Opinion
2 CA-CV 2023-0107
03-08-2024
In re the Guardianship of Rafael Herrera v. Ana Leon Gallego Herrera, Appellee. Claudia C. Herrera, Appellant,
Sudden Wealth Protection Law PLC, Phoenix By Paul Deloughery Counsel for Appellant Murphy Law Firm Inc., Phoenix By Thomas J. Murphy and Hunt & Gale, Yuma By Jeanne Vatterott-Gale Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yuma County No. S1400GC202300069 The Honorable Mark Wayne Reeves, Judge
Sudden Wealth Protection Law PLC, Phoenix By Paul Deloughery Counsel for Appellant
Murphy Law Firm Inc., Phoenix By Thomas J. Murphy and
Hunt & Gale, Yuma By Jeanne Vatterott-Gale Counsel for Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Claudia Herrera appeals from the superior court's orders regarding her temporary guardianship over her father, Rafael Herrera, as well as its denial of her motion for change of venue. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the superior court's rulings. See In re Mariotte's Est, 127 Ariz. 291, 291 (App. 1980). Mr. Herrera suffers from dementia. Before March 2023, he was residing in an assisted living facility in Yuma. His wife, Ana, held a healthcare power of attorney for him.
¶3 On March 17, 2023, upon Claudia's petition, the superior court issued an emergency order, without notice, finding Mr. Herrera incapacitated as defined by A.R.S. § 14-5101(3) and appointing Claudia as his temporary guardian. It also suspended Ana's power of attorney until it could rule on Claudia's request to be named permanent guardian. Pursuant to A.R.S. § 14-5310(D), the order for temporary appointment was scheduled to expire on April 3.
¶4 On March 21, Claudia filed a notice of change of address for Mr. Herrera, stating he had moved to an address in Phoenix. Also on March 21, the superior court appointed an attorney for Mr. Herrera, as required by A.R.S. §§ 14-5303(C) and 14-5407(B). On March 31, Ana filed a petition to enforce the terms of the power of attorney, asking the court to dismiss Claudia's guardianship petition and to schedule a hearing pursuant to A.R.S. § 14-5311(G).
¶5 On April 3, after a hearing at which Claudia, Ana, and Mr. Herrera were all present, the superior court dismissed the temporary guardianship. It reasoned that nothing in the record "suggested] that this was an emergent situation" or explained "why notice could not have been given" to Ana under A.R.S. § 14-5401.01(B)(1). It further determined that nothing in the record suggested Mr. Herrera "would be better off living in [Claudia's] apartment as opposed to a facility for memory loss patients." Finally, it ordered Ana to coordinate with Mr. Herrera's healthcare providers to arrange appropriate treatment and care.
¶6 On April 6, Claudia requested a change of venue from Yuma County to Maricopa County, arguing that Mr. Herrera did "not wish to return to Yuma County" and instead wished to "remain with his daughter, [Claudia], and his other children in Maricopa County." The next day, Ana filed a motion for a more specific form of order. She requested that the superior court order Claudia to return Mr. Herrera to the Yuma facility and otherwise enforce its April 3 order, or in the alternative, name Ana and two other daughters of Mr. Herrera's as temporary co-guardians "to allow them to obtain the assistance of law enforcement to require [Claudia] to open the door to her home and allow access by the temporary co-guardians to move [Mr.] Herrera back home to Yuma." She further requested that the court deny Claudia's motion for a change of venue and award Ana her attorney fees.
¶7 On April 17, the superior court affirmed its April 3 order dismissing the emergency guardianship and ordering Ana to exercise care and control over Mr. Herrera. It also summarily denied Claudia's motion for a change of venue and ordered her to return Mr. Herrera to the assisted living facility in Yuma.
¶8 Claudia appealed from the April 3 and April 17 orders. We have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(9) and 12-120.21(A)(1). See also Ariz. R. Civ. App. P. 9(c).
In May 2023, pursuant to a caseload equalizing order, the matter was transferred to Division Two. In June 2023, we suspended the appeal and revested jurisdiction in the superior court so that it could enter an order containing the finality language required by Rule 54, Ariz. R. Civ. P. Later that month, the court issued amended orders finding "no just reason for delay of final judgment" on the April 3 and April 17 orders and certifying both as final, pursuant to Rule 54(b).
Discussion
I. Dismissal of Temporary Guardianship Order
¶9 Claudia argues the superior court abused its discretion in terminating her appointment as Mr. Herrera's temporary guardian. She contends the April 2023 hearing did not "satisfy the due process requirement of an evidentiary hearing as specifically required" by § 14-5310(E) and Rule 23, Ariz. R. Prob. P.
