By Ryan Yousefi
By Chuck Strouse
By Terrence McCoy
By Terrence McCoy
By Terrence McCoy
By Michael E. Miller
By Kyle Munzenrieder
By Michael E. Miller
They were weird and wicked times, no doubt about it. Years after his death, when strangers in suit coats kicked and grappled for the crumbs of his estate, they would say the old man lived his last days in a gross gush of profligacy. Ordering the servants about. Getting snockered every day on gin. Sleeping till noon and puking on the parquetry. Squandering money on lunatic investments. Ranting and raving about nothing at all. Communism. The death of aristocracy. Whatever. As much as a decade before his 1988 death in Miami, Count Tassilo Szechenyi was a nobleman by title only, a Hungarian thoroughbred gone utterly to seed, a wastrel, a rotter, a stumblebum.
"A tremendous pain in the ass? He was indeed," says 48-year-old J.D. "Mike" Phelps, the Count's closest friend and assistant during the Eighties. "He was not an easy person to have a relationship with. You could have a $100 tab at a restaurant, and he'd tip a dollar. When he turned his back, I'd leave a twenty, you follow me?
"He had this valet, Nicholas, who was there five days a week, 24 hours a day," Phelps recalls. "The Count had friends all over the world, so he would make international phone calls late at night, to different time zones overseas, with Nicholas waiting on him hand and foot. The Count would stay up late, three or four o'clock in the morning, then he'd sleep till ten or eleven, then the kid would fix his breakfast. And it had to be just right, or the Count would throw it on the floor. The kid would have to remake it and clean up the mess, too. Aside from his vodka, tonic, and grapefruit juice mixed together, he would have a two-minute egg, and white toast, just so on both sides. It had to be perfect.
"The Count in his declining years was five-foot-nine, maybe 120 pounds soaking wet," Phelps adds. "He smoked three to five packs of cigarettes a day and drank two to three quarts of vodka. He was a very hard drinker. He was an alcoholic. He almost turned me into an alcoholic. But aside from being an alcoholic, he was eccentric. It ran in the family. His uncle built the Szechenyi Bridge between Buda and Pest, then committed suicide when he discovered the workers had placed a set of giant ornamental lions facing the wrong way."
The best example of Count Szechenyi's eccentricity, friends suggest, was his response to the 1979 death of his third wife, the Countess Helene Balej Szechenyi. "The maid had prepared lunch, and the Countess was due back from her swim that she took every day at that hour," Phelps says, recalling the scene at the exclusive Surf Club Apartments at 9133 Collins Avenue. "The Count had not left the apartment. Two detectives from Metro homicide showed up to tell him his wife was dead. But he already knew because he saw the whole thing through the window from where he was sitting at the luncheon table - the body covered up, the rescue van, everything. He didn't think anything of it. The detectives came in and said, `I'm sorry to tell you your wife has died.' He said, `Well, would you gentlemen like to stay for lunch? It's already prepared. We don't want it to go to waste.' He hated waste. He had a lot of quirks like that."
Of course, this was only the exterior view of Tassilo Szechenyi (pronounced SAY-cheh-knee). The Count may have acted like a beast on occasion, but that was because of his exquisitely tortured soul. There was more to his personality and his final days in a Surf Club condo than the sad circumstantial merger of royal decadence and sunny subtropical seediness. Born in a castle in Budapest in 1912, and witness to a century of human tumult, Count Szechenyi's wealth had not consistently insulated him from life's hard knocks. And apart from being old and weather-beaten, the Count at the time of his death belonged to a painful and ever-more-exclusive club: a last generation of expatriate Eastern European royalty, the liver-spotted embodiments of a nearly vanished feudal system, haunted by their alienation from the late Twentieth Century.
"He had all the luxuries of a peaceful European upbringing under the Austro-Hungarian Empire," Phelps explains. "He had nannies and chauffeurs and footmen and limousines and private schools and horseback riding and polo training - everything."
Nephew of King Franz Josef I and purportedly fifth in line to the Austro-Hungarian throne, the Count finished prep school in the decade following World War I. During his last year of university studies in Budapest, he announced his intention to become an aviator. Despite the protestations of his brother and father, both of them traditionalist cavalrymen, Szechenyi received his wings in 1935 and began a career as a test pilot, gunner, and bombardier in an age when those job titles were less than a generation old.
