Russell Piccoli v. O'Donnell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RUSSELL PICCOLI, P.L.C., Petitioner/Appellee,
v.
FRANCIS E. O’DONNELL, JR., a married man; KATHLEEN M.
O’DONNELL, as Trustee, Defendants/Appellants.
No. 1 CA-CV 14-0369
FILED 8-20-2015
Appeal from the Superior Court in Maricopa County
No. CV2012-013260
The Honorable Katherine M. Cooper, Judge
APPEAL DISMISSED
COUNSEL
Russell Piccoli, P.L.C., Phoenix
By Russell Piccoli
Counsel for Petitioner/Appellee
Gaona Law Firm, Phoenix
By David F. Gaona
Counsel for Defendants/Appellants
RUSSELL PICCOLI v. O’DONNELL
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 This appeal evolves from extensive and lengthy litigation
beginning in Missouri in 2008 when Kathleen E. O’Donnell (“Katie”) sued
Francis E. O’Donnell, Jr. (“Frank”) for divorce. Ancillary litigation related
to several trusts arose in Arizona court in 2009, the facts of which are
described at length in this court’s memorandum decision in In re The Francis
E. O’Donnell, Jr., Irrevocable Trust #1 to #10 (“Francis E. O’Donnell”), 1 CA-
CV 11-0261, 2013 WL 709650 (Ariz. App. Feb. 26, 2013). In the instant
matter, Frank and Kathleen M. O’Donnell (collectively, “Appellants”)
appeal the superior court’s judgment confirming a partial arbitration award
ordering Katie to pay twenty-three percent of any recovery she obtains
from a civil case (Maricopa County Superior Court Case No. CV2010-
000257) and/or from a group of trusts (the Francis E. O’Donnell, Jr.,
Irrevocable Trusts Nos. 1-10 or the Francis E. O’Donnell Descendants Trust
(collectively, “the Trusts”)) to Russell Piccoli, P.L.C. (“Appellee”) as a result
of legal fees incurred by Katie. Katie does not challenge this judgment on
appeal. Because neither Appellant is an aggrieved party, we dismiss this
appeal for lack of jurisdiction.
FACTS AND PROCEDURAL HISTORY
¶2 Frank and Katie wed in 1990. The day before the marriage
and in the several months that followed, Frank established the Trusts with
Kathleen M. O’Donnell (“Trustee”), Frank’s sister, as Trustee. Throughout
the marriage, the Trusts were managed in a way that allowed Frank to
transfer assets earned or acquired during marriage into the Trusts. Katie
filed for divorce in Missouri in 2008. As of the date of briefing in this appeal,
the divorce action was still pending.
¶3 After filing for divorce, Katie attempted to join Trustee in the
divorce action, but the Missouri court ultimately denied the request. In its
ruling, the Missouri court referred the determination of “trust-related
issues” to Arizona as the principal place of administration because Trustee
2
RUSSELL PICCOLI v. O’DONNELL
Decision of the Court
resided in and administered the Trusts from Arizona. Meanwhile, Trustee
filed a petition for determination of trust matters in Arizona probate court,
requesting that court determine whether Katie was a beneficiary under the
terms of the Trusts and whether Trustee had breached any fiduciary duties
owed to Katie.
¶4 Katie and the Mariscal Weeks law firm (and later by
assignment to Appellee; collectively, “the Firm”) entered an agreement for
the Firm to provide legal services to Katie related to her interest in the
Trusts and in a civil action (CV2010-000257) alleging trust administration
misconduct. Katie signed the first fee agreement with the Firm on June 15,
2009, and a modification was executed on March 12, 2010. In the
modification, the Firm’s hourly billable rate was reduced by fifty percent,
and a contingency entitling the Firm to twenty percent of anything Katie
recovered flowing from the Trusts, either directly or indirectly or as a result
of breach of duty claims, was added.1
¶5 The Firm filed CV2010-000257, alleging several tort claims on
Katie’s behalf. That civil action was consolidated with Trustee’s filing in
probate court.2 The probate court stayed the civil action pending the
outcome of Trustee’s declaratory request and the Missouri divorce action.