¶10 We review the superior court's rulings on guardianship matters for abuse of discretion. See In re Guardianship of Kelly, 184 Ariz. 514, 518 (App. 1996). In exercising such discretion, the superior court "has wide latitude to perform its statutory duty to safeguard the well-being of the ward." Id.
¶11 Claudia characterizes the superior court as having "refused" to allow an evidentiary hearing on April 3. But, read in context, the court merely agreed with Claudia's attorney's own statement that she "was not prepared to have a[n] evidentiary hearing [that day]." No request for such a hearing was made on the record during the initial hearing, nor does any timely request by motion appear in the record. Further, the court noted its intent to set an evidentiary hearing at a later date.
¶12 Additionally, by its plain text, § 14-5310 does not require a superior court to hold an evidentiary hearing before appointing a temporary guardian. See § 14-5310(H) ("The hearing on a petition for the appointment of a temporary guardian shall be held in the same manner as a hearing on a preliminary injunction."); see also Ariz. R. Civ. P. 65(f)(5) (evidentiary hearing required only if genuine issue of material fact exists). Further, under § 14-5310(J), "[a] temporary guardian may be removed at any time," with no statutory requirement that the court receive evidence beforehand. And under Rule 17, Ariz. R. Prob. P., evidence may be presented at an initial hearing under certain conditions, but such presentation is not mandatory and in some instances is prohibited. In any event, an evidentiary hearing is required only "after an initial hearing." Ariz. R. Prob. P. 23(a). The April 3 hearing was, at most, an initial hearing, intended to determine whether the temporary guardianship, scheduled to expire at the end of that business day, should be renewed. Therefore, as provided by the relevant rules, the court made no error in taking only documentary evidence and hearing attorney argument rather than conducting a full evidentiary hearing.
Pursuant to Ariz. Sup. Ct. Order R-23-0039 (Dec. 6, 2023), Rule 17 was modified in a manner not relevant to the issues on appeal.
And, an evidentiary hearing is not mandatory: Rule 23(b) provides that the superior court "may set an evidentiary hearing" if it "does not decide at the initial hearing all the issues raised in a petition."
¶13 Claudia also argues the superior court considered improper "factors" in reviewing the temporary guardianship order. But in making its April 3 finding that no emergency existed sufficient to extend Claudia's temporary guardianship over Mr. Herrera, the court reviewed the medical records and the court-appointed investigator's report-which ultimately recommended Claudia's appointment as guardian. It also considered the arguments of the parties and Mr. Herrera's condition as he appeared during the hearing. This process was consistent with § 14-5310, which requires temporary guardianship orders to expire within thirty days unless a court "extends it for good cause shown for the same period" or longer with consent of the ward's attorney. § 14-5310(D). The court, essentially, found the absence of good cause to extend the guardianship. We therefore find no abuse of the court's discretion in dismissing the emergency, temporary guardianship order put in place on March 17. See In re Guardianship of O'Brien, 11 Ariz.App. 343, 345 (1970).
II. Denial of Motion to Change Venue
¶14 Claudia also argues the superior court erred when it denied her motion to change venue. We have an independent duty to determine whether we have the authority to consider an appeal. Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015). Rule 54(b), Ariz. R. Civ. P., allows for entry of final judgment "as to one or more, but fewer than all, claims." See Deal v. Deal, 252 Ariz. 387, ¶ 8 (App. 2021) (court order that "failed to dispose of any claims" not appealable). The superior court certified its denial of venue as final pursuant to Rule 54(b). "But this does not confer jurisdiction if the judgment did not in fact dispose of 'one or more' of the claims." Musa v. Adrian, 130 Ariz. 311, 313 (1981) (quoting Ariz. R. Civ. P. 54(b)). As relevant here, "[v]enue is not an entire claim for relief and we have held that the denial of a change of venue is not appealable." Galaz v. Vinyard, 128 Ariz. 606, 608 (App. 1981); see also Goff v. Superior Courts, 2 Ariz. App. 344, 347 (1965).
