00001 1 IN THE FIFTEENTH JUDICIAL CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 CASE NO: 502012CP4391XXXXNB 3 4 5 IN RE: ESTATE OF SIMON L. BERNSTEIN 6 Deceased. 7 8 ----------------------------------------------------/ 9 10 PROCEEDINGS BEFORE HONORABLE JOHN PHILLIPS 11 12 13 14 15 16 17 18 DATE: September 15, 2015 19 TIME: 9:27 a.m. to 10:32 a.m. 20 21 22 23 24 25 00002 1 APPEARANCES: 2 3 APPEARING ON BEHALF OF THE PERSONAL REPRESENTATIVE: 4 BRIAN O'CONNELL, ESQ. JOIELLE A. FOGLIETTA, ESQ. 5 CIKLIN, LUBITZ & O'CONNELL West Palm Beach, FL 333401 6 7 APPEARING OF BEHALF OF WILLIAM STANSBURY: 8 PETER FEAMAN, ESQ. PETER M. FEAMAN, P.A. 9 3695 Boynton Beach Blvd., Suite 9 Boynton Beach, FL 33436 10 11 APPEARING ON BEHALF OF MOLLY SIMON, et al: 12 JOHN MORRISSEY, ESQ. MORRISSEY LAW 13 330 Clematis Street, 213 West Palm Beach, FL 33401 14 15 APPEARING ON BEHALF OF TED S. BERNSTEIN: 16 ALAN B. ROSE, ESQ. PAGE, MRACHEK, FITZGERALD & ROSE, P.A. 17 505 S. Flagler Drive, Suite 600 West Palm Beach, FL 33401 18 19 APPEARING ON BEHALF OF TESCHER & SPALLINA: 20 KENNETH S. POLLOCK, ESQ. SHENDELL & POLLOCK, P.L. 21 2700 N. Military Trail, Suite 150 Boca Raton, FL 33431 22 23 24 ALSO PRESENT: Eliot Bernstein 25 00003 1 BE IT REMEMBERED, that the following 2 proceedings were taken in the above-styled cause 3 before Honorable JOHN PHILLIPS, at the Palm Beach 4 County Courthouse, 3188 PGA Blvd., Palm Beach 5 Gardens, County of Palm Beach, State of Florida, on 6 Tuesday, the 15th day of September, 2015, to wit: 7 8 THE COURT: We're here on the Simon 9 Bernstein case; is that right? 10 MS. FOGLIETTA: Yes, Judge. 11 THE COURT: This ended up in this division 12 of the Court because of a recusal from somebody 13 else in another division of the Court, right? 14 MR. FEAMAN: That raises an interesting 15 point. Peter Feaman on behalf of William 16 Stansbury, a creditor of the estate. I was 17 late coming in. Mr. O'Connell is late. All 18 the attorneys and the litigants are either in 19 West Palm or south. I respectfully don't 20 understand how we ended up here in the north 21 branch. Should we set it back to the main 22 branch? 23 THE COURT: No. That would be judge 24 shopping. When somebody recuses themselves 25 then it's randomly reassigned. I was verifying 00004 1 this isn't a case that started out with me. 2 It's a case that started out with somebody 3 else. 4 MR. FEAMAN: Judge Colin, actually, 5 specifically said in his recusal order north 6 branch, which I didn't understand. 7 THE COURT: That's what the 4th DCA is 8 for. I'm not here to question some other 9 judge's order. You won't have me saying he was 10 wrong. I'm not the appellate judge. If 11 somebody made a mistake and you all think 12 there's relief that should be granted to 13 correct his mistake that's what the 4th is for. 14 Please have a seat. 15 We're here because somebody else is not 16 the judge in the case anymore and I am, right? 17 MR. FEAMAN: Right. 18 THE COURT: We'll go to the next step. 19 This is a case management conference. What is 20 it that I need to do to manage the case? I 21 received the trustees' status report which is 22 lengthy and comprehensive. I've read that. 23 Other than being brought up to speed by 24 having read that report what else needs to be 25 resolved to get this case done? 00005 1 MR. ROSE: Good morning. I'm Alan Rose. 2 Can I speak from here? 3 THE COURT: You can. 4 MR. ROSE: I'm not planning on doing the 5 whole hearing, but briefly there are, 6 technically, four other cases that all were 7 assigned. I think we've noticed a status 8 conference in all four cases. 9 There are two estates. The Simon 10 Bernstein that Your Honor mentioned, he died in 11 2012. 12 THE COURT: Then there's the wife who 13 pre-deceased him, has a case, and I've been 14 asked to consider -- one of the things that 15 needs to be done is the closing of that estate. 16 MR. ROSE: Correct. She died in 2010. 17 Each of those estates builds into a trust, so 18 there's technically four pieces of pending 19 litigation; an estate of Shirley, a Shirley 20 trust construction, and an estate of Simon and 21 claim in the Simon trusts for the removal of my 22 client. Those are the four separate matters. 23 And then we came before you -- when Judge Colin 24 recused himself there were pending motions 25 counsel thought best to come and get some sort 00006 1 of order. 2 The one thing that we believe, at least 3 which was in the status report which should be 4 addressed fairly early on, is whether we're 5 going to have a guardian ad litem for the three 6 minor children that are represented by Eliot 7 Bernstein, and try to bring some order to this 8 case which I think was a little bit out of 9 control in Judge Colin's courtroom. 10 THE COURT: Is there a motion for 11 appointment of a GAL? Has a motion been filed 12 by someone? 13 MR. ROSE: I think the -- my understanding 14 is the beneficiaries were about to file one. I 15 don't think they filed yet. There is a pending 16 motion to appoint an attorney for the children. 17 It's sort of a similar issue. Maybe 18 Mr. O'Connell can -- it's on one of his lists 19 of motions. 