By the start of World War II Szechenyi was deputy commander in chief of the Royal Hungarian Air Force, which flew as a de facto detachment of the German Luftwaffe. A photo from 1943 shows the Count, in the company of Nazi field marshal Hermann Goering, inspecting the wreckage of one of the many airplane crashes he survived.
The postwar Soviet occupation of Hungary was not kind to the Count, who fled in 1948 with a pair of solid-brass door studs from the family's ancestral castle. After drifting around the Continent and settling for a time in Egypt, he spent three years in Cuba. And in 1954, carrying the business card of his friend Fulgencio Batista, president of Cuba, he moved to Miami.
Adrian de Menasce, the English son of a Hungarian baron, first met the Count in the summer of 1948, on the Italian island of Capri, at the villa of his cousin, the Countess Madeleine Pozzo di Borgo. "He was exceedingly direct," says de Menasce, who today lives the quiet life of a gentleman painter in London. "I suppose his occupation as a test pilot must have produced that element. He was a bit of a daredevil, but warm, too. And extremely popular. There were quite a few other Hungarian refugees on Capri at that time; in general there were many kings and aristocrats in exile, and the Count and my parents knew quite a lot of them. Count Szechenyi struck up a relationship with the English writer Norman Douglas, and with Peggy Guggenheim."
In the ancient Egyptian port city of Alexandria - an even bigger nexus for exiled blue bloods - Szechenyi soon took up residence with de Menasce's family, and began flying back and forth to Beirut as a pilot for Middle East Airlines. It was the first real job the 37-year-old aristocrat had ever held. "His leaving Hungary represented a tremendous financial loss," de Menasce explains. "But he accepted it very aggressively. I don't think he had regrets, or if he did, he covered them up."
In the United States, in 1966, Count Tassilo Szechenyi met the man who would become his business partner, constant companion, and trusted confidant. Mike Phelps would later emerge - to his own great astonishment - as the principal beneficiary of the Count's will. And within days after Szechenyi's ashes were scattered over the Everglades by airplane in accordance with his last wishes, Phelps would witness the birth of what he believes to be an insidious judicial grave robbery that continues today.
Sorting out Count Tassilo Szechenyi's affairs should have been fairly simple. A pathetically small fraction of Hungary's beneficence survived the nobleman's freewheeling final years, a period during which fast living, flashes of extravagant generosity, and a spate of financial problems shrank his holdings from roughly $2.9 million to $1.6 million. A last will and testament signed five weeks before the Count's death seemed to lay out a clear plan for disposing of the remaining cash and property.
But instead, as Mike Phelps wrote in an August 1990 complaint to the Florida Bar, the dead aristocrat's estate became the battleground for a mammoth "war of lawyers," which engendered "great expense in attorney fees; great delay in the administration of the estate and trust; and great delay in providing sums due to the beneficiaries."
In the three years following Szechenyi's death, a score of Miami bankers, accountants, and attorneys involved themselves in the estate proceedings, each chipping off another cash crumb for their own consumption. According to the latest estimates of estate accountant Paul Salver, less than $220,000 remains from the Count's original wealth, and that amount or more is the target of claims by as many as 100 creditors. "It's my understanding that...we're sitting on what's now a bankrupt estate," Salver said in August. Three Dade probate judges have handled the case so far, one retiring, one recusing himself, and the latest tending the vegetative growth of thousands of pages of motions and pleadings that show no particular sign of settling anything.
A kaleidoscope of administrators ad litem, personal representatives of the estate, and individual co-trustees fills the court files, while several of the beneficiaries meant to profit from the Count's will have accepted the likely eventuality of getting zip. Baron Adrian de Menasce, for example, was supposed to receive $50,000, but hasn't seen a cent. "Alas, I wish I could tell you why I haven't received my bequest," he says. "I have found the whole thing quite painful."
In the view of Mike Phelps, the unwholesome mess is the fault of two men: Miami lawyer Peter M. MacNamara and former AmeriFirst trust company president Richard Jackson. In his bar complaint against MacNamara, Phelps claims the lawyer has used "warlike tactics" and "possibly unethical conduct" to systematically obstruct the disbursement of the Count's assets while allegedly milking the estate for attorney's fees, assisted all the while by an unholy alliance with the former AmeriFirst executive. (AmeriFirst, the nation's oldest federally chartered savings and loan, was seized March 15, 1991, by government regulators. Its downfall was largely the result of an overreliance on commercial real estate investment.)
