HomeMy WebLinkAbout09-20-12 (3)
IN RE: IN THE COURT OF CUMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF
21-09-0204 ORPHANS' COURT
DAVID H, CLOUSER
IN RE: REMOVAL OF CO-PERSONAL REPRESENTATIVE
Proceedings held before the HONORABLE
M. L. EBERT, JR., J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on
January 12, 2010, in Courtrocm Number 2.
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APPEARANCES : ~
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MICHAEL O. PALERMO, Esquire ~~?"' p
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For the Petitioner Douglas Clouser y ~'=,~-~i
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R. MARK THOMAS, Esquire '~•~
For the Respondent Debra Houseman
ORIGINAL
INDEX TO WITNESS
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WITNESS PAGE
Douglas Clouser
Direct examination by Mr. Palermo 7
Cross-examination by Mr. Thomas 35
Redirect examination by Mr. Palermo 57
Recross-examination by Mr. Thomas 5B
INDEX TO EXHIBITS
FOR THE PETITIONER IDENTIFIED ADMITTED
1 - Insurance document 14 66
2 - 9 photos of Mitchell Drive 23 66
FOR THE RESPONDENT
1 - Certification of Notice 49 66
2 - Knupp letter to Doug Clouser
and Debra Houseman 50 66
3 - 12/14/09 letter 53 66
2
1 Tuesday, Januax-y, 12, 2010
2 Courtroom Number 2
3 THE COURT: Please be seated.
4 MR. PALERMO: Good morning, Your Honor.
5 THE COURT: Good morning. Mr. Thomas, I
6 believe you are the moving party.
7 MR. THOMAS: NO.
8 MR. PALERMO: I am, Your Honor.
9 THE COURT: Okay.
10 MR. THOMAS: Your Honor, before we get
11 started I would like to put an objection on the record to
12 the holding of this hearing. The paperwork for the petition
13 was never served upon my client. The Court Order signed by
14 the Court scheduling the hearing and also ordering
15 additional things was never served upon my client.
16 This is an action of original service and,
17 therefore, service had to be accomplished and complied with
18 the Rules of Civil Procedure. That was not done in this
19 case and, therefore, I would submit to the Court we are not
20 properly before the Court.
21 MR. PALERMO: Your Honor, this was served on
22 Attorney Thomas as counsel for the Respondent. As far as
23 notice, they have had notice of this hearing for in excess
24 of a month now. Moreover, this is the first I have heard of
25 this objection. So if it was brought up in due time before
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1 this, I could have answered it properly, Moreover, I
2 believe Mr. Thomas filed an Answer to my petition with the
3 court and didn't even raise that objection. So I would
4 allege that has been waived, Your Honor.
5 MR. THOMAS: Could I respond to that briefly,
6 Your Honor?
7 THE COURT: Yes,
8 MR. THOMAS: Your Honor, I was not an
9 attorney of record when this matter started. And although
10 he did send me a copy of that petition, I was not authorized
11 to accept service on behalf of my client. And he has no
12 affidavit from me stating that we ever accepted service on
13 behalf of my client.
14 With regard to having not raised the issue
15 prior to today, on December 9th we had an agreement, which
16 the Petitioner has failed to comply with. And it has only
17 been since January 3rd that I realized that we were even
18 going to have this hearing because we were in the process of
19 resolving all the issues up until that time.
20 So I would submit that since we have never
21 been served, the time period to file a responsive pleading
22 has never been started. The only reason we filed an Answer
23 was because the Court Order said that we had to, not because
24 we were served with legal process.
25 MR. PALERMO: Your Honor, if the argument is
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1 accurate and true, Your Honor, then this was the time to
2 raise that objection in his Answer to the Court. That was
3 not done. I was served with the Answer actually yesterday.
4 So even though it is dated 1/13, it is actually dated for
5 tomorrow, but I received it yesterday, 1/11. Obviously I
6 have been caught off guard with this argument.
7 Mr. Thomas and I have met on this case. It
8 was never brought up. If it was brought up, I am sure I
9 could have cured everything he is alleging to be a defect.
10 I think we should not delay this matter even further. In my
11 initial pleadings to this court, there was some matters that
12 needed the Court's attention.
13 Your Honor gave us temporary relief in line
14 with the outstanding issues that needed addressed. We had
15 property basically subject to risk of loss every day in this
16 case. That has been temporarily cured. But. that is why we
17 set the date for the hearing to resolve the rest of the
18 issues. I think it is imperative this court. take testimony
19 in this matter.
20 If Mr. Thomas wants to go on the record and
21 says he doesn't know anything about this case and he is
22 prejudiced by this, then you can proceed and let him do
23 that. I think there is no prejudice. They have known about
24 this for over a month now. If anybody wants to take the
25 stand today for a limited scope to see if they know what is
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1 going on today, I will indulge them that.
2 MR. THOMAS: It is not a question of whether
3 we have known about the hearing. The question is whether or
4 not service was ever properly made upon my client.
5 THE COURT; Isn~t there something significant
6 in that you appeared here today? That is usually viewed as
7 waiver of service. You answered the petition.
8 MR. THOMAS: We are prepared to proceed. i
9 am not raising that issue.
10 THE COURT: I don't see any benefit. Aren't
11 you taking the risk?
12 MR. PALERMO: That is true.
13 THE COURT: It seems that you are complying
14 with the Order in getting the insurance, that was a good
15 thing. You answered the petition. Your client is here
16 today, and you indicate you are ready to proceed. I am
17 going to overrule the objection at this time. We will
18 proceed with the hearing.
19 MR. THOMAS: All right.
20 MR. PALERMO: Your Honor, I will call my
21 client Mr. Clouser to the stand. Douglas Clouser.
22 Whereupon,
23 DOUGLAS CLOUSER
24 having been duly sworn, testified as follows:
25 DIRECT EXAMINATION
6
1 BY MR. PALERMO:
2 Q Good morning, Mr. Clouser.
3 A Good morning.
4 Q Do you mind if I call you Doug?
5 A No, that is fine.
6 Q Doug, spell your last name for the record and
7 give your address?
8 A Clouser, C-1-o-u-s-e-r. 1875 Town Hill Road,
9 York Springs, Pennsylvania.
10 Q Doug, how long have you lived. at that
11 residence?
12 A Around 25 years.
13 Q Who do you live with?
14 A Penny.
15 Q Who is Penny?
16 A My wife, Penny Edwards.
17 Q How long have you lived with Penny?
18 A Maybe 26 years.
19 Q Are you employed?
20 A Yes.
21 Q Who do you work for, Doug?
22 A I am with the Navy Depot, Mechanicsburg,
23 Pennsylvania.
24 Q How long have you been there?
25 A 28 and a half years.
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1 Q What is your job title there, just briefly?
2 A I am a supply -- in supply.
3 MR. THOMAS: I didn't hear that.
4 THE WITNESS: Supply.
5 MR. THOMAS: Supply?
6 THE WITNESS: Yes. General supply specialist
7 is accurate.
8 BY MR. PALERMO:
9 Q Doug, unfortunately there came a time when
l0 your father passed away. Do you recall when your father
11 passed away?
12 A Repeat that, please?
13 Q Do you know when your dad passed away?
14 A Last February, the end of February.
15 p What was your father's name?
16 A David Clouser.
17 Q Where did your father live?
18 A 1204 Mitchell Drive, Mechanic;sburg,
19 Pennsylvania.
20 Q What was your father`s occupation, Doug?
21 A He bought and sold antiques and whatever he
22 could make a buck on.
23 Q Is it fair for me to say he was in the
24 antiquing bus iness?
25 A Yes.
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1 Q He would normally buy and sel:L antiques?
2 A Yes.
3 Q Did you ever assist your dad :in the buying
4 and selling o f antiques?
5 A Yes, I did.
6 Q When do you think you began doing that?
7 A Oh, probably since I was ten years old or
8 before.
9 Q So can you give us a general idea how long
l0 you have been involved in this business?
11 A Forty years.
12 Q Forty years. Have you ever bought and sold
13 antiques on your own?
14 A Yes.
15 Q About how many times? You ca.n estimate for
16 me if it's a lot.