20 And then there's -- I think the main thing 21 we need to discuss is what order we're going to 22 do the hearings in because along with the 23 guardian ad litem it's our position the first 24 thing we should decide, since almost every 25 motion you're going to hear on Mr. O'Connell's 00007 1 list is filed by Eliot Bernstein, is he's not a 2 beneficiary. We have a one-count complaint to 3 determine the validity of the documents. And 4 under the documents, as drafted, he's 5 disinherited. He's not a beneficiary under any 6 way and if you remove his standing then I 7 believe we can go to mediation and resolve 8 almost all of these motions without taking up, 9 probably, two or three weeks of the Court's 10 time. 11 THE COURT: Well, I noticed in the 12 trustee's status report that there was 13 mentioned several times that he's not a 14 beneficiary. So has there been an order that 15 establishes that or is that just the position 16 that's being argued by the -- 17 MR. ROSE: Well, the documents themselves, 18 the operative document, for example, Simon 19 Bernstein's will -- the sole beneficiary is the 20 trust. Simon Bernstein's trust the soul 21 beneficiaries are his ten grandchildren. 22 Shirley Bernstein's will, the sole beneficiary 23 is her trust. Shirley Bernstein's trust gave 24 Simon Bernstein the power of appointment to 25 appoint and he appointed to his grandchildren. 00008 1 So what we filed was a one-count complaint to 2 determine those documents. We actually filed a 3 trust construction action. Judge Colin advised 4 us to file -- to add a count. We added one 5 count to determine the validity of those 6 documents. It's been answered by everybody, 7 and what Judge Colin did was he severed that 8 one count from everything else and he stayed 9 everything else until we resolved that one 10 count. That's the issue that we believe, if 11 you resolve that issue first, a lot of the 12 stuff would go away and that was part of the 13 purpose of the status conference. The parties 14 can't, among themselves, agree what issues 15 should be heard first. If you did that issue, 16 either if he has standing or he doesn't, if he 17 doesn't have standing we'll good through 18 hundreds of thousands of dollars of legal fees 19 resolving motions that he filed if he lacked 20 standing. 21 I think if you couple it with a motion for 22 a guardian ad litem there is a motion pending 23 in a fifth case, the Oppenheimer case, that's 24 also before you, not today, for a guardian ad 25 litem. Judge Colin deferred on that. I 00009 1 believe Mr. Morrissey's clients are going to 2 move for a guardian ad litem. I believe Mr. 3 Eliot Bernstein, in his papers, has indicated 4 that he has a conflict with his children and 5 they should have a lawyer and a guardian 6 representing them. He can speak for himself to 7 that point. 8 Those are the two issues we think should 9 go first. If it happens first this case would 10 become much more manageable and can even be 11 resolved because, as we indicated in our 12 report, these are relatively small estates. 13 There was a belief that's driving this 14 that there was $100 million left behind but 15 they left behind modest estates. Over time 16 we've been trying to sell property and trying 17 to narrow things and all we've been doing is 18 spending attorneys' fees between a curator -- 19 THE COURT: I just want to figure out 20 what's on the judicial plate that needs to be 21 addressed. 22 MR. ROSE: That's what we think should 23 happen first, those two issues, and everything 24 else will fall into place. 25 THE COURT: What is the name or where is 00010 1 the document to be found that has this single 2 count for determination of validity of estate 3 documents or trust documents that was severed 4 out by Judge Colin? 5 MR. ROSE: It's in case 5020143698 -- 6 THE COURT: What are the two letters in 7 between the 14 and the 36 -- 8 MR. ROSE: I'm sorry, CP003698XXX and now 9 -- 10 THE COURT: I don't need that stuff. 11 What's the docket entry number? 12 MS. FOGLIETTA: The filing number? 13 THE COURT: I want to know where to find 14 this thing that seems to be one of the first 15 things -- 16 MS. FOGLIETTA: Are you talking about the 17 amended complaint? I have a copy. 18 MR. ROSE: Just the docket entry, if you 19 don't mind. 20 THE COURT: I have a computer here so 21 don't think I'm being rude if I look away from 22 you all. 23 MR. ROSE: It was filed October 3, 2013. 24 MS. FOGLIETTA: I have a copy. 25 MR. ELIOT BERNSTEIN: Can I make an 00011 1 objection? 2 THE COURT: Who are you? 3 MR. ELIOT BERNSTEIN: I'm Eliot Bernstein. 4 THE COURT: You can't object yet. 5 MR. ELIOT BERNSTEIN: Can I make a 6 statement? 7 THE COURT: Not yet. I'm looking at this 8 computer screen trying to find the docket. 9 Everybody, please be seated. You're making me 10 nervous. 11 I'm just scrolling through the attorneys. 12 I haven't even gotten to the pleadings yet. 13 I'm looking for a pleading or an order entered 14 October 3rd. 15 MR. ROSE: An amended complaint. 16 THE COURT: I have an amended complaint by 17 Ted Bernstein. 18 MR. ROSE: Yes. 19 THE COURT: And in that amended complaint 20 is the count that was referred to. It's Count 21 II? 22 MR. ROSE: I believe it is, Sir. 23 THE COURT: All right. 24 MR. ROSE: Page 13 is the actual -- the 25 count itself incorporates the allegations and 00012 1 the documents. 