In a motion filed three months ago, Phelps accused MacNamara of lying in open court and conspiring with Jackson to commit "legal malpractice, civil fraud, possible criminal wrongdoing, conversion of assets, and other acts" in their handling of the Count's estate. He also charges that MacNamara carried on illicit private conversations with Dade Circuit Court Judge Moie Tendrich, attempting to poison the judge's impartiality in the complicated case. "I was set up by AmeriFirst Florida Trust Company and a lawyer hired by them," Phelps alleges. "They have cheated me out of more than three-quarters of a million dollars."
Pleading with the latest judge, Edmund Newbold, to strike Phelps's bar complaint from the court record of the Count's estate proceedings, MacNamara this past September 27 called Phelps's allegations not only "personal and confidential" but "slanderous and libelous..., prejudicial in nature and void of any merit." In an October 5, 1990, letter to the Florida Bar, MacNamara went much further, denying he had ever actually represented Phelps, and accusing his accuser of looting the Count's estate. "Mr. Phelps made unauthorized distributions to himself of $486,483.43 in cash and additional `in kind' distributions of other assets in the amount of $173,729," MacNamara claimed. "As a result of the unauthorized distributions, the estate is insolvent."
MacNamara hinted that Phelps tricked the Count into naming him personal representative, then used his newfound powers to embezzle substantially all of Szechenyi's assets. "Mr. Phelps held a confidential relationship with the decedent prior to his death, and exerted a strong force and control over the decedent in his declining years and capacity," MacNamara wrote. "The fault in this case lies with the broad powers given the personal representative in the decedent's last will and in the misuse of those powers by Mr. Phelps." MacNamara described himself and his confederates as dutiful functionaries, members of a legal salvage team struggling to learn what happened to the Count's wealth, and perhaps recover some of it.
Shot through with animus, swollen by bombast and bile to near-epic proportions, the squabble over what may or may not be left of Count Szechenyi's fortune now transcends simple greed, and grinds on because of something vaguely resembling honor.
This month a regional grievance committee of the Florida Bar will meet to hear testimony inspired by Phelps's accusations, and determine whether the state Supreme Court will be asked to appoint a judge to review them. Jackson, now president of the Bank of New York Trust Company of Florida, has not been asked to testify at the bar hearing. But an increasingly impatient Judge Newbold has ordered the banker to submit to depositions by Phelps's attorney as part of the continuing probate process.
For Phelps the past three years amount to an opera of corruption over which the ghost of Count Szechenyi seems oftentimes to hover, giggling. "The Count was cremated, so I can't say he's rolling over in his grave," Phelps says. "He's not rolling over in his grave, and his ashes aren't fluttering up and down over the Everglades. But he's here. He loves this sort of thing. He loves a fight. I never did lose a fight with his bankers, and I'm not going to lose the biggest fight of all."
The asphalt T formed by Northwest 34th Avenue and 191st Street is one of the more barren addresses of suburban Dade County. Near the crossroads, stony lots are interspersed with cheerless bungalows. Passersby are rare; the wind sweeps through the scraggly branches of a few stunted trees.
It was on this site in November 1984 that Count Tassilo Szechenyi and Mike Phelps began one of their loonier ventures. Over the objections of Carol City residents, the pair persuaded the Metro Zoning Appeals Board to let them transform an existing dog kennel into an elaborate, air-conditioned pet spa. The resort would feature carpeted suites with brass beds, fancy food, and a $39-per-night fee.
Phelps, a former dog trainer, became president of American Pet Resorts, a corporation he dreamed would one day sprinkle the United States with upscale doggie motels. The Count, a lifelong animal lover, became Phelps's financial backer, even donating his 1962 Rolls Royce for use as a pet limousine. Based almost totally on snob appeal, the scheme proved unprofitable. Even the Count's royal connections couldn't generate enough business. "He ended up investing maybe a quarter-million or so," Phelps recalls. "We ended up losing most of it."