17 A How many times?
18 Q Yeah.
19 A Thousands. I don't know. I couldn't count.
20 Q Doug, have you had the ability to observe
21 local antique markets over the last forty years?
22 A Pretty frequently. Antique shops, auctions,
23 co-ops, flea markets. Maybe fifty times a year.
24 Q Is it fair for me to say, Doug, you have some
25 relationships with local dealers, antique dealers?
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1 A Yes.
2 Q Are you currently involved in antiquing?
3 A Currently, yes.
4 Q Have you ever had the opportunity to appraise
5 somebody else's estate, you know, the value of their
6 antiques or anything like that?
7 A Yes. I did an estate in Enol~a, Pennsylvania.
8 Q About when did you do that estate?
9 A 2008, I believe it was. In the fall. It has
10 been a while. I am trying to remember.
11 MR. PALERMO: Your Honor, just as a
12 preliminary matter, I would like to offer Mr. Clouser as a
13 local expert in antique dealings. On top of his testimony
14 he is going to give, I would like him to give some opinion
15 on some of the things that has been suggested to him in this
16 current estate. So with the amount of his sales, the number
17 of years of experience, forty years in the local market, I
18 would just like to offer him up as an expert in local
19 antiquing.
20 THE COURT: Mr. Thomas?
21 MR. THOMAS: Your Honor, I am not going to
22 object to that at this time.
23 THE COURT: Give me an offer of proof of
24 where that is going. T understand she has claimed there is
25 hundreds of thousands of items in father's previous home
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1 that have to be disposed of. Is that where we are going
2 here?
3 MR. PALERMO: Yeah. My offer of proof is
4 this, we are suggesting at the outset here that my client
5 will take an inventory and dictate where those items are
6 sold. I think the Respondent's position is everything is
7 lumped together and sold in one big sale. You know, kind of
8 truck load everything off and sell it.
9 My client is going to opine basically that if
10 you pick where your auctions are going and where that
11 particular piece is going, you get more money or more value
12 out of that particular piece, whatever the item may be.
13 So there is a difference in how we should
14 sell, how the parties want to sell these items.
15 THE COURT: Inasmuch as opposing counsel
16 hasn't objected -- he is a party -- I am not positive that
17 what he has testified to so far makes him an. expert. He
18 certainly has more knowledge than the average individual,
19 but he is not ready for Antiques Road Show. I see the logic
20 of your point. 2 hope you understand.
21 MR. THOMAS: I do.
22 THE COURT: It would seem to make sense if
23 any of this has any real value and you sell it in a
24 particular market it might be better than the typical estate
25 auction where an auctioneer comes in and just starts selling
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1 things for a dollar or two.
2 MR. THOMAS: We would agree 100 percent, Your
3 Honor.
4 THE COURT: Let's proceed.
5 MR. PALERMO: I will move on.
6 BY MR. PALERMO:
~ Q Doug, your father passed away and he left you
8 a will . Correc t? He left a will for you and your sister.
9 A Yes.
10 Q Have you seen a copy of that will?
11 A Yes, I have.
12 MR. PALERMO: I assume Your Honor has a copy
13 of the will.
14 THE COURT: Yes.
15 BY MR. PALERMO:
16 Q Doug, what did the will direct be done with
17 your f ather's house?
18 A To eventually liquidate the estate assets and
19 sell t he house actually.
2p Q Was there any clause in the will that told
21 you wh at to do if the house wasn't sold?
22 A Deb was allowed, she was allowed to stay
23 there on the condition that she would pay me. $300.00 a
24 month.
25 Q Just so we are clear, Deb is:'
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1 A Debra Houseman.
2 Q She is your sister?
3 A Sister, yes.
4 Q Father's daughter. Pay you $:300.00 a month?
5 A Yes.
6 Q Doug, have you ever received the $300.00 a
7 month payment from Debra?
g A No, I haven't.
9 Q Was there also a clause in the will to insure
10 the property?
11 A Yes.
12 Q Now, Doug, you are aware in this case we had
13 some special relief rendered or temporary relief granted
14 where the hou se was going to be insured. Correct?
15 A Yes. You showed me the receipt today.
16 Q Your understanding, the house is insured?
17 A Well, I haven't seen the policy. My
18 understanding is that my name should be on the policy. And
19 I understand the assets aren't insured.
20 4 If I told you the policy was a landlord
21 policy, you would agree with me?
22 A Yeah, I think that is how it is set up.
23 MR. PALERMO: Your Honor, if I could approach
24 with the exhi bit?
25 THE COURT: You may.
13
• !
1 (Whereupon,
2 Petitioner Exhibit No. 1
3 was marked for identification.)
4 BY MR. PALERMO:
5 Q Doug, I am going to show you a document, let
6 you look over that document. Let me know if you recognize
7 that document though.
g A Yes.
9 Q Who is that document from?
10 A From Allstate and I received :it in September.
11 Q September of?
12 A Of 2009. September 16th.
13 Q Now, Doug, you received this letter in
14 September of 2009. You filed your petition back in November
15 of 2009. This letter, did it cause you to do something.
16 A Yes. I wanted to get the home insured in
17 case of fire or any damage to the home. There is a large
18 tree out back that I was afraid was going to fall on the
19 house. So I asked Debra if we could get the home insured.
20 And I could also get a discount through my insurance company
21 to save us money to get the home insured. And Debra refused
22 to do that. So I, I called three different insurance
23 companies, or several. They told me to get the home insured
24 our names need to be on the deed.
25 Q Okay.
14
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1 A As the letter states.
2 Q So that is why you went to -- did you go to a
3 different attorney, some attorney to get a deed draw up?
4 A Attorney Berry from Carlisle. He was going
5 to draft a deed and have us both sign it, have it notarized,
6 sent to the courthouse for a charge of $100.00. We were
7 going to split that $50.00 each. We could get the home
8 insured.
9 Q Doug, did you go to O'Brien, Baric and
10 Scherer and ha ve a deed drawn up?
11 A Yes.
12 Q Did you show up to sign the deed?
13 A Yes, I did. I was told to be here, I believe
14 4:00 p.m.
15 Q Why 4:00 p.m.? Sorry to interrupt.
16 A We were to be here at 4:00 p.m. because for
17 the notary to notarize it.
18 Q Okay.
19 Q You showed up at 4:00?
20 A Yes, I did.
21 4 When did your sister show up?
22 A I believe 4:30.
23 Q Notary left?
24 A Yeah, she couldn't get it notarized.
25 Q The deed was not signed?
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1 A I am not even sure she showed up. I believe
2 it was -- if I remember, yes, I signed the deed and got my
3 name notarized.
4 Q Did your sister ever show up at any time
5 thereafter to get the deed notarized?
6 A I asked her if she would sign. it so we could
7 get insurance.
g Q Right.
9 A And she refused unless I would sign a paper
10 so she wouldn't have to pay the $300.00 and to sell her the
11 home.
12 Q Okay. So let me get this straight, your
13 sister said she would only show up to sign the deed to get
14 the property insured if you agreed to sign some other paper
15 agreeing to sell her the house and waive $300.00 in rent?
16 A Yes, sir.
17 Q That was sent to you by your sister, Debra
18 Houseman?
1g A Yes.
20 Q She is in court today. Correct?
21 A Yes.
22 Q To date have you ever been paid any of those
23 rents that were due and owing?
24 A No.
25 Q Doug, was an appraisal done on this residence
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1 at the beginning of your estate, your father's estate?
2 A Yes, it was. Debra had a friend come in to
3 appraise it so we could take care of the taxes. But there
4 was an unjust value, but we did so to get the: taxes
5 submitted to save five percent before May.
6 Q Doug, you say a friend of your sister's, just
7 somebody that you didn't know, somebody that she knew?
g A Just somebody she knew. It was a neighbor.
9 Q Just for the record, what did they appraise
10 the property at?
11 A You know, I'm not sure if I ever got a copy.
12 I think it was maybe 120,000.
13 Q At the time you said you accepted that value
14 for estate purposes. Did you have any understanding about
15 that you were stuck with that value or you could amend it
16 later?
17 A That is correct, I talked to the attorney at
18 the time and he said it is more important -- we could always
19 amend it later and just submit for the property taxes to
20 save the four percent or five percent by filing early.