2 THE COURT: All right. Count II starts at 3 Paragraph 79 of the document? 4 MR. ROSE: Yes, sir. 5 THE COURT: All right. And then at some 6 point in time you say Judge Colin severed out 7 this count and said it should be heard 8 separately. Is that -- 9 MR. ROSE: He severed it and stayed -- 10 THE COURT: Do you know when the order was 11 entered on that? 12 MR. ROSE: 10-6 according to the chart 13 from -- 14 THE COURT: 10-6-14? 15 MR. ROSE: Yes. It says order on 16 amendments to pleadings. There might be an 17 order that predates that. 18 MS. FOGLIETTA: I do have a copy of it. 19 THE COURT: The other is almost the very 20 next docket entry. The amended petition is 21 Docket Entry 26. The order is Docket Entry 27. 22 MR. ROSE: Specifically Paragraph 3 on 23 Page 2. 24 THE COURT: There was a response filed by 25 Mr. Bernstein and the other defendants. Are 00013 1 those things that happened? 2 MR. ELIOT BERNSTEIN: What case? Is this 3 Shirley Bernstein -- 4 THE COURT: Case Number 14CP3698. 5 MR. ROSE: Everyone has either answered or 6 been defaulted and I noticed the case for 7 trial. 8 MR. ELIOT BERNSTEIN: Are we here for 9 Simon Bernstein? I'm confused. I'm not 10 prepared for Shirley Bernstein's case today. 11 Can I raise another point, Your Honor? 12 THE COURT: I only do one thing at a time. 13 You must stop. 14 MR. ELIOT BERNSTEIN: What? 15 THE COURT: You must stop. I do one thing 16 at a time. You're not that thing yet. 17 MR. ELIOT BERNSTEIN: Okay. 18 THE COURT: This is a case management 19 conference. I'm not deciding anything. I do 20 decide that I'm the one that runs this 21 courtroom so I don't have people jumping up and 22 blurting things out. That doesn't help me 23 orderly go through figuring out what the 24 problem is and how to attack and resolve the 25 problem. My specialty is wrestling stuff to 00014 1 the ground and resolving it. That's what I'm 2 going to do in this case and that's what I do 3 in every case. This is a bigger one to wrestle 4 to the ground than some other ones but there's 5 no octopus case that I've ever met that I 6 haven't been able to figure out sooner or 7 later. The only way I can do that is talk to 8 one person at a time. We'll figure out one 9 thing at a time. I'm not a smart guy but I'm 10 persistent. All these guys know me. I'm 11 looking you in the eye because you haven't met 12 me before, right? Sir, yes, you haven't met 13 me? 14 MR. ELIOT BERNSTEIN: Yes, sir. 15 THE COURT: Okay. So you don't know me. 16 These other attorneys do because they're in 17 court in front of me on other cases where I've 18 done the same thing. I'm too stupid to -- 19 well, I'm stupid. I take one thing at a time 20 and I make sure I know what I'm doing and I go 21 to the next thing. I try to be courteous to 22 everybody. I try to make sure everybody is 23 heard. I demand that people be courteous to me 24 in return. I don't take any crap. In that 25 method of proceeding we get through whatever is 00015 1 uncomfortable, whatever is messed up, whatever 2 is complex. We simplify it down enough for me 3 to understand it and then we resolve it. 4 That's what is going to happen in this case. 5 MR. ELIOT BERNSTEIN: So my question is -- 6 THE COURT: I told you I'm not talking to 7 you yet. I was talking to you to tell you what 8 I'm doing so you're not mystified, but now you 9 sit silently until it's my time to talk to you. 10 Right now I'm talking to some other people. 11 Okay, so -- 12 MR. ROSE: May I approach -- 13 THE COURT: -- the trustees believe the 14 first thing that needs to be done is the 15 resolution of this order that was entered by 16 Judge Colin severing out the count and the 17 amended complaint that deals with the validity 18 of the testamentary documents, correct? 19 MR. ROSE: Yes, sir. 20 THE COURT: All right. Does anybody 21 object to that issue being resolved first in 22 the order of events in this sequence of cases? 23 MR. O'CONNELL: Are you ready for me? 24 THE COURT: Yeah, I just want to know if 25 there's any objection to having that issue 00016 1 heard and resolved first. That's the issue 2 that I'm chewing on right now. 3 MR. O'CONNELL: Okay. I wouldn't call it 4 an objection, but I'd like to be able to 5 explain my role in it and these other motions. 6 THE COURT: Well, first I want to know if 7 there's any reason I should attack this as the 8 first order of business in setting a trial or 9 hearing to have it resolved. Do you have any 10 objection? 11 MR. O'CONNELL: I wouldn't object to that. 12 THE COURT: All right. Does anybody else 13 seated at the tables have any objection? 14 MR. FEAMAN: May it please the Court. 15 Peter Feaman on behalf of William Stansbury. 16 He's a $2.5 million creditor of the estate of 17 Simon Bernstein. 18 We're here in the estate of Simon 19 Bernstein and it's the position of 20 Mr. Stansbury that a removal of Ted Bernstein 21 as successor trustee should be heard first. 22 THE COURT: Okay. Why? 23 MR. FEAMAN: The reason for that is if 24 that issue is determined one way or the other 25 we believe that is the linchpin to then 00017 1 resolving probably all the other issues in this 2 case. 3 THE COURT: The trustee believes the issue 4 to resolving many of the issues is to determine 5 whether Eliot -- I'm using first names, I'm 6 sorry. Is it Mr. Bernstein, Eliot Bernstein? 