In Re the Guardianship and Conservatorship Of: Robert Sommer

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE THE GUARDIANSHIP AND CONSERVATORSHIP OF:
ROBERT SOMMER
No. 2 CA-CV 2016-0111-FC
Filed December 12, 2016
Appeal from the Superior Court in Pima County
No. GC20150525
The Honorable Charles V. Harrington, Judge
MOTION TO DISMISS DENIED; REMANDED
COUNSEL
Laber & Laber, PLC, Tucson
By Edward Harris Laber and Edward Jerome Laber
Counsel for Appellant
Phillips, Moeller & Conway, PLLC, Tucson
By Katrina M. Conway
Counsel for Appellees
OPINION
Presiding Judge Howard authored the opinion of the Court, in which
Judge Espinosa and Judge Vásquez concurred.
H O W A R D, Presiding Judge:
IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
¶1 Robert Sommer appeals from the probate court’s order
finding that he was an incapacitated adult under articles 3 and 4 of
title 14 of the Arizona Revised Statutes and appointing a guardian and
a conservator. The conservator, Ruth Considine, and the guardian,
Martha Sommer, (appellees) have moved to dismiss the appeal
arguing that this court lacks appellate jurisdiction because the order
was not final. We conclude the order is substantively appealable, but
we do not have jurisdiction because the order lacks Rule 54(c), Ariz.
R. Civ. P., language. Accordingly, we deny the motion to dismiss, but
remand and re-vest jurisdiction in the probate court to allow either
party to request from the court, and the court to consider adding,
language pursuant to Rule 54(c).
Factual and Procedural Background
¶2 Sommer is an eighty-nine-year-old man who lived at
home with a long-term care giver. He experienced some medical
problems in 2010 and executed a durable power of attorney to his
daughter, Ruth. After additional issues arose, Ruth, along with
Sommer’s other children, became concerned about their father’s
decision-making ability and level of cognitive function. They
petitioned the trial court to grant a conservatorship to Ruth and a
guardianship to Sommer’s other daughter, Martha.
¶3 The probate court conducted proceedings pursuant to
title 14, chapter 5, and, on May 11, 2016, held a bench trial to
determine the issue of incapacity and the propriety of granting the
guardianship and conservatorship. At the conclusion of the trial, the
court found by clear and convincing evidence that Sommer was
statutorily incapacitated and that the appointment of both a guardian
and a conservator was necessary. See A.R.S. § 14-5101(1). The court
appointed Ruth and Martha as conservator and guardian,
respectively, and established an accounting schedule.
¶4 As part of the accounting process, the probate court
ordered the conservator to file an annual accounting, a notice of
hearing, and a petition for approval of accounting. The court also
required that the guardian annually file a report regarding Sommer’s
health and welfare and send a copy of the report to Sommer and “any
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
other interested person as required” on the report form. The court
also set a compliance hearing for September 2016, during which the
court would review the accounting and the report, but noted that no
additional notice of the hearing would be given, and “[n]o one need
appear at [the] hearing.” Sommer timely appealed.
Jurisdiction
¶5 Appellees move to dismiss the appeal on the ground that
we lack jurisdiction because the probate court’s May 11 order 1) was
not a final judgment, but instead an interlocutory order, not subject to
appeal under A.R.S. § 12-2101(A)(9) and 2) was not certified under
Rule 54. “We, in turn, have an independent duty to confirm our
jurisdiction over the appeal before us.” Anderson v. Valley Union High
Sch., Dist. No. 22, 229 Ariz. 52, ¶ 2, 270 P.3d 879, 881 (App. 2012).
¶6 This court “is a court of limited jurisdiction and has only
jurisdiction specifically given to it by statute.” Campbell v. Arnold, 121
Ariz. 370, 371, 590 P.2d 909, 910 (1979). Section 12-2101 “provides
when an appeal may be taken.” Musa v. Adrian, 130 Ariz. 311, 313,
636 P.2d 89, 91 (1981). Before the adoption of the Uniform Probate
Code (the UPC), § 12-2101 explicitly allowed an appeal from several
different probate orders, including the granting of a guardianship and
a conservatorship.1 1973 Ariz. Sess. Laws, ch. 75, §§ 4, 10. After the
adoption of the UPC, it was amended to remove any specific list and
instead allows an appeal: “From a judgment, decree or order entered
1 Before the 1973 amendment, the management of an
incapacitated person’s estate was termed an “administration.”
