KHAWLA WISE HASHIM WISESALADIN WISE v. ASPEY, WATKINS & DIESEL ATTORNEYS AT LAW, PLLC

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
KHAWLA WISE, ON BEHALF OF HASHIM WISE, SALADIN WISE, AL-KHADER
WISE, AND HAJAR WISE, MINORS; SOPHIA WISE, AN INDIVIDUAL,
Plaintiffs/Appellants,
v.
ASPEY, WATKINS & DIESEL ATTORNEYS AT LAW, P.L.L.C., AN ARIZONA
PROFESSIONAL LIMITED LIABILITY COMPANY; LOUIS M. DIESEL AND JANE DOE
DIESEL, HUSBAND AND WIFE; JASON J. BLISS AND JANE DOE BLISS, HUSBAND
AND WIFE; ABREHET WISE, AN INDIVIDUAL,
Defendants/Appellees.
No. 2 CA-CV 2022-0078
Filed February 3, 2023
Appeal from the Superior Court in Maricopa County
No. CV2021010021
The Honorable James D. Smith, Judge
AFFIRMED
COUNSEL
O’Steen & Harrison PLC, Phoenix
By Jonathan V. O’Steen and Lincoln Combs
and
David J. Klink, Attorney at Law, Glendale
By David J. Klink
Counsel for Plaintiffs/Appellants
Hunter, Humphrey & Yavitz PLC, Phoenix
By Isabel M. Humphrey
Counsel for Defendants/Appellees
WISE v. ASPEY, WATKINS & DIESEL
Opinion of the Court
OPINION
Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Cattani concurred.
¶1 Khawla Wise, on behalf of her four minor children—Hashim,
Saladin, Al-Khader, and Hajar—together with her now-adult daughter,
Sophia (all five collectively the “Maine children”), appeal from the trial
court’s dismissal of their lawsuit against Abrehet Wise and her attorneys.
For the reasons that follow, we affirm.
Factual & Procedural Background
¶2 The relevant facts are essentially undisputed. Khawla Wise
and Robert DeHardy (formerly Robert Wise) were divorced in Maine in
November 2014. In connection with those proceedings, in February 2015,
the Maine court terminated DeHardy’s parental rights to the Maine
children, noting that the parties had “agreed to a termination of parental
rights.”
¶3 In December 2017, DeHardy was killed in Arizona in a motor
vehicle collision with a tribal police officer. He was survived by his widow
Abrehet Wise, as well as his mother and several children, including the five
Maine children.
Wrongful Death Lawsuit & Settlement
¶4 Abrehet Wise retained Aspey, Watkins & Diesel PLLC (the
“law firm”) to file a wrongful death claim against the United States
government. In June 2018, the law firm submitted a Form 95 Claim for
Damage, Injury, or Death—a precursor to bringing a lawsuit against the
United States under the Federal Tort Claims Act. The claim advised the
United States that DeHardy “leaves behind a wife, a mother, three adult
children, one young son, and one unborn child.” The claim requested
damages of $32 million payable to those seven survivors. The claim did not
mention the five Maine children.
¶5 In January 2019, the law firm filed a wrongful death suit
against the United States on Abrehet Wise’s behalf “and on behalf of all
statutory beneficiaries.” The case was filed in federal court in Arizona
pursuant to A.R.S. § 12-612(A) (Arizona’s wrongful death statute) and 28
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Opinion of the Court
U.S.C. § 1346(b)(1) (exclusive jurisdiction for claims against United States
in district court where death occurred). As with the Form 95 Claim, the
complaint did not list the Maine children as beneficiaries entitled to
wrongful death damages.
¶6 At a mediation in June 2020, the parties agreed to settle the
wrongful death claim for $1.5 million. In the memorandum of
understanding, Abrehet Wise avowed that she was “acting on behalf of
herself, her minor children . . ., and all statutory beneficiaries.” The
settlement purported to resolve all claims of all statutory beneficiaries. It
did not allocate any funds to the Maine children. The district court
approved the settlement in November 2020 and directed the parties to file
a stipulation to dismiss the matter.
¶7 The Maine children were not notified of the claim, the
litigation, or the mediation. After the settlement was approved, but before
the case was dismissed, Khawla Wise learned that the settlement did not
allocate any funds to the Maine children. She objected through counsel. In
February 2021, when seeking an extension of the deadline to file the
stipulation to dismiss, the parties to the wrongful death lawsuit notified the
district court of the objection and that the Maine children claimed to be
statutory beneficiaries under Arizona’s wrongful death statute. In granting
the requested extension, the court noted that the Maine children’s claims
“raised administrative concerns and unique legal considerations.”
¶8 A few days later, Khawla Wise filed a motion to intervene,
asserting that the Maine children are statutory beneficiaries under
Arizona’s wrongful death statute. She argued that intervention was
“necessary as the interests of the [Maine children] and Khawla Wise were
ignored by the parties in connection with the proposed settlement of th[e]
wrongful death claim” in question. In opposing intervention, Abrehet Wise
disputed the status of the Maine children as wrongful death beneficiaries.
