Opinion
2 CA-CV 2024-0043
11-13-2024
In re the Estate of Michael Merle Clauson, Deceased v. Cynthia Clauson, Petitioner/Appellee. Don Barker, Respondent/Appellant,
Don Barker, Glendale In Propria Persona Andersen PLLC, Scottsdale By Mark W. Hawkins and Mark Andersen Counsel for Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Nos. PB2022000711 and PB2022090307 The Honorable Brian J. Palmer, Judge Pro Tempore
Don Barker, Glendale In Propria Persona
Andersen PLLC, Scottsdale By Mark W. Hawkins and Mark Andersen Counsel for Petitioner/Appellee
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE
¶1 Don Barker appeals from the trial court's judgment granting Cynthia Clauson's petition to, among other things, invalidate a will and denying Barker's motion for new trial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 After Michael Clauson died in January 2022, Barker was informally appointed the personal representative of Michael's estate. Barker filed a last will and testament in which Michael purportedly named Barker representative and sole devisee of the estate. Michael's sister, Cynthia, petitioned the trial court to invalidate the will, claiming Michael's signature on the document was not genuine. Cynthia also petitioned the court to remove Barker as personal representative, find Michael died intestate, and designate her the sole legal heir.
¶3 In June 2023, the trial court held an evidentiary hearing where it received a copy of the will, handwriting exhibits, and testimony from both parties and a forensic document examiner. After considering the evidence, the court granted Cynthia's petition in full and awarded her attorney fees and costs. Barker requested a new trial, which the court denied. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1), (A)(5)(a).
Discussion
¶4 We have a responsibility to see that litigants "conform to an acceptable, minimal level of competency and performance," and this responsibility is owed not only to the judiciary and the bar but to other litigants and "the people as a whole." Evans v. Arthur, 139 Ariz. 362, 364-65 (1984). Accordingly, our supreme court has adopted rules that parties must follow when bringing an appeal. See Ariz. R. Civ. App. P. 1-32. Under Rule 13, Ariz. R. Civ. App. P., an opening brief must contain, among other things, the appellant's "contentions concerning each issue presented for review," with supporting reasons, citations to legal authorities, and "appropriate references to the portions of the record on which the appellant relies." Arguments "not supported by adequate explanation, citations to the record, or authority" are considered waived. In re Aubuchon, 233 Ariz. 62, ¶ 6 (2013).
¶5 Although we prefer to decide each case on the merits, "there is a limit to which judicial leniency can be stretched," and we will not "assume the duties of an advocate." Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 343 (App. 1984). In Arizona, unrepresented litigants are not afforded special leniency and are held to the same standards as attorneys. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017).
¶6 Barker's opening brief fails to comply with Rule 13, as it lacks appropriate legal citations and references to the record. See Ariz. R. Civ. App. P. 13(a)(4)-(7), (d). Further, Barker does not develop any discernible argument for most of the issues raised on appeal. See Sholes v. Fernando, 228 Ariz. 455, ¶ 16 (App. 2011) (failure to develop and support argument waives issue on appeal); State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370 (App. 1990). Given that there is only one cognizable argument and no citation to the record to support it, we deem Barker's claims waived. See Aubuchon, 233 Ariz. 62, ¶ 6.
Barker also filed a supplemental opening brief and an amended supplemental opening brief without an order or leave of the court. A request to allow the supplemental briefing followed a week later, but we denied the request. See Ariz. R. Civ. App. P. 17 (authorizing only the supplementation of legal authority). As such, we consider only his original filing.
¶7 Even were we to consider the opening brief's singular argument-whether the trial court erred in denying a requested continuance-Barker's argument fails. "A motion for continuance is not granted as a matter of right" and is "solely within the sound discretion of the trial judge." State v. Ortiz, 117 Ariz. 264, 266 (App. 1977). We will not disturb the trial court's ruling absent a clear abuse of discretion and prejudice. Id. An abuse of discretion occurs "when the court commits an error of law in reaching a discretionary decision or when the record does not support the court's decision." DeLuna v. Petitto, 247 Ariz. 420, ¶ 9 (App. 2019). Here, Barker has the burden of showing the court erred. See Myrick v. Maloney, 235 Ariz. 491, ¶ 12 (App. 2014).
¶8 Barker argues that "[t]esting positive for COVID-19 the day before [t]rial should have been a just reason to continue the trial." However, he does not explain how the trial court's denial of his motion for continuance was an error of law or unsupported by the record. See DeLuna, 247 Ariz. 420, ¶ 9. Importantly, Barker does not address whether the court's denial prejudiced his ability to present or argue his case. See Ortiz, 117 Ariz. at 266. Records from the evidentiary hearing reflect that all participants attended remotely, and that Barker was present for and participated in its entirety. Thus, we will not disturb the court's ruling. See id.
¶9 On appeal, Cynthia requests an award of attorney's fees pursuant to Rules 21 and 25, Ariz. R. Civ. App. P., and A.R.S. § 12-349. In our discretion, we decline Cynthia's request for fees under Rule 25 and § 12-349. However, as the successful party on appeal, she is entitled to recover her taxable costs upon compliance with Rule 21(b). See A.R.S. § 12-342.
Disposition
¶10 For the foregoing reasons, we affirm.