See In re Estate and Guardianship of Vermeersch, 15 Ariz. App. 315, 316,
488 P.2d 671, 672 (1971) (“A.R.S. § 14-815 provides as follows: ‘All
proceedings of guardians, and the administration of estates of minors
and incompetent persons, shall be had in accordance with, and shall
be governed by, the laws relating to estates of decedents, except as
otherwise provided by law.’”); former A.R.S. § 14-815 (1955). Before
1973, § 12-2101(J) allowed an appeal from the grant or refusal to grant
“letters . . . of administration, or of guardianship.” 1973 Ariz. Sess.
Laws, ch. 75, § 10.
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
in any formal proceedings under title 14.” 1973 Ariz. Sess. Laws, ch.
75, § 10; see also § 12-2101(A)(9).2
¶7 Title 14, A.R.S. §§ 14-1101 to 14-1401, governs, inter alia,
trusts, estates, and protective proceedings in Arizona. Title 14,
chapter 5, articles 3 and 4 pertain to the appointment of a guardian or
a conservator for an incapacitated adult. And § 14-1201(21), defines a
formal proceeding as a “proceeding[] conducted before a judge with
notice to interested persons.” Thus, according to § 12-2101(A)(9), we
have jurisdiction over a “judgment, decree or order” in a
guardianship or conservatorship appointment matter, so long as that
“judgment, decree or order” was entered by a judge after notice to
interested persons.
¶8 The order challenged here was entered in a
guardianship/conservatorship case after a proceeding conducted
before a judge with notice to the parties. Therefore, it fits the statutory
requirements.
¶9 Additionally, the grant of a guardianship and
conservatorship has a profound impact on the rights of a ward. Once
found incapacitated and placed under a guardianship and
conservatorship, the ward loses, or may lose, many constitutionally
protected rights; for example, the ward can be treated as a minor
without the ability to make life decisions, including the decision to
withhold life-saving treatment. A.R.S. §§ 14-5312(A), 14-5303(B).
And the ward loses the right to substantially control his or her own
finances, A.R.S. § 14-5424, the ability to operate a motor vehicle, A.R.S.
§ 14-5304.01, the right to serve on a jury, see Anderson v. State, 54 Ariz.
387, 395, 96 P.2d 281, 285 (1939), and the right to vote, see A.R.S. §§ 14-
5304.02, among others, see §§ 14-5312, 14-5424.3 If a ward were not
allowed to appeal from the appointment of a guardian or conservator,
2We refer to the current numbering of § 12-2101 unless
otherwise noted.
3We also note that in this case, the court ordered that Sommer
“lacks the mental capacity to possess a firearm.”
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OF ROBERT SOMMER
Opinion of the Court
these restrictions could exist until death without any opportunity for
an appeal.
¶10 Additionally, had the legislature intended to abrogate
the right to appeal such a judicial determination when it amended
§ 12-2101 to remove the language pertaining to guardianship and
conservatorship, see 1973 Ariz. Sess. Laws, ch. 75, § 10, it could have
done so explicitly, see Mathews ex rel. Mathews v. Life Care Ctrs. of Am.,
Inc., 217 Ariz. 606, ¶ 6, 177 P.3d 867, 869 (App. 2008) (plain language
best indicator of legislative intent); see also In re Estate of McGathy, 226
Ariz. 277, ¶ 13, 246 P.3d 628, 630 (2010) (“When the legislature
adopted the UPC in 1973, it concurrently amended § 12-2101(J) to
remove this list of interlocutory appealable orders and instead simply
allowed for appeals from a ‘judgment, decree or order entered in any
formal proceedings under title 14.’”); 1973 Ariz. Sess. Laws, ch. 75, §
10. We therefore conclude that the legislature did not intend to
disallow an immediate appeal from an order establishing a
conservatorship or guardianship and appointing a guardian or
conservator.
¶11 But appellees cite Brumett v. MGA Home Healthcare,
L.L.C., 240 Ariz. 421, 380 P.3d 659 (App. 2016), and two other cases
interpreting § 12-2101(A)(9), to support their position that the May 11
order is not final, and consequently that we lack jurisdiction. In
Brumett, this court determined that orders are only appealable under
§ 12-2101(A)(9) “when they are in the form of a final judgment or
decree or, for an unsupervised administration, an order terminating
a formal proceeding.” 240 Ariz. 421, ¶ 13, 380 P.3d at 667. As such,
we determined that such judgments, decrees, or orders must be
certified pursuant to Rule 54(c) or Rule 54(b) in order to be appealable.