21 Q Now, Doug, previous to the litigation here,
22 now I am talking summer, spring of this year, did you ever
23 have access to your father's home to do any kind of
24 inventory?
25 A Yes. Throughout the summer.
17
1 Q Describe some of the access you had to the
2 property?
3 A Describe some of the -- I'm sorry.
4 Q Access to the property.
5 A Well, I would have parking. L mean there is
6 a parking lot I could park my vehicle in. And I have keys
7 to the residence. Well, I had keys, but Debra changed the
8 lock on the home.
g Q So you had keys in the summer of 2009?
10 A My father gave me keys years ago. I always
11 had access to the home, always had.
12 Q When were the locks changed?
13 A I believe, I believe Deb did that in
14 November.
15 Q November?
16 A After I asked her about the petition that the
17 Judge granted unfettered access. Well, I didn't get a
18 chance to talk to her, she hung up on me when I called her.
19 Q So you call your sister about the petition
20 giving you, the language you used is unfettered access to
21 1204 Mitchell Drive. She hung up on you?
22 A Correct.
23 Q Did your sister ever call you at work about
24 the estate issues?
25 A Lots of times throughout the summer.
18
1 Q How would you describe those calls, Doug?
2 A Argumentative. And she would be dictating to
3 me, and it woul d be numerous calls. I would tell her if she
4 didn't want to argue with me, I would talk to her. If not,
5 when she calmed down she could call me back. I made time at
6 work to do so. But I told her I couldn't argue with her on
7 the phone.
8 Q Do you have a nephew? Does Da_bra have a son
9 I should say?
10 A Yes, Ryan Houseman.
11 Q Okay. And has Ryan ever intervened in this
12 dispute?
13 A Yes, he has. I would like to bring up that
14 he called Penny and made a verbal --
15 MR. THOMAS: Object, hearsay.
16 THE COURT: Well, he hasn't said anything
17 yet, but unless he heard it directly himself.
18 MR. PALERMO: Okay.
19 THE WITNESS: Yes, I heard the voice
20 recording of Ryan Houseman verbally threatening to punch me
21 in the head.
22 BY MR. PALERMO:
23 Q Why was he going to punch you in the head?
24 A Unless I sold Debra the house.
25 Q Debra is his mother?
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A Yes.
Q So this was said to you speci:Eically?
A Pardon?
Q This was said to you, you heard it with your
own ears?
A Yes. He said if Doug does not sell my mom
the house, his mother the house, he would punch me in the
head.
Q Let me just get this property situated.
There is a house and there is an attached carport to it?
A Yes.
Q Did you have access previous to this
litigation? I will say the Summer of 2009, did you have
access to the carport?
A Yes. Well, when Deb had the :key -- there was
one key to a lock on the carport.
Q Okay. So?
A So I asked her for the key. .And I had a key
of my own. Which I made several keys, extra keys for it for
Deb to access it. So I put my lock on it as well. I said
if you need in there, you know, I have extra keys, but take
your lock off cause you don't have a key for me. So she
refused to do that and, in turn, cut my lock off.
Q Are there items --
A Which then I didn't have access to.
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Q Are there items of personal property in the
carport area also?
A Yes, sir.
Q Items that, in your opinion, could be sold at
auction?
A Yes.
Q There came some point where you were afraid
that the stuff in the carport could be tampered with or
stolen. What did you do about that, Doug?
A When she cut my key off she also took her
lock off. So I, I put my truck, parked it so nobody could
open it to steal anything. And I said, well, I have a lock,
you know, with several keys. But Deb refused to talk to me
most of the time.
(Whereupon,
Petitioner Exhibit No. 2
was marked for identification.)
BY MR. PALERMO:
Q Just while Mr. Thomas is reviewing some
photographs, do you currently have an appraisal of the
residence scheduled?
A Yes, I do.
Q In this case, we had a meeting in Mr.
Thomas's office. Didn't we?
A Yes.
21
1 Q We had a meeting with Mr. Thomas. And at the
2 time of that meeting, the records support November, this
3 Order was in effect? Doug, you had received this Order by
4 the time you met with Mr. Thomas?
5 A Yes.
6 Q This is the Order giving you unfettered
7 access?
8 A Yes. I asked him -- I tried to talk to Deb
9 about that.
10 Q You and I, we went to that meeting asking for
11 a key. Didn ~t we?
12 A Yes.
13 Q And what was the condition we agreed to to
14 get a key to the house?
15 A If I would make an appointment for an
16 appraisal, and she agreed that she would remove her dog from
17 the residence. She has a large dog.
18 Q And the major point, she would give you a key
19 if you had an appraisal or scheduled an appr~sisal. Right?
20 A Yes.
21 Q That is when she would give you unfettered
22 access. Right?
23 A Yes.
24 Q If I could approach, I have a series of
25 photographs. I~ve had a series of eight photographs marked
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as Petitioner's Exhibit 2. I am going to ask you to flip
through those photographs. Let me know if you recognize
those photographs?
A Yes. The first one is, I took this picture
last Saturday.
Q After reviewing the photographs, did you take
all those photographs?
A Yes, I did.
Q Those photographs are how the house is
actually depicted at the current time you took the
photographs? It still looks like that?
A Well, as far as I know. I can't get back in
the house cause she --
Q Okay. Understood? Do you want to go through
the first photograph? What does the first photograph show,
Doug?
A The first ones shows where Debra is not
allowing me to park in the driveway. She is blocking
access. She is parking her truck at a certain angle where I
cannot pull in no more.
Q That is my next question. Do you have a pick
up truck, a Tundra or something?
A I have two trucks.
Q Can you pull your truck in that driveway the
way that car is parked?
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A Not at all.
Q Is it possible to pull your car in the
driveway to unload anything at that point?
A No. There is parking out in the street, or I
would have to pull in the front yard.
Q What is the next picture, Doug?
A The next picture is a picture of the carport
where Debbie removed the locks. There is no lock on there
anymore.
Q If you could just hold up the picture so that
the Respondent can see. Just let the record reflect you are
holding up a picture of what appears to be a garage door
lock with no lock on it. The next picture, :Doug?
A Just an umbrella stand and some items in the
house that are of value.
Q Okay.
A The next one is a table of value.
4 Okay.
A The next one is the carport with some items
to be sold.
Q Now, that picture is actually what is behind
the big white door with no lock?
A Right. The next picture would be what we
call the rec room of the house.
Q Okay.
24
1 A And these pictures were taken when I had
2 access to the house.
3 Q Okay.
4 A I didn't get a chance to take all the
5 pictures. I was kind of rushed through there.
6 Q Anything else, Doug? What is the next
7 picture you are looking at?
8 A The rec room, just things of value.
9 Q Doug, when you look at that picture, is it
10 fair for me to say the house is a little cluttered?
11 A Very cluttered, yes.
12 Q Would your dad actually buy things and then
13 re-box them and put them in a bigger box, banana boxes?
14 A Yes. On the opposite side of the rec room,
15 which I didn 't get a chance to take a picture, it is banana
16 boxes to the ceiling practically.
17 Q There is probably thousands of items,
18 correct, Dou g, thousands of items in those boxes?
19 A Yes.
20 Q You don't know right now?
21 A I have an idea what is in a lot of them.
22 Q Doug, I am going to --
23 A I went with my dad.
24 Q I will add to Exhibit 2 a ninth picture.
25 What is that a picture of, Doug?
25
1 A That is in our dining room with the china
2 closet emptie d out that Deb removed the items.
3 Q There was a time back in the summer that
4 china closet was full. Right?
5 A Yes.
6 Q Then you eventually came back: to take
7 pictures and the china closet was empty?
S A Yes. That is basically, I came to the house
9 -- actually t he day I went there was to ask Deb about the
10 real estate r ebate check and insurance check, that she
11 received, and I noticed the china closet was empty.
12 Q Do you know what happened to the contents of
13 the closet?
14 A I asked her why she would remove the items.
15 She said that she was taking them, and then she got
16 argumentative with me -- we got in an argument and she
17 called the po lice.
