Interest of Black

• Court: Colorado Court of Appeals
• Decided: May 22, 2025
• Docket: 23CA1197
• Status: Unpublished

Opinion

23CA1197 Interest of Black 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1197 City and County of Denver Probate Court No. 12PR1772 Honorable Elizabeth D. Leith, Judge

In the Interest of Joanne Black, a Protected Person.

Bernard Black, individually and as Suspended Trustee for the Supplemental Needs Trust for the Benefit of Joanne Black,

Appellant,

v.

Jeanette Goodwin, Conservator,

Appellee.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE HARRIS Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025

DiPonio & DiPonio, LLC, Lisa DiPonio, Littleton, Colorado, for Joanne Black

Gayle Y.L. Young, Guardian Ad Litem

Bernard Black, Pro Se

Wade Ash LLC, Jody Pilmer, Greenwood Village, Colorado, for Appellee ¶1 Bernard Black was removed as the conservator for his sister,

Joanne Black, in 2015, after the probate court discovered that he

had stolen more than a million dollars from her. Rather than repay

the stolen money, as ordered by the court, Black embarked on a

campaign of scorched earth multi-jurisdiction litigation against

Joanne1 that has persisted for a decade.

¶2 In 2023, as the probate court was fashioning a remedy that

would finally allow Joanne to recoup some of the stolen funds,

Black moved to retroactively terminate Joanne’s conservatorship,

based on a New York order issued in 2016. The probate court

denied the motion, and Black appeals.

¶3 Termination of a conservatorship may only be sought by the

protected person, the conservator, or a “person interested in a

protected person’s welfare.” § 15-14-431(3), C.R.S. 2024. Because

Black is none of those, we conclude that he lacked standing to move

for termination of Joanne’s conservatorship. Accordingly, we affirm

the probate court’s order, albeit on different grounds. See Laleh v.

Johnson, 2017 CO 93, ¶ 24 (an appellate court can affirm a trial

1 Because the siblings share a last name, for clarity’s sake, we refer

to Joanne Black by her first name.

1 court’s order on any ground supported by the record, whether relied

upon or even considered by the trial court).

I. Background

¶4 We recount the procedural history of the case in some detail to

provide context for our decision.

¶5 In 2012, the Black siblings’ mother died. She left Joanne, who

suffers from a mental health disorder, approximately $3 million

from payable-on-death (POD) bank accounts and directed that the

remainder of her estate be divided two-thirds to Joanne, to be

placed in a special needs trust (SNT), and one-third to Black.

¶6 Black, a law professor, filed a petition for a conservatorship

over Joanne in the Denver probate court, ostensibly to protect

Joanne’s inheritance, but in actuality to steal much of it. Through

misrepresentations, he obtained court approval to disclaim the POD

designations, and then he transferred some of the funds into the

SNT, of which he was a co-trustee, and some into a separate trust,

the Issue Trust, for his and his children’s benefit.

¶7 In 2015, after a four-day evidentiary hearing, the probate

court determined that Black had breached his fiduciary duties and

committed civil theft by appropriating $1.5 million of Joanne’s

2 assets for his own benefit. The court removed Black as conservator

but, rather than voiding the disclaimer (and recovering the funds

from the trusts), it elected to surcharge Black. After trebling the

damages pursuant to statute, the court entered judgment against

Black for $4.6 million. A division of this court affirmed the

judgment. See Black v. Black, 2018 COA 7 (Black I).

¶8 Black has neither paid the judgment nor returned the stolen

funds held in the SNT and the Issue Trust. Instead, he has spent

the last ten years attempting to place the trusts’ assets beyond

Joanne’s reach so as to permanently deprive her of the money her

mother set aside for her long-term care.

¶9 After the judgment was entered, Black moved Joanne’s funds

into twenty-five different accounts in the names of one or more of

the trusts — actions the probate court likened to a “shell game.”