Id. In so deciding, we relied on two cases from our supreme court
construing the language of § 12-2101(A)(9): Ivancovich v. Meier, 122
Ariz. 346, 595 P.2d 24 (1979), and McGathy, 226 Ariz. 277, 246 P.3d 628.
Id.¶12 In Ivancovich our supreme court was considering a
probate court order charging a decedent’s residuary estate with a
portion of taxes on a life insurance payment. 122 Ariz. at 353, 595 P.2d
at 31. The court concluded that “[a]n ‘order’ pursuant to [§ 12-
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
2101(A)(9)] 4 means an order similar to a final judgment or decree
entered in any formal proceedings under title 14.” Id. The court
distinguished these orders from non-appealable orders that deal with
“a matter which may be properly disposed of in an appeal from the
final decree” in a formal proceeding. Id. The court reasoned that such
an order could be appealed “from the final decree distributing the
estate” of the deceased. Id.
¶13 In McGathy, our supreme court again dealt with a
decedent’s probate estate. 226 Ariz. 277, ¶ 2, 246 P.3d at 628-29. The
court noted that § 12-2101(A)(9) allowed an appeal from “any order
finally disposing of a formal proceeding in an unsupervised
administration.” Id. n.2. “And, in supervised administrations, the
final decree, or any interlocutory orders properly made final under
Rule 54(b), are appealable under A.R.S. § 12-2101(B), which grants
appellate jurisdiction over a ‘final judgment.’” Id.
¶14 To explain this difference, the supreme court
distinguished supervised and unsupervised administrations on the
basis that “[a]n estate under supervised administration remains
under the supervision of the trial court until a final decree is entered”
whereas in an unsupervised administration “an order disposing of a
formal proceeding may be the last one the court will enter; the estate
will often thereafter be distributed without further court
involvement.” Id. ¶¶ 10, 15. Thus, the court ruled that a final decree
was unnecessary to appeal an unsupervised administration. Id. ¶ 17.
¶15 Appellees contend that an order establishing a
conservatorship or guardianship and appointing a guardian or
conservator is “never final,” but instead “[a]n order issued to the
guardian or conservator under Title 14 is only final when being
terminated by the Court or the terms of the order itself.” They argue
that because “[a]ppointment orders are truly interlocutory orders
4The supreme court considered A.R.S. § 12-2101(J), which was
redesignated as A.R.S. § 12-2101(A)(9) without substantive
amendment. See 2011 Ariz. Sess. Laws, ch. 304, § 1. For ease of
reference we refer hereinafter to the current subsection.
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
subject to further supervision and modification by the court” they are
not separately appealable. They additionally argue, based on the
cases cited above, that because this action “was not an unsupervised
administration[,] . . . a final judgment or decree is required for
jurisdiction.” And thus, appellees conclude, this court lacks
jurisdiction to hear Sommer’s appeal.
¶16 But Ivancovich and McGathy both involve decedents’
estates and therefore are distinguishable from a
guardianship/conservatorship proceeding. A supervised
administration, as discussed in those cases, is “a single in rem
proceeding to secure complete administration and settlement of a
decedent’s estate under the continuing authority of the court which
extends until entry of an order approving distribution of the estate
and discharging the personal representative or other order
terminating the proceeding.” A.R.S. § 14-3501 (emphasis added). The
terms “supervised administration” and “unsupervised
administration” are not used in articles 3 and 4 of chapter 5 which
govern guardianships and conservatorships. Therefore, these
opinions are not directly applicable to this case.