18 Q Now, Doug, in the past, this summer when you
19 two were able to work this out, was there ever a situation
20 where you wou ld take assets of the estate and sell them?
21 A Yes, several times.
22 Q After you sold an asset, what would you do?
23 How would you tell Deb you sold the asset?
24 A I gave Debbie the receipts, a,nd she has the
25 receipts, exc ept for the last two estate sales.
26
1 Q What would you do with the proceeds from the
2 sales?
3 A We have an estate account. We put the money
4 in there or divided the money in half.
5 4 Now I am asking, does the estate have any
6 kind of storage unit in New Bloomfield, Pennsylvania?
7 A Yes. There is three storage units in New
8 Bloomfield.
9 Q Did your father open those units?
10 A Yes. There was -- I'm sorry.
11 Q No, go ahead.
12 A There was four. We liquidated one and had it
13 to three.
14 Q Did you and your sister have some agreement
15 about accessing these storage units?
16 A Yes. We had a verbal agreement that we would
17 not go into any of the storage units without: each other.
18 Q Was after your dad's death you agreed, hey,
19 we will go up there together? Right?
20 A Yes.
21 Q Based on your personal knowledge, do you know
22 if your sister has opened since your dad's death other
23 storage units in New Bloomfield?
24 MR. THOMAS: Objection unles:a he can state a
25 basis for the personal knowledge.
27
1 BY MR. PALERMO:
2 Q Well, how do you have personal knowledge,
3 Doug?
4 A I talked to June Paul that runs the storage
5 units.
6 MR. THOMAS: Objection to anything June Paul
7 says.
8 BY MR. PALERMO:
9 Q Did your sister ever tell you. she had other
10 units up by dad 's units?
11 A Yes. She acquired three units.
12 MR. THOMAS: I didn't hear th.e question that
13 he just said ye s to.
14 THE COURT: Am I hearing correctly that
15 wherever your f ather had three units, now your sister has
16 other units?
17 THE WITNESS: She acquired new units, yes.
18 BY MR. PALERMO:
19 Q You know that from talking to your sister
20 also. Correct?
21 A She told me that she was going to. Her son
22 also said that she was going to get storage units to put
23 belongings in.
24 Q Okay. Doug, we are here before the court for
25 relief so you can actually sell some of these items. I
28
• i
1 asked you at the outset about your experience with estates
2 and items, antique items. How do you propose to this court
3 we sell the items in the house? What is your ideal
4 situation?
5 MR. THOMAS: I am going to object to the
6 relevance here.
7 THE COURT: I will allow that.
8 BY MR. PALERMO:
9 Q You can answer.
10 THE COURT: Then she can tell me what her
11 plan is. what is your plan?
12 THE WITNESS: Well, I have gone to several
13 different auction houses, and I realize what items have
14 better value and what time of the year is the best time to
15 sell items at auctions. Which right now would be the best
16 time of the year due to the competition of other auction
17 houses and outside estates and auctions.
18 I have several clients that are willing to
19 buy, which I have in the past sold items to assisting my
20 father. I have -- there are certain items he collected
21 through the years. we have a collection of radios that I
22 have two clients that are interested in buying those radios.
23 I know several different clients that just specifically buy
24 certain items.
25 I categorize items for auctions. I know to
29
1 sell less valuable items at certain auction houses. And I
2 also talk to the auctioneers and ask them for a better
3 commission rate if I bring quality items or what items I can
4 bring. This is just some of the --
5 BY MR. PALERMO:
6 Q Doug, I have some questions. You live in
7 York Springs?
8 A Yes.
9 Q Your father's home of which you and your
10 sister are the personal representatives, that is located in
11 Mechanicsburg, Pennsylvania?
12 A Yes.
13 Q How long does it take you to get from
14 Mechanicsburg, Pennsylvania -- or from York Springs to
15 Mechanicsburg?
16 A A half hour.
17 Q Before you go to the residence, and I mean
18 your father's old residence, do you call your sister first
19 to say hey I'm coming up, I want to go through some stuff?
20 A I have always tried in the past if she would
21 answer the phone, yes.
22 Q What has been your personal experience on
23 calling your sister at the house?
24 A The phone was either busy or she said it
25 wasn't a good time for her. She wasn't feeling well or she
30
1 was angry. Or unless I would sign a paper that she wouldn't
2 have to pay me $300.00 a month, and sell her the house.
3 Q Doug, your father's will put a condition upon
4 Ms. Houseman that he gave her a three month grace period
5 from the date of his death that she didn't have to pay rents
6 to you. Correct?
7 A That is correct.
8 Q when would the three month grace period have
9 expired?
10 A That would have been the end of June.
11 Q End of June. So your sister would start
12 owing you $300 .00 per month come July?
13 A Correct.
14 Q To live in that house at 1204 --
15 A Correct.
16 Q Now, Doug, your sister at the house, normal
17 phone service, does she have Internet access?
18 A She has dial up service.
19 Q Dial up, as I understand it, so if she is on
20 the Internet, the phone is always busy. Correct?
21 A That ties up the phone line, yes, it does.
22 Q Do you call the house a lot t.o come over and
23 the phone is b usy?
24 A Well, most recent when I tried to call her in
25 regards to the next appraisal, I can't count. how many times
31
1 I called -- well, maybe six times -- until I finally got
2 through. And it was the following day.
3 Q Got ya. Now, let me ask you this, assuming
4 you were -- you want a key to the residence to get in at
5 your own will?
6 A That would be nice. I mean it is half my
7 home.
8 Q You understand your sister lives there. But
9 are there other rooms in the house that aren't occupied by
10 your sister?
11 A No, it's a four bedroom house, she has
12 storage, storage units, three of them anyway. Probably
13 four.
14 Q What are you suggesting to th.e Court, how
15 many of those rooms do you want to inventory items to use as
16 a kind of a base?
17 A I have asked in the past if she would at
18 least let me use two of the rooms. She would have any two
19 rooms of the house that she wanted.
20 Q So you need two rooms to go through this
21 inventory for auctions?
22 A It would be very helpful.
23 Q Doug, what would you say are reasonable hours
24 for you to go in the house with your key?
25 A Eight in the morning, maybe uintil no later
32
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than ten.
Q Taking into account, do you have a full-time
job, Doug?
A Yes, I do.
Q What are your hours with youx• job?
A 7:30 to 5:00 p.m.
Q Would you like to sometimes estop at the house
-- you work in Mechanicsburg. Let's backtrack. Would you
sometimes stop at the house on your lunch break and get some
work done?
A If I need to take care of sortiething, that
would be good, yes. Or after work.
Q How long does it take you to get from your
work to the house?
A Ten minutes.
Q All right. Again, Doug, I dan't know if we
touched on this, you currently have an appraisal scheduled
for?
A The 18th.
Q That is to get a new value on the home?
A Yes.
Q More accurate value?
A Yes, hopefully, yes.
THE COURT: Who is that with?
THE WITNESS: REMAX. I have the person's
33
1 name with me if you need a name.
2 BY MR. PALERMO:
3 Q Is it the Mechanicsburg offic;e?
4 A He lives in Mechanicsburg, I believe. But
5 his office is --
6 THE COURT: How did you pick him? Is he a
7 friend of yours? I'm looking for somebody truly independent
8 here.
9 THE WITNESS: A co-worker recommended. They
10 had their home sold. And he, he gave an ap~>raisal of if he
11 sold the house as is, and if you put a litt]Le bit of money
12 into the home, you know, you would get a little -- a
13 different appraisal, and maybe a higher appraisal if you put
14 maybe $10,000.00 in the home. Maybe three estimates. So I
15 thought that would be good to go with.
16 BY MR. PALERMO:
17 Q You didn't know the man before you called him
18 though?
19 A No. I don't even know what ]ze looks like. I
20 just have a name.
21 MR. PALERMO: That is all I ]gave for Mr.
22 Clouser right now, Your Honor.
23 THE COURT: Cross-examine.
24 MR. THOMAS: Thank you, Your Honor.
25 CROSS-EXAMINATION
34
1 BY MR. THOMAS:
2 Q Mr. Clouser, let's get a little more history
3 here.
4 A Sorry?
5 Q Let's get a little more history. Your father
6 was going in for some surgery on February 17, 2009.
