullen, and the Di Portanovas' mother is D'Alesandro Filament, a woman from Naples, Italy. Max Butler, Robert Hux, and Robert A. Higley ["the Trustees"] were cotrustees of the H.R. Cullen and Lillie C. Cullen New Louisiana Trust, a trust established by the Cullens in their wills for the benefit of their grandson, Ugo. The Trustees have settled their interest in this case, and are not parties to this appeal. The Cullens' Wills and Codicils Create a Discretionary Trust H.R. and Lillie Cullens' wills each contained a codicil that provided for the creation of certain trusts to hold their Louisiana property, which, at the time, consisted mostly of certain mineral interests. Ugo was the beneficiary of two such trusts--one created under each will. In 1996, the trial court granted a judgment merging the trusts, and the H.R. Cullen and Lillie C. Cullen New Louisiana Trust ("the New Louisiana Trust") was created.3 After the trusts were merged, all Louisiana properties were sold and there are no assets in the New Louisiana Trust located in the State of Louisiana. The codicils establishing the trusts provide in relevant part that "the Trustee, from time to time, may distribute to the person for whom such Trust was created

3

No party objected to the 1996 judgment, nor alleged that the merger of those trusts violated the in terrorem clause in the wills. 3

such amounts of such Trust Estate as, in the discretion of the Trustee, are in the best interests of such person . . . ." The codicils further provide that upon Ugo's death, "the Trust Estate of such Trust shall be distributed to such person's heirs-atlaw under the Louisiana statutes of descent and distribution in effect at that time . . ."4 The Cullen wills that created the trusts contained a provision making each testator's spouse the trustee, or, if deceased, the testator's daughters. The

provision also contained provisions regarding the appointment of successor trustees, as follows: I appoint my [wife or husband] Trustee of all Trusts created or continued herein. If my wife shall, for any reason, fail or cease to act, I appoint my daughters, AGNES CULLEN ARNOLD, MARGARET CULLEN MARSHALL, AND WILHEMINA CULLEN ROBERTSON, to serve as a Board of substitute or successor Trustees. If any one or more of the substitute or successor Trustees shall, for any reason, fail or refuse to act, the remaining Trustees shall appoint (by written instrument filed in the Court in which this Will is first probated) a sufficient number of substitute or successor Trustees so that there shall be three (3) Trustees acting at all times; provided, nevertheless, that, in the interval prior to the appointment of such substitute or successor Trustees, the remaining Trustee or Trustees shall have and exercise all powers which might be exercised by the full Board of three (3) Trustees. If, at any time or for any reason, there is no Trustee acting hereunder, a new full Board of three (3) Trustees shall be appointed (by written instrument filed in the Court in which this Will is first probated) by the senior Judge (in years of service in such capacity) of the District Court of the State of Texas,
4

As Ugo's only living relatives through their mutual father, the Di Portanovas claim that they would be Ugo's "heirs-at-law." Thus, the Di Portanovas claim to be contingent beneficiaries of the Cullens' wills. 4

the jurisdiction of which includes any part of Harris County, Texas, acting as an individual. In all appointments to said Board, it is my request that preference be given to my relatives and those of my [wife or husband]; however, anything to the contrary herein notwithstanding, not more than one member of said Board so appointed shall be an income beneficiary under any Trust created herein. The Previous Lawsuit and Appeal In 2003, the Guardian of Ugo's estate filed an "Application to Make TaxMotivated Gifts for the Benefit of Annunziata LaMatta and Family," in which he sought to use over five million dollars from the New Louisiana Trust to fund a new trust to be established for the benefit of Annunziata LaMatta and her family. The Guardian of Ugo's estate also sought a judgment declaring that the Cullens' wills permitted such a distribution. On November 23, 2004, the trial court signed a Final Declaratory Judgment, in which the trial court declared that the Cullens' wills and codicils authorized the Trustees to make the proposed gifts to the LaMattas, including the payment of the federal gift taxes owing thereon. The final judgment also declared that the clauses by filing the petition for

Guardian had not violated the in terrorem

declaratory judgment, participating in the proceedings, or filing the application to make tax-motivated gifts for the benefit of the LaMatta family. On appeal, this Court held that the trial court (1) correctly determined that the Guardian's filing the petition for declaratory judgment, participating in the
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proceedings, and filing the application to make tax-motivated gifts for the benefit of the LaMatta family request for a declaratory judgment did not violate the in terrorem clauses in the Cullens' wills, but (2) it lacked jurisdiction to determine whether the LaMatta trust should be funded because that was a matter that should have been left to the Trustees' discretion. Di Portanova v. Monroe, 229 S.W.3d 324, 333

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