Paula Gianella says her brother betrayed her -- and the courts let him

On Dec. 30, 1994, Paul Gianella was tending bar, telling friends how healthy his doctor said he was, when the pain knifed into his chest. He arrived at Deaconess Hospital in full cardiac arrest and died shortly thereafter.

He'd left everything to his son, Frank Gianella, and his daughter, Paula Gianella, to be divided evenly between them. Very simple, very straightforward. Except that in Italian tradition, he'd made his firstborn son the executor. And, for a tangle of historical reasons, that made his daughter nervous.

As the machine of probate court ground into gear, spewing forth descriptions of the property to be divided, Paula's brain started racing. What had happened to the $200 in her dad's pockets (listed on the emergency-room forms), and the checks in the cash register, and the business bank account? Had anybody found the cash her dad used to squirrel away in old pieces of pipe in his tool room? How could Frank value the household possessions at zero when their dad had been such a packrat? Where, in the appraisal, was all the tavern's liquor?

Turned out Frank's name had been on the business account since his dad's knee surgery, so he'd simply taken that money. Perfectly legal. As for cash from Paul's pockets or his elbow pipes, it was unprovable -- and hardly enough to get the court roiled. But the liquor, that still existed. Paula told appraiser Norma Berry to go back and demand entrance to the storerooms Frank hadn't shown her.

What she saw there on her second visit, April 14, caused her to adjust her appraisal from $62 to $3,253. Later, asked in deposition why he hadn't opened those doors, Frank said it was a sentimental thing: "I was not very pleased with Miss Berry attaching dollar amounts to everything that I just held personal."

Next Paula asked about the Dachau pictures that used to hang in the tavern (their dad, a medical corpsman, was one of the camp's liberators) and the car insurance (Frank added himself and his wife to the policy without mentioning that his dad was dead, which meant the estate paid the bills). With each tiny omission or infraction, Paula waited eagerly for the court to scold her brother, punish him, remove him as executor. It never happened. She grew shrill, and found herself sanctioned for wasting the court's time. Dogged, she kept gathering evidence. But by the time she did have accusations more serious than whiskey-stealing, it was too late to get the court's attention.

Papa Prost's on Pattison Avenue was one of the oldest taverns licensed in St. Louis, passed down through the Gianella family from Paula and Frank's great- grandfather, who bought it in the early 1900s, to their grandfather Frank Gianella and then their father, Paul Gianella. The tavern's name was a cheerful immigrant joke: The grandfather once worked for a German tavern owner who used to say "Prost!" as "Cheers!"; everybody thought it was his name.

Papa Prost's wasn't a typical tavern; it was more like a second home for families living on the Hill. The Gianellas sold ice cream in back -- and during Prohibition they simply moved the cones up front and sold the whiskey in the back. On holidays, they served everybody a free dinner: rabbit stew on Valentine's Day, roast beef with all the trimmings on New Year's Eve. It was the kind of place people went to confide they'd fallen in love, or to play bocce in the backyard.

Frank's wife, Rose, gave birth to Paul, who turned out to be a gifted musician with a first-rate brain. He went to St. Louis University planning on medical school, but his parents needed him to take over the tavern instead. A loyal son, he complied -- and wound up even more popular than his dad. Musicians stayed late into the night playing jazz, with Gianella leading the way on his Yamaha organ (and ending with his signature song, "Mack the Knife.")

"He was our orchestra leader after World War II," recalls Gabe Biondolillo, a trumpet player who's now a priest at Our Lady of the Snows. "Paul was very gentle, always trying to accommodate each musician's style. He was a joy to be with. Took me out for lobster when I got ordained."

What about Paul's marriage, which eventually ended in divorce? "Oh, it was rocky," sighs Biondolillo, and instantly regrets the comment. But however rough the Gianellas' home life, the tavern stayed full of family spirit. Hoping to take it over himself, Frank (who declined to be interviewed for this story) quit his job with the Missouri Insurance Exchange and offered to buy both house and tavern for $84,000. Paula's refusal must have seemed pure spite. But she says all he offered was a promissory note, and her lawyer advised her not to accept. So Frank, as executor (or, to use the court's new language, personal representative) was charged with selling the property and splitting the proceeds.

When January 1996 rolled around and the property still hadn't been sold, Paula asked the court to compel the sale. Frank had waved aside the court's suggestion of a real-estate agent and placed ads himself, spending $159 with the St. Louis Post-Dispatch. But when Paula checked the actual ads, she found terse two-line announcements of open houses over the holidays. "Open Sun. Dec. 24, 10-2, 4969 Reber Place" was the entire text of one, "Open Mon. Dec. 25, 10-2, 5249 Pattison" the other. She says when she called the classified department, the woman remembered the guy who bought those ads, because she'd warned him no one would come on Christmas, but he'd insisted.