No matter. The project was the temporary passion of both men, just one of many interests they cultivated together. Its pursuit solidified their unlikely friendship, and its monetary failure did nothing to mar their affection for one another. "Over 23 years, it became a father-son relationship," Phelps says of his association with the Count. "This was a guy who spoke seven languages. He was very intellectually inclined, very cultured. His knowledge covered a vast array of subjects. I remember walking in the woods for the first time with him in Maine. `Do you know what kind of tree that is?' he asked. Of course I didn't, and he probably knew I didn't. He was a teacher. He was the type of guy who had suffered much, and he wanted to save you from suffering what he had already been through."
Phelps had been through plenty himself. After growing up in a poor and broken home in Indianapolis, he did a hitch in Vietnam with the air force, worked as a cop for three years, got married and divorced, spent ten years in New York as an executive recruiter, and eventually moved to Miami in search of a warmer climate.
He had met the Count a few years before in New York, and bumped into him again outside the main post office in Miami in 1968. Within months Szechenyi hired Phelps as his executive assistant, a sort of white-collar handyman who filled prescriptions, answered mail, and negotiated business deals on the Count's behalf.
At the time, Szechenyi was married to his third wife, the Austrian-born Countess Helene Balej. From the beginning, according to Phelps, the royal joinder was a marriage of convenience. The pair had almost nothing in common. "The count was an animal lover; she hated animals of any kind," Phelps recalls. "She would give hundreds of thousands of dollars to charity, but only if she got public acclaim and recognition; the Count would do it privately, anonymously. Frankly, she was despised by most people who knew her. She more or less tried to control the Count. And she definitely controlled all the money."
Count Szechenyi spent more and more time in the company of his newfound friend and liegeman. Their friendship deepened, in part because of the many carefully constructed hangovers they endured together. At some point the Count let Phelps know he could expect to inherit the kennel property in Carol City.
Today the compound at 3400 NW 191st Street is owned and operated by a nonprofit animal-preservation group called Pet Rescue. Approximately 100 cats and dogs reside there, yet the street outside the compound is absent of barks and meows. The double-layer soundproofing installed by Phelps on the property is now the only indication that he once, briefly, owned the place.
The dog motel in Carol City is not the only bequest Tassilo Szechenyi made to his surrogate son. The Count also left Phelps his condo at the Surf Club, worth $126,000; a three-bedroom, two-bath house at 784 NE 80th St., worth $67,000; a $245,000 summer hideaway in Dresden, Maine; and 195 acres of land, also in Maine, valued at $200,000. All the property bequeathed to Phelps was owned free and clear by the Count at the time of his death, except for the Miami home, which carried a $46,000 mortgage.
The Count left his personal effects, two additional parcels of land in Maine, and $250,000 cash to a nephew in Sweden. He left another $100,000 to his sister in Tennessee, $50,000 to Adrian de Menasce in London, and $25,000 to Arpad Beleznay, a retired Hungarian sea captain living in Miami. Szechenyi expressly denied his two daughters any share in his estate because he believed they were married to Communists.
Besides making Phelps the principal beneficiary of his will, the Count appointed him his personal representative, a title that gave Phelps the power and responsibility to execute the will, deal with funeral arrangements, pay the estate's debts, and make sure beneficiaries received their bequests.
One thing became apparent to Phelps soon after the Count's death: the estate in itself was not wealthy enough to pay every sum promised by the will. Cash was a particular problem; Szechenyi's personal checking account was nearly empty. But the will had foreseen this obstacle.
At the time of her drowning in 1979, the Countess Helene Balej Szechenyi left one-third of her ten-million-dollar fortune to a sister in South Africa, and another third to the Miami Heart Institute. The remainder went to establish the Count Tassilo Szechenyi Trust, an investment fund administered jointly by Phelps and AmeriFirst Florida Trust Company, which was used to generate income for the Count's not inconsiderable living expenses. Occasionally over the years the Count had dipped into the fund's principal to pay off debts. By the spring of 1988 it was valued at approximately $874,000.
The first thing Mike Phelps did in his new capacity as personal representative to the Count's estate was to hunt for a good probate lawyer. On his deathbed, Szechenyi had asked Phelps to use the services of his godson, a young Miami attorney named Miguel Rodez. But Rodez, a commercial litigator, had scant experience with probate affairs. Phelps says he decided to ask AmeriFirst president Richard Jackson to recommend a probate lawyer. The choice of advisor made sense; for three years Phelps and Jackson had worked together, amicably enough, administering the Count Tassilo Szechenyi Trust in their respective capacities as individual and corporate co-trustees.