In April 2021, the district court denied the motion to intervene as untimely,
and given Khawla Wise’s failure to exhaust administrative remedies, but
declined to address whether the Maine children are wrongful death
beneficiaries.
This Case
¶9 In June 2021, Khawla Wise and the Maine children filed a
lawsuit in Maricopa County Superior Court against Abrehet Wise, the law
firm, and individual attorneys from the law firm. The complaint alleged
that the Maine children are “statutory beneficiaries” of DeHardy entitled to
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Opinion of the Court
wrongful death damages from the United States. The complaint included
a claim for breach of fiduciary duty against all defendants—that they had
improperly excluded the Maine children from the wrongful death claim in
violation of Arizona law—as well as a claim for legal malpractice against
the law firm and individual attorneys.
¶10 In August 2021, Abrehet Wise, the law firm, and the
individual attorneys moved to dismiss the complaint under Rule 12(b)(6),
Ariz. R. Civ. P., for failure to state a claim upon which relief can be granted.
They argued that the Maine children are not statutory beneficiaries under
Arizona’s wrongful death statute and that no fiduciary duty was owed
because DeHardy’s parental rights had been terminated in 2015. The trial
court agreed, granted the motion, and dismissed the case. After entry of a
final judgment, this timely appeal followed. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶11 Appellants challenge the Rule 12(b)(6) dismissal. They
contend the trial court erred by concluding: (a) that the Maine children are
not statutory beneficiaries entitled to recover under Arizona’s wrongful
death statute; and (b) that there was no breach of fiduciary duty by Abrehet
Wise, the law firm, or any individual attorneys.
¶12 We review a trial court’s dismissal of a complaint under Rule
12(b)(6) de novo to determine whether the court correctly concluded that, as
a matter of law, the plaintiff would not be entitled to relief under any
interpretation of the alleged facts. Coleman v. City of Mesa, 230 Ariz. 352,
¶¶ 7-8 (2012). “[W]e will affirm the court’s order dismissing a complaint if
it is correct for any reason.” Fappani v. Bratton, 243 Ariz. 306, ¶ 8 (App.
2017).
Beneficiary Status
¶13 Throughout the time period relevant here, 1 Maine law
provided that “[a]n order terminating parental rights divests the parent and
1 The Maine statute regarding the effects of an order terminating
parental rights has since been amended to preserve a child’s inheritance
rights only “if so provided in the order.” Me. Stat. 22 § 4056(1) (2022)
(effective Sept. 1, 2019); see also Me. Stat. 18-C § 9-108(4) (2022) (effective
Sept. 1, 2019) (laws in effect on August 31, 2019 apply to proceedings
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child of all legal rights, powers, privileges, immunities, duties and
obligations to each other as parent and child, except the inheritance rights
between the child and parent.” 2018 Me. Laws ch. 402, § D-2.2 And Arizona
law establishes that, “[w]hen the relationship of parent and child has been
terminated by judicial decree in another state, such decree shall have the
same force and effect as to matters within the jurisdiction of [Arizona] as
though it had been granted by a court of this state.” A.R.S. § 8-544. Thus,
under Arizona law, the Maine court’s 2015 order divested DeHardy and the
Maine children of “all legal rights” except those related to inheritance. The
question thus becomes whether the right to recover for a wrongful death
that occurred in Arizona is a legal right related to inheritance.
¶14 Appellants correctly concede that Arizona’s wrongful death
statute, A.R.S. § 12-612, controls. See 28 U.S.C. § 1346(b)(1) (wrongful death
claim dependent on whether government, “if a private person, would be
liable to the claimant in accordance with the law of the place where the act
or omission occurred”). As such, regardless of the relationships that may
have endured between DeHardy and the Maine children and the impact his
death may have had on them, the dispositive legal issue is whether the
Maine children remained statutory beneficiaries under Arizona’s wrongful
death statute after the Maine court terminated DeHardy’s parental rights in
2015.
¶15 Section 12-612(A) provides as follows:
An action for wrongful death shall be brought
by and in the name of the surviving husband or
wife, child, parent or guardian, or personal
representative of the deceased person for and
on behalf of the surviving husband or wife,
children or parents, or if none of these survive,
on behalf of the decedent’s estate.
“By its plain language, the statute creates a limited class of beneficiaries
who may sue.” Edonna v. Heckman, 227 Ariz. 108, ¶ 11 (App. 2011). It
regarding orders terminating parental rights entered before September
2019).
2 Arizona similarly provides that “[a]n order terminating the
parent-child relationship shall divest the parent and the child of all legal
rights, privileges, duties and obligations with respect to each other except
the right of the child to inherit and support from the parent.” A.R.S. § 8-539.