¶6 Katie was not timely in payments to the Firm, and pursuant
to the modified fee agreement, the dispute was arbitrated. A partial
arbitration award was entered by an arbitrator on June 19, 2012, ordering
Katie to pay $163,642.37 in fees and classifying the award as “a marital debt
within the purview of Missouri law.” On August 30, 2012, the Firm filed
suit, naming as defendants Katie, Frank, Trustee, and the Trusts, and
requesting enforcement of the arbitration award against Katie only and a
declaratory judgment as to all parties that the legal fees owed constituted
marital debts that could be paid out of any assets classified as marital assets
1 The modified fee agreement also permitted the Firm to increase its
contingency recovery by one percent for each ninety-day period Katie was
in arrears in payment, resulting in the twenty-three percent ultimately
awarded to the Firm.
2 The probate court issued a judgment containing detailed findings of
fact related to the characterization of the Trusts’ assets as marital assets.
Frank and Trustee appealed the judgment, and in a memorandum decision,
this court affirmed the probate court’s judgment and findings. See Francis
E. O’Donnell, 1 CA-CV 11-0261, 2013 WL 709650, at *3, 11, ¶¶ 13, 48.
3
RUSSELL PICCOLI v. O’DONNELL
Decision of the Court
resulting from the probate action, subject to any further order of the
Missouri court in the divorce proceeding.
¶7 The Firm filed a motion for summary judgment, and in a
signed minute entry filed April 18, 2013, the superior court (1) granted the
Firm’s motion for summary judgment, (2) certified the June 19, 2012 partial
arbitration award as a final judgment pursuant to Rule 54(b), Ariz. R. Civ.
P., and (3) issued a declaratory judgment that (a) Katie incurred that debt
during her marriage to Frank, (b) the legal fees awarded and to be awarded
through arbitration were a marital debt within the purview of Missouri law,
and (c) all related judgments in favor of the Firm could be satisfied out of
assets found to be marital assets by the probate court’s previous judgment,
subject to any further order of the Missouri court in the divorce proceeding.
Frank and Trustee timely appealed the summary judgment, and this court
recently issued an opinion affirming that judgment in Russell Piccoli P.L.C.
v. O’Donnell, 237 Ariz. 43, 344 P.3d 345 (App. 2015).
¶8 Meanwhile, on January 16, 2014, the arbitrator determined the
Firm was “entitled to 23 percent of any recovery flowing to [Katie] as a
result of the affirmative action [CV2010-000257] and/or from the subject
trusts.” The Firm filed a motion for the superior court to confirm the second
award. Appellants opposed the motion and Katie joined their response,
arguing that Arizona Revised Statutes section 12-3023(A)(3)-(4) requires a
court to vacate an arbitration award when the arbitrator has refused to
consider material evidence or exceeded his or her powers. The superior
court disagreed that vacating the award was appropriate, and in a
judgment filed April 2, 2014, confirmed the arbitrator’s second award,
ordering Katie to pay the fees from “any damages recovered in CV2010-
000257 and/or from [the Trusts].” Appellants appeal that judgment.
ANALYSIS
¶9 This court has an obligation to determine whether it has
jurisdiction to hear a matter before it. See Ariz.-Am. Water Co. v. Ariz. Corp.
Comm’n, 209 Ariz. 189, 190, ¶ 5, 98 P.3d 624, 625 (App. 2004). To that end,
this court ordered supplemental briefing, specifically directing the parties
to discuss whether Appellants are legally aggrieved.
¶10 An appellant must be aggrieved in order for this court to have
jurisdiction. ARCAP 1(d); In re Roseman’s Estate, 68 Ariz. 198, 200, 203 P.2d
867, 868 (1949). Absent an aggrieved appellant, dismissal is required.
Chambers v. United Farm Workers Org. Comm., AFL-CIO, 25 Ariz. App. 104,
107, 541 P.2d 567, 570 (1975) (citing In re Estate of McCabe, 11 Ariz. App. 555,
4
RUSSELL PICCOLI v. O’DONNELL
Decision of the Court
556, 466 P.2d 774, 775 (1970)); accord Kondaur Capital Corp. v. Pinal Cnty., 235
Ariz. 189, 192, ¶ 6, 330 P.3d 379, 382 (App. 2014); Farmers Ins. Grp. v. Worth
Ins. Co., 8 Ariz. App. 69, 71, 443 P.2d 431, 433 (1968).
¶11 Mere dissatisfaction with the result of a judgment is
insufficient to constitute aggrievement for jurisdictional purposes.
