STATEMENT OF THE BASIS OF APPELLATE JURISDICTION

This is an appeal taken under HCR 7.203(A)(2), and HCR 5.801(B)(2)(a) and (j),
from a final order of the Hypothetical County Probate Court for the sale of real estate of a
protected individual, dated Feb. 12, 2015, in Docket No. 11-NNNNN-CA.

Also

consolidated is an appeal taken under HCR 7.203(A)(2) and HCR 5.801(B)(2)(u), (x), and
(cc), from the final order of the Hypothetical County Probate Court on Clarence
Conservators (interim conservators) amended petition to employ attorney, dated April 7,
2015, in Docket No. 11-NNNNN-CA.
Under HCR 7.204(A)(1)(a), the deadline for claiming an appeal of right is 21
days after entry of the judgment or order appealed from. In this case, the RespondentAppellants Claim of Appeal and all required fees in Docket No. NNNNNN were
received by the Court of Appeals on March 3, 2015 (19 days). In Docket No. XXXXXX,
the Claim of Appeal and all required fees were received by the Court of Appeals on April
21, 2015 (14 days). In both consolidated cases, the appeal is as of right, jurisdiction lies
in this honorable Court, and the appeal is timely.
STANDARD OF REVIEW
In cases involving a probate court sitting without a jury, factual findings are
reviewed for clear error. In re Eggleston, 266 Hyp. App. 105, 112; 698 V.W.2d 892, 897
(2005); In re Bennett, 255 Hyp. App. 545, 549; 662 V.W.2d 772 (2003); see also In re
Bittner, No. 320688, __ Hyp. App. __, 2015 WL 5224935, at II, slip op., at 5 (Hyp. Ct.
App. Sept. 8, 2015) (Addendum J). Errors of law are subject to de novo review, without
deference to the probate court. In re Eggleston, 266 Hyp. App. at 112; 698 V.W.2d at
897; see also Mericka v. Dept of Community Health, 283 Hyp. App. 29, 36; 770 V.W.2d
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

24 (2009); Oldenburg v. Dryden Twp., 198 Hyp. App. 696, 698-701; 499 V.W.2d 416
(1993). Issues of statutory interpretation are legal in nature, and therefore subject to de
novo review, without deference. In re Bittner, __ Hyp. App., at __; 2015 WL 5224935 at
II, slip op., at 5; see also Spectrum Health Hosp. v. Farm Bureau Mut. Ins. Co. of Hyp.,
492 Hyp. 503, 515; 821 V.W.2d 117 (2012). An inferior tribunals failure to follow
proper procedures is an error of law, subject to reversal on a de novo basis. In re
Seymour, 258 Hyp. App. 249, 258; 671 V.W.2d 109 (2003) (Accordingly, the probate
court erred in failing to consider all relevant facts and circumstances . . . .); Oldenberg,
supra, at 698-701. A finding is clearly erroneous when a reviewing court is left with a
definite and firm conviction that a mistake has been made, even if there is evidence to
support the finding. In re Bittner, slip op., at 5; In re Bennett, 255 Hyp. App., at 549; 662
V.W.2d 772.
The central issue is one of statutory interpretation whether, as a matter of law, a
probate fiduciary who must maintain undivided loyalty to the protected individual, may
nonetheless rely on a statute outside the ESTATES

AND

PROTECTED INDIVIDUALS CODE

(EPIC) involving real estate licensees (not probate fiduciaries) to evade the probate
fiduciarys mandatory duties of undivided loyalty, due care, accountability, and full
disclosure to the protected individual, by utilizing the services of a real estate brokerage
with divided loyalties, that is simultaneously representing both the buyer and the seller of
the protected individuals real estate. The Legislature has authorized no such thing. No
reason exists to legislate such an exception to the duty of undivided loyalty either
through the normal legislative process (which would require both introduction and

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 2 of 25

passage of imaginary, presently-nonexistent legislation) or outside it. Indeed, the real

estate statute is a pro-disclosure statute, not an exemption from fiduciary duties.
Accordingly, reversal is legally mandatory. Moreover, the legal issue of whether
the probate court followed proper procedures and provided the mandatory oversight of
Clarence Conservator, the probate fiduciary, as well as of the purported guardian ad
litem, as required by statute, also is present. The probate court did not provide essential
statutory oversight or follow proper procedures, and therefore it erred as a mater of law.
Third, the probate court assumed facts not in evidence, ignored key evidence, relied upon
rank hearsay (over a clear objection) and did other things definitely and firmly supporting
the probate courts own concession (later tacitly admitted on-record) mistakes have
been made.

PRELIMINARY STATEMENT
Extensive scientific literature now exists about cognitive biases, common among
humans including motivated reasoning, the Dunning-Kruger Effect, confirmation bias,
and framing that, if one learns to recognize and compensate for them, can be moderated
at least in part. For instance, if one has a predetermined end-result in mind (such as real
estate winding up in the hands of a particular buyer, at a set time and a reduced price), it
can be more difficult to focus accurately on such things as actually fulfilling the duties,
including loyalty and full disclosure, of a fiduciary. It would be desirable to summarize
the literature on cognitive biases, but briefs inevitably must be . . . well, brief. Those
willing to apply the fruits of cognitive bias research (which largely reinforce the

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 3 of 25

customary, transparent, truth-seeking processes of courts, including appeals), should

identify and consider how many such biases appear in the record of this case.
With that predicate in mind, and controlling for cognitive bias . . . if the following
narrative and four questions (pages 14-15), were to appear on a law school examination,
is there any reason why every person in class should not score at least an A, if not
better?
You are a professional fiduciary, appointed under the ESTATES

AND

PROTECTED

INDIVIDUALS CODE (EPIC) on Dec. 5, 2014, to act as the interim or temporary

conservator for Polly Protected Individual. Polly is the widow of the late Hon. Paul A.
Protected Individual, a 30-year Hypothetical Limited Court Judge.