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excludes “several relationships that the law generally recognizes as
sufficiently close to trigger rights of inheritance,” such as siblings,
grandparents, and grandchildren. Id. And it “contains no elastic category
that would permit the court to evaluate the extent or quality of the familial
relationship.” Id. Thus, “only those persons expressly identified in the
statute” have standing to bring or recover through a wrongful death action.
Id.; see also Benedict v. Total Transit Inc., 252 Ariz. 151, ¶ 9 (App. 2021) (right
of action for wrongful death is purely statutory and action must be brought
in name(s) of person(s) to whom that right is given by statute).
¶16 In Arizona, “the right to bring a wrongful death action does
not depend on the right to inherit—it is a personal right to be compensated
for one’s own loss.” Edonna, 227 Ariz. 108, ¶ 18. Under the express terms
of § 12-612(A), that right only equates to a right to inherit “if none of [the
specified beneficiaries] survive.” Thus, because only inheritance rights
between the Maine children and DeHardy were preserved when the Maine
court terminated DeHardy’s parental rights in 2015, see 2018 Me. Laws ch.
402, § D-2, and because other specified beneficiaries with priority under
A.R.S. § 12-612(A) survive, the Maine children are excluded from the class
of individuals entitled to pursue wrongful death damages resulting from
DeHardy’s death.3
¶17 Relying on Edonna, Appellants contend that adoption, and not
the termination of parental rights, eliminates a child’s right to participate in
a wrongful death claim. Edonna concluded that an adoption eliminated a
child’s standing to pursue a wrongful death claim for the death of a
biological parent. 227 Ariz. 108, ¶¶ 1, 3, 5-6. But nothing in that opinion
indicates that termination of parental rights leaves intact any legal right
“except the right of the child to inherit” (and support) from the parent as
provided in A.R.S. § 8-539. To the contrary, Edonna makes plain that “other
authority”—such as statutory language and case law on the effects of
termination orders and the nature of wrongful death claims in Arizona—
must be considered in ascertaining who has standing to press a wrongful
3Some jurisdictions take a different approach and “recognize a link
between the right to bring a wrongful death action and an individual’s
status as an heir or ability to take under intestacy statutes.” Edonna, 227
Ariz. 108, ¶ 21. Maine is one of those jurisdictions. See Me. Stat. 18-C
§ 2-807(2) (2022) (effective Sept. 19, 2019). But DeHardy died in Arizona,
and the wrongful death lawsuit against the United States was correctly
brought in federal court here, with reference to Arizona’s wrongful death
laws. See 28 U.S.C. § 1346(b)(1).
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death claim. See 227 Ariz. 108, ¶¶ 12-14. And, as explained above, such
authority supports the trial court’s conclusion that the 2015 Maine court
termination divested the Maine children of their legal right to recover for
DeHardy’s wrongful death.
¶18 Appellants also argue that the Maine children’s right to a
wrongful death recovery remains intact under a separate provision of
Maine law providing that “[n]o order terminating parental rights may
disentitle a child to benefits due him from any 3rd person, agency, state or
the United States.” Me. Stat. 22 § 4056(4) (2022) (effective Sept. 1, 2019).4
But the Maine statute does not compel a third party to award benefits; it
simply provides that if benefits are awarded, the right to receive them is not
voided by an order terminating parental rights. And here, even if a
wrongful death award could be construed as a “benefit,” no such benefit
has been awarded to the Maine children by any third person, agency, state,
or the United States. Thus, there are no relevant “benefits due” to the Maine
children.
Fiduciary Duty
¶19 Citing Wilmot v. Wilmot, 203 Ariz. 565 (2002), Appellants
argue that Abrehet Wise, the law firm, and the individual attorneys
“breached fiduciary duties owed to the [Maine] children.” They contend
that, “[e]ven if a question existed regarding their status, it was not
Appellees’ role to decide that question, much less to act adverse[ly] to their
fiduciaries’ interests and to unilaterally decide it against them.”
¶20 Under Wilmot, a wrongful death plaintiff and her counsel owe
fiduciary obligations to other statutory beneficiaries. Id. ¶¶ 13-23, 33. But
Wilmot involved statutory beneficiaries: a decedent’s children whose legal
ties remained intact. See id. ¶ 4. Nothing in that case illuminates what, if
any, duty exists to individuals who claim to be statutory beneficiaries but
are not. Appellants have cited no authority—and we are unaware of any—
supporting their contention that Abrehet Wise, the law firm, or the
individual attorneys had fiduciary obligations “to all [DeHardy’s]
surviving . . . children who could be potential statutory beneficiaries under
4Although,as noted above, subsection (1) of the Maine statute has
since been amended, subsection (4) thereof—the still-current language
quoted here—was also in effect at the time of the Maine court’s termination
of DeHardy’s parental rights in 2015.
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Arizona’s wrongful death statute,” notwithstanding that those
relationships had been legally terminated years earlier.
Disposition
¶21 For all the foregoing reasons, we affirm the judgment of the
trial court.
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