¶ 10 In 2016, Black sued Joanne in federal district court in Illinois,

seeking a declaration that he (and his son, whom he installed as a

co-trustee) controlled the Issue Trust assets “free of restraint,” even

though the Issue Trust assets were derived entirely from the

conservatorship estate, and even though the probate court had by

3 then frozen all of Joanne’s assets. See Black v. Black, No. 1:16-cv-

1763 (N.D. Ill. dismissed July 13, 2016)

¶ 11 When Joanne asked the probate court to disburse money from

the SNT so she could hire a lawyer to defend her in the Illinois

lawsuit, Black objected by challenging the probate court’s

jurisdiction over the SNT. See Black v. Black, 2020 COA 64M,

¶¶ 55-59 (Black II) (holding that the probate court has jurisdiction

over the funds in the SNT and the Issue Trust).

¶ 12 In 2017, Black’s wife, who is also a law professor, brought an

action in Illinois state court, asserting that the trusts owed her

nearly half a million dollars. Within a week, Black and his son, as

trustees, consented to the entry of judgment. The Illinois Appellate

Court later vacated the consent judgment, concluding that it was

the “product of fraud or collusion.” Litvak v. Black, 2019 IL App

(1st) 181707, ¶¶ 24-27.

¶ 13 In 2018, after Black funneled more than $250,000 out of the

SNT in violation of the probate court’s order, the court suspended

Black and his son as trustees of all trusts benefiting Joanne. The

court found Black’s actions “shocking,” as they served only to

“reduce or eliminate the funds that are due to Joanne Black

4 apparently for no reason.” On appeal, the division agreed that

Black’s suspension was proper “[i]n light of the emergency situation

resulting from [Black’s] transfer of SNT funds . . . and his attempts

to permanently deprive Joanne’s conservatorship of assets through

consent judgments.” Black II, ¶ 110.

¶ 14 A few months later, Black threatened to take action against

the Illinois bank holding the trust assets if it complied with the

probate court’s orders. That communication prompted the bank to

file an interpleader action in federal district court in Illinois, which

is ongoing and has complicated matters for the parties in the

probate court proceedings. See JPMorgan Chase Bank, N.A. v.

Black, No. 18-cv-03447, 2021 WL 4459482 (N.D. Ill. Sept. 29, 2021)

(unpublished opinion).

¶ 15 After it became apparent that Black would never pay the

judgment, the probate court determined that equity required

voiding the disclaimer transaction so that the stolen funds could be

transferred out of the trusts. As the court explained, the inequity of

keeping the disclaimer in place “is shown by the continuing

litigation [by Black] which continues to burden Joanne Black, and

which prevents her funds from being used for her care.” Not

5 surprisingly, Black has attempted to thwart that outcome at every

turn.

¶ 16 First, he filed two lawsuits in Illinois, without notice to

Joanne, seeking a declaratory judgment that the disclaimer is

irrevocable. See Black v. Black, No. 2021 CH 6049 (Ill. Cir. Ct.

dismissed 2021) (SNT action); Black v. Black, No. 2021 CH 2952 (Ill.

Cir. Ct. default judgment vacated Oct. 17, 2022), aff’d Black v.

Black, 2024 IL App (1st) 221667, ¶¶ 1-3 (Issue Trust action).

¶ 17 When that strategy failed, Black tried to remove Joanne’s

motion to unwind the disclaimer to federal court in Colorado. The

magistrate judge found that “the removal was in bad faith,

vexatious, and without reasonable basis,” done for the purpose of

delaying the probate court’s efforts to “reacquire funds that belong

to Joanne.” Black v. Black, No. 22-cv-03098-DDD-NRN, 2023 WL

1989793, at *16, 19 (D. Colo. Feb. 14, 2023) (unpublished report

and recommendation). In adopting the magistrate’s

recommendation, the federal district court underscored the

egregiousness of Black’s behavior with respect to Joanne, warning

that his conduct was likely to be “taken into account by [a] higher

authority when the time comes.” Black v. Black, No. 22-cv-03098-

6 DDD-NRN, 2023 WL 3976422, at *5 (D. Colo. Apr. 5, 2023)

(unpublished opinion); see also Black v. Black, No. 23-1377, 2024

WL 4616104, at *1-2 (10th Cir. Oct. 30, 2024) (unpublished

opinion) (affirming the imposition of sanctions against Black for his

“frivolous and baseless attempt at removal for the purpose of

interfering with an ongoing state probate proceeding”).