7 MR. ELIOT BERNSTEIN: You can call me 8 Eliot. 9 THE COURT: Okay. I don't mean to be 10 disrespectful. I don't want to do that. 11 The trustee's thought is that resolving 12 whether Eliot has any standing to be involved 13 in the litigation is key. You're saying that's 14 not key, it's something else that's key? What 15 else is it that you're suggesting is the key 16 issue to be resolved? 17 MR. FEAMAN: Because that's the Shirley 18 Bernstein trust. The matter that is before 19 Your Honor today is the estate of Simon 20 Bernstein, and Simon Bernstein had a separate 21 trust which was different from the Shirley 22 Bernstein trust and the -- most of the assets 23 are in the Simon Bernstein trust which then had 24 the pour-over will into -- most of the assets 25 are in the Simon Bernstein estate and then had 00018 1 the pour-over will into the trust and that's -- 2 that's the matter that is the most significant, 3 in my humble opinion, that is before Your Honor 4 is the Simon Bernstein estate and the Simon 5 Bernstein trust. It's the opinion of 6 Mr. Stansbury that Mr. Ted Bernstein, as a 7 successor trustee to the Simon Bernstein trust, 8 should be heard first. 9 THE COURT: Let me ask this: How is it 10 that there is an order by Judge Colin severing 11 out this count about the validity of some 12 estate documents in the Simon Bernstein case if 13 the documents in question were filed in a 14 different estate? Maybe the trustee can 15 address that. 16 MR. ROSE: Sure. 17 THE COURT: What's up with that? 18 MR. ROSE: We have a trust construction 19 count that was to determine the validity and 20 then the construction of the Shirley Bernstein 21 trust. Within that claim, because there's an 22 overlap of issues there, the standing issue is 23 the same in both. What Judge Colin ordered me 24 to do was to file an additional count into that 25 complaint. Everyone was properly noticed. We 00019 1 already had the jurisdiction over all the 2 beneficiaries, those that answered, those that 3 did not. Nobody moved to dismiss upon the 4 ground that it's not properly in one case, and 5 so because there's a direct overlap between 6 documents that were executed and the validity 7 of those documents, and the validity of the 8 will of Simon directly relates to the validity 9 of the exercise of power of appointment because 10 he exercised his power through his will. So 11 what Judge Colin did was he ordered me to file 12 a simple one-count complaint, as simple as it 13 could be, list the four documents and allege 14 that they're all valid and enforceable. In the 15 context of trying that issue you will decide 16 whether, for example, Simon Bernstein was 17 unduly influenced, if that's an allegation, to 18 execute the power of appointment. The power of 19 appointment is what deprives Mr. Eliot 20 Bernstein of standing. Judge Colin ordered us 21 all put it all in this count. He then stayed 22 everything else and severed that and we're 23 supposed to try that and we get bogged down 24 constantly in -- 25 THE COURT: Don't get sidetracked or I'll 00020 1 get confused and disaster happens. 2 Mr. Bernstein, Eliot Bernstein, you've got 3 an objection to the trial of the issue about 4 the validity of the estate documents that's 5 just been discussed? 6 MR. ELIOT BERNSTEIN: Yes, sir. 7 THE COURT: What's your objection? 8 MR. ELIOT BERNSTEIN: Several, with that 9 being the first thing. The first part is that 10 Mr. O'Connell has filed with the court in the 11 Simon Bernstein estate nothing to be done with 12 Ted Bernstein as trustee because Mr. O'Connell 13 and Mr. Feaman, two prominent lawyers that you 14 know, have claimed that the document itself 15 that they're operating under precludes Ted 16 Bernstein from being a trustee. The language 17 says he can't be a related party -- 18 THE COURT: You got to get back to my 19 question. 20 MR. ELIOT BERNSTEIN: Here's the problem 21 -- 22 THE COURT: No. I'm the one that's 23 telling you the question I'd like you to 24 answer. Remember I told you I chew on one tiny 25 thing at a time. I don't want to get confused. 00021 1 I might make a mistake if I get confused. 2 This is the thing I'm trying to establish 3 in my mind now: What is your objection to 4 trying the issue about the validity of the 5 estate documents that are found in Count II of 6 the amended petition, Docket Entry Number 26? 7 MR. ELIOT BERNSTEIN: My problem is is 8 that if Ted is not a trustee properly serving, 9 and a fraudulent trustee as they're claiming 10 and he's acting improperly, to have a hearing 11 where Ted's arguing validity where he's 12 conflicted, I mean if he doesn't argue 13 successfully, his entire family and children 14 are cut out of everything. So he's got a 15 conflict in arguing a construction -- 16 THE COURT: You're not even addressing my 17 question. Thank you. Please be seated. 18 MR. ELIOT BERNSTEIN: I did answer your 19 question because how can we have -- how can we 20 hear his -- 21 THE COURT: You're asking me a question. 