7 Correct?
8 A Yes.
9 Q Right around there?
10 A Yes.
11 Q And two days prior to when he was going in
12 for surgery he didn't have a will. Did he?
13 A Two weeks I believe before he went in.
14 Q All right. So he went in to see an attorney
15 about having a will done. Do you have a copy of the will in
16 front of you?
17 A Not in front of me, no.
18 Q If I told you that that will was signed on
19 February 17, 2009, do you have any -- that is what it says.
20 Do you agree with that?
21 A If that is what -- yeah, I agree with that.
22 Q If that is what it says?
23 A Yes.
24 Q what is his date of death? I:f you know.
25 A February 28th, I believe.
35
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Q 28th?
A I don't remember.
Q His date of death is February 20th. He died
three days after he wrote the will. Right? Do you need to
look at some court papers to see his date of death?
A I take your word on it, sir.
Q And the reasoning he went in and had this
will done was because he was going to be undergoing this
surgery and he wanted to provide for in the event that he
died during the surgery. He told you that. Didn't he?
A Yes, I would have to agree with that.
Q And so sometime between the time that he
signed that will and three days later he brought you and Deb
both together and he sat down and talked to you about this
will and told you exactly what he intended for the two of
you to do. Is that correct?
A Yes, he went over some thinge~.
Q Yeah. One of the things basically told you
about his wishes, and when he was telling you about his
wishes, he acknowledged at that time that Deb had lived in
the house for the past 18 years with him. Is that correct?
A Off and on for the last 18 years.
Q Basically he wanted to give, her to end up
with the house?
MR. PALERMO: Your Honor, I abject. The will
36
1 speaks for itself. There is a writing here. We are
2 offering parol evidence from a dead man.
3 MR. THOMAS: Your Honor, I think it goes to
4 the -- they are asking for the removal of my client. If my
5 client is trying merely to comply with father's wishes, and
6 if he acknowledges that she is trying to comply with those
7 wishes, then it is relevant to the question of removal. It
8 may not be relevant to the question of the correct
9 interpretation of the will, but it is relevant to the issue
10 of whether --
11 THE COURT: I will allow it. Did anybody in
12 preparation for this look at the Dead Man's Statute?
13 MR. THOMAS: That only applies in the event
14 she is seeking some pecuniary interest. She is not seeking
15 a pecuniary interest. She is trying to justify the way she
16 has behaved during the --
17 THE COURT: That is a pretty close call.
18 Because this sounds like a pecuniary interest here.
19 MR. THOMAS: It is possible. But that is not
20 the issue.
21 THE COURT: Let me just clear it up. Right
22 on the face of the will, there is no limit on how long you
23 could live there for $300.00. Right?
24 MR. THOMAS: Well, right. An.d that brings up
25 other issues that --
37
1 THE COURT: Doesn~t have to be sold. If she
2 wants to pay the rent for the rest of her life or whatever,
3 it is $300.00 a month. Right?
4 MR. THOMAS: Your Honor, that is why again
5 it is important that this conversation that ]ae had with the
6 father --
7 THE COURT: Let me hear it.
8 MR. THOMAS: -- be discussed.
9 THE COURT: Restate the question. Let me
10 hear it.
11 BY MR. THOMAS:
12 Q During that conversation did :he not indicate
13 to you that Debbie was probably going to want the house and
14 he wanted her to be able to have it?
15 A Not exactly in those words, no.
16 Q Did he convey that meaning to you?
17 A He said she could stay there as long as she
18 paid $300.00 a month.
19 Q All right. I want to bring out something
20 else about that, just in order to clarify this conversation
21 you had. Your father had numerous CD's. Did he not?
22 A Yes.
23 Q And he had made you and Deb a:nd a stepsister
24 you have named Donna as joint owners of those CD's.
25 Correct?
38
1 A Correct.
2 4 And one of the things that he said to you and
3 Deb that night was that when he died, you and Deb and your
4 stepsister were supposed to use the moneys from those CD's
5 to pay for his funeral. Is that correct?
6 A Well, he had asked -- he said that -- he did
7 not understand how the CD's were going to work apparently.
8 Q Is that what he said that he wanted you guys
9 to pay, each pay one-third of his funeral? Yes or no.
10 A Yes. The three of us, yes.
11 Q Yes. And, in fact, you refused to give Donna
12 her CD's until she agreed to pay one-third of the funeral
13 costs. Right?
14 A I didn't refuse her. I didn't have control
15 over them, whic h my father thought I should have.
16 Q But she didn't get it until :.he signed a
17 paper and agree d to pay for one-third of they funeral.
18 Right? Is that the bottom line?
19 A The bottom line is the bank held the CD's. I
20 didn't.
21 Q Bottom line, you had to release those CD's
22 and you didn't release them until she agreed to pay
23 one-third of th e funeral. Yes or no? It i:~ a simple yes or
24 no.
25 A State the question again.
39
1 Q You refused to allow Donna to have her CD's
2 until she paid for one-third of the funeral expenses for
3 your father? Yes or no.
4 A No, I didn't refuse her.
5 Q You refused to sign the paperwork for the
6 bank so she could get them?
7 A I asked her if she would be willing to, to
8 sign, to pay for a third of it.
9 Q But doesn't your father's will say that the
10 payment of the funeral is to be paid completely and solely
11 out of his estate?
12 A Repeat the question, sir?
13 Q The will. Take a look at Roman numeral
14 number II of the will. What does it say? Just read it out
15 loud.
16 A I direct that all just debts and funeral
17 expenses shall be paid from my residuary estate as soon as
18 practical after my demise.
19 Q Which, again, when he was expressing his
20 wishes to you, his wishes to you were different than what
21 were contained in the will. Correct?
22 A Well, yeah.
23 MR. PALERMO: I object to this question, Your
24 Honor. What we are talking about, just to qualify this, we
25 are talking about somebody that's not a party to this will.
40
1 Just so it is qualified for my client to understand that.
2 We are talking about somebody who is not a child of this
3 will, just so we are clear.
4 BY MR. THOMAS:
5 Q That is all right. Now, article V of the
6 will states, If Deb continues to reside in the house after
7 his death then he will give her the opportunity to reside
8 there with conditions. Correct? Have you ever read this
9 will? Do you remember what it says?
10 A Yes.
11 Q Well, doesn't it say she can live there with
12 conditions?
13 A Yes.
14 Q One of those conditions was ghat she pay all
15 utilities?
16 A Yes.
1~ Q And she has paid all utilities?
18 A I assume, yes.
1g Q Well, you have never gotten a bill for them.
20 Have you?
21 A No, because --
22 Q Okay. Then after three months, then she also
23 pays taxes and insurance. She has paid taxers and insurance.
24 Has she not?
25 A I believe so.
41
1 Q And then, plus $300.00 a month rent to Doug.
2 And you are complaining that you haven't got that $300.00 a
3 month?
4 A I have not received it, no.
5 Q Now, you have not removed, what would we say,
6 800 boxes of stuff that is stacked in the living room and
7 the rec room and the bedroom in that house. Is that true?
e A I don't have access to the home to do that.
9 Q You had access all summer. Did you not?
10 A And we had to -- (unintelligible)
11 Q But you haven't removed that stuff. So she
12 is paying rent to you for the storage of the house with all
13 that stuff in there that she can't even walk. around in half
14 the rooms because it is that packed. Would you agree?
15 A The family room?
16 Q Yeah.
17 A You can walk through there.
18 Q Yes, there's a path right thx•ough the boxes?
19 A Yeah, you can just step over --
20 THE COURT: Let me stop you there. Is this
21 stuff your dad's stuff yet?
22 THE WITNESS: Yes.
23 THE COURT: You don't have any stuff of your
24 own personal possessions stored in this house?
25 THE WITNESS: No, just half t:he assets he
42
1 willed to me.
2 THE COURT: So the point being, correct me if
3 I am wrong on this, that stuff ought to be sold as part of
4 the estate ?
5 MR. THOMAS: Correct. And sh.e has been
6 asking you to move that stuff and to sell that stuff.
7 THE COURT: She is a co-administrator.
g MR. THOMAS: Your Honor --
9 THE COURT: They have got to agree and get
10 rid of it. Right?