¶ 18 After Black’s frivolous removal attempt was dismissed, the

parties returned to litigating the issue of whether the probate court

could vacate its earlier order approving the disclaimer. During this

period, Joanne filed a “personal statement” in which she told the

probate court that her “greatest wish” was to “have [her] brother

and his family completely out of [her] life.” She referenced his

“endless legal pursuit to take [her] money” and expressed fear at

“his plans for [her].”

¶ 19 In the meantime, the court set a hearing on the motion to

vacate the court’s order approving the disclaimer. The day before

the scheduled hearing, Black filed a motion to terminate the

conservatorship. The gist of the motion is that the probate court

lost subject matter jurisdiction over the conservatorship seven years

ago, when a New York court declined to appoint a guardian for

7 Joanne. See Am. Decision & Ord., In the Int. of Joanne Black, No.

80253-14 (N.Y. Sup. Ct., June 7, 2016). The probate court denied

the motion, finding that termination of the conservatorship was not

in Joanne’s best interests and that the motion had been filed in bad

faith for the illegitimate purpose of delaying the proceedings.

II. Motion to Terminate the Conservatorship

¶ 20 Black contends that the probate court erred by denying his

motion to terminate the conservatorship. He says, without

acknowledging the irony, that the conservatorship is “deeply

improper” because it “harms” Joanne’s “financial well-being.”

According to Black, because a New York court found Joanne to be

competent in 2016, all of the probate court’s orders issued after

that date, including, presumably, the order issued in May 2023

reversing the disclaimer, are void for lack of subject matter

jurisdiction.

¶ 21 We conclude that Black lacks standing to move for termination

of the conservatorship.

A. Legal Principles and Standard of Review

¶ 22 Standing is a justiciability doctrine that tests a litigant’s right

to raise legal arguments or claims. City of Greenwood Village v.

8 Petitioners for Proposed City of Centennial, 3 P.3d 427, 436 (Colo.

2000). Because standing implicates the court’s subject matter

jurisdiction, it can be raised at any time. Aurora Pub. Schs. v. A.S.,

2023 CO 39, ¶¶ 24 n.9, 25. Joanne’s conservator raised the issue

of standing in her answer brief, but even if she had not, we may

raise jurisdictional defects sua sponte. See In re Marriage of

Thomas, 2021 COA 123, ¶ 22. “If a court determines that standing

does not exist, then it must dismiss the case.” Hickenlooper v.

Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7.

¶ 23 Standing presents a question of law that we review de novo.

Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 23. Whether Black

has standing to seek termination of the conservatorship turns on

the meaning of section 15-14-431(3). The interpretation of a statute

is also a question of law subject to de novo review. Roane, ¶ 23.

B. Discussion

¶ 24 Black brought his motion to terminate Joanne’s

conservatorship as an “interested person” and a “trustee,” but also

“in his personal capacity as [Joanne’s] brother and therefore an

interested person in her welfare under Colorado law.”

9 ¶ 25 The probate code confers standing, in different contexts, on

both an “interested person,” § 15-10-201(27), C.R.S. 2024, and a

“person interested in a protected person’s welfare,” § 15-14-431(3).

¶ 26 Generally, an “interested person” has standing in a probate

proceeding, but even so, who qualifies as an interested person

depends on the particular matter being resolved and is therefore

“highly context dependent.” In re Estate of Little, 2018 COA 169,

¶ 38; § 15-10-201(27). An interested person includes heirs,

devisees, children, spouses, creditors, beneficiaries, and any others

having a property right in or claim against a protected person that

may be affected by the proceeding. § 15-10-201(27).