22 Your question started with how do we do 23 something. I don't know. 24 MR. ELIOT BERNSTEIN: I'm saying we can't 25 hear -- 00022 1 THE COURT: Stop. Please be seated. You 2 failed to answer my question. You got 3 something else on your mind that doesn't 4 address what I'm trying to figure out. 5 Is it true that Judge Colin issued a stay 6 order on the other parts of the litigation and 7 it intended -- somehow he manifested an 8 intention to resolve the validity of the estate 9 documents? Is there an order that says that 10 somewhere? 11 MR. ROSE: I think that goes too far. 12 There are multiple proceedings. He severed 13 this count -- 14 THE COURT: I got that. 15 MR. ROSE: It's our view that that should 16 be what is decided -- 17 THE COURT: I know. But you said a minute 18 ago that he stayed other proceedings. Is there 19 an order that says that? Where do I find that 20 order? 21 MR. ROSE: It's the one that you looked 22 at, October 6th. It stays the rest of the 23 proceedings inside the Shirley Bernstein trust 24 construction case. It doesn't stay everything 25 in the Simon Bernstein side. 00023 1 THE COURT: Okay. 2 MR. ROSE: That's what I was clarifying. 3 THE COURT: Okay. You've been living with 4 these cases for several years. 5 MR. ROSE: Yes. 6 THE COURT: I've been living with them for 7 30 minutes so I'm not as intimately familiar 8 with the ins and outs of what's going on here. 9 I'm not even familiar with everybody's names, 10 so I apologize to you for that. 11 Well, then there's no reason for me not to 12 set a trial on that Count II of the amended 13 complaint, right? I'll do that whether 14 everybody wants me to do or not that way I'll 15 get something done and that way we'll move down 16 the road. That will be done. Court to order 17 set. How much time you think we need to try 18 that? 19 MR. ROSE: Normally I would think we can 20 try the case within a day. 21 THE COURT: Okay. Anybody think we need a 22 different amount of time? 23 MR. ELIOT BERNSTEIN: Yeah. I think it 24 will take several days. 25 THE COURT: Why? 00024 1 MR. ELIOT BERNSTEIN: Well, you're going 2 to have to first start with is Ted Bernstein a 3 valid trustee to argue the case. So that's -- 4 THE COURT: No, I won't have to decide 5 that. 6 MR. ELIOT BERNSTEIN: You want somebody to 7 argue who's not valid -- 8 THE COURT: What else? Any other issue? 9 Is there any other issue that's going to take 10 more than a day? 11 MR. ELIOT BERNSTEIN: Well, it's very 12 complicated. 13 THE COURT: No, this isn't going to be 14 complicated. 15 MR. ELIOT BERNSTEIN: Okay. 16 THE COURT: It's not. There's documents, 17 pieces of paper that somebody claims were 18 executed or not executed. 19 MR. ELIOT BERNSTEIN: There's been fraud 20 in the document. 21 THE COURT: I was explaining to you 22 something. If you interrupt me you can be held 23 in contempt. If I interrupt you I'm keeping 24 order in my courtroom. You see the difference 25 there? This is not a conversation. Okay. No 00025 1 need for me to explain anything further. I 2 intend to set this for trial. I intend to set 3 it for a day. I intend that issue of the 4 validity of the estate documents will be 5 resolved in that trial. Is there any reason to 6 not think I can do that in a day other than 7 what Mr. Eliot Bernstein has mentioned? 8 MR. FEAMAN: On behalf of Mr. Stansbury we 9 have no involvement in the Shirley Bernstein 10 estate. 11 THE COURT: So you don't care what I do. 12 MR. ROSE: Mr. O'Connell is a party, he's 13 intervening because of the overlap of the power 14 of appointment. I can't speak for him but I 15 want to make sure he agrees that a day is 16 enough. We are all bad estimators. 17 THE COURT: I asked this question to the 18 entire courtroom. If anybody thinks 19 differently then what I'm getting ready to do 20 you're supposed to say something. He hasn't 21 said anything. 22 MR. MORRISSEY: Judge, John Morrissey. I 23 represent four of the adult grandchildren who 24 will ultimately be beneficiaries under the 25 trust document. 00026 1 THE COURT: Okay. 2 MR. MORRISSEY: So certainly my clients 3 have an interest here in what's going on. I 4 just want to let Your Honor know, because I 5 don't think -- I hope Mr. Feaman is not 6 misleading the Court. On two occasions so far 7 he said that he represents a creditor of the 8 estate, that's incorrect. 9 THE COURT: William Stansbury. 10 MR. MORRISSEY: Correct. William 11 Stansbury is not a creditor of the estate. 12 He's someone who filed a claim in the estate. 13 An objection was filed by the personal 14 representative, or counsel for the personal 15 representative, which means that Mr. Stansbury 16 had 30 days to run off and file his lawsuit 17 which he's done. He's not done anything with 18 that separate civil litigation. It's not been 19 reduced to a judgment. He is not a creditor, 20 therefore, Judge, he does not have standing not 21 only with respect to the validity of the 22 documents but with respect to anything else in 23 these various litigations. 24 THE COURT: That's not helping me figure 25 out how much time I need to set aside for this 00027 1 trial. 2 MR. MORRISSEY: I'm sorry. 3 THE COURT: When I'm telling you I'm a 4 simple guy I'm not being modest. I'm just 5 being truthful. That's where I'm at. I'm 6 going to write down what I do next when I leave 7 this room. What I do next when I leave this 8 room is tell my judicial assistant to reserve a 9 day, set this trial date, send you notices. 