Among Pollys

principal assets is her South Egg home where, from 1970-2011, she enjoyed a seasonal
view of Egg Lake. You know the house is appreciating in value. A well-qualified real
estate agent with South Egg expertise already has recommended,1 as of Dec. 4, 2014,
1

The probate judge, on p.89 of the Feb. 12, 2015, transcript, uses personal speculation
without any evidence to suppose facts contrary to actual events, imagining, My
understanding is this: You hire a real estate agent. You tell them what you want to list it for.
Id. As disclosed by emails included in the record, that is not at all what happened with Annie
Agent. Aside from supplying the three-year-old appraisal, Ivan Individual suggested no price to
Agent, ever. He and Polly both agreed with Agents original idea to list at $114,000.00. Agent
also, on her own initiative, recommended $119,000.00, which Polly and Ivan both also
approved. Clarence Conservator, on pages 96-97 of the transcript, on cross-examination
concedes the emails show $119,000.00 came from Annie, not Ivan, but goes on to volunteer, I
have other another email that suggests otherwise. No suggests otherwise email is in the
record. So far as we can determine, it is a complete and utter fabrication precisely because
Ivan (contrary to the fact-finders whimsical flight of imagination) never proposed this number.
Conservator also falsely testified that Bertha Bigfoot prepared a competitive market
analysis, purportedly provided to counsel. (Transcript, at 97-98 (Feb. 12, 2015) (Tr.)). For
certain, counsel received nothing. Further, Conservators emails, disclose (at least prior to the
listing) no preparation of any CMA by Bigfoot, but pulling listings for the wrong part of South
Egg. Email from Clarence Conservator to Ivan Individual (Jan 12, 2015, at 5:29 P.M) (Part of
Exhibit A-7 to Doc. Ent 98, Affidavit Supporting Opp. to Real Estate Motion) (Addendum D).
(continued...)
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In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

listing it for $119,000.00 which is nearly $30,000.00 more2 than its appraised value on
Dec. 31, 2011. See (Transcript, at 55-56 (Feb. 12, 2015)) (Tr.); (Email from Annie
Agent to Larry Lawyer and Clarence Conservator (Dec. 16. 2014) (Exh. A-4 to
Appellants Opposition to Real Estate Petition (Doc. Ent. 98, Exh. A-4) (Addendum D)).
On Dec. 23, 2014, responding to pressure from you (the fiduciary!) to lower her
$119,000.00 value, Annie Agent responds, If there is some issue with the listing price
being too high, I can lower it somewhat, but I dont think we should underestimate the
value of the home. Buyers are never shy about making a low-ball offer, so the market
will tell us if we have started too high!

Email from Annie Agent to Clarence

Conservator (Dec. 23, 2014), (Doc. Ent. 98, Exh. A-5) (Addendum C) (emphasis added).
Even factoring in an Oct. 2014 roof replacement (an $8,300.00 capital
improvement, not a carrying cost), still market appreciation exceeds carrying costs
insurance, taxes, interest, services, and electricity. (See Individual Aff., at 13 (Doc. Ent.
1

(...continued)
Other aspects of that email are even more interesting. Id. (emphasis added) (You are correct
that Bigfoot had initially suggested a higher listing price; however, he had understood that the
home was in a different location.) (admission by Conservator).
2

Indeed, at the Feb. 12, 2015 hearing (thus, in fairness to Conservator, Mr. Hornblowers
argument was made after the Dec. 29, 2014 time frame for the four questions, below), Hubert
Hornblower the attorney representing Pollys two daughters not only conceded, but
affirmatively advocated, that there had been at least a $39,990.00 appreciation in the value of
the South Egg real estate in only two years (from $60,000.00 in Oct. 2012, according to
Hornblower, to just shy of $100,000.00 on Dec. 31, 2014). (Tr., at 9-10 (Feb. 12, 2015)). How
Hornblower can, in essentially the same breath, assert first that there has been a $40,000
appreciation in less than two years (in other words, Polly has benefitted significantly from over
a 20% annual rate of return on this asset by waiting to sell) but then also claim a
continuous [financial] drain for a number of years, id. is something of a mystery, at least
without any evidentiary showing of more than $40,000.00 in carrying costs over the same time
period (in actuality, the carrying costs were less than a quarter of that, in that time period).
We respectfully leave it to this honorable Court to ascertain for itself whether it is
logically possible to square that circle. The arithmetic does not appear complicated.
Page 5 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

98, Exh. A)). You know Polly has enough regular income to expose the real estate
indefinitely to the open market, to maximize the sale price. (See Individual Aff., at 29
(I explained [to] Mr. Conservator . . . that Polly was in a financial position that enabled
her to leave the property exposed to the open market . . . .) (Doc. Ent. 98, Exh. A)). The
protected individual is making money because appreciation exceeds carrying costs. Id.,
paras. 11-13, 16, 19, 29-31, 44.
In addition to Polly, interested persons for your EPIC duties3 include Pollys four
children Ivan (b. 11/15/1967), an attorney of 20 years; Igor (b. 3/22/1977), a banker
with finance and valuation skills; Isis (b. 11/11/1969), a freelance massage therapist; and
Inez (b. 7/2/1973), not working but trained in nursing. You know, after personally
attending court on Dec. 5, 2014, that daughter Isis, is charged with financial abuse of a
vulnerable adult, a felony (she was bound over to superior court after a prelim in limited
court). (Transcript, at 13 (Dec. 5, 2014) (Doc. Ent. 85)) (Tr.). Inez also is under
investigation for 38 wire transfers, each in amounts up to $30,000.00, between Judge
Individuals death (Jan. 26, 2009), and April, 2011. Id. The probate court, on Dec. 5,
pre-announces to selected lawyers in chambers4 (Ivan, though a licensed attorney who has
3

See HCL 700.5416 ([A] conservator shall act as a fiduciary and observe the standard of
care applicable to a trustee.); HCL 700.1212(1) (A fiduciary stands in a position of confidence
and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom
the person is a fiduciary. A fiduciary shall observe the standard of care described in section
7803 and . . . . all of the duties . . . . of a confidential and fiduciary relationship, including the
duties of undivided loyalty; impartiality between heirs, devisees, and beneficiaries; care and
prudence in actions; and segregation of assets . . . .) (emphasis added); HCL 700.3712.
4