According to Phelps, Jackson first promised to recommend two or three good probate lawyers, then wound up suggesting only one: Peter M. MacNamara. Phelps claims Jackson told him on the telephone on June 18, 1988, that MacNamara "knows the judge [Moie Tendrich] very well, so all will go well for you." On June 22, 1988, MacNamara signed a letter in which he agreed to represent Phelps in probate proceedings, as co-counsel with Rodez, for a fee of $150 per hour plus expenses. Phelps sent him a nonrefundable advance check for $2500. According to Phelps and Rodez, MacNamara described himself in a meeting as "a good buddy" of Judge Tendrich.
Two weeks before retaining MacNamara, Phelps had written to AmeriFirst vice president Karen Shupenko, asking her to transfer all funds from the Count Tassilo Szechenyi Trust to the estate checking account he had opened at AmeriFirst. It was this money transfer that would begin to solve the estate's cash-flow problem. Besides paying the other beneficiaries their cash bequests, Phelps needed funds to pay property taxes and funeral expenses. "In addition," he wrote to Shupenko, "there is a signature loan at Bank Atlantic and a first mortgage on the 784 NE 80th Street residence." In all, Phelps calculated the Count owed about $123,000 at the time of his death.
Phelps pointed out to Shupenko that the transfer he was requesting was anticipated and authorized by the Count's will: "To the extent that the assets of my estate are insufficient to fund the foregoing devises," the will stated, "I hereby exercise the Power of Appointment in the Marital Trust...to appoint that portion of the principal of said Trust to each of the foregoing beneficiaries, in an amount necessary to fully fund their respective specific devises."
On June 15, 1988, Phelps received an unexpected and worrisome response to his request. "There is no provision in the Will for the reimbursement by the Trust for any debts, administrative expenses or Estate taxes," AmeriFirst's Richard Jackson wrote.
While it was true that such expense reimbursements were not explicitly spelled out in the Count's will, it seemed clear that a wholesale transfer of funds was mandated. Upon dying, the Countess had given her husband ultimate authority over the Count Tassilo Szechenyi Trust fund; the Count had exercised that authority in his own will, setting forth the circumstances under which the assets of the trust would be used to help fund the bequests to his loved ones. Those circumstances now existed, and Phelps had been charged with the responsibility of making the will's mechanism work.
In principal, the wealth of the trust and the wealth of the estate were the same, possessions of the dead Count that were inextricably linked by both the Countess's and the Count's wills. And legally, as far as Phelps could see, there should be no problem merging the two holdings. Jackson disagreed. "The only way assets of the Trust could have been available for the payment of debts and expenses in the probate Estate and the payment of Estate taxes would have been to exercise the Power of Appointment so that the entire Trust would have been payable to the Estate," Jackson wrote. As it was, the banker said, trust funds could be used to pay only the "specific devises," or bequests, the Count had set forth in his will. Jackson contended that the language of the will prohibited using trust funds to pay the mounting debts of the estate. And without Jackson's consent as co-trustee, Phelps was powerless to do so.
The question of whether the Count's trust fund could simply be merged with his estate seems exactly the sort of sticky point a probate judge gets paid to clear up. But none ever did. Blocked by AmeriFirst from tapping the Count's trust fund, Phelps soon began selling off the Count's properties to pay estate debts and taxes. He would later acknowledge that these land sales - executed without the necessary permission from the probate court - were poor judgment. AmeriFirst, for its part, proceeded to use cash in the trust fund to pay itself administrative fees, and dole out thousands of dollars in legal expenses connected with the trust and estate proceedings.
More than three years after the controversy between Phelps and Jackson first developed, Szechenyi's former accountant would all but wring his hands in frustration in a Dade courtroom. "It appears to me that the trust should have taken the assets from the trust, brought them before the probate court and said, `Judge, administer this estate and tell me how I'm supposed to distribute my assets,'" Salver told Judge Newbold in August. "I see nothing more complicated than that.... I think the exercise of the power of appointment in the last will and testament dictates what should happen with these trust assets. But we have to make that determination. That hasn't happened."
At the time he received the letter from Jackson in June 1988, Phelps says he was immediately suspicious of the banker's arguments against transferring funds from the trust to the estate. It seemed to him that Jackson was using a garble of technicalities - and his position as corporate trustee of the Count Tassilo Szechenyi Trust - to obstruct the orderly execution of the Count's wishes.