10 Bang. That thing is done. So that's why I 11 want to stick with this. Do you have any 12 objection to that? 13 MR. MORRISSEY: No. 14 THE COURT: Okay. Great. This is the way 15 I intend to proceed -- I love Marty Colin. 16 This guy is a judge that's been around a long 17 time. I know him. He's an entirely different 18 guy than me. I expect that your experience 19 with Judge Colin has been different than 20 sitting here with me. Am I right? I never 21 appeared in front of him as a judge -- I never 22 appeared in front of him while he's a judge and 23 while I was a lawyer. He appeared in front of 24 me while he was a lawyer and I was a judge. I 25 don't know how he is as a judge but I am pretty 00028 1 sure he's a different guy than me. Nice guy. 2 I like him. But we're different judges. Your 3 experiences with Judge Colin, put them aside. 4 You're having an experience with me now. We 5 have to do it the way I do it or else I'll mess 6 up. 7 The second thing I have on my list of 8 things to ask you about that I've been jotting 9 down here is this request for guardian ad 10 litem. I think I remember asking and being 11 told that no one has filed a formal request for 12 appointment of a guardian ad litem; is that 13 correct? 14 MR. O'CONNELL: Correct. 15 MR. ROSE: In these four cases no one has 16 done that yet. 17 THE COURT: Okay. Am I going to? 18 MR. ELIOT BERNSTEIN: I believe they have, 19 actually. 20 THE COURT: When was it filed? What 21 docket entry? 22 MR. ELIOT BERNSTEIN: I don't know. It 23 was denied a long time ago by Tescher and 24 Spallina, the guys that were removed for fraud 25 in the court. They tried to put guardians on 00029 1 -- 2 THE COURT: No, no, no. You see I don't 3 want all the other baggage. I just want the 4 answer to that question. When was it filed? 5 MR. ELIOT BERNSTEIN: I don't know. At 6 the beginning. 7 THE COURT: At the beginning. That takes 8 me to the bottom. That slows down progress on 9 our case management conference. I will go 10 through it. What was the title of the 11 pleading? 12 MR. ELIOT BERNSTEIN: I don't know. I 13 don't think Joy's records went back that far. 14 MS. FOGLIETTA: We pulled things that were 15 pending, Judge. I don't have that. 16 MR. MORRISSEY: On behalf of the four 17 adult grandchildren it's our intention to file 18 one. We were hoping to file one before today's 19 hearing. 20 THE COURT: Okay. Since that hasn't been 21 filed then I'm not taking action on it. That's 22 my practice. If there's something filed I'll 23 move towards getting it resolved. If it's not 24 been filed and it's just in somebody's mind I 25 find that it's difficult to take any action. 00030 1 I'm crossing that off my list. 2 There's a pending motion to appoint 3 attorneys -- an attorney for the children. Is 4 that an attorney ad litem? 5 MR. ELIOT BERNSTEIN: An attorney for my 6 children. 7 THE COURT: Who filed that motion? 8 MR. ELIOT BERNSTEIN: Me. 9 THE COURT: When did you file? 10 MR. ELIOT BERNSTEIN: Just to pay the fees 11 for counsel for my children. 12 THE COURT: When did you file it is what 13 I'm trying to figure it out. 14 MR. ELIOT BERNSTEIN: A while ago. 15 THE COURT: Any closer estimate than that? 16 MR. ELIOT BERNSTEIN: I've been filing 17 that since the first petition in this case in 18 May of 2013 which still isn't heard. 19 THE COURT: May of 2013 is when you filed 20 it? 21 MR. ELIOT BERNSTEIN: Yeah. 22 MR. O'CONNELL: We think we found one 23 August 28, 2014 in the Simon Bernstein estate. 24 THE COURT: The Simon Bernstein estate is 25 the only one I got up on the computer. The 00031 1 only thing that happened on August 20th is an 2 order by Judge Colin maybe. 3 MR. O'CONNELL: 28th, sorry, Your Honor, 4 2-8. 5 THE COURT: Okay. I just got my trifocals 6 reissued. These are the old ones so an 8 and a 7 0 look alike. I'm moving my head and trying to 8 focus. Bear with me a second. 9 I don't see anything anywhere near the 10 28th of August of '14. Is that the year, '14? 11 MR. O'CONNELL: Yes. It says, "Motion to 12 compel estates of Simon and Shirley to pay 13 counsel for Eliot and his minor children." 14 MS. FOGLIETTA: That's in case number -- 15 THE COURT: Well, I don't see any motion 16 with that description. Perhaps the Court 17 doesn't have it scanned in or something. Who 18 knows. Anybody have a paper copy of it that I 19 can look at? 20 MS. FOGLIETTA: I do. 21 THE COURT: I wouldn't mind looking at a 22 paper copy if you got one handy. 23 MR. O'CONNELL: Sure. 24 THE COURT: And was there a ruling on this 25 motion for having the estate pay for attorneys 00032 1 for Eliot and his minor children? Has there 2 been an order on this? 3 MR. O'CONNELL: Not that I'm aware of, 4 Your Honor. 5 THE COURT: Was there ever a hearing? 6 MR. ROSE: I don't believe it was set for 7 hearing. That was alluded to that 8 Mr. Bernstein had requested an attorney for his 9 children and I would suggest that -- subject 10 to -- I don't think there was an objection from 11 anyone -- it's not appropriate to appoint an 12 attorney for his children. If you appoint a 13 guardian ad litem to represent his children 14 then the guardian ad litem has the power to go 15 out and retain counsel and to accomplish the 16 relief that's sought. We don't believe it's 17 appropriate though for Mr. Bernstein himself, 18 but certainly his children who are 19 beneficiaries should have -- 20 THE COURT: All right. It looks like this 21 motion just asks for money. It's not asking 22 for the appointment of counsel. Mr. Eliot is 23 seeking the issuance of money from the trust 24 for the estate. He alludes to the children 25 needing an attorney but he doesn't ask for one 00033 1 to be appointed. He asks if he can be given 2 money. 