But see HYPOTHETICAL CODE OF JUDICIAL CONDUCT, Canon 3(A)(4) (distinguishing

between proceedings on the merits, in the presence of interested parties, and scheduling,
administrative [issues], or emergencies that do not deal with substantive matters or issues on the
merits, which may be addressed ex parte). It should be noted that Ivan has considerably more
(continued...)
Page 6 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

appeared, see HCR 2.117(B)(1), nonetheless has been excluded from repeated off-record
proceedings about the merits of substantive issues) that it intends to order a forensic
audit of all Pollys money and assets. Why if the pre-existing conservator already has
filed an inventory and two formal accountings, and everything (according to written
guardian ad litem (GAL) reports) is in order the extraordinary duplicate
oversight of an audit outside normal statutory procedures, at a projected cost to the
protected individual of up to $10,000,5 would be advisable, never is explained on the
record, either to or by the probate court.
The self-identified6 GAL on Dec. 5 argues that she has the assets, and the
GAL personally wonders where money has gone. (Tr., at 6 (Dec. 5, 2014) (Doc. Ent.
85)). This personal ignorance on the GALs part (not shared by the pre-existing

(...continued)
detailed and granular knowledge of the facts on the ground, relating to Pollys circumstances,
health, and capabilities, as well as the contents of Pollys financial records, than any of the hired
lawyers in the case. Thus, the probate courts arbitrary restriction upon its own opportunity to
interrogate Mr. Individual about what the facts really are, while conducting these off-record
proceedings on the merits, puts the probate court itself at a disadvantage, when it comes to
making decisions on the basis of a complete and accurate factual record. Preferably, all issues
involving the merits would be addressed on the record. Canon 3(A)(8) ([T]he judge should bear
in mind that undue interference, impatience, or participation in the examination of witnesses, or
a severe attitude on the judges part toward witnesses . . . may tend to prevent the proper
presentation of the cause, or the ascertainment of truth . . . . [T]he judge should avoid a
controversial manner or tone. A judge should avoid interruptions of counsel . . . and should not
be tempted to the unnecessary display of . . . a premature judgment), also should be observed.
5

At the Dec. 5 court events, Ivan Individual opposed requiring Polly or her estate to bear
the expense of an audit. (Tr., at 7-8 (Dec. 5, 2014)). However, challenging this unnecessary
expense (and requiring the two attorneys who dreamed it up to pay for it) is not yet ripe for
appellate review, and is not yet presented in this appeal. The audit which the probate court
directed be completed by April 30, 2015, see id., at 19 still has not been finished as of midSeptember, 2015. Both the local Sheriffs Department and the conservator son, prior to
December 5, already had conducted a financial investigation free of charge to Polly.
6

See Reply Brief (this person was not then actually appointed by a proper court order).
Page 7 of 25

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

conservator) was and is entirely avoidable. The self-identified GAL had been invited
repeatedly since July 2011 to see the records, and yet consistently has refused this simple,
expedient, and economical measure without any reason for this pattern of refusal.
Moreover, even hypothesizing some reason exists for unnecessary duplication by auditing
Pollys finances, still that does not in any way require any change in the conservator
or any of the additional extraordinary expenses associated with that change, either.
Nonetheless, to preserve the status quo ante, during the audit, the probate court
pre-announces, without conducting any hearing whether a statutory basis exists to change
conservators that you will now act as temporary or interim conservator. See (Tr., at
1-10 (Dec. 5, 2014)). Notably, the probate court had briefing with the proper statutory
standards and procedure. See (Motion to Adjourn (Nov. 25, 2014) (Doc. Ent. 71));
(Opposition to Petitions to Modify (Nov. 26, 2014) (Doc. Ent. 74)); HCL 700.5409(1)(b),
(d) (Pollys expressed preference for conservator, and statutory preference for an adult
family member, have presumptive priority); HCL 700.5414 (notice, hearing, and a
finding of good cause required).
Conveniently,7 this change (and associated expense) occurs less than four weeks
before a deadline previously set to list Pollys home again, without any hearing on the
record whether the factual predicate the probate court has been misled8 to believe,
7

Although advance disclosure of these important points certainly was not made on the
record or in any other manner, changing conservators has noticeably had two impacts (1) who
is writing checks for professional services to probate court regulars, and whether oversight of
fees that have escalated since Sept. 2014, even is being exercised; and (2) the change in real
estate agents. Instead of protecting Polly from financial harm, changing conservators has
cost her a lot of money without any reason stated for the change.
8

Likewise, GAL Lawyer on Dec. 5, made more knowing mis-statements this time on
(continued...)
Page 8 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

actually is supported by evidence. Certainly, the premise that liquidating real estate
benefits Polly, rather than billing professionals, was entirely unsupported by evidence,
arithmetic, reason, or logic.
You know, from personally attending court on Dec. 5, that Dec. 31, 2014 is the
listing due-date. (Tr., at 4 (Dec. 5, 2014) ([A] listing is pending but it still9 hasnt been
signed. The court gave until December 31st to do that.) (emphasis added)). There is no
deadline for selling, only listing. (Individual Aff., at 46, Doc. Ent. 98, Exh. A (Add.
D)); (Tr., at 14 (Feb. 12, 2015).
As you know from Ivan Individuals Dec. 4, 2014, email to attorney Xeni
Xylophone (you are copied), Individual beat the Dec. 31 deadline handily,10 by circulating
for review a signature-ready listing agreement, for interested parties to raise objection or
comment, if any, nearly a month early. On Dec. 6, 2014, Ms. Xylophone, too, sent Ms.

