By JOSEPH G. LARIOSA
(© 2015 Journal GlobaLinks)
CHICAGO (JGL) – A wife of a Filipino American, who was reluctant to be named as trustee and beneficiary in a trust for “conflict of interest” despite being a financial adviser and “had always been there for her” as a friend of an elderly woman testator (testatrix) for more than 30 years, may yet get the “unsolicited gift” after all.
Cynthia “Cinder” Franke, 54, a stockbroker of a brokerage firm and wife of prominent Filipino American Tyrone “Ty” Javellana, 51, a Certified Public Accountant, both of Hallandale Beach, Florida, was cleared of charges of financial fraud by a three-judge panel of the Fourth District Court of Appeals of Florida in West Palm Beach last Dec. 16.
The panel composed of Judges W. Matthew Stevenson, Martha C. Warner and Alan O. Forst overturned the conviction of financial exploitation of the elderly Dec. 16 that was handed down earlier by Judge Jeffrey R. Levenson of the 17th Judicial Circuit Court of Broward County, “[B]ecause the State’s evidence was not inconsistent with her [Franke’s] theory of innocence.”
The ruling penned by Judge Stevenson opens the possibility that Franke may still be able to receive the unsolicited gift in the future. The unsolicited gift could mean a potential award of more than $10-million!
“LIKE A DAUGHTER TO ELDERLY WOMAN TESTATOR”
This is the photo of Cynthia “Cinder” Franke (JGL photo used with permission). Please see story: U.S. COURT MAY HAVE TURNED SANTA CLAUS FOR WIFE OF FIL AM
Both Franke and Javellana were found guilty by a jury in March 2013 for allegedly defrauding their friend, in her 90s, into signing away over her $10-million estate to them. The couple was accused of befriending Mary Teris, then, becoming her financial advisers.
Last June 24, 2015, a different set of three-judge panel composed of Chief Judge Cory J. Ciklin and Judges Forst and Mark W. Klingensmith likewise reversed the lower court decision by the same Judge Levenson, holding that “[t]here was simply no evidence that the defendant (Tyrone Javellana) knew anything about Teris’ estate or of any [alleged] plan by his wife to exploit Teris; thus, there was no evidence of his conscious intent that the crime be committed.”
TYRONE “CHAUFFEURED TERIS ON ERRANDS”
NO EVIDENCE DEFENDANT EXPLOITED ELDERLY
This is the photo of Tyrone “Ty” Javellana (JGL photo used with permission). Please see story: U.S. COURT MAY HAVE TURNED SANTA CLAUS FOR WIFE OF FIL AM
Although, Tyrone “also chauffeured Teris [whom he had known since the mid-1980s] on errands,” “there was no evidence that defendant (Tyrone) had any knowledge of a plan to exploit the victim,” according to Chief Judge Ciklin, who penned the three-page decision on June 24, 2015 on Tyrone’s appeal.
The prosecution represented by Attorney General Pamela Jo Bondi of Tallahassee, and Assistant Attorney General Luke R. Napodano, Assistant Attorney General of West Palm Beach on behalf of the State of Florida based their arguments on two theories under section 825.103, Florida Statutes:
“The defendant stood in a position of trust and confidence with the victim; the defendant obtained [or endeavored to obtain] funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds; and
The defendant used deception or intimidation to obtain the funds.”
The second theory required the State to prove that Franke obtained or endeavored to obtain funds belonging to Teris with the intent to temporarily or permanently deprive Teris of those funds, and that Franke knew or should have known that Teris lacked the capacity to consent.”
The court said, “Both theories rely on the common element that Franke obtained or endeavored to obtain Teris’ property. “’Endeavor’ means to attempt or to try.
“Obtain “means any manner of: (a) taking or exercising control over property; b) making any use, disposition, or transfer of property.” This element is lacking under either theory here.”
State argued that Franke endeavored to deceptively obtain Teris’s property by having herself named as the residuary beneficiary when she “guided” Teris to Mr. Robert Friedman, and was at the office – but not in the room – when some of the amendments were executed. Mr. Friedman was the lawyer, who assisted Teris in amending the trust.
“FRANKE HELPED TERIS THROUGHOUT THE YEARS”
However, the court said, “[T]his evidence is not inconsistent with Franke’s theory that being named beneficiary was an unsolicited gift. Franke and Teris had been friends for thirty years, and Franke constantly helped Teris throughout the years.”
When Franke learned that Teris had already executed trust amendments naming her as a successor trustee and remainderman beneficiary on June 22, 2009, she became upset because she knew there would be a conflict of interest with her work as a stockbroker at Laidlaw and Company brokerage firm. Franke immediately informed her branch and sales managers, who conferred with Laidlaw’s compliance department. Teris, herself, presented the trust amendments to Franke’s managers and explained that she was doing this because Franke had been “like a daughter” to her for thirty years. Laidlaw’s outside legal counsel determined that Franke could not be a successor trustee, but could remain a beneficiary. Teris then amended the trust to make Edward Anchel, her longtime accountant, and her estate planning attorney, the successor co-trustees of her revocable living trust, replacing Franke and Javellana, according to the court ruling.