¶17 Nevertheless, the reasoning of these cases supports our
conclusion that we have jurisdiction here. Both cases extended
jurisdiction to orders “similar” to a final judgment. Ivancovich, 122
Ariz. at 353, 595 P.2d at 31 (“An ‘order’ pursuant to [§ 12-2101(A)(9)]
means an order similar to a final judgment or decree entered in any
formal proceedings under title 14.”) (emphasis added); McGathy, 226
Ariz. 277, ¶¶ 15-16, 246 P.3d at 631 (concluding appeal permitted in
context of unsupervised administrations, without “order formally
terminating the estate”). A final judgment must resolve “all claims as
to all parties.” Brumett, 240 Ariz. 421, ¶ 12, 380 P.3d at 667. But,
“[b]ecause each proceeding in an unsupervised probate is considered
independent of the other proceedings involving the same estate, there
need be finality only as to that proceeding.” McGathy, 226 Ariz. 277,
¶ 14, 246 P.3d at 631, quoting Schmidt v. Schmidt, 540 N.W.2d 605, 607
(N.D. 1995).
¶18 Thus, “when the probate court has entered orders fully
determining the rights of the parties with respect to all claims raised
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
in a [formal] proceeding, a final judgment exists.” Id., quoting Scott v.
Scott, 136 P.3d 892, 899 (Colo. 2006) (alteration in McGathy). The
McGathy court explained that “an order disposing of a formal
proceeding may be the last one the court will enter . . . . 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. ¶ 15.
¶19 Here, the order is similar to a final judgment because it
adjudicates the rights of the parties with regard to the issues raised in
the guardianship and conservatorship petition. It was entered in an
independent formal proceeding and will be the last order issued with
regard to those issues, i.e., whether Sommer presently is in need of a
guardian and conservator. Under Ivancovich and McGathy, that order
is appealable.
¶20 Appellees contend, however, that the “administration is
supervised” leaving “open many questions.” In particular, they note
that, under A.R.S. § 14-5304, the probate court “maintains an active
role in the appointment and oversight of the guardian.” This
administration, they reason, defeats appealability. But the order
appointing a guardian or conservator ends the formal proceeding
initiated by the petition with notice to the parties and a new phase,
the administration of the guardianship/conservatorship, begins.
See McGathy, 226 Ariz. 277, ¶ 13, 246 P.3d at 630 (A petition in a
probate proceeding is the equivalent of a complaint in a civil action,
and each individual petition gives rise to “a separate probate
proceeding.”), quoting Ariz. R. Prob. P. 2(O) and (P) cmt.
¶21 Furthermore, §§ 14-5303 and 14-5312 contain the
procedures and limitations applying to a probate court’s appointment
and supervision of guardianship. 5 It is true that the probate court
may substitute a guardian or conservator, accept the resignation of
guardian or conservator, and determine the ward is no longer
incapacitated, all under its own initiative, under A.R.S. §§ 14-5307,
5 For the limited purpose of this appeal, the procedures for
establishing guardianship do not differ significantly from those for
conservatorship. See A.R.S. §§ 14-5404, 14-5417.
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IN RE THE GUARDIANSHIP & CONSERVATORSHIP
OF ROBERT SOMMER
Opinion of the Court
14-5415. But these sua sponte actions are still governed by Title 14.
Section 14-5309, A.R.S., provides that notice to parties in guardianship
proceedings requires that “[i]n a proceeding for the . . . substitution
of a guardian of a ward or an alleged incapacitated person . . . notice
of a hearing shall be given to” a number of statutorily designated
interested persons. Section 14-5313, A.R.S., titled “Proceedings
subsequent to appointment” states that the probate court that
appoints a guardian retains jurisdiction over “resignation,
substitution, accounting and other proceedings relating to the
guardianship including proceedings to limit the authority previously
conferred on a guardian or to remove limitations previously
imposed.” Thus, although the court may take actions pertaining to
the guardianship and conservatorship on its own initiative, those
actions constitute new formal proceedings with notice to interested
persons. § 14-1201(21); see also In re Farson’s Estate, 77 Ariz. 196, 200,
269 P.2d 600, 602 (1954) (“The removal of a guardian without written
notice is proper where he has been in court and defended himself.”).
Furthermore, those statutes contemplate that many of these actions
are also possible “[o]n petition of the ward or any person interested
in the ward’s welfare.” 6 §§ 14-5307, 14-5415. Therefore such a
petition, and the corresponding claims that arise, constitutes a new
“formal proceeding,” which logically implies a distinct separation
from the previous formal proceeding. The substantial rights of the
parties are completely determined at the time the probate court issues
the initial order finding incapacity and appointing a guardian or
conservator.