(...continued)
the record. Contrary to Lawyers representations, the cleanout in the South Egg residence was
completed (rather than not done) on Dec. 5; we have same-day photos to prove it. The home
equity line was paid down to thousands below the scare-number Lawyer threw out. There was
no drain or drag on the estate whatsoever, because the market appreciation exceeded carrying
costs. Lawyer had not studied the financials, but had refused since July, 2011, to do so. Lawyer
never cajoled, and said nothing about the South Egg residence, from the time of his
handymans report in Oct. 2012, to sometime in Sept. 2014. Lawyer has been invited in writing
at least twice to correct his mis-statements.
9

This use of weighted language still by someone whose self-appointed job it is

purportedly to act as a disinterested and objective neutral, is supremely puzzling. GAL
Lawyer knew but did not disclose on Dec. 5, that the signature-ready listing agreement was
circulated the day before Dec. 5 weeks in advance of the deadline, and Ivan was waiting for
feedback from Lawyer himself, interested parties, and counsel. Which is quite the opposite of
Lawyers attempted (false) insinuation of a lack of diligence. Ivan was setting a good
example for Lawyer and Conservator.
10

This ahead-of schedule performance by Mr. Individual, incidentally, serves as an

interesting and striking contrast to another attorneys (GAL Lawyers) subsequent efforts to
meet the court-ordered April 30 deadline for completing the audit. See note 9, supra.
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In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Agents listing agreement for South Egg, to Clarence Conservator reflecting the $119,000
listing price and 6% commission. (Individual Aff., at 24, Doc. Ent. 98, Exh. A
(Addendum D)). Agent, an agent with the Name brokerage, not only had South Egg
experience, but an office on the same block as the subject. The Agent/Name agreement
of Dec. 6, already was signed by Agent. Id.; (Doc. Ent. 98*,11 Igor Individuals Response
to Real Estate Petition, Exh. A)) (Addendum C). The Agent/Name agreement includes a
Hypothetical State Disclosure Regarding Real Estate Relationships, unambiguously
disclosing all licensees have undivided loyalty to the seller. Id. Ordinarily, Name, and
Ms. Agent, demand a 7% commission (3.5% for sellers agent, same for buyers agent),
but Ivan Individual negotiated it down, to Pollys advantage, to 6%. Id.
You know Ivan Individual has written you that Polly can leave the property
exposed to the open market to maximize the sale price. (See page 8, supra). Common
sense lets you infer that Ivan, or brother Igor, or both, likely will raise questions if terms
of the negotiated agreement materially change. Thus, it stands to reason the sons will
approve of a better deal for their mom (say, a 5% commission, but still listing at
$119,000), but oppose anything worse on its face for Polly. Reducing the price is not
conceivably a way to minimiz[e] conflict, but a sure-fire, inevitable,12 way to provoke
11

Although this filing by the Vanguard firm on behalf of Igor Individual was submitted to
court and served (see Tr. at 5 (Feb. 5, 2015) (We did file a response yesterday. Hopefully the
court got it.)), it apparently was inadvertently omitted from the Register of Actions. We will
attempt to remedy this mistake, by motion. In the interim, it is included as Addendum C.
12

As to the necessity of civilly and politely (yet firmly) inquiring, it is worth

remembering the Individual brothers both love their mother, and Question Zero (not on the
exam) also exists (redline / strikethru added) What does Marcellus Wallace Polly Protected
Individual look like?
This reference to PULP FICTION (1994) (the Burger Scene), is not mentioned for idle
(continued...)
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In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

it. During the three weeks after Dec. 6, 2014, nobody has raised any objections to the
existing status quo ante listing agreement already in your hands, signed by Annie
Agent. Later, both Ivan and Igor write you and others to ask whether anyone raised any
objection to that listing agreement any time from Dec. 4, 2014, to Dec, 29, 2014. (See
Doc. Ent. 98, Exhs.; Doc. Ent, 98*, Exhs.) (Addenda C and D) (providing the actual
emails). No objections ever have been identified. (Individual Aff., at 25, 26, Doc.
Ent. 98, Exh. A (Addendum D)).

12

Thus, if minimizing conflict is your claimed

(...continued)
erudition or cheap thrills, but to make an important point (continued in footnote 12) about the
Rule of Law itself which we want to be confident is not optional in any case, ever, in Hypo.
First, in stark contrast to the movie clip, this honorable Court is urged to review in detail
the email correspondence (indeed, the keyboard is mightier than the sword, or the pistol) of both
Ivan and Igor Individual to Clarence Conservator and Larry Lawyer, contained in the record
(Addenda C, D) which emails are uncommonly and conspicuously reasonable under the
circumstances.
Having a reasonable expectation that the Rule of Law will apply, uniformly and
consistently, to ensure that fiduciaries are incentivized to act as fiduciaries even when
moral hazard might offer contrary incentives is a large part of the reason why it is
possible to promote such norms of civility. Imagine how events might have gone instead in
Italy, for instance, about the time the Line of Demarcation was drawn (when power principally
lay in the hands of bloodlines such as the Orsini, Colonna, Medici, and Borgia), and reliable
cooperation was scarce. Next, compare the reality that appears on paper (the actual emails), with
the misleading adjectives applied to the same emails (unread by the probate court, evidently), in
the transcript dated Feb. 12, 2015. What possibly could explain the contrast?
In other court filings (e.g., Doc. Ent. 117, Opposition to Petition re: Attorney Fees (Mar.
27, 2015)) (Addendum G), Ivan Individual already has emphasized his ethical position favoring
Satyagraha peaceful insistence on truth. This stance necessarily is all about self-control and
self-restraint, even when millions of years of evolution shaping human nature would favor
activation of what might be termed the righteous mind. Why does human nature include the
righteous impulse to extract a penalty or restitution when one (or a loved one) has been unjustly
harmed? University of Michigan professor Robert Axelrods seminal work, THE EVOLUTION OF
COOPERATION (1984) is essential reading for its central insight on the subject of why cooperation
emerges as a result of natural selection not only in humans but among species and even among
computer programs or nation-states, and what the best strategies are to promote cooperation
among actors of any kind. The approach most likely to succeed in nature, producing and
maintaining cooperation, has the following characteristics (1) nice (starts out cooperative and
expecting reciprocity); (2) reciprocal; (3) transparent; (4) consistent; (5) retaliatory (to noncooperators); (6) proportional; and (7) forgiving (if defectors unambiguously stop defecting).
Page 11 of 25
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objective, there exists a simple, obvious, expedient substitute for provoking necessary13
controversy namely, a listing agreement as good or better than the one already
negotiated. Letters of Authority for your Dec. 5 nomination, issue Dec. 22. See Register
of Actions, entries 78-81. The delay is unexplained.