11 MR. THOMAS: But he is asking that she be
12 removed. And that is what this issue is all. about, what is
13 she doing to help try and solve this thing?
14 BY MR. THOMAS:
15 Q She has been asking to get that stuff out of
16 the house, have it inventoried, and then have it sold. Has
17 she not?
18 A We have estate sales. We just had some in
19 October. Two.
20 Q Let me ask you this, let's just cut right to
21 this question. You know that an inheritance' tax return was
22 due to be filed nine months after your father died.
23 Correct? November 20th to be exact.
24 A But we paid an inheritance t+~x early.
25 Q I realize you paid an inheritance tax. But
43
1 an inheritance tax return was due to be filed, and there is
2 penalties for not filing that inheritance ta:K return, and
3 that has not been filed. Correct?
4 A No.
5 Q And you paid $7,000.00 as a prepayment on
6 inheritance tax, but you only included the value of the real
7 estate when you calculated that payment. Correct?
g A I believe that was included, the real estate
9 and the house.
10 Q But you never conducted an inventory of any
11 of the stuff in the house, you never conducted an inventory
12 of any of the stuff in the shed, in spite of the fact that
13 my client has been pushing you to get this stuff inventoried
14 and get it sold. Correct?
15 A That's not the point. It's a. large job.
16 Q It is a large job. But you Y.~ad nine months.
17 Did you file with the Department of Revenue asking for an
18 extension explaining to them that you needed additional time
19 in order to inventory this stuff?
20 A No, sir.
21 Q So as of November 20th, we have got penalties
22 and interest accruing on the taxes that are due on this
23 estate. Now, the items that you sold, did you report the
24 difference in the value for what you sold those items
25 compared to the date of death value so that you could report
44
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any gains tax for income purposes to the estate?
A Maybe we should ask Debra that question cause
I gave her the receipts.
Q But she doesn't have a date of death value on
any of that stuff because it has never been inventoried and
appraised. Correct?
A That is because of the limited access I have
to the home.
Q But you had access from February all through
the summer. And you have never been denied access to the
storage sheds unit that are stuffed with probably even more
stuff than is in the house. Correct?
A The storage units need invent;oried, correct.
Q Yeah. So you are selling stuff without
accounting for the date of death value so that you can
properly prepare any tax documents that are going to be due
to the Internal Revenue Service in addition to the
Pennsylvania Department of Revenue. Is that: correct?
A Repeat that, please?
Q You are selling stuff without: having a date
of death value already assigned to the items?
A We have been selling items.
Q Without having a date of death value for
them?
A I am not sure what you mean <~ date of death
45
1 value.
2 Q You have been through four attorneys now.
3 Haven't one of those attorneys explained to 'you that you
4 have to apprai se the items that are contained within the
5 estate to dete rmine what the value of those items was on the
6 date of death?
7 A Yes, and Deb attempted to do that.
g Q She attempted to do that?
9 A She did get an estate asset value.
10 Q Well, now that we're on that subject, let's
11 talk a little bit. First of all, Murrel Walters was the one
12 that wrote the will for your father. He is an attorney in
13 Mechanicsburg. Correct?
14 A Yes.
15 Q And so you went to him alone or with you and
16 you and Penny went to him without Debra to engage his
17 services to represent the estate. Correct?
18 A Deb was with us.
19 Q She wasn't with you when you met him in his
20 office. Was she?
21 A Well, I didn't ask him to represent us. I
22 just went there for the copy of the will and he met us here
23 at the courthouse to get the signed paper, short
24 certificate.
25 Q He probated the will?
46
1 A Probated the will.
2 Q And then he sent you a fee letter, explaining
3 to you what he had told you in his office, what the fees
4 were going to be. It was going to cost you $3,000.00 and he
5 was going to h elp you do the entire estate. Correct?
6 A I don't recall that.
7 Q You fired Murrel Walters though. For some
e reason you did n't want him to continue to represent the
9 estate?
10 A Debra and I both agreed that he wasn't
11 answering some of our questions so we fired him.
12 Q You are the one that fired him. Correct?
13 A I can't say for sure if Debra --
14 4 Who communicated to his office that his
15 services were no longer needed?
16 A I believe we both did, sir.
17 Q All right. Well, she will have a chance to
18 testify about that. Then you went to this other attorney, a
19 Robert Knupp, over in Harrisburg. How did you get his name?
20 A I was recommended to him.
21 4 By Penny?
22 A Yes.
23 Q By the way, is Penny your lawfully wedded
24 wife?
25 A We have certified been married.
47
1 Q Certified been married?
2 A I consider her my wife, yes.
3 Q But you are not married? You never went and
4 got married. You sat her and said that she was your wife.
5 Have you got a marriage certificate?
5 A No, sir.
7 Q Penny is the one that referred you to this
8 Mr. Knupp. Isn't she?
9 A Yes.
10 Q So you went to see Mr. Knupp. And Mr. Knupp
11 was now going to represent the estate, and this time you did
12 take Debbie with you, she went with you to rneet Mr. Knupp.
13 Correct?
14 A Yes, she agreed that, yeah, :Let's go and talk
15 to him.
16 Q And, in fact, Mr. Knupp is t:he one that filed
17 the Certification of Notice to the Register of Wills Office
18 that all intended or unintended beneficiaria_s had been
19 notified of the estate administration according to law. Are
20 you aware that he filed that Certification of Notice?
21 A With the -- yes, I think I am.
22 (Whereupon,
23 Respondent Exhibit No. 1
24 was marked for identification.)
25 BY MR. THOMAS:
48
1 Q I want to show you what has been marked as
2 Respondent Exhibit Number 1. Have you ever :seen that
3 document, ever received a copy of it?
4 A I'm sorry, I don't recall seeing this before.
5 Q Well, it's a Certification of Notice that is
6 filed with the court and I got the copy directly out of the
7 Register of Wi lls Office. It was certification to the court
8 that all inter ested parties were notified that your father's
9 estate was bei ng administered. On here it was Douglas G.
10 Clouser, which is you. Correct?
11 A Yes.
12 Q And then it has Debra A. Houseman. Correct?
13 But missing from that is you have another brother. Don't
14 you?
15 A Yes.
16 Q His name isn't on here?
17 A Correct.
18 Q Did you tell Mr. Krupp that you had another
19 brother that was entitled to notice of the administration of
20 the estate?
21 A Yes, he knew.
22 Q What, so you are saying it wa,s Mr. Knupp's
23 fault that he didn't notify your brother?
24 A Yes, I guess.
25 Q You guess. In July 2009, you. decided to
49
1 terminate the services of Mr. Krupp. That was your
2 decision. Wasn~t it?
3 A Not exactly. It was Debra's decision also.
4 She encouraged me to, to do that in regards to the fees
5 involved. And we figured, and she figured that we no longer
6 needed his services. She stated she wanted to save the four
7 percent that he wanted from the estate. And he agreed to
8 charge us, I think it was $8500.00 for his :services.
9 (Whereupon,
10 Respondent Exhibit No. 2
11 was marked for identification.)
12 BY MR. THOMAS:
13 Q I am going to show you what ]zas been marked
14 Respondent Exhibit Number 2. Have you seen that letter
15 before?
16 THE COURT: What is it? Just so I can keep a
17 record.
18 MR. THOMAS: It is a letter from Attorney
19 Krupp to both Doug Clouser and Debra Houseman.
20 THE COURT: The question, have you ever seen
21 that before?
22 THE WITNESS: Yes.
23 BY MR. THOMAS:
24 Q Now, doesn't it say there in the first
25 paragraph that based on communications that you had with Mr.
50
1 Knupp's secretary that Mr. Krupp assumed he was no longer
2 representing the estate and he was washing Y.iis hands of it?
3 Correct?
4 A Yes.
5 Q And it specifically says it was
6 communications made by you to his secretary:'
~ A That is fine.
g Q Now, prior to your termination of Mr.
9 Krupp --
10 A It was -- excuse me, it was our decision.
11 Q All right. Well, prior to that decision
12 being made, re gardless of who made it, Debr<i was also
13 attempting to work out some arrangement with you whereby she
14 could buy the house?