¶15 Instead, appeals from an order granting or denying a change of venue should be raised in a petition for special action. See, e.g., Yarbrough v. Montoya-Paez, 214 Ariz. 1, ¶ 1 (App. 2006); Galaz, 128 Ariz. at 608. Special action jurisdiction is appropriate only when a party has no "equally plain, speedy, and adequate remedy by appeal," Ariz. R. P. Spec. Act. 1(a), or when a case involves "a matter of first impression, statewide significance, or pure questions of law," Deal, 252 Ariz. 387, ¶ 9 (quoting State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, ¶ 8 (App. 2001)). Although "any obvious error . . . made by the trial court on a motion for change of venue should be corrected by special writ," Goff, 2 Ariz. App. at 347, the record here reflects no obvious error necessitating our discretionary acceptance of special action jurisdiction, see Deal, 252 Ariz. 387, ¶ 9; see also Maricopa County v. Barkley, 168 Ariz. 234, 237 (App. 1990) (court's denial of motion for change of venue reviewed for abuse of discretion). Pursuant to A.R.S. § 14-5302, the "venue for guardianship proceedings for an incapacitated person is in the county where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits." Because the superior court's April 17 order directed that Herrera be returned to his assisted living facility in Yuma, under that order he legally should have resided in Yuma by late April 2023. Claudia's failure to comply with the court's directive cannot provide a legal basis for her to claim venue elsewhere. Furthermore, under A.R.S. § 14-1303(A), "Where a proceeding under this title could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed." The action was commenced in Yuma, through Claudia's filing of the petition for temporary and permanent guardianship. Thus, we find no obvious error in the court's denial of the motion to change venue, and we decline to accept special action jurisdiction over Claudia's challenge to that order.
III. Due Process Implications
¶16 Claudia also argues the superior court denied her and Mr. Herrera due process when it ordered her to return her father to the assisted living facility in Yuma. Specifically, she maintains that he "was not subject to a protective proceeding" at the time of the ruling and that the court took no testimony and made no finding that he wanted to return to Yuma. Claudia contends Mr. Herrera still resides in Phoenix, and she adamantly maintains he prefers to remain there.
¶17 We review constitutional issues such as this due process argument de novo. See Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, ¶ 15 (2018). However, upon termination of Claudia's temporary guardianship, Claudia ceased to have standing to assert this constitutional right on behalf of her father. Although a party "may have standing to protect a constitutional right possessed solely by a third person" if the party has "a substantial relationship to the third person," the third person "must be unable to assert the constitutional right on his or her own behalf." State v. B Bar Enters., Inc., 133 Ariz. 99, 101 n.2 (1982); Kerr v. Killian, 197 Ariz. 213, ¶ 16 (App. 2000). Here, assuming without deciding that the superior court's orders implicate Mr. Herrera's constitutional rights, the termination of Claudia's temporary guardianship made her an improper party to assert those rights. Mr. Herrera appeared, apparently represented by court-appointed counsel, at the April 3 hearing. Mr. Herrera was not unable to assert the constitutional right because he was represented by appointed counsel. See B Bar Enters., 133 Ariz. at 101 n.2. And, particularly given the disagreement among Mr. Herrera's family members, any assertion of Mr. Herrera's due process rights would properly be urged by his appointed counsel rather than by any one of his family members, who are also parties in interest in the matter.
¶18 Finally, we reject Claudia's suggestion that her own due process rights are somehow implicated by the superior court's orders, which merely required her to take the necessary steps to comply with its directives. See Elizabeth W. v. Georgini, 230 Ariz. 527, ¶¶ 7-8 (App. 2012) (court vested with "inherent power to ensure its orders are followed" so long as they do not conflict with rules or statutes). Those orders required Claudia to release her control over her father, a control that was no longer lawful upon dissolution of the temporary guardianship. Cf. Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 220 (1987) (Arizona statute empowers guardian to give necessary consent to enable ward to receive medical care).
¶19 In considering Claudia's argument, we also note that the April 3 and April 17 orders merely restored what had been the status quo before Claudia's temporary guardianship over Mr. Herrera. Although the record shows the April 3 order left the parties somewhat unclear about who retained the right to control healthcare decisions for Mr. Herrera, the April 17 direction that Ana reassert healthcare power of attorney should have extinguished any uncertainty. Essentially, those orders reinstated Mr. Herrera's wishes, as set forth in his 2020 power of attorney in favor of Ana. We therefore can identify no due process violation in these orders, which merely removed the conditions created by the expired temporary guardianship.
IV. Attorney Fees and Costs on Appeal
¶20 Both parties request their attorney fees and costs on appeal. As the successful party, Ana is entitled to her costs on appeal, A.R.S. § 12-341, upon her compliance with Rule 21(b), Ariz. R. Civ. App. P. However, Ana cites no substantive basis for her fee request. See Chopin v. Chopin, 224 Ariz. 425, ¶ 24 (App. 2010) (Rule 21 does not provide substantive basis for award of attorney fees). Thus, we deny her request.
Disposition
¶21 For the foregoing reasons, we affirm.