Considering the rift with AmeriFirst that was suddenly emerging, Phelps was doubly glad to have retained the services of attorney Peter MacNamara. But that sense of relief would soon begin to erode.
Almost immediately, MacNamara wrote to Phelps with some good news: He had talked to Jackson at AmeriFirst and arranged a short-term loan from the Count Tassilo Szechenyi Trust to the dead aristocrat's estate checking account.
Although this did not resolve the larger question of whether the Count's will called for funds in the trust account to be moved to the estate checking account, it did take pressure off Phelps. Mortgage payments on the Miami house, Maine property taxes, and many other bills were either due or past due, and Phelps had begun to worry. He knew that failure to pay the bills, particularly the mortgage, could result in a domino effect of financial trouble that could tangle and slow the execution of the will.
Within a few days, on July 2, 1988, Phelps says MacNamara called him with his first piece of legal advice. The probate lawyer urged his client to appoint AmeriFirst Florida Trust Company to serve with Phelps as "co-personal representative" of the Count's estate. Phelps says the suggestion struck him as utterly bizarre. It was bad enough, in his mind, that AmeriFirst had partial control over the Count's trust fund, and appeared to be stalling disbursements to the beneficiaries by refusing to merge the trust funds into the estate account. Why in the world would Phelps want to give AmeriFirst authority over the estate as well?
Phelps wrote back on July 7, 1988, asking MacNamara seven detailed questions related to the lawyer's unexpected suggestion. They began: "1.) Why would a co-personal representative be needed if I have two attorneys assisting me? 2.) Wouldn't another personal representative add to the cost of administration?" Phelps claims that MacNamara promised in mid-July to prepare a response to his questions.
And then, according to Phelps, MacNamara seemed to vanish. The loan he had promised to arrange with AmeriFirst never materialized. The response to Phelps's concerns was never prepared. Suddenly, Phelps says, he was unable to reach MacNamara by phone and was "consistently advised that MacNamara was `unavailable,' `out of the office,' `in a meeting,' `with a client,' `on a long-distance call,' and `will get back to you.'" On September 21, 1988, Phelps sent MacNamara a letter telling him he was fired, and requesting a bill for his services. Phelps says accountant Paul Salver, who at the time was busily trying to prepare the many tax forms required of the Count's estate, complained to both him and Rodez that he had had unusual difficulty reaching MacNamara after the attorney had agreed to help with the tax preparation. For months after discharging MacNamara, Phelps would write to the lawyer demanding that he return files pertaining to the Count's estate. The files never were returned, Phelps claims.
Phelps says he began to get a "gut feeling" that MacNamara and AmeriFirst's Jackson were close personal friends as well as professional colleagues. In early October of 1988, two weeks after he had fired MacNamara, that hunch seemed to be confirmed. MacNamara showed up uninvited with Jackson at a breakfast meeting Phelps had arranged between the banker, himself, his lawyer Miguel Rodez, and the estate accountant Paul Salver at the plush Grove Isle Club. According to Phelps and Rodez, the AmeriFirst banker did nothing to explain why MacNamara was there. (Richard Jackson did not return phone calls to his Miami office seeking comment for this article.) In his August 1990 complaint to the Florida Bar, Phelps said he was "perplexed and angered by MacNamara's presence, but since the meeting took some time to arrange, was at a private club..., and Phelps did not wish to create any problems, Phelps permitted MacNamara to stay."
The odd presence of MacNamara at the meeting became uncomfortably clear to Phelps three months later. In early January 1989, he and Rodez say they were driving to a meeting when they received a message to call MacNamara. When they did, MacNamara informed them that he would be representing AmeriFirst Florida Trust Company and the Count Tassilo Szechenyi Trust against Phelps in the estate proceedings. AmeriFirst planned to challenge a number of sales and disbursements of the Count's property and assets made by Phelps. As Phelps recalls, "Rodez informed MacNamara that if he represented AmeriFirst..., such representation would probably be unethical and might present a conflict of interest."