Chambers, 25 Ariz. App. at 107, 541 P.2d at 570. An appellant is only
aggrieved by a judgment when “it denies that party some personal or
property right or imposes on that party some substantial burden or
obligation.” Kerr v. Killian, 197 Ariz. 213, 216, ¶ 10, 3 P.3d 1133, 1136 (App.
2000). The impact to the appellant must be direct, substantial, and
immediate. Douglas v. Governing Bd. of Window Rock Consol. Sch. Dist. No. 8,
221 Ariz. 104, 108, ¶ 7, 210 P.3d 1275, 1279 (App. 2009) (citing Abril v. Harris,
157 Ariz. 78, 80-81, 754 P.2d 1353, 1355-56 (App. 1987)).
¶12 The denial, burden, or obligation must result directly from the
appealed judgment, decree, or order, “and not merely as a result in some
other proceeding of the application of a legal principle established in the
decree appealed from.” Roseman’s Estate, 68 Ariz. at 200, 203 P.2d at 868
(citation omitted); accord In re Estate of Friedman, 217 Ariz. 548, 551-52, ¶¶ 9-
10, 177 P.3d 290, 293-94 (App. 2008) (concluding that ordering a non-party
to the appeal to pay interest and taxes from a bequest only indirectly
affected the appellant even when there was a purported agreement
between the non-party and the appellant that would allegedly increase the
amount of legal fees the appellant would be responsible for as a result of
the court’s order).
¶13 Although Appellants assert various issues with the modified
fee agreement, they fail to provide any reason why they are each
individually aggrieved by the superior court’s judgment requiring Katie to
satisfy the Firm’s twenty-three percent contingency entitlement from
CV2010-000257 or the monies she ultimately may receive from the Trusts.
In careful review of the supplemental briefing and record on appeal, we
find none.
¶14 Frank is not bound in Missouri by the superior court’s
judgment as to Katie’s individual obligation to the Firm. See Sigmund v. Rea,
226 Ariz. 373, 376, ¶ 12, 248 P.3d 703, 706 (App. 2011) (holding that, under
Missouri law, a judgment against one spouse cannot in any way affect the
property held by both spouses in the entirety (citing Hanebrink v. Tower
Grove Bank & Trust Co., 321 S.W.2d 524, 527 (Mo. Ct. App. 1959))). As we
have recognized in our previous memorandum decision and opinion
involving these parties, in Missouri, “a spouse does not have a presently
5
RUSSELL PICCOLI v. O’DONNELL
Decision of the Court
enforceable ownership interest in marital property until a court has issued
a decree of dissolution.” Russell Piccoli P.L.C., 237 Ariz. at 45, ¶ 6, 344 P.3d
at 347 (quoting Francis E. O’Donnell, 1 CA-CV 11-0261, 2013 WL 709650, at
*4, ¶ 18 (citing Sumners v. Serv. Vending Co., 102 S.W.3d 37, 45 (Mo. Ct. App.
2003))). Frank is not aggrieved.
¶15 Additionally, the superior court’s judgment does not obligate
or confer an immediate affirmative duty as to the rights or property of
Trustee, nor does it require any court to award any portion of the Trusts or
order any distributions from the Trusts to Katie. The judgment merely
requires that if and when distributions are made to Katie, a portion is to be
paid to the Firm. Trustee is not aggrieved.
¶16 Even if Appellants could effectively argue they are directly
impacted by the superior court’s judgment, they also maintain Katie has no
present interest in the Trusts and the contingent recovery from the Trusts
required by the appealed judgment is predicated on the still-pending
Missouri divorce action. They agree the other potential source of recovery,
CV2010-000257, also remains unresolved. In previously finding Katie’s
debt to the Firm is marital debt that “may be satisfied from the marital
property, subject to further order of the Missouri Family Court,” the
superior court noted its determination “has nothing to do with how the
Missouri court might ultimately divide the parties’ assets, allocate their
debts between them, treat other creditors, or impact the Missouri
dissolution court.” Accordingly, any “aggrievement” on the part of
Appellants will not materialize until completion or resolution of these other
proceedings. See Roseman’s Estate, 68 Ariz. at 200, 203 P.2d at 868; Estate of
Friedman, 217 Ariz. at 551-52, ¶ 9, 177 P.3d at 293-94; Kerr, 197 Ariz. at 216,
¶ 10, 3 P.3d at 1136.
CONCLUSION
¶17 Appellants lack the immediate and substantial impact
necessary to appeal. For the reasons stated above, we dismiss their appeal.
:ama
6