13

If trial court judges can read and follow the law, why have appellate courts? Because
trial (or administrative) judges own self-restraint and self-management is not alone sufficient to
guarantee impartial Rule of Law in all cases. This problem (self-control versus external control
both simultaneously are preferable), is at least as old as the Socrates / Glaucon debate about
human nature, referencing the Ring of Gyges, in THE REPUBLIC. Perhaps Glaucon is right the
just man (one whose genes and experience promote self-control), really is just a chump who
deserves to be punked, because the world is a rough place. Glaucon would be right if the Rule of
Law were just optional, even in an arbitrary handful of cases. In some ways, a probate court
judgeship (or GAL appointment) is like a superpower, or the Ring of Gyges. The judge, cloaked
in immunity, and actions she approves blessed with judicial imprimatur, can cause a lot of
mischief, if motivated other than by strict adherence to the Rule of Law even if only in a tiny
fraction of cases. Moral hazard increases, the more costly appeals are.
Just as we need disclosure and loyalty, and court supervision for fiduciaries, courts
themselves require reliable supervision on appeal. When James Madison wrote THE FEDERALIST
51 (emphasis added) (But what is government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be necessary. In framing a
government which is to be administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the next place oblige it to
control itself.), Madison had the English Civil War, as a cautionary example how replacing the
Divine Right of Kings, with the Rule of Law, can fail. Despite the regicide of Charles I,
Cromwell revealed the hereditary despot concealed in his own human nature. In the PREAMBLE,
the Committee on Style (including Madison) acknowledged the framers attempted solution was
not perfect, but at least more perfect. Hence, Ambition must be made to counteract ambition.
The interest of the man must be connected with the constitutional rights of the place. THE
FEDERALIST 51.
The key advantage of the Rule of Law over the rule of one despot (or, as in medieval
Europe, many rival despots, or as in Texas Southern University, which experienced what
Oakland University professor Barbara Oakley has termed a stable sinister system a predatory
clique or group that appears on the surface to play by the normal rules of law and ethics but
conceals its predatory nature, enforces its own alternate norms, and enforces loyalty to the
predatory dynamic, see BARBARA OAKLEY, EVIL GENES: WHY ROME FELL, HITLER ROSE,
ENRON FAILED, AND MY SISTER STOLE MY MOTHER'S BOYFRIEND 278-80 (Prometheus Books,
ed. 2007), is precisely the predictability and reliability of result the Rule of Law promises
compared with the whim and caprice of arbitrary power in the hands of individuals or in-groups.
Page 12 of 25
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On Dec. 23, 2014 (the very next day), Annie Agent, in response to pressure from
you which she views as inconsistent with the sellers (Pollys) interest gently reminds
you (see page 7 supra), I dont think we should underestimate the value of the
home.) (Doc. Ent. 98, Opposition to Real Estate Petition, Exh. A-5) (emphasis added).
On Dec. 29, 2014, you have two possible listing agreements in front of you, either
of which you can sign, and which you have the ability and every opportunity to examine
side-by-side. The terms of the two agreements are summarized as follows:
Issue

Name/Agent Listing Agreement

Bigfoot Listing Agreement

Commission.

6% (in protected individuals favor).

7% (disadvantageous).

Listing price.

$119,000.00 (advantageous).

$99,900.00 (leaves $19,100.00 of

protected individuals money on the
table before price negotiation starts).

Clearly states Sellers agent and that

all associated licensees (i.e., broker)
have the same obligation. Loyal
solely to the protected individual.

On or before Dec. 31, 2014 (i.e.,

within two days), immediately is
converted to divided / conflicting
loyalty of single brokerage both to
seller and to buyer. Bigfoots
brokerage, Broker, listing real estate
of Conservators protected
individuals, previously has collected
commissions on both sides of real
estate transactions via dual capacity.

Loyalty.

Undivided.

Divided.
Money to be
paid to
regular or
go-to
agent/broker
of Clarence
Conservator.

Nothing paid to your (and your One-half of sellers commission

fathers) personal friend and go-to ($1748.25). If, as with prior Broker
agent, Bertha Bigfoot.
and Bigfoot transactions, a realtor
from the same brokerage is on the
other side of the sale (one office
represents both seller and buyer),
then the office also captures
$3496.50 in commissions, for a total
of $5244.75 to Broker.

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 13 of 25

You either know or should know the legal standard for the duty of undivided
loyalty (L from OLD CAR)14 that you owe the protected individual and other interested
persons:
Many forms of conduct permissible in a workaday world for those acting at
arms length, are forbidden to those bound by fiduciary ties. A trustee is
held to something stricter than the morals of the market place. Not honesty
alone, but the punctilio of an honor the most sensitive, is then the
standard of behavior. As to this there has developed a tradition that is
unbending and inveterate. Uncompromising rigidity has been the attitude of
courts of equity when petitioned to undermine the rule of undivided loyalty
by the disintegrating erosion of particular exceptions. . . . Only thus has
the level of conduct for fiduciaries been kept at a level higher than that
trodden by the crowd. It will not consciously be lowered by any judgment
of this court.
Van Stee v. Ransford, 346 Hyp. 116, 127; 77 V.W.2d 346 (1956) (quoting Meinhard v.
Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928) (Cardozo, J.) (emphasis added)); see
also Urbain v. Beierling, 301 Hyp. App. 114, 125; 835 V.W.2d 455 (Hyp. Ct. App. 2013).
Question One:

