Mead v. Theut ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In the Matter of the Guardianship of and Conservatorship for:
DOROTHY MEAD, An Adult.
ROBERT M. MEAD, Trustee of the Mead Family Living Trust,
Petitioner/Appellant,
v.
CHRISTOPHER P. THEUT, the Court Appointed Counsel for Dorothy
Mead, Respondent/Appellee.
No. 1 CA-CV 14-0576
Appeal from the Superior Court in Maricopa County
No. PB2011-000216
The Honorable Lisa Ann VandenBerg, Commissioner
DISMISSED
COUNSEL
Robert M. Mead, Elk Grove, CA
Petitioner/Appellant
Theut, Theut & Theut, P.C., Phoenix
By Christopher P. Theut
Respondent/Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
N O R R I S, Judge:
¶1 This appeal arises out of an order entered by the probate court
reentering attorneys’ fees and costs previously awarded to court-appointed
guardian ad litem Respondent/Appellee Christopher Theut. For the
following reasons, we dismiss this appeal for lack of jurisdiction and hold
Petitioner/Appellant Robert Mead has waived the only issue properly
before this court.
FACTS AND PROCEDURAL BACKGROUND
¶2 On January 11, 2011, Mead petitioned for the appointment of
a temporary conservator for his mother, Dorothy. In response to Mead’s
petition, on February 17, 2011, the probate court appointed Theut to serve
as Dorothy’s guardian ad litem. The probate court appointed Mead to serve
as Dorothy’s permanent guardian and conservator on March 21, 2011.1
¶3 On April 17, 2013, Theut filed a Rule 33 application for
attorneys’ fees and costs covering his work as Dorothy’s guardian ad litem
from February 15, 2011 to April 8, 2013. See Ariz. R. Prob. P. 33. Mead
objected to Theut’s Rule 33 application and, after notice and a hearing, on
July 31, 2013, the probate court entered a signed order (“first order”)
awarding Theut $5,650. Mead did not appeal the first order.
¶4 On October 31, 2013, Theut filed a second Rule 33 application
for attorneys’ fees and costs covering his work as Dorothy’s guardian ad
litem from April 9, 2013 to October 31, 2013. Mead again objected and, after
notice and a hearing, on November 27, 2013, the probate court entered a
1On October 4, 2013, the probate court terminated the
conservatorship only—Mead remained Dorothy’s guardian.
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signed order (“second order”) awarding Theut $2,297.64. Mead did not
appeal the second order.
¶5 On March 21, 2014, nearly four months after the probate court
entered the second order, Theut untimely moved to amend the first and
second orders. See Ariz. R. Civ. P. 59(l) (“A motion to alter or amend the
judgment shall be filed not later than 15 days after entry of judgment.”); see
also Egan-Ryan Mechanical Co. v. Cardon Meadows Dev. Corp., 169 Ariz. 161,
165-66, 818 P.2d 146, 150-51 (App. 1990) (appellant’s request for judgment
nunc pro tunc five months after superior court entered judgment ineffective
to alter or amend judgment pursuant to Rule 59(l)). After Mead and Theut
submitted numerous additional filings concerning the motion to amend,
the probate court entered a signed order on July 22, 2014 (“third order”)
reentering the amount it had awarded in the first order minus $540 to reflect
a partial payment; reentering the amount it had awarded in the second
order; awarding interest on these sums “at the highest rate authorized by
law;” specifying the judgment ran against Dorothy, her estate, and the
Mead Family Living Trust; and certifying finality pursuant to Arizona Rule
of Civil Procedure 54(b). Mead appealed the third order.
DISCUSSION
¶6 “This court has an independent duty to determine whether it
has jurisdiction over this appeal.” Fields v. Oates, 230 Ariz. 411, 413, ¶ 7, 286
P.3d 160, 162 (App. 2012). Generally, a party may only appeal from a final
judgment. Id. at 414, ¶ 8, 286 P.3d at 163. A final judgment is one which
disposes “of all claims and all parties.” In re Estate of McGathy, 226 Ariz.