¶ 27 In his motion, Black says he is a “trustee.” But the probate

court first suspended and then removed him as a trustee of any

trust holding conservatorship assets. And even if Black otherwise

qualifies as an “interested person” for most purposes under the

probate code, to have standing to seek termination of a

conservatorship, he must be “a protected person, a conservator, or

another person interested in [the] protected person’s welfare.”

¶ 28 Black does not dispute that Joanne is the protected person in

this proceeding and that he is not her conservator. So the only

10 question presented is whether he qualifies as a person interested in

Joanne’s welfare, such that he should be permitted to act on her

behalf in seeking to terminate the conservatorship.

¶ 29 The probate code does not define the term “person interested

in a protected person’s welfare.” We must presume it has a

different meaning than “interested person,” or else the legislature

would not have used a different term to describe the standing

requirement under section 15-14-431(3). See Bd. of Cnty. Comm’rs

v. City of Woodland Park, 2014 CO 35, ¶ 10 (In construing a

statute, the court presumes that the legislature’s “use of different

terms signals [its] intent to afford those terms different meanings.”);

see also § 15-14-318(2), C.R.S. 2024 (limiting those who may

petition the court to terminate or modify a guardianship to the

“ward, a guardian, or another person interested in the ward’s

welfare”).

¶ 30 To determine what the legislature intended by the term

“person interested in a protected person’s welfare,” we examine its

language, giving the words in that phrase their ordinary and

commonly accepted meaning. See Goodman v. Heritage Builders,

Inc., 2017 CO 13, ¶ 7; see also Dillabaugh v. Ellerton, 259 P.3d 550,

11 552 (Colo. App. 2011) (“The absence of a statutory definition does

not create ambiguity if, because the undefined phrase is one of

common usage, a court can discern its usual and ordinary

meaning.”). We avoid a construction that would lead to illogical or

absurd results. Miller v. Crested Butte, LLC, 2024 CO 30, ¶ 23.

¶ 31 To be “interested” means to have “a feeling of concern,

sympathy, or curiosity.” Black’s Law Dictionary 969 (12th ed.

2024); see also Merriam-Webster Dictionary,

https://perma.cc/3TSC-DMTA (defining “interest” as “a feeling that

accompanies or causes special attention to something or someone:

concern”). “Welfare” is defined as “one’s condition in regard to

health, happiness, or prosperity,” Webster’s Third New International

Dictionary 2594 (2002), or “[w]ell-being in any respect,” Black’s Law

Dictionary at 1915. See also Massihzadeh v. Seaver, 2019 COA 92,

¶ 16 (courts may look to dictionary definitions to ascertain an

undefined statutory term).

¶ 32 We discern no ambiguity in the statute’s language. Giving the

words “interested” and “welfare” their plain and commonly accepted

meaning, we conclude that the legislature intended to limit the

class of people who can seek to terminate a conservatorship (in

12 addition to the protected person and the conservator) to those who

have a genuine concern for the protected person’s well-being,

including the person’s health, happiness, and prosperity.

¶ 33 Because the petitioner must establish standing, see TABOR

Found. v. Colo. Dep’t of Health Care Pol’y & Fin., 2020 COA 156,

¶ 30, Black has the burden to show that he is acting out of genuine

concern for Joanne’s well-being. To determine whether he has

made such a showing, we consider the particular circumstances of

the case. In re Estate of Edwards, 794 P.2d 1092, 1093 (Colo. App.

1990). Sometimes, the factual circumstances could lead to differing

conclusions about the petitioner’s concern for the protected

person’s welfare; in that case, the trial court should hold an

evidentiary hearing and resolve any conflicts in the evidence. Id. at

1094. But given the record in this case, we see no need for a

hearing.