What duties do you owe, respectively, to Polly Protected

Individual, the protected individual, on the one hand, and to Bertha Bigfoot your
regular, go-to real estate agent in what you testified has been more than a hundred
real estate transactions, on the other?
Question Two: Whats the right thing to do? Which document, if any, should you
sign?
Question Three: When the self-appointed GAL becomes aware in writing that
well-qualified sons of the protected individual (a banker and a lawyer) both raise

14

OLD CAR is a customary mnemonic to help remember the fiduciary duties owed by a
conservator, real estate professional, or other fiduciary, to the fiduciarys princpal.
Page 14 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

reasonable questions about fiduciary violations, whats the right thing for Larry Lawyer
to do to protect the protected individuals interests?
Question Four: When reasonable questions are posed and supported by the
unrebutted testimony of a well-qualified appraiser (concluding the market value of the
house on Dec. 31, 2014 is $114,000.00, and the listing should have been $119,900.00)15
about the dramatic and undisclosed (to Polly or any interested person) reduction in the
recommended price, and the hasty sale that followed what are the probate courts
oversight responsibilities, to safeguard the protected individual and her interests against
subordination to someone elses financial agenda?
It is hardly rocket science to deliver A-quality answers to these questions and
no divergence of opinion, as to what is legally and morally correct, is likely anywhere
along the grading curve. This case is a no-brainer, from the perspective of how to protect
the protected individual and her assets by making sure she actually is treated as a valued
end in herself, rather than just being used merely as a means to financial ends and
objectives of others. See MICHAEL SANDEL, JUSTICE: WHATS THE RIGHT THING TO DO
E PISODE 6: M IND Y OUR M OTIVE

(Harvard

University,

http://www.justiceharvard.org/2011/02/episode-06/#watch
concept).
15

>

ed.

(explaining

2011),

<

essential

The A-plus answer, to be sure, is that a professional fiduciary has an

(Tr., at 19, 26 (Feb. 12, 2015)). Appraiser Vince Valuation also measured the square
footage of the South Egg residence twice, and ascertained that the Bigfoot listing understated
the square footage of the home by a significant amount. See (Tr., at 26 (Feb. 12, 2015));
(Valuation Appraisal (trial exhibit) (Addendum B)). Errors relating to square footage of a home,
can amount to a breach of fiduciary duty especially when a brokerage has agents on both sides
of a transaction, acting in a dual capacity, rather than loyalty solely to the seller. See Horiike
v. Coldwell Banker Residential Brokerage Co., 225 Cal. App. 4th 427, 169 Cal. Rptr. 3d 891,
2014 Daily Journal D.A.R. 4481 (Cal. Ct. App. 5th Div., 2014), petition for review granted,
328 P.3d 1035, 174 Cal. Rptr. 3d 294 (Cal. July 16, 2014).
Page 15 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

obligation, as soon as he or she is appointed, to apply the prudent investor rule HCL
700.1502 by re-examining with fresh eyes whether real estate should even be listed in
the first place.
The prior conservator (Ivan) had the subject appraised promptly (the appraisal with
a Dec. 31, 2011, valuation date concluded to $90,000.00 see Tr., at 55-56 (Feb. 12,
2015)); he reasonably determined based on professional experience including crossexamination of appraisers (one must know the material well; to do this well), and regular
awareness of local real estate market conditions, see Tr., at 70-71; see also (Individual
Aff., at 10-13, Doc. Ent. 98, Exh. A); (Doc. Ent. 59, Notice of Withdrawal of Motion,
at 4-6), that prices generally (and for this property) were rising fast enough that the
benefit of reasonably waiting, exceeded carrying costs. Id.
The appraisal testimony presented at trial (the only appraiser to testify, and indeed,
the only real estate professional to do so) confirms this reasoning, completely. The sole
testifying expert valued the property at $114,000.00 (almost a $25,000.00 increase in
only three years far exceeding any carrying costs for a winterized house with
minimal utilities), and stated that the listing should have been at $119,900.00. (Tr., at
19, 26 (Feb. 12. 2015)).
Moreover, unrebutted expert testimonty at the real estate hearing on Feb. 12 in
probate court (Tr., at 21) (emphasis added) was unequivocal: The $99,900.00 listing was
inappropriate:
Q

Youve heard testimony since youve been in the courtroom

regarding that the property was listed for $ 99,900.00. In your
opinion was that an appropriate listing price?

No.

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 16 of 25

Space for answers:

1.

2.

3.

4.

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 17 of 25

LEGAL ARGUMENT
Creation of an agency relationship establishes fiduciary duties.16

NATIONAL

ASSOCIATION OF REALTORS, LEGAL LIABILITY SERIES: WHO IS MY CLIENT?, at 3-4, 7-9

(National Association of Realtors, ed., First ed., 1986) (Addendum A, at 4-7); see also 1
Restatement 3d, Agency, 3.15(1), p 272 (defining subagent). The relationships
between a subagent and the appointing agent and between the subagent and the
appointing agent's principal are relationships of agency as stated in 1.01.
(emphasis added).

Id.

Thus, if Clarence Conservator is acting as Polly Protected

Individualss fiduciary, and Conservator selects a real estate licensee (Broker or Name)
also to act in a fiduciary (brokerage or agency) capacity for Polly then the duties of
Broker are to Polly; Conservator also is responsible to Polly for Brokers conduct if
Broker has divided disloyalties, or otherwise acts in an improper way. Id. Pretty simple.
A fiduciary relationship includes all the traditional duties of any fiduciary: (1)
undivided loyalty; (2) full disclosure of all material facts; (3) reasonable care and
diligence, (4) accountability; (5) confidentiality; and (6) obedience. WHO IS MY CLIENT?,
at 4-7 (Addendum A, at 4-7). A convenient rule-of thumb, or mnemonic, to remember
these principles, is OLD CAR. E.g., STATE OF MASSACHUSETTS, OFFICE OF CONSUMER
AFFAIRS