3 There's an order I see, Docket Entry 24, 4 where Judge Colin prohibits any new filings. 5 I've not read the order yet but I see the title 6 of the order takes up 20 lines of docket entry 7 here in our computer program. I hope the order 8 is shorter than the title. 9 MR. O'CONNELL: We got it for Your Honor. 10 (Handing) 11 THE COURT: Now are these copies ones I 12 should return to you all or can I keep these? 13 MS. FOGLIETTA: You can keep them. 14 THE COURT: Thanks. Judge Colin had a 15 case management conference. It's a case 16 management order. How about that. It's a 17 great order. He must have been having problems 18 with the progress of this case to issue an 19 order like that. That was at Docket Entry 20 Number 24 which leads me to ask this question, 21 perhaps foolishly, and that's the question if 22 this order was entered by Judge Colin in 23 September of 2014 at Docket Entry Number 24 how 24 come we're up to 82 docket entries and other 25 petitions and things and stuff being filed? 00034 1 Did he disregard the order, because I think 2 it's a great order, or did something else 3 happen that I don't know about that changed the 4 order, or did he retract the order? 5 MR. O'CONNELL: Let me try to help there. 6 Just so you can get my position in all this, I 7 want to explain. I am a successor personal 8 representative in the Simon Bernstein estate, 9 so that's my universe in terms of this matter. 10 I got over a year at this point that I've been 11 involved in that capacity. With regard to that 12 particular order the way everyone has 13 interpreted it is it has to do with anyone to 14 institute new litigation, a new adversary 15 matter they would have to go before Judge 16 Colin, because we certainly have filed, on an 17 administrative level, a number of motions of 18 things that needed to happen. 19 THE COURT: Administrative stuff is 20 allowed to happen. 21 MR. O'CONNELL: To go to your good 22 question, well, why are there so many items, 23 not that we filed a ton of motions and 24 petitions but certainly, on my behalf, there 25 are definitely some that we have filed. 00035 1 THE COURT: Docket Entry Number 41 there 2 is a petition to remove Theodore Stuart 3 Bernstein as alleged successor trustee filed by 4 Eliot Bernstein. How did that get filed? Did 5 Judge Colin approved that? 6 MR. ELIOT BERNSTEIN: He directed that. 7 THE COURT: Say that again? 8 MR. ELIOT BERNSTEIN: He directed that. 9 THE COURT: So there was a hearing that he 10 authorized this petition to be filed? 11 MR. ELIOT BERNSTEIN: Yes. And then a new 12 case was started. He ordered a new case to 13 remove Ted and we're in the middle of that. 14 That's one of the cases. 15 Just to clarify something, I'm still 16 confused, the first part about the hearing 17 you're ordering, that's not -- 18 THE COURT: We're not on that subject. 19 MR. ELIOT BERNSTEIN: Are we on Simon's 20 case or Shirley's case? I'm confused by that. 21 THE COURT: I'm confused too. Welcome to 22 my world. 23 MR. ELIOT BERNSTEIN: Welcome to mine. 24 THE COURT: We're going to eliminate some 25 of the confusion by trying some of these things 00036 1 pled in this case and one of them that's been 2 pled is Count II of the amended petition of 3 Docket Entry 26 that Judge Colin severed out 4 and said is going to be tried separately. 5 MR. ELIOT BERNSTEIN: That's in Shirley. 6 THE COURT: I'm telling you what I'm 7 doing. You asked me what I'm doing, to clarify 8 what I'm doing. I just told you. 9 MR. ELIOT BERNSTEIN: Okay. 10 MR. ROSE: If I can, just briefly with 11 that, what Judge Colin was doing is you can fax 12 him the motion or bring it to his attention -- 13 THE COURT: He uses fax? Okay. He is a 14 dinosaur. 15 MR. ROSE: He would give permission that 16 something could be filed or not filed. We had 17 to go through the extra step of sending him in 18 advance, or asking permission if I wanted to 19 file a motion to approve a sale or whatever we 20 had to get his permission in advance. 21 THE COURT: Okay. Thank you. I find 22 there's no pending motion for appointment of 23 attorneys for the children so I'm striking that 24 off my list. 25 Now back to the William Stansbury claim 00037 1 regarding the estate of Simon Bernstein. What 2 is the pleading that sets up any claim that 3 needs to be adjudicated in that case that was 4 not already set? It's the one thing that 5 you're not involved in. What about the claim 6 you said that William Stansbury has? 7 MR. FEAMAN: That's a separate action that 8 was filed and is pending before Judge Blanc in 9 the general jurisdiction division. 10 THE COURT: Okay. So Blanc will figure 11 that one out, right? 12 MR. FEAMAN: And the estate is a 13 defendant. 14 THE COURT: I'm trying to figure out what 15 I have to set. Blanc has that one, right? 