15 A Yeah, we discussed that. And I asked her if
16 we could get an appraisal on there, an appraisal and we
17 would go forth with that.
18 Q All right. So, in other words, you were
19 agreeing with her that she could buy the house, you just
20 wanted to make sure you had a good value?
21 A I didn't want to sell the home unless the
22 contents were emptied out.
23 Q Right. Because you and Penny said you
24 couldn't sell her the home because, according to Penny,
25 possession is 9/10 of the law, and if she bought the home
51
1 then we run the risk she would own all that stuff inside the
2 house. Do you remember having that conversation with Debra?
3 A Yes. I would agree upon that: because of her
4 not allowing me access to the home.
5 Q All right. But Debra was as}sing you to clean
6 that stuff out of the house, she is willing to help you, she
7 has her son to help, she's trying to get this stuff out of
8 the house, she wants to buy it, and you are going along with
9 all of this, it is just that you are not, you are not moving
10 on helping to get this stuff out of the hou:~e?
11 A That is not true. I called Debra many times
12 to ask when would be a good time to go to the home. It was
13 never good with her. She didn't feel well, she was angry.
14 THE COURT: I am going to have to move this
15 along. So if you would wrap up, I want to hear from her
16 yet. I think I have a pretty good picture here about what
17 is going on.
18 MR. THOMAS: All right. Let me highlight one
19 more thing for the Court.
20 BY MR. THOMAS:
21 Q When you were testifying on direct, you
22 admitted to your counsel that you were in my office on
23 December 9, 2009, along with your counsel, along with me and
24 with Deb, in an attempt to try and get you two to be able to
25 work together.
52
1 A Yes.
2 Q Right?
3 A Yes. I was willing to do that to try to
4 resolve things.
5 Q Well, we had to schedule it ttwice because the
6 first time you refused to come. Correct?
7 A You guys wanted to schedule ai phone
8 conversation. I am not sure if I had to work that day. I
9 believe I had to work.
10 Q So we rescheduled it to accommodate you?
11 A Yeah.
12 Q Then on December 14th, your attorney sent me
13 a letter to basically confirm the results oi' our meeting
14 from December 9th.
15 (Whereupon,
16 Respondent Exhibit No. 3
17 was marked for identification.)
18 BY MR. THOMAS:
19 Q I want to show you a letter dated December
20 14, 2009, from your attorney, Mr. Palermo, t:o me. Have you
21 seen that letter before?
22 A Yes.
23 Q It sets forth in pretty good detail what our
24 agreement was. Right?
25 A Yes.
53
1 Q You would agree?
2 A Yeah, I was going to set up t:he appointment
3 and she would give me keys to get in the house with the
4 appraisal.
5 Q That is not what it says. It: says here it
6 was agreed in principle that my client would schedule an
7 appraisal of the property, and after the same was conducted
8 your client would then turn over a copy of t;he keys to the
9 home. Has th e appraisal been conducted? Has it been
10 conducted?
11 A We understood it to be when .C get the
12 appraisal set up.
13 Q That is not what it says. Rf~ad it. Set up
14 and conducted ?
15 A Well --
16 Q Is that what it says?
17 A Schedule an appraisal on the property
18 located, and after the same was conducted, your client would
19 then turn over a copy of the keys.
20 Q So you called my client on January 3rd and
21 say I have an appraisal scheduled for January 18th, I am
22 coming over there tomorrow and you have to give me the keys?
23 A You know, the date I called ]aer, yeah, that
24 sounds about right.
25 Q And she said she wasn~t goin!3 to give you the
54
1 keys because the keys were her thing to make: sure that you
2 got this appraisal done?
3 A She said she was not ready to give me the
4 keys.
5 Q But you hadn't done the appraisal yet either.
6 Had you?
7 A Well, I didn't want to set up the appraisal
8 and --
9 THE COURT: All right, I understand now.
10 MR. THOMAS: All right.
11 BY MR. THOMAS:
12 Q And now?
13 A Have to cancel.
14 Q Even though on December 9th we had a
15 perfectly good agreement where we were going to work
16 together and there was not going to be any need to come in
17 here into court, then based upon what happened on January
18 3rd, now, all of a sudden, we are here in court and we are
19 spending money litigating this particular is>sue. Is that a
20 fair statement?
21 A There is other things that built up to this,
22 yes.
23 Q You would like to have Deb removed so you
24 could handle the estate, take your good old time, and maybe
25 you can maximize the sale of all those antii~ues to the
55
1 utmost? But even you, yourself, would have to admit that
2 based upon the number of stuff involved, we are talking
3 years if you do it that way?
4 A I am not sure how long that would take, but
5 working with Deb would just prolong it furtYier, I believe.
6 Q Well --
7 A You know, I have seen auctioneers that are
8 untrustworthy and a lot of things don't make' it across the
9 auction block. And I felt by me handling them, the items,
10 we wouldn't be ripped off.
11 Q You're full-time employed with the Federal
12 Government. You have a girlfriend or spouse: that you live
13 with, who lives and probably also works and contributes to
14 the household income. Debra is totally disabled. Is she
15 not?
16 A I don't believe she is disab:Led.
17 Q Well, she has got three disks in her cervix
18 that have been removed and she has steel roc9s in there.
19 would you agree with that?
20 A That is -- I would agree.
21 Q And although she was working for seven years
22 at one place, then she worked for a year, up until about a
23 year ago when she was laid off, she has been living on
24 unemployment for the past year, which has now come to an
25 end. Has she told you that?
56
1 A No.
2 Q But she can't get a real job in today's
3 market with a pre-e xisting neck injury, and she is anxious
4 to get this thing r esolved, get it figured out where she is
5 going to live?
6 THE COURT: I am not getting a question here.
7 It is more of an argument.
8 THE WITNESS: I have offered to try to help
9 her with obtaining jobs.
10 BY MR. THOMAS:
11 Q But you haven't offered in tY.ie sense of let's
12 get this thing movi ng and get it resolved?
13 A Yes, I have.
14 Q You want to stretch it out over several
15 years.
16 MR. THOMAS: No further questions.
17 MR. PALERMO: Your Honor, I Yiave brief
18 follow-up. Two que stions.
19 THE COURT: Go ahead.
20 REDIRECT EXAMINATION
21 BY MR. PALERMO:
22 Q One, Mr. Clouser, when you got this Order of
23 November 19, 2009, saying you have unfettered access to the
24 house, did you get unfettered access to the house?
25 A No. I tried to call Deb several times to ask
57
1 her about the Order, if she received it.
2 MR. THOMAS: I am going to object based on
3 the fact that they never served my client with a copy of
4 that court order and now they are trying to rely upon that
5 court order to make her look like the person doing wrong.
6 THE WITNESS: I was willing to offer --
7 THE COURT: Sustained.
8 BY MR. PALERMO:
g Q My last question. Doug, when, your father
10 died, how much money did your father give you guys outside
11 the will, you and your sister, how much?
12 A I believe Deb received 120,000.
13 Q Okay. $120,000.00 cash she Yiad received?
14 A Yes, sir.
15 MR. PALERMO: Thank you.
16 RECROSS-EXAMINATION
17 BY MR. THOMAS:
18 Q And she has been ready, willi_nq and able and
19 prepared to pay for that house ever since tYien. Correct?
20 She has told you she wants to buy the house and she has got
21 the money to do it?
22 A She dictated to me and insisted that I sell
23 it to her.
24 THE COURT: You understand that if you don't
25 sell it to her, she is going to live there 1`orever for
58
1 $300.00 a month?
2 THE WITNESS: Well, I just want a fair
3 appraisal.
4 THE COURT: I understand that. The
5 bargaining position that your father created in this will is
6 she gets it for $300.00 a month as long as she pays
7 utilities, etc. That could go on for a hundred years.
8 Something has to move here. You can step down.
9 MR. THOMAS: Your Honor, I could put my
10 client on. She is going to contradict most of what he said
11 about some minor issues. I would demur before calling her
12 that they haven't established enough to haves her removed as
13 a co-executor.