AND

BUSINESS REGULATION, CONTINUING & PRE-LICENSING EDUCATION

RE49R05: DUAL AGENCY, at 1 (Addendum H). This is consistent with Hypothetical law.
Andrie v. Chrystal-Anderson & Associates Realtors, Inc., 187 Hyp. App. 333, 335-37;

16

Agency is the fiduciary relationship that arises when one person (a principal)
manifests assent to another person (an agent) that the agent shall act on the principals behalf
and subject to the principals control, and the agent manifests assent or otherwise consents so to
act. See 1 Restatement 3d, Agency, 1.01.
Page 18 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

466 V.W.2d 393 (1991), leave denied, 439 Hyp. 903, 478 V.W.2d 652 (1991). As Andrie
states (emphasis added):
Real estate brokers and salesmen are the agents of the seller, their principal.
See McMullen v. Joldersma, 174 Hyp. App. 207, 212, 435 V.W.2d 428
(1988); Minchella v. Fredericks, 138 Hyp. App. 462, 467-468, 360 V.W.2d
896 (1984). Brokers and salespersons therefore owe the seller a fiduciary
duty, which presumably includes the duty to disclose fully and fairly the
material terms of any offers to purchase the sellers property. See Horvath
v. Langel, 276 Hyp. 381, 385, 267 V.W. 865 (1936).
Id.; see also Kasey, Inc. v. Alpine Realty Now, Inc., No. 298002, 2012 WL 10998, at *2*3 (Hyp. Ct. App. Jan. 3, 2012) (Addendum K). Neither Andrie nor Kasey has any
negative treatment as of the filing of this brief. And these duties mirror a trustees duties
in probate court:
The standard of care expected of a trustee is that of a prudent man dealing
with the property of another, and if the trustee has special skills or is named
trustee on the basis of representations of special skills or expertise, he is
under a duty to use those skills.. . . To be prudent includes acting with
care, diligence, integrity, fidelity and sound business judgment. In re Buhls
Estate, 211 Hyp. 124, 127, 132, 178 V.W. 651 (1920). In addition, the
courts have imposed on the fiduciary duties of honesty, loyalty, restraint
from self-interest and good faith. Hertz v. Miklowski, 326 Hyp. 697, 700,
40 V.W.2d 452 (1950); Kelsey v. Detroit Trust Co, 265 Hyp. 358, 362, 251
V.W. 555 (1933).
In re Green Charitable Trust, 172 Hyp. App. 298, 313; 431 V.W.2d 492 (1988). This
legal standard squarely applies to Appellee, Clarence Conservator. See note 3, supra
(citing HCL 700.5416).
Specifically addressing the subject of material disclosures, and the handling of real
estate, the Green court, 172 Hyp. App., at 315-17 (emphasis added), continues:
Specific duties of trustees include keeping the beneficiaries reasonably
informed of the trust and its administration. . . . In the context of the sale
of real property, there is an obligation to seek the highest price
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 19 of 25

obtainable. Thiel v. Cruikshank, 96 Hyp. App. 7, 12; 292 V.W.2d 150

(1980). The entire circumstances of the case will be considered in
reviewing a contested sale. . . .
The duty to obtain the best price has been expanded . . . to specifically
include consideration of those factors noted by the probate court: the
determination of fair market value, the proper marketing of the
property, and the adequacy of the price obtained. . . .
[T]he [trustee] must inform beneficiaries . . . of all material facts in
connection with a nonroutine transaction which significantly affects the
trust estate. . . . prior to the transaction taking place. . . . . This duty is
based on the generally recognized principle that the beneficiaries must
know how the estate is being managed in order that they may hold the
trustee to proper standards of care and honesty and obtain the benefits to
which they are entitled. . . .
Id.

In a conservatorship under EPIC, the protected individual is someone already

determined by the a court to lack full capacity to manage her own affairs and fully to
protect her own interests. (Doc. Ent. 12, Order Appointing Conservator (Aug. 29, 2011));
(Doc. Ent. 2, Report of Mental Health Professional (Aug. 6, 2011)). In such a situation,
exposing the protected individuals interests to unfettered conduct by the fiduciary and its
subagents themselves, permissible in a workaday world for those acting at arms length .
. . [and] the level of conduct . . . trodden by the crowd, Van Stee, 346 Hyp. at 127; 77
V.W.2d 346 (quoting Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928)
(Cardozo, J.)), would be inconsistent with the purposes of conservatorships.

This

situation requires both the probate fiduciary and the subagent real estate licensee
fiduciaries, to owe duties of undivided loyalty solely to the protected individual.
After all, the probate fiduciary would not have access to,17 or power over, property
of the protected individual and could not hire a real estate agent to assist absent the
17

HCL 700.5419(1) vests title in a conservator only as trustee.

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 20 of 25

corresponding duties. It only stands to reason that both owe to the protected individual
the very highest duties of both loyalty and full disclosure. Why, exactly, Broker in over
a hundred transactions over a decade would never spot this issue, and never bother to
advise Conservator about it, is puzzling.
I.

AS A MATTER OF LAW, PROBATE FIDUCIARIES MAY NOT -ESPECIALLY WITH NO PRIOR COURT APPROVAL AND NO
ADVANCE DISCLOSURE TO THE PROTECTED INDIVIDUAL AND
INTERESTED PARTIES UTILIZE REAL ESTATE PROFESSIONALS
WITH DIVIDED LOYALTIES.
Fortunately, Hypothetical law already establishes the governing rule; it does not

require any court precedent to set it; only a court decision recognizing what the law
already says and already has said for years. The threshold issue is a question of statutory
construction. The primary goal of statutory interpretation is to ascertain and give effect to
the intent of the Legislature. Hyp Ed Assn v. Secretary of State (On Rehearing), 489
Hyp. 194, 217; 801 V.W.2d 35 (2011). The first criterion in determining intent is the
language of the statute. If the statutory language is clear and unambiguous, judicial
construction is neither required nor permitted, and courts must apply the statute as
written. Tevis v. Amex Assurance Co., 283 Hyp. App. 76, 81; 770 V.W.2d 16 (2009).
Here, both statutes are clear on their face; the Legislature obviously never intended to
provide a loophole to the fiduciary protections of EPIC, merely by having the fiduciary
(without court approval, and without notice to let alone consent from the protected
individual) just secretly sign away essential rights in real estate papers.
EPIC not only establishes a duty of undivided loyalty in relation to real estate (as
well as other conservatorship assets), see, note 3, supra, but re-emphasizes that need by