More than two-and-a-half years later, in legal papers filed in the estate proceedings, MacNamara would acknowledge what Phelps by then had come to suspect: Beginning on June 16, 1988 - five days before meeting Phelps for the first time - MacNamara billed more than $164,000 to AmeriFirst for legal assistance to the Count Tassilo Szechenyi Trust. By the time he signed a retainer to work for Phelps, MacNamara was already on the payroll of Phelps's nemesis, Richard Jackson. Phelps and Rodez claim that MacNamara, while representing Phelps, was in fact nothing more than AmeriFirst's secret agent, sent to hoodwink the Count's personal representative into relinquishing control of the estate. "The motive," Phelps alleges, "was the unjust enrichment of both MacNamara and Jackson personally, as well as collecting substantial unearned fees for AmeriFirst. They assumed I would just dry up and blow away."
"Without disclosing to anyone the existence of his attorney/client relationship with AmeriFirst, attorney MacNamara sought to be and was retained by Phelps," Rodez wrote in an August 28, 1991, court memorandum. "Throughout his representation of Phelps, attorney MacNamara stated that he would take all kinds of action on behalf of Phelps, but failed to deliver on his promises. MacNamara's first advice to Phelps was to have [MacNamara's] other undisclosed client, AmeriFirst, or [MacNamara's] friend, Jackson, appointed as co-personal representative of the estate.... When MacNamara first disclosed his representation of AmeriFirst, it was in the form of an adversarial proceeding against Phelps, his former client."
Peter MacNamara declined to be interviewed for this story. "It would be unethical for me to comment on this matter, no matter how untrue these contentions might be, because I'm an officer of the court and a trust fiduciary," he said. But in responding to Phelps's charges of conflict of interest, MacNamara wrote the Florida Bar on October 5, 1990, that "Mr. Phelps confuses this firm's representation of a fiduciary with representation of him in an individual capacity, which never occurred. In representing a fiduciary, an attorney's duty runs not to the individual but to...trust beneficiaries, and estate beneficiaries and creditors." In other words, when MacNamara represented Phelps, his allegiance was owed not to Phelps specifically but to the Count's beneficiaries in the abstract. Since the normal sort of attorney-client relationship did not exist, there wasn't any conflict of interest when MacNamara worked for both AmeriFirst and Phelps.
But more important, MacNamara argued that despite having signed an agreement to represent Phelps and accepting a check from him, he never actually represented him because he never cashed the $2500 retainer. (MacNamara claimed he discovered the check was drawn on a worthless account; Phelps says the two men had an understanding that the undated check, drawn on the estate account, would not be cashed until Phelps was able to move funds into the estate checking account.) Instead, in a gesture both theatrical and functional, MacNamara tore the check into pieces on March 2, 1989, in the courtroom of Judge Moie Tendrich.
Tendrich was not without his own theatrical revelations that day.
Throughout the fall and winter of 1988 and the spring of 1989, Phelps had been selling off estate property in order to pay debts and beneficiaries, and his own expenses as personal representative. In an accounting filed with the court, he listed the total amount of these disbursements at $502,136 - about half of that sum going as an advance on his own inheritance.
In retrospect, Phelps says he wishes he had waited to get a court order before selling the Count's property and personally taking more than $250,000 for himself. Though not strictly required for the execution of a will, it is common practice for a personal representative to obtain a judge's permission before liquidating estate assets. Phelps says he was operating under the direction of the Count's will, which gave him the power to sell off assets "without prior or subsequent approval, adjudication, or order or direction of any court or judicial authority," and to make disbursements, including to himself as principal beneficiary. It was one of many examples in probate law of how a written will can come into conflict with the authority and discretion of the court. And to MacNamara, Phelps's flurry of land sales amounted to a "misappropriation" of funds.
In March of 1989, Phelps signed an agreement with the Count's nephew, Christer Lilliestierna, the other principal beneficiary, that recognized the estate was short of cash and pledged to sell whatever properties needed to be liquidated to pay all the beneficiaries. In July 1988, Phelps had mortgaged the Carol City kennel property he was due to receive as part of his own bequest. And with the help of a real estate broker in Maine, Phelps appraised and sold two parcels of land and transferred the proceeds to the estate bank account. He continued paying estate debts and some bequests, including $50,000 as a first installment to the Count's sister in Tennessee, who was due to inherit $100,000.
Although the sale of land in Maine had apparently never been mentioned to Judge Tendrich in court or in any court document, Tendrich certainly knew about it on March 2, 1989. And his attitude toward Phelps appeared something less than friendly, convincing Phelps that MacNamara had been talking in private with the man Phelps says the lawyer once described as his "good buddy":
The Court: Where is the money?
