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JOHN LEWELLEN, as Administrator, etc v. THEODORE PHILLIPS et al

November 30, 2010


The opinion of the court was delivered by: Butz, J.

Lewellen v. Phillips



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

"If you don't like something change it; if you can't change it, change the way you think about it." ~ Mary Engelbreit.

This is yet another appeal arising out of Evelyn Wade's*fn1 dissatisfaction with a settlement agreement she entered into with her granddaughter, Gail Stark, and Gail's husband, Gregory Stark (the Starks). Wade sued the Starks for fraud and elder abuse, seeking to rescind a transfer she had made to them of a parcel of real property in Lincoln, owned by Wade and her husband. The case was settled at a mandatory settlement conference presided over by Placer County Superior Court Referee David Bills.

Subsequently, Wade changed her mind and repudiated the settlement. The Starks obtained a judgment enforcing it over Wade's objection that she agreed to it under duress and that it was contrary to her incapacitated husband's best interest. We affirmed that judgment in Wade v. Stark (Dec. 4, 2007, C053232 & C054415) [nonpub. opn.] (Wade I).)

Having lost her appeal in Wade I, Wade turned her wrath on her own attorneys. She filed the present lawsuit against Attorneys Robert Ash, Theodore Phillips and his firm of Phillips, Greenberg and Hauser for attorney malpractice and breach of fiduciary duty, claiming that they "badgered" her into agreeing to a "terrible" settlement.

Phillips and his firm (collectively Phillips) successfully moved for summary judgment. Wade appeals again, contending the trial court committed prejudicial error in finding no triable issue of fact. Once more, we shall affirm.


The Wade I Lawsuit

We summarize the relevant facts that are not subject to dispute. Some are drawn from our written decision in Wade I, which was before the trial court on Phillips's motion for summary judgment, and of which we take judicial notice.

For many years, Evelyn Wade and her husband Kendall owned a 20-acre parcel of land in Lincoln, on which they had built a residence. The property is divisible into two 10-acre parcels. The Starks reached an agreement with Wade, under which the Starks would purchase the entire 20-acre parcel and a 10-acre parcel would, in turn, be sold to the Wades' longtime neighbors, Jeffery and Vivian Graham (the Grahams). In March 2003, Wade executed and recorded a (corrected) grant deed of the parcel to the Starks. The Starks executed a $400,000 promissory note payable to the Wades, due by December 1, 2012, but without provision for interest or monthly payments. As additional consideration, the Starks promised to provide full-time care for the Wades for the rest of their lives.

Wade's handwritten offer to sell the property stated that her husband had Alzheimer's disease and was unable to conduct business, but that she had a "durable power of attorney," giving her authority to sign his name, "which includes all property and real estate." However, it was later discovered that Wade had only a nondurable power of attorney.

After receiving title to the property, the Starks entered into an agreement to sell half the acreage to the Grahams. The sale was halted when the Wades sued the Starks and the Grahams, seeking to rescind the 2003 transfer. The complaint also sought damages for breach of fiduciary duty, infliction of emotional distress and elder abuse.

Wade's complaint against the Starks and the Grahams was filed by Attorney Robert Ash. In June 2005 (all further unspecified calendar dates are to that year), Ash associated Phillips as co-counsel. Phillips prepared the case for trial and obtained a postponement of the trial date until December 6.

In the meantime, Wade authorized Phillips to conduct settlement negotiations with the defendants. Although no settlement was reached with the Starks, Wade did settle her case against the Grahams.

The Settlement Conference and Agreement

Prior to the settlement conference, Phillips told Wade he was ready and willing to try the case for her. He advised her that although there was a chance she might lose, he thought her case was meritorious and that she would prevail. In October, Wade told her attorneys she did not want to settle and wanted to go to trial.

A mandatory settlement conference was held on November 18, by which time Wade had been appointed guardian ad litem for the 90-year-old Kendall, who was suffering from dementia. Before the conference began, Wade told Phillips her back was hurting her and that she had taken several prescription drugs and antidepressants. Phillips asked Wade if this would interfere with her proceeding with the settlement conference. She assured him that it would not, and that she was "okay."

The settlement conference was delayed until 1:30 p.m., so Wade, her sister (Louise Hansen), Phillips and Ash had lunch together. The group discussed the possibility of settling the case by having the Wades and Starks divide the net sale proceeds from the sale of the ...

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