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 21 of 25

adding a second level of supervision18 on top of that, specifically for real estate assets.
Nothing in EPIC allows a conservator and hence, according to basic principles of
agency law, the real estate licensees duties mirror those of the probate fiduciary to have
a divided loyalty (for instance, also to the buyer) for any estate assets. Real estate is no
different. The statute is clear and unambiguous on its face. Moreover, precisely because
traditional agency principles make Broker Conservaors agent, too, HCL 700.5421(2)
means this transaction involving management of estate property, involving Broker, is
and should be presumptively voidable which only makes sense for purposes of
affording an appropriate remedy.
Next, the real estate statute is a disclosure statute (not a nondisclosure statue).
Under HCL 339.2517(1) (emphasis added), A [real estate] licensee shall disclose to a
potential buyer or seller in a real estate transaction all types of agency relationships
available and the licensees duties that each agency relationship creates before the
disclosure by the potential buyer or seller to the licensee of any confidential information
specific to that potential buyer or seller.
On its face, even if Polly could waive her rights (she cant, on her own, under
EPIC), this requires advance disclosure to Polly (as the seller). Indeed, Ivan Individual
personally took active steps (prior to his replacement by Conservator) to make sure Polly
was included in the decision-making process.

18

A conservator shall not sell or otherwise dispose of the protected individuals

principal dwelling, real property, or interest in real property . . . without approval of the
court. The court shall only approve the sale . . . if, after a hearing with notice to interested
persons as specified in the Hypothetical court rules, the court considers evidence of the value of
the property and otherwise determines that the sale, disposal, mortgage, pledge, or lien is in the
protected individuals best interest. HCL 700.5423(3).
Page 22 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Such disclosure is a good idea (so long as the protected individual has adequate
capacity for autonomy), precisely because it promotes autonomy and independence of
protected individuals.19 In violation of this principle, Polly did not receive any advance
disclosure or consultation about the change in real estate licensees, the changes in the
already-negotiated listing or most importantly the offer of sale, when it was made and
considered.
Section 339.2517, in limited circumstances, allows with the written consent of
both buyer and seller a real estate licensee to undertake dual agency. A dual agent
is defined as a [real estate] licensee who is acting as the agent of both the buyer and the
seller and provides services to complete a real estate transaction without the full range of
fiduciary duties owed by a buyers agent and a sellers agent. The lynchpin of the
statute is informed consent in writing, of both principals who actually have received the
statutory notices, and who both are capable of self-protection in an arms-length
marketplace. By necessity, a protected individual, including Polly, is not such a principal.
The divided loyalties of a dual agent, are incompatible with Clarence Conservators
(and, hence, Brokers) obligation that every subagent is loyal solely to Polly. One

19

The recent Bittner decision, sheds light on what both Clarence Conservator and the
probate court should have done. In contrast to the Hypothetical probate courts handling of
Pollys demonstrated capacity for at least some autonomy, both the governing statute, and the
Bittner courts unsurprising application of the statue make clear that a probate court must
encourage the development of maximum self-reliance and independence of a protected
individual, HCL 700.5407(1), which command states a public policy that the courts authority
over an adults assets and financial affairs should be the least intrusive possible while still
providing needed protection. Bittner, slip op., at 7-8. In Appellants view, the EPIC instructs
fiduciaries, too, to respect and maximize Pollys autonomy, which is exactly what Ivan is trying
to accomplish.
Page 23 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

scenario not presented in this case (hence, an advisory opinion is not requested) is
advance court approval of dual agency. That issue should be reserved for the future.
Otherwise, why dual agency (which necessarily involves divided or conflicting
loyalties, and hence a much higher risk of moral hazard) would in any way be
necessary or essential, or even beneficial, to the marketing (and price maximization) of
conservatorship real property is far from self-evident. In most instances, dual agency in
a probate court case, would appear supremely counterproductive, and greatly elevate the
risk of fiduciary violations.
The Legislature, if it intended to establish such a dramatic loophole in the
protections of EPIC (especially relating to real estate), would and should have said so
expressly in one or both statutes, and conspicuously, it did not.

Thus, there is no

ambiguity, and both statutes must be enforced as written. The Legislatures intent is to
protect from harm those who cannot fully protect themselves in the workaday
marketplace. Since Polly is hardly a vegetable, nor at an advanced stage of dementia, her
expressed preference (she opposes selling at present)20 ought to be given appropriate
weight rather than none at all to encourage the development

of

maximum

self-reliance and independence of a protected individual and . . . make protective orders

only to the extent necessitated by the protected individuals mental and adaptive
limitations. . . . . HCL 700.5407(1) (emphasis added); In re Bittner, No. 320688, __
Hyp. App. __, 2015 WL 5224935, at IV, slip op., at 6 (Hyp. Ct. App. Sept. 8, 2015)
(Addendum J). There is no retroactivity issue with the Bittner decision, see In re Kanjia,

20

In addition to Polly, sons Ivan and Igor (who obviously are deeply concerned about her
welfare) were abruptly cut out, when Conservator received Letters of Authority.
Page 24 of 25
In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

308 Hyp. App. 660, 671-72; 866 V.W.2d 862 (2014)), precisely because Bittner merely
implements existing law.
Thus, as a matter of law, a real estate licensee working on a matter involving a
protected individual, may not have a divided loyalty both to buyer and the seller, and
Conservator loses. It is undisputed that Broker was representing both buyer and seller in
the same transaction.

In the Matter of Polly Protected Individual v. Clarence Conservator, Nos. NNNNNN, XXXXXX.

Page 25 of 25