Under the second theory, the State argued that Franke endeavored to obtain Teris’ property knowing that Teris lacked the capacity to consent.
The court said, “[W]hile the State did not present sufficient evidence for a jury to conclude that Teris lacked capacity, this theory fails for the same reason as the first – the evidence was not inconsistent with Franke’s hypothesis that Teris’ naming her as a beneficiary was an unsolicited gift.”
WOMAN TESTATOR STILL ALIVE
The court also noted that as a residuary beneficiary, “Franke would not have received any of Teris’ property until after Teris passed away. [At 101, Teris is still alive.]. Even then, Franke would receive something only if anything remained in the trust. Although, we need not decide the issue in this case, it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute”.
The court lent credence to the testimony of Mr. Friedman that on June 22, 2009, Teris changed the successor trustees of the trust from her sisters Josephine Troisi and Clara Tsiropinas to Franke and Javellana, and made Franke a residuary beneficiary of the trust and Javellana a contingent residuary beneficiary.
According to Friedman, Teris made the changes because her sisters were close to her age and would be unable to manage her property if something happened to her, her sisters were as wealthy as her and did not need her money, and that her nephews and nieces would inherit their parents’ millions.
“Teris also wanted someone she could trust to manage her assets and take care of her elderly adult sons who have disability, so she chose Franke. Teris named Franke as a residuary beneficiary because her sons were already taken care of with special needs trusts, her sisters did not need her money, and Franke had always been there for her,” according to the court ruling.
Franke was assisted by Regional Counsel Antony P. Ryan and Assistant Regional Counsel Richard G. Bartmon of the Office of Criminal Conflict and Civil Regional Counsel of West Palm Beach.
THOSE WERE THE DAYS
This is the photo of Ty Javellana (right) in Miami, Florida in November 2003 with Joseph G. Lariosa, who covered the extradition of Manila Rep. Mark Jimenez. (JGL Photo) Please see story: U.S. COURT MAY HAVE TURNED SANTA CLAUS FOR WIFE OF FIL AM
While Tyrone was assisted by Public Defender Carey Haughwout and Assistant Public Defender Tatjana Ostapoff of West Palm Beach in his exoneration last June 24, 2015 also before the same court appeals court.
SENTENCED TO SEVEN YEARS IN PRISON
According to newspaper reports, prosecutors and witnesses, Javellana and Franke persuaded Teris to disinherit her own family members and turn her fortune over to them. But Teris, who allegedly suffered from dementia, lacked the capacity to make sound decisions when Teris asked Franke to take her to an attorney to make some changes to her will and her trust in 2009 when Teris was 95 years old.
After her nephew, John Troisi, noticed Teris and her sister Josephine Troisi had [allegedly] paid out more than $100,000, he went to authorities. But, the State chose not to have John Troisi, who initiated the criminal prosecution, testify at Franke and Javellana’s joint March 2013 trial and the State failed to produce a single shred of evidence to support Troisi’s allegation of illicit payments to either Franke or Javellana.
Broward Circuit Judge Jeffrey Levenson sentenced Franke and Javellana to seven years in prison, two years of house arrest and 10 years’ probation.
Javellana was facing an additional count of exploiting Teris’ sister, Josephine Troisi, who has since died, for professional payments he received for his tax and consulting services he performed for Troisi, but with the appeals court favorable ruling on June 23, 2015, it allowed him to post bond and leave jail on July 4, 2015. The State recently conceded to Judge Levenson at Javellana’s November 13, 2015 status hearing that its case against Javellana was “always based on very weak circumstantial evidence” and that with the recent production of “voluminous [tax and consulting] records” by Atty. Michael Gottlieb, Javellana’s criminal defense lawyer, during the discovery phase, the State is dismissing the second and remaining count against Javellana. Judge Levenson’s parting words to Javellana is that he was sorry that Javellana had to go to prison, acknowledged his difficult six-year ordeal, and expressed best wishes to him and his family. Javellana spent over two years of wrongful incarceration, and Franke spent two months in prison until she was allowed to post a $75,000 appeal bond to care for their two minor children.
Franke is a native of Rockford, Illinois while Javellana, a Certified Public Accountant like his father, is a native of Iloilo.
"It is a huge relief," Javellana told the Sun Sentinel, a South Florida daily, after the verdict was announced. "It was six years of an unbelievable nightmare that's been lifted off our shoulders."
Franke's friend and colleague, Alicia Brown Beloyan, was also quoted as saying Franke was in tears much of the day after her acquittal. "It's not sinking into her mind that this is over after six years," she said.
After the charges were filed, Franke lost her job with the Laidlaw and Company brokerage firm and was stripped of her license as a broker. She has not decided what to do with her career, Javellana said.
"We're not certain what her next step will be, but at least this exoneration clears her name," he said.