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Black v. Mitsvotai

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 25, 2018
No. 2 CA-CV 2017-0207 (Ariz. Ct. App. Jun. 25, 2018)

Opinion

No. 2 CA-CV 2017-0207

06-25-2018

DAVID L. BLACK, Plaintiff/Appellant, v. LAURA E. MITSVOTAI, Defendant/Appellee.

COUNSEL David L. Black, Safford In Propria Persona J. Grant Walker PLLC, Safford By J. Grant Walker Counsel for Defendant/Appellee


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Graham County
No. CV201700007
The Honorable Michael D. Peterson, Judge

AFFIRMED

COUNSEL David L. Black, Safford
In Propria Persona J. Grant Walker PLLC, Safford
By J. Grant Walker
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:

¶1 David Black brought a civil action in the Superior Court challenging, among other things, his sister Laura Mitsvotai's withdrawal of $170,000 from their father Roy Black's bank account. David and Laura each argued they had been granted power of attorney by their father and about the validity and revocability of an alleged trust.

¶2 During the proceedings, Laura turned over to the trial court a cashier's check in the amount of $166,000. The court took possession of the check and appointed a representative for Roy, who at that time was evidently incapacitated. After reviewing the case, the representative informed the court that he intended to, and later filed, a request for public fiduciary/guardianship/conservatorship of Roy. Laura subsequently filed a "Memorandum of No Contest for Remaining Issues," in which she stated she "no longer contests" the request for guardian and conservator or the court's decision to hold the cashier's check pending the outcome of that request. The following week David filed a "Motion to Release Cashier's Check and Dismiss" based solely on Laura's memorandum. After a hearing, the court denied his motion in its "Final Judgment," stating it would "assure [the representative]'s fees will be paid from the $166,000.00, which will not be released until there is an established guardian and conservator."

David has failed to provide us with the transcript of this hearing. We "assume that the missing portions of the record support the trial court's ruling." MacMillan v. Schwartz, 226 Ariz. 584, ¶ 35 (App. 2011).

¶3 Roy died before the scheduled hearing on the guardian and conservatorship, and David immediately filed a motion for reconsideration, arguing that, due to his father's passing, "no guardian or conservator will be appointed, thus barring any release of the $166,000 forever unless the decision is reconsidered." The trial court denied that motion, stating: "The above-captioned matter was a civil dispute. It was not a probate matter. Notwithstanding the understandable problems that have arisen due to the passing of Mr. Roy Black, a Motion for Reconsideration pursuant to Ariz. R. Civ. P. 7.1(e) is not an appropriate means of setting aside a Final Judgment." It continued:

The Court does recognize that some of Mr. Roy Black's estate may need to be distributed. . . . The proper heirs cannot be ascertained in the above-captioned civil matter. Further, Ms. Mit[svotai] has alleged that Mr. David Black acted improperly in transferring real property to a trust. Should Mr. Black and/or Ms. Mit[svotai] and/or any other heir or devisee choose to take action with respect to any of Mr. Roy Black's estate, the proper means by which they must do so is through a probate under Title 14 of the Arizona Revised Statutes. It is not proper nor appropriate under Arizona law to transmute this civil dispute under Title 12 in the above-captioned matter into a probate under Title 14.

The cashier's check . . . and the issue of payment to [the representative] will need to be handled in the probate matter. [The representative] shall be paid for all services rendered prior to any disbursement to any heirs and/or devisees.

¶4 This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and Rule 9(c), Ariz. R. Civ. App. P.

Analysis

¶5 In his opening brief, in a single short paragraph, David states that because he sued Laura for return of the funds, she filed a Memorandum of No Contest, and no guardian can now be appointed, the "funds should be released" to him. He cites only to Rule 91(g), Ariz. R. Sup. Ct., which states that "[p]apers on file in the office of the clerk shall not be taken from the office by any person except a judge of the court, or upon a judge's written authorization," and prescribes the form such authorization must take.

¶6 Rule 13(a)(7), Ariz. R. Civ. App. P., requires that an appellant's opening brief contain "the applicable standard of appellate review with citation to supporting legal authority," and present an argument "concerning [the] issue presented for review, with supporting reasons for each contention, and with citations of legal authorities." David has not provided a standard of review, explained how the trial court erred, or cited any argument or legal authority supporting his requested relief. He has therefore waived his sole argument. See Cruz v. City of Tucson, 243 Ariz. 69, ¶ 23 (App. 2017); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (argument waived when appellant fails to develop and support it).

We additionally note that Laura asserts in her answering brief that she initiated a formal probate proceeding on January 17, 2018, and that, as noted by the trial court, the issue of payment to Roy's court appointed attorney and the disbursement of the remaining funds to the proper heirs or devisees will presumably be addressed in those proceedings. --------

Disposition

¶7 We affirm. As the prevailing party, Laura is entitled to her costs pursuant to A.R.S. § 12-342(A), upon her compliance with Rule 21, Ariz. R. Civ. App. P.


Summaries of

Black v. Mitsvotai

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 25, 2018
No. 2 CA-CV 2017-0207 (Ariz. Ct. App. Jun. 25, 2018)
Case details for

Black v. Mitsvotai

Case Details

Full title:DAVID L. BLACK, Plaintiff/Appellant, v. LAURA E. MITSVOTAI…

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Jun 25, 2018

Citations

No. 2 CA-CV 2017-0207 (Ariz. Ct. App. Jun. 25, 2018)