14 THE COURT: Ao you have any authority?
15 MR. PALERMO: No, Your Honor,.
16 THE COURT: That is a really extreme
17 equitable remedy. I am not aware of any care law on this,
18 at this point in time. I think I have gotten the feel of
19 what is going on here.
20 MR. PALERMO: Right, Your Honor. I think
21 based temporarily, if she was going to refuse that temporary
22 relief to get the property insured, I think that might have
23 been reason enough if she was placing the property in a
24 state of peril.
25 THE COURT: It doesn't seem at risk.
59
1 MR. PALERMO: That has been cured by your
2 Order. But I do have some other requests for relief for my
3 client that need to be resolved in court now or later. So I
4 mean based on that demurrer, the only thing I am looking for
5 -- this qualifies as my closing, if you will -- Mr. Clouser
6 needs access to the property. I mean he had. a key, he got
7 locked out.
g THE COURT: Let me just give you my thoughts
9 on this right now. I think everybody deserves access to
10 this property since it is an estate property and you are
11 both co-administers. Nobody is going to sell anything, no
12 personalty, nothing from this estate forward. Is that
13 understood? Nobody is going to auctioneers. Nothing.
14 Now, you get your house appraisal done on the
15 18th. And you will give him a key. But no property will be
16 removed from the house today. Then the appraisal can be
17 done and that will be submitted to the court:. Are you
18 satisfied with this REMAX person?
19 MS. HOUSEMAN: I never met h:im. I don't --
20 that is fine.
21 THE COURT: It doesn't sound like he is
22 involved or an interested party. That idea of you put this
23 much in, that is not a bad idea. I have certainly seen that
24 in estates. But that is going to be a first: step.
25 I have to tell you right now, I believe your
60
1 expertise as an antique person is somewhat getting in the
2 way of solving this. I know you think, well, I can take x,
3 a clock, whatever, to auction, I think I can. get a good
4 price for that. But it takes way too long. Most times in
5 situations like this, you have to have an estate sale, you
6 are right there and watch everything being sold right out of
7 the house.
g Now, I do believe that is not; going to happen
9 immediately. But now somebody that you botYi agree on will
10 inventory all this stuff to establish the value of these
11 particular items in all of the storage cabinets,
12 everything, in the house.
13 Mr. Palermo, does that sound reasonable?
14 MR. PALERMO: The only thing is when can we
15 have a key. This has been the issue of contention. My only
16 question -- I understand what is going on. She says she
17 wants to get the stuff appraised, but locks him out, doesn't
18 answer the phone so that my client can get :in, he can get
19 this started. We can get -- after we provide the court an
20 appraisal, we can get the stuff itemized and we can get it
21 out eventually. But we wanted to start that a month ago.
22 He needs access. He needs a key.
23 THE COURT: You are available all the time.
24 Right?
25 MS. HOUSEMAN: Right.
61
1 THE COURT: You two will find. an appraiser,
2 give me the name, and you will establish the schedule when
3 you can both be there, Saturdays or whatever. If you are
4 correct you have hundreds of thousands of items, I don't
5 know how long that is even going to take. E~ut it is going
6 to be done on a schedule that you establish and supply to
7 me, and both of you will be there. I don't think you can
8 fight with the appraiser, but you will at least see that
9 everything is accounted for. Again, nobody sells, removes,
10 moves any property, personal property at all.. You will get
11 your house appraisal done.
12 Your father also said you have to pay this
13 rent. Now, I think that is due and owing.
14 MR. THOMAS: Well, Your Honor, we didn't
15 bring it out, I would have brought out thera~ was an
16 agreement early on when she thought she was buying the house
17 that he said she didn't have to pay.
18 THE COURT: That is obviously not the case
19 now.
20 MR. THOMAS: We agree with that since the
21 relationship has deteriorated to this point. But at what
22 point does it start up again? I would submit that the
23 relationship really broke down when Mr. Knupp was terminated
24 around the end of July, and the rent should only be back
25 dated to starting in August.
62
1 THE COURT: Rent is due from July. That is
2 what her father had indicated to you was going to be paid.
3 I want that paid and you are going to owe it each month
4 until this is resolved. Now, have I covered everything?
5 MR. THOMAS: Well, I guess the only other
6 thing, Your Honor, is that she is going to k~e paying rent
7 for this house, I think they need to move tYiat stuff from
8 the house up to the storage.
9 THE COURT: I don't. They are both
10 co-administers. You're just as much respon:~ible for that
11 stuff as he is. And you both have to agree that the best
12 thing would be to get it appraised and get :it sold, There
13 has been a lot of feet dragging there.
14 MS. HOUSEMAN: I don't drive.
15 THE COURT: Now, you want to sell it at the
16 best price and deal with it individually, but there is just
17 too much here. This has got to end.
18 2 hate to think what your father is thinking
19 right now looking down on the disagreement between you two
20 over what are obviously material objects and you want to
21 maximize your own benefit and now you are estranged. I
22 don't know if this is going to cure it for the rest of your
23 lives, but that's a sad commentary and I am. going to help
24 resolve it. So it is going to end pretty quickly here. Is
25 that understood?
63
1 Let me just try to dictate ari Order here:
2 AND NOW, this 12th day of January, 2010,
3 after hearing in the above-captioned matter, IT IS HEREBY
4 ORDERED AND DIRECTED that the petitioner's x-equest to remove
5 Debra Houseman as a co-personal representative is denied.
6 IT IS FURTHER ORDERED AND DIRECTED that the
7 house in question will be appraised by the IZemax appraiser
8 on January 18, 2010. A copy of the appraisal shall be
9 supplied to the court.
10 Debra Houseman shall supply the defendant
11 with a key to the property as of this date. Both parties
12 are hereby prohibited from moving any personal property,
13 selling any personal property, or in any way disposing of
14 any personal property which would be part of this estate.
15 The parties are directed through counsel to supply this
16 court with the name of an appraiser capable of appraising
17 the personal property in this case to include antique items
18 which may have significant value. The items will be
19 inventoried in the presence of both parties pursuant to a
20 schedule provided to this court by counsel.
21 Anything else? Add this:
22 Debra Houseman shall pay rent to the
23 petitioner, Douglas Clouser, from July 1, 2009, to the
24 present.
25 MR. THOMAS: Your Honor, the only thing that
64
1 I would ask Your Honor is that Debra Houseman and her son,
2 that is also their residence. I appreciate that Mr. Clouser
3 needs to be able to get in there. I would only ask that it
4 be at reasonable hours, that he not abuse tY.ie privilege.
5 THE COURT: That is fair. WYiat are
6 reasonable hours here?
7 MR. PALERMO: He had said 8:00 a.m. to 10:00
8 p.m., but, of course, given the fact that he: works, I mean
9 could go before work --
10 THE COURT: Why does he have to be in there?
11 What really has to be done is the appraiser being present to
12 count up this stuff.
13 I will allow him to be in there, but it has
14 to be approved between you two. So if you :have a good
15 reason to get in the house, you let Mr. Palermo know and he
16 will contact Mr. Thomas to setup an appointment. But you
17 are not walking into her home right now at any hour of the
18 day and night just because you want to go check on
19 something. Does that make sense to you, Mr. Clouser?
20 MR. CLOUSER: (Nodded affirmatively,)
21 THE COURT: Appointments for Douglas Clouser
22 to enter the home in question shall be arranged through
23 counsel.
24 MR. THOMAS: I'm sorry, I missed that.
25 THE COURT: What did I say?
65
1 (Judge's remark read by the court reporter.)
2 THE COURT: You have got to cooperate now
3 from this point on. It will make you both feel a lot
4 better. This isn't going to be a big question of how much
5 extra money there is going to be here. It ;lust has to be
6 settled now. Anything further?
7 MR. THOMAS: No.
8 MR. PALERMO: I move for Pet:itioner's
9 Exhibits 1 and 2, Your Honor.
10 THE COURT: All of the exhibits will be
11 admitted to the record. Stand in recess.
12 Thank you, gentlemen.
13 {Whereupon, the proceeding was concluded
14 at 12:20 p.m.)
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
7
ari T. Farley,
Official Court Repo r
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed
to be filed.
1
Date
Ml
M. L. Ebert, Jr.,
Ninth Judicial Di
ict
67