Mr. Phelps: We have been paying debts.
The Court: Where is the money?
Mr. Phelps: We -
The Court: What I am doing is on my own motion now. Are you serving [as the estate's representative] with a bond?
Mr. Phelps: No.
The Court: I am on my own motion. I am going to require you to file a bond in the sum of $500,000. If not I will remove you and appoint an administrator ad litem. An estate this size cannot be administered in this court without a restricted account, a bond, and I don't care what the will says. Were you related to the deceased?
Phelps: No, sir.
The Court: Are you a lawyer?
Phelps: No, sir
The Court: I'll tell you now, that's what this Court is doing.
Phelps: Yes, sir.
The Court: How much was the property sold for in Maine?
Phelps: There are two parcels which totaled $234,000.
At the request of MacNamara - and despite the fact that the Count's will explicitly stated that no bond would be required of the estate's personal representative - Judge Tendrich considered putting Phelps in jail until he could post a $500,000 bond, then enjoined him from leaving the jurisdiction and gave him 30 hours to come up with a gigantic stack of cash. Unable to raise the bond, Phelps was forced to resign as personal representative to the Count's estate and as co-trustee of the Count Tassilo Szechenyi Trust.
After Phelps claimed in open court, on March 13, 1991, that MacNamara had described himself as a personal friend of Judge Tendrich, the judge "went through the roof," according to one witness, and recused himself from the estate proceedings. Before doing so, he appointed Miami lawyer Richard Milstein administrator ad litem to the Count's estate. Less than a year later, on February 28, 1990, Milstein resigned, saying AmeriFirst and MacNamara had made it impossible for him to do his job. "AmeriFirst has failed and refused to fund the costs necessary to administer the estate in any proper fashion, in spite of its request that an administrator ad litem be appointed by this court," Milstein wrote in April 1990, in response to criticism by MacNamara of an estate accounting he had prepared. "The undersigned believes that the court should surcharge AmeriFirst Florida Trust Company and its attorney, Peter M. MacNamara, for the continued harassment and obstruction in administration of this estate...." Milstein, though awarded approximately $51,000 in fees by the court to be paid from the estate, has not yet collected any money.
Accountant Paul Salver, who is also trying to collect money from the Count's estate, echoes Milstein, criticizing MacNamara for challenging the disbursement of accounting and brokerage fees that do not represent any threat to the Count Tassilo Szechenyi Trust: "Litigation of relatively minor issues in the probate of this estate is being pursued at the expense of the creditors and beneficiaries of this estate by parties that are uninterested in the resolution of such issues," Salver wrote to the court in August. "Further, due to the severe animosity and hostility between the `MacNamara group' and the `Phelps group,' significant legal, judicial, and financial resources are being expended to pursue matters which are not intended to resolve the probate of this estate."
At MacNamara's suggestion, lawyer David Berg was appointed by the court as successor administrator ad litem to the estate. In a September 3, 1991, status conference before Judge Newbold, MacNamara stated that he had been named by Judge Tendrich as co-trustee of the Count Tassilo Szechenyi Trust, replacing Phelps, yet he was unable to produce an order showing that was the case. Phelps, Salver, and Rodez say they have no memory of MacNamara being appointed. Further, the administrative rules of the Count's trust state that only a majority of beneficiaries, or another trustee, can name new trustees to govern the fund. In declining to be interviewed for this story, MacNamara also refused to clarify his formal status vis-a-vis the trust.
Mike Phelps says he's convinced that his version of events will be vindicated by the Florida Bar. He and his new lawyer Frank Gliozzo plan to file a separate lawsuit against MacNamara and Jackson next month, charging conspiracy and misrepresentation. But a recent turn of events has withered his enthusiasm for the fight. Two weeks ago he underwent surgery for an infection to an old stab wound. The condition, he says, was partly brought on by stress. Phelps's coloring does not look good these days.
At the Dade County Courthouse on West Flagler Street, the situation doesn't look much better. The latest judge to preside over the estate of Count Tassilo Szechenyi received an introduction to the case a few weeks ago during what will almost certainly not be the affair's last status conference:
The Court: I'm brand-new at this. Why is this a bankrupt estate...?
MacNamara: Judge, if I may explain.
The Court: Yes, sir. I wish somebody would, because I'm getting deeper and deeper and more confused....