16 MR. FEAMAN: Yes, yes, Your Honor. 17 The only thing, with regard to 18 Mr. Stansbury, I believe, is Mr. Stansbury has 19 filed a motion to discharge him from 20 responsibility for funding the estate's 21 participation in some Chicago litigation, and 22 that should be borne by the estate, but that's 23 already set before Your Honor on October 20th 24 in the special set hearing. 25 THE COURT: When was that set? When did 00038 1 the document hit the court records when -- 2 setting that hearing? 3 MR. FEAMAN: I'd say ten days ago. It was 4 set for the day after tomorrow and it had to be 5 reset at my request due to a conflict, and then 6 it was set October 20, 2015 pursuant to a 7 notice of hearing I believe our office sent 8 out, I believe, ten days ago, approximately. 9 THE COURT: That would be in case number 10 what? 11 MR. FEAMAN: That would be case Number 12 124391CP -- 12 -- 2012CP4391. 13 THE COURT: Okay. So that's a different 14 case than I have on the computer screen. Let 15 me get that one up. 16 MR. FEAMAN: That's the case number that 17 actually brings us here today pursuant to 18 notice of hearing filed by Mr. O'Connell, the 19 personal representative of the estate. 20 THE COURT: Just a second. I've been 21 looking at, apparently, the trust case, 22 14CP3698. 23 MS. FOGLIETTA: Judge, that's the Shirley 24 trust. 25 THE COURT: Did you ever see Colin use a 00039 1 computer in court? 2 MR. O'CONNELL: Not really. 3 THE COURT: That's why I call him a 4 dinosaur. I'd say it to his face trying to get 5 him to be more tech savvy. 6 I'm scrolling, okay. You see me scrolling 7 with my finger. I've scrolled through all the 8 attorneys. This is more like it. We're up to 9 386, and roughly ten days ago there was some 10 sort of hearing set. A re-notice of hearing. 11 MR. ELIOT BERNSTEIN: That was an 12 objection to an accounting that I filed timely. 13 THE COURT: The notice of hearing, 14 Mr. Feaman, that you scheduled, or you sent out 15 that I'm referring to is called the fifth 16 re-notice of hearing and it sets hearing on the 17 motion of creditor William Stansbury for a 18 hearing on October 20. 19 MR. FEAMAN: Yes, Your Honor. 20 THE COURT: You set aside a 15-minute 21 period of time for that. Judge Blanc has got 22 the litigation that you referred to in his 23 court and he'll figure that out. 24 MR. FEAMAN: Correct. 25 THE COURT: All right. 00040 1 MR. FEAMAN: But there's also, with 2 regard, if I may, Your Honor, to 3 Mr. Stansbury's claim, Mr. O'Connell has also 4 filed a motion to enter and approve a 5 settlement agreement between the estate and 6 Mr. Stansbury which is still out there. But 7 related to that is a motion by Mr. O'Connell 8 filed on 7-20-2015 to have Simon Bernstein 9 declared the beneficiary of the JP Morgan IRA 10 account, and the reason it relates to 11 Mr. Stansbury is because the settlement money 12 contemplated to be paid to Mr. Stansbury would 13 come out of that account and there's a question 14 whether that is actually money that should be 15 part of the estate or not so before we actually 16 wanted to fund the settlement we wanted to -- I 17 don't mean to speak for Mr. O'Connell -- we 18 wanted to make sure that that would be 19 appropriate source of funds to fund the 20 settlement so there would be no clawback claims 21 either against Mr. Stansbury or the estate 22 subsequent to the consummation of the 23 settlement. 24 THE COURT: Is that petition at issue? 25 MR. FEAMAN: It -- Mr. O'Connell? 00041 1 MR. O'CONNELL: I don't think it was filed 2 as an adversary matter. It's a free-standing 3 petition. 4 THE COURT: Okay. 5 MR. O'CONNELL: Everybody has been served 6 with it. 7 MR. ROSE: For the record we have no 8 objection to that motion being granted. I 9 don't know if anybody objects to the motion. 10 That's certainly something that should be heard 11 if it's objected to very early. 12 THE COURT: Unless somebody notices it up 13 for hearing, get ready for that. 14 We've used up all the time I set aside for 15 the Bernstein case. It would sure be nice to 16 spend the rest of my career talking to you 17 about this but I have other people scheduled at 18 10:30 and I must see them now. Thanks a lot. 19 I'll do my work on setting the trial on the one 20 thing we got and we'll see what happens next. 21 MR. O'CONNELL: Thank you. 22 THE COURT: It was fun and look forward to 23 a long list of hearings as well. 24 (Whereupon, the hearing is concluded at 10:32 a.m.) 25 00042 1 CERTIFICATE OF COURT REPORTER 2 3 I, JULIE ANDOLPHO, do hereby certify that 4 the foregoing transcript of the proceedings, 5 consisting of pages numbered 1 through 42, 6 inclusive, is a true and correct transcript of the 7 proceedings taken by me before the Honorable JOHN 8 PHILLIPS, on September 15, 2015. 9 I further certify that I am not a relative 10 or employee or attorney or counsel of any of the 11 parties, nor a relative or employee of such attorney 12 or counsel, or financially interested, directly or 13 indirectly, in this action. 14 The certification does not apply to any 15 reproduction of the same by any means unless under 16 direct control and/or direction or the reporter. 17 Dated this 12th day of October, 2015. 18 _______________________ 19 Julie Andolpho, FPR 20 21 22 23 24 25