That March, Frank finally sold the tavern -- valued at $53,000 by a court-appointed appraiser -- for $12,500. The buyer was John McKay, a friend who worked with Frank's wife at the Famous-Barr warehouse. When Paula checked McKay's incorporation papers, she learned that Frank's attorney had filed them. When she checked the bills, she found out Frank was still paying the real-estate taxes, the utilities and the monthly fee for Philibert Security, which continued to list him as owner and did not show McKay on their records at all. Frank explained that he was managing the tavern for McKay.

Everybody else thought he still owned it. On Feb. 6, 1997, the Post-Dispatch ran a story, "Bar from the Madding Crowd," that included Pop's on the Hill, saying, "Bartender/owner Frank Gianella is a patron saint of regular-guyness." The patrons themselves disagreed: Old-timers like Angelo Bottini say sadly, "He just didn't have his dad's personality." Business dropped off. Then Frank's wife was told she had cancer. The tavern closed.

By this time, Paula was convinced Frank had sold the tavern to a straw party -- but she needed proof. Starting with "A" in the Yellow Pages, she called the Aabott-Rey Detective Agency. On Nov. 13, 1997, their investigator photographed two FOR LEASE signs in the window, both giving Gianella's number. Chris Rey plugged in his tape recorder and phoned the McKays instead, pretending interest in the tavern. "So I went down to City Hall and found out who owned the property," he told Jackie McKay chattily, "and you both ... you folks do."

"Oh, no, no, no, no!" she exclaimed, according to Rey's transcript. "That is somebody else, I think. I don't think he owns that.... It might be something where they, they're -- it might be a name thing."

"A name thing?"

"Yeah, I don't know -- you'll have to talk to him about it.... But he said no, he don't own this property.... I don't know if it is a friend of his or what's going on."

Later that evening, Rey contacted John McKay directly. "Well, I'm kind of in a partnership deal," McKay said, "and we did talk about it, either leasing it or selling it, uh, but the manager is really Frank." When Rey asked how much they wanted in rent, McKay hesitated. "Oh, it's been a while since I talked to him about it, so I have to try to get a hold of him tomorrow and see if I can track him down at work and get with him and see."

McKay didn't even have keys to the property. When he decided to sell instead of leasing, he listed the property with C.E. Coyle, an African-American firm in Jennings. Agent Wayne Luster informed Paula's investigator that because of the alarm system, the owner was showing the property himself; it had been in his family for 83 years. When Aabott-Rey sent an investigator, Frank named the asking price as $130,000, according to the transcript, and confided, "The plan was that my wife was going to work the food, I was going to work the bar.... My dad died, and I took over. Thirteen more years, we'd be here for 100 years. All I wanted to do was hit the 100-years mark."

Pop's on the Hill finally sold this May for $98,000 (plus $24,000 for the round Draft Clydesdale sign, the giant portrait of old-time Hill politician Midge Berra, the bar stools and fixtures). That $122,000 total was quite a jump from $12,500, but Frank -- as manager -- had made improvements, including a new front bar. He'd even bought (with estate money) the famous Rockola jukebox his dad had leased for years, throbbing with Dean Martin, Frank Sinatra and the Dorsey Brothers.

Now the new owners, Terry and Bonnie Grigaitis, have polished up the glass-block and rechristened the place Pop's Blue Moon. When Paula called -- without giving her name -- she says Terry Grigaitis told her, "Oh yeah, Frank sold us the tavern; he's been trying to sell it for two years." Grigaitis tells customers the same thing, adding that Frank waited to find the right buyers.

The next chunk of the estate was Paul Gianella's house, a sweet yellow-brick bungalow on Reber Place in South City. It was first appraised for $50,000, but Frank had it inspected, found structural and water damage, and asked the court to reduce the appraisal to $20,000. The court agreed, and Frank got an offer on the house the same month, for $19,500.

Paula says the names of the buyers -- Andrew and Brenda Bakota -- rang a bell, but not soon enough for her lawyer to question Frank about it. Later, remembering that Frank had talked about a brother-in-law named Andy, Paula checked Brenda Bakota's maiden name and found out she was Frank's wife's sister.

The relationship had never been disclosed in court. Frank's lawyer, Ray Bruntrager, says Paula should have known who the buyers were because "she was given a copy of the contract. Who wouldn't know their own family?"

The Bakotas never moved into the house on Reber; instead, they bought a house in Kirkwood. Bruntrager says that's "immaterial. And I'm not going to call them about it, because that's invading their privacy." So why, after the Bakotas paid the first Laclede Gas bill, did Frank pay the next three, plus the real-estate tax, with his personal checks? "I haven't asked him. Once the house is sold, the estate has no interest in it."

The estate might not be interested, but its executor sure is. When Paula's investigator "surveyed" families on Reber Place, neighbor Barbara Shaver said the people who owned the house next door were still living on Utah (Frank's address). "They've been moving into that house for four years now," she added, explaining that after their dad died, "it went to his estate and all kinds of crazy stuff, and they're in the process of moving in."

When The Riverfront Times called the Bakotas to ask about the house on Reber, Brenda Bakota refused even to say whether they still owned it.