¶ 34 The facts concerning Black’s conduct have been determined by

various courts and are not in dispute. The probate proceedings

were premised on Black’s deception and fraud, initiated for the very

purpose of serving his own interests at the expense of Joanne’s. He

13 has remained her adversary ever since, implementing scheme after

scheme to prevent her from recovering what is rightfully hers.

¶ 35 The probate court considers Black’s treatment of Joanne

“shocking.” A division of this court previously concluded that the

probate court record amply supports a determination that Black’s

conduct is “detrimental to Joanne’s interest.” Black v. Black, slip

op. at ¶ 19 (Colo. App. Nos. 20CA1937 & 21CA0787, Apr. 28, 2022)

(not published pursuant to C.A.R. 35(e)).

¶ 36 The fact that Black is Joanne’s brother, as he notes in his

motion, does not, sadly, change our view. True, that relationship

usually implies concern about the other person’s well-being, but in

this case it does not. And if the legislature had intended to confer

standing in this context on all siblings, it would have said so. See,

e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)

(“[C]ourts must presume that a legislature says in a statute what it

means and means in a statute what it says there.”). But instead,

the General Assembly appears to have accounted for the

unfortunate reality that family members do not always look out for

each other’s best interests.

14 ¶ 37 Black is the antithesis of a person interested in Joanne’s

welfare. Joanne is not the beneficiary of her brother’s concern and

care; she is his “victim.” Black, 2023 WL 1989793, at *17.

¶ 38 Considering the record as a whole, we conclude, as a matter of

law, that Black does not qualify as a “person interested in [the]

protected person’s welfare” under section 15-14-431(3). He

therefore lacks standing to seek termination of the conservatorship.

III. Appellate Attorney Fees

¶ 39 The conservator requests her appellate attorney fees on the

ground that Black’s appeal is substantially frivolous, substantially

groundless, or substantially vexatious. § 13-17-102(6), C.R.S.

2024; C.A.R. 39.1.

¶ 40 We agree that the appeal is frivolous. An appeal is frivolous as

filed if “the proponent can present no rational argument based on

the evidence or law.” Averyt v. Wal-Mart Stores, Inc., 2013 COA 10,

¶ 43 (citation omitted). Here, Black presented no argument to

support his position that he had standing under section 15-14-

431(3). And for the reasons we have explained, no rational

argument exists.

15 ¶ 41 The appeal is also vexatious. See In re Estate of Shimizu, 2016

COA 163, ¶ 26 (“[A]n action is substantially vexatious if [it is]

brought or maintained in bad faith” or it demonstrates stubborn

litigiousness.) (citation omitted). After Black’s wrongdoing was

discovered by the probate court, he “launched multiple lawsuits

across multiple jurisdictions to slow or reverse the adverse findings

against him in Colorado, losing practically every case.” Black v.

Dain, No. 16-cv-1238, 2023 WL 12058366, at *20 (E.D.N.Y. Mar.

31, 2023) (unpublished opinion). He continues to “engage in

procedural gymnastics to avoid legitimate court judgments [and]

impose undue and unnecessary legal costs on Joanne’s

conservator . . . . He has imposed significant burdens on multiple

courts for no legitimate or justified reasons.” Black, 2023 WL

1989793, at *17.

¶ 42 Black persists in his stubbornly litigious conduct even though

he has lost practically every case, and even though multiple courts

have admonished or sanctioned him, because winning is not the

goal — his goal is simply to inflict pain, emotional and financial, on

Joanne and the other parties to this proceeding. The motion, which

16 purports to serve Joanne’s interests, and the appeal are the

definition of bad faith.

¶ 43 Pursuant to C.A.R. 39.1, we exercise our discretion to remand

the case to the probate court to determine the amount of reasonable

appellate attorney fees to be awarded to the conservator.

IV. Disposition

¶ 44 The order is affirmed. The case is remanded to the probate

court to determine and award the conservator reasonable appellate

attorney fees.

JUDGE YUN and JUDGE KUHN concur.