277, 279, ¶ 12, 246 P.3d 628, 630 (2010) (citation omitted) (internal quotation
marks omitted).
¶7 Here, the first and second orders disposed of Theut’s Rule 33
applications. Each Rule 33 application was independent of the other
application. The two Rule 33 applications did not overlap—each
application concerned a discrete period of time and services rendered
during that period of time—and the parties fully litigated the applications
before the probate court. Each order was, thus, separately appealable, and
because Mead did not appeal from the first or second order, we do not have
jurisdiction to review either.
¶8 McGathy supports our conclusion that the first and second
orders were separately appealable. In McGathy, an estate’s personal
representative petitioned the probate court for instructions concerning the
payment of estate taxes. Id. at 277-78, ¶ 2, 246 P.3d at 628-29. The probate
court entered an order that required the non-probate transferees to pay
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their share of the estate taxes, and that order “disposed entirely of the
personal representative’s petition.” Id. The issue in McGathy was whether,
in an unsupervised estate administration, an order fully resolving all claims
in a proceeding was final for purposes of appeal. Id. at 279, ¶ 11, 246 P.3d
at 630. Distinguishing between “supervised administration,” involving
continuous judicial oversight, and “unsupervised administration,” in
which judicial involvement is minimized, id. at 278, ¶¶ 5-6, 246 P.3d at 629,
our supreme court held the probate court’s order was akin to a final
judgment. Id. at 280, ¶ 17, 246 P.3d at 631.
¶9 The supreme court analogized a petition in an unsupervised
administration to a complaint in a civil action and stated, “[e]ach
application or petition filed within a probate case gives rise to a separate
probate proceeding.” Id. at 279, ¶ 13, 246 P.3d at 630 (quoting Ariz. R. Prob.
P. 2(O), (P) cmt.). The court emphasized the practical effect of such an
approach to unsupervised administrations, explaining, “It makes no sense
to defer appellate review of an order terminating a formal proceeding until
after a final decree that may never come.” Id. at 280, ¶ 15, 246 P.3d at 631.
¶10 Although McGathy involved an unsupervised estate
administration and this case involves a guardianship and conservatorship,
we find McGathy instructive regarding the jurisdictional issue presented
here. As in an unsupervised administration, each Rule 33 application was
analogous to a complaint in a civil action, framed the scope of the
proceeding, was separate, and, thus, independently appealable. And, as a
practical point, guardianship and conservatorship proceedings can last for
years, and attorneys may be deterred from acting as counsel in these
proceedings if they cannot execute upon judgments for attorneys’ fees and
costs until the proceeding terminates or the probate court certifies its orders
as final.
¶11 Further, although Mead appealed from the third order,
insofar as it simply reentered the amounts awarded to Theut in the first and
second orders, it was not appealable. See Fields, 230 Ariz. at 416-17, ¶ 22,
286 P.3d at 165-66 (“When consecutive final judgments are entered, the first
judgment starts the time for appeal unless the second judgment alters the
parties substantive rights or obligations settled by the first judgment.”)
(citation omitted) (internal quotation marks omitted). And, although the
third order assessed interest on the amounts previously awarded in the first
and second orders, even if we assume the probate court’s imposition of
interest was separately appealable, see id., Mead has waived any argument
challenging the assessment of interest by failing to raise such an argument
in his briefs on appeal.
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Decision of the Court
CONCLUSION
¶12 For the foregoing reasons, we dismiss this appeal for lack of
jurisdiction. In his answering brief, Theut has requested an award of
attorneys’ fees but has not referenced a “statute, rule, decisional law,
contract, or other authority” for such an award. ARCAP 21(a)(2). Although
we may exercise discretion to overlook this lack of specificity, see id., under
the circumstances presented here, we elect not to do so and deny his request
for attorneys’ fees. We award Theut his costs on appeal, however,
contingent upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.
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