As for Paul Gianella's household goods, which Frank had valued at zero even on the revised probate form, the first of two estate sales brought in $3,758. In a burst of generosity, Frank also gave away his dad's organ and his garden statue. The court directed that he retrieve them, or at least ask for payment. Paula's lawyer at the time, Stephen Banton, says, "Frank told the court he went back and got money from them and included that in an additional estate sale. When we contacted the individuals involved, they said they were never contacted by Frank. None of the items are itemized in that estate sale. He was just saying something that was expedient."

He was less expedient about the AT&T stock; despite a series of court orders, he didn't manage to get it sold until Aug. 28, 1996, by which time its value had dropped by $910. Nor did Frank bother to inventory his dad's share in a piece of river property; it lay, he explained when asked, in a floodplain.

"There's no piece of real estate in the U.S. that's not worth something," drawls Cliff Brown, head of the commission on probate and trust for the Missouri Bar. Brown says that if everything he's heard is accurate, something is very wrong indeed. Unfortunately, it's also out of his commission's purview. "There was no shortfall in the statute," he explains. "If there was a problem, it was judicial."

How did this case slide past judges charged with overseeing every step of probate? Lousy timing, perhaps, and too many cries of wolf. Paula didn't suspect straw parties until after the sales were approved. On Feb. 29, 1996, Circuit Judge Michael B. Calvin could state comfortably, "As indicated during oral testimony, the property was publicly advertised and the Personal Representative did not have an interest in the property sold." By the time Paula had evidence to the contrary, the commissioner had dismissed her mind-numbingly long, petty protests of Frank's estate spending and awarded Frank $4,000 "for the time and effort of the personal representative in defending against all of these motions."

Frank's lawyer through most of the case was Mary Pat Schroeder, a well-respected, well-connected attorney. Schroeder turned the case over to her dad, Ray Bruntrager, after she recently was named an associate judge on the St. Louis County Circuit Court. Because of her new position, Schroeder declined comment. But last year, at a hearing requesting sanctions against Paula, she emphasized to Circuit Judge Edward M. Peek that, even if Frank sold the properties to friends intending to buy them back later, "There's no damage."

"If everybody gets their -- " Peek broke off.

"Right, Judge," chimed Schroeder. "No blood, no foul."

According to Larry Brody, adjunct professor of estate law at Washington University Law School, that's not how probate's supposed to work. "It's clear that the executor cannot personally buy assets from the estate; there's just too big a conflict of interest," he says. "If it can be shown that the person to whom those assets were sold was really a straw party, you can't do indirectly what you can't do directly. Now, it's always going to be a question of proof...."

When Banton subpoenaed 25 witnesses he thought could prove Frank was acting in his own interests and not those of the estate, Schroeder simply told Peek that the issue had already been resolved. Peek quashed the subpoenas and sent the witnesses home before they could testify. When Banton tried again a month later, Schroeder said the time to submit evidence was long past. Peek looked ruefully at the case file. "I mentioned earlier that this is Vol. 3 now," he said, gesturing to his folder. "This is the smallest of the three volumes. The other two are larger, I would say, stacked one on top of the other, and it could be anywhere from 10 to 12 inches.... You know, it's not exactly the Sam Walton estate."

Especially not now. Schroeder's time cost the estate $17,667.50, and now her dad's fees are mounting. So are Paula's unpaid attorney bills, and the court sanctions requiring her to pay about $10,000 of her brother's legal fees. She inherited half the estate, valued at $272,412, and she's guessing she's already spent close to $75,000 of it on lawyers, private eyes and boxfuls of photocopies -- all to honor her dad's wishes and salve her own deep hurt. She still remembers Frank telling her he had kids and a wife, and she didn't have anybody, so she didn't deserve anything. "Frank thinks he's just screwing me," she says, "but he's betraying my father, too. Family was very important to my dad, and now, we are the only two left. I have no more family."

When Paula refused to accept the distribution check that would close the case, an exasperated Schroeder asked the court to escheat Paula's share (turn it over to the state). Banton remains "flabbergasted" by this case, which he calls "a classic example of probate run amok. As an executor, you violate every fiduciary relationship when you do self-dealing." Banton withdrew from the case, reluctantly, after his partner noticed Paula's unpaid bill. But now she's found Jack Allen, an outspoken renegade attorney who's already won a stay of escheatment. His notice of appeal alleges fraud, irregularities and the absence of proper evidentiary hearings. "At no time was there any hearing on a disputed matter at which evidence was taken from witnesses and documents," Allen reminded the court. "Grounds for removal (of her brother as executor) may not have been sufficient in her first pleading, but taken together, the averments in all four pleadings might have been sufficient cause."

Bruntrager replied to the notice by saying, once again, that these issues have already been resolved -- and predicting an additional $15,000 in legal bills if he is forced to research the appeal. "She's taking advantage of the legal system," he snaps.

Rey, the private investigator, thinks it's the other way around. "If you can't present evidence, what is the legal system? I'm a retired federal agent; I'm not a nut case. But I'm ready to go stand outside with a sign: "Ye Who Enter Probate, Enter at Your Own Risk.'"

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