¶22 Although no Arizona cases have decided this issue, the
Tenth Circuit Court of Appeals considered when guardianship and
conservatorship proceedings were final under Colorado law,7 finding
6We note that the conservatorship statutes refer to a “protected
person” rather than a ward. See, e.g., § 14-5415. We use the two terms
interchangeably here.
7Both Colorado and Arizona based their probate codes on the
Uniform Probate Code. See In re Estate of Becker, 32 P.3d 557, 563 (Colo.
App. 2000); McGathy, 226 Ariz. 277, ¶ 5, 246 P.3d at 629. Further, the
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OF ROBERT SOMMER
Opinion of the Court
that the appointment of a guardian “definitively decided” “the claims
raised in [the] petition[].” Mann v. Boatright, 477 F.3d 1140, 1146 (10th
Cir. 2007). The Tenth Circuit reasoned that once the conservatorship
and guardianship had been established “there was nothing further for
the probate court to do in order to completely determine the rights of
the parties,” and the order appointing a guardian and conservator
and finding the ward incapacitated was a final order. Id., quoting
Scott, 136 P.3d at 898.
¶23 We agree with the Tenth Circuit that even though the
probate court may issue new orders in the guardianship/
conservatorship administration, that does not change the fact that the
earlier formal proceeding resolved the matters currently at issue and
the order was final. A verdict in a civil trial is clearly a final
appealable order, even though the court may overturn that verdict on
its own initiative and order a new trial. See Ariz. R. Civ. P. 59(g) (trial
court may order a new trial on its own initiative “for any reason for
which it might have granted a new trial on motion of a party”).
¶24 An order appointing a guardian or conservator can be
analogized to an unsupervised administration of a decedent’s estate
in that, once a guardian or conservator has been appointed, the court
has resolved all issues raised in the petition, has substantially
determined the rights of the parties, and may not necessarily issue
another order affecting those rights until the ward dies. Cf. § 14-3501
(supervised administration intended to continue until
“administration and settlement of a decedent’s estate” is “complete”).
And in an unsupervised administration a party may appeal from any
decision that disposes of a formal proceeding for precisely that
reason. McGathy, 226 Ariz. 277, ¶¶ 15-17, 246 P.3d at 631. This
rationale supports appealability.
¶25 For all these reasons, we conclude an appeal may be
taken from an order establishing a guardianship or conservatorship.
But, because Rule 3(A), Ariz. R. Prob. P., incorporates the rules of civil
case that the Tenth Circuit court relied on is cited favorably in
McGathy. 226 Ariz. 277, ¶ 14, 246 P.3d at 630.
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Opinion of the Court
procedure, such an order requires Rule 54(c) language to be
appealable. Brumett, 240 Ariz. 421, ¶¶ 13, 34, n.4, 380 P.3d at 665 n.4,
667, 672. Rule 54(a), defines a judgment as including “a decree and
an order from which an appeal lies.” Such judgments cannot be
considered final for the purposes of appeal unless they comply with
Rule 54(c).
¶26 In this case, because the probate court’s order concluded
a formal probate proceeding and is therefore substantively
appealable under § 12-2101(A)(9), it constitutes a judgment under
Rule 54(a). Thus, for the order to be procedurally appealable, the trial
court must certify that “no further matters remain pending” with
regard to the guardianship and conservatorship petitions. Ariz. R.
Civ. P. 54(c). The court did not certify the order as such, and we
therefore lack jurisdiction.
Disposition
¶27 Based on the foregoing, we deny the motion to dismiss
and re-vest jurisdiction in the probate court for a period of thirty days
to allow either party to request the court to enter an order that
complies with Rule 54(c). Brumett, 240 Ariz. 421, ¶ 34, 380 P.3d at 672;
see Ariz. R. Civ. App. P. 3(b).8 If the court enters such an order, the
clerk of the superior court shall forward it to this court under a
supplemental certificate. In any event, we will reinstate the appeal at
the end of the thirty-day period.
8 Sommer additionally argues this court has jurisdiction
pursuant to § 12-2101(A)(3), “From any order affecting a substantial
right made in any action when the order in effect determines the
action and prevents judgment from which an appeal might be taken.”
“The classic example . . . is a dismissal without prejudice after the
statute of limitations has run.” See Garza v. Swift Transp. Co., 222 Ariz.
281, ¶¶ 14-16, 213 P.3d 1008, 1011 (2009). Because we conclude the
guardianship/conservatorship order is appealable, this subsection
does not apply.
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