Opinion
No. 2 CA-CV 2013-0125
04-18-2014
IN RE THE ESTATE OF ROBERT JUNIOR DEMAREE, DECEASED. BRIAN L. DEMAREE, Petitioner/Appellant, v. MARIAICELA DEMAREE, Respondent/Appellee.
Brian L. Demaree, Tucson In Propria Persona Little, Remick, Capp & West-Watt, PLC, Tucson By Timothy P. Remick Counsel for Respondent/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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. PB20130383
The Honorable Kyle A. Bryson, Judge
AFFIRMED
COUNSEL
Brian L. Demaree, Tucson
In Propria Persona
Little, Remick, Capp & West-Watt, PLC, Tucson
By Timothy P. Remick
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Brian Demaree challenges the trial court's order admitting Robert Junior Demaree's October 2010 will to probate and appointing Mariaicela Demaree as personal representative. For the following reasons, we deem Brian's arguments waived and affirm the court's ruling.
Factual and Procedural Background
¶2 Robert Junior Demaree died on or about March 30, 2013. In April, his son Brian sought to admit to probate a will Robert had executed in 2002 and to be appointed personal representative of the estate. The 2002 will devised substantially all of Robert's estate to "such of [his] children who survived [him]," including Brian. Brian's ex-wife, Mariaicela, who had been caring for Robert, objected to Brian's appointment as personal representative and alleged that the 2002 will had been revoked. Mariaicela asserted that Robert had executed a valid and self-executing will on October 29, 2010, which she moved to admit to probate. The 2010 will designated Mariaicela as personal representative, as well as the primary beneficiary.
¶3 A hearing was held in May 2013 to address the authenticity of the 2010 will, as well as Mariaicela's objections to the 2002 will's entry to probate and Brian's appointment as personal representative. In July 2013, the trial court found that the 2010 will was "in writing, signed by the decedent before a notary and two witnesses" and that there was "no credible evidence" of fraud, forgery, or undue influence. It thus found the requirements for a self-proved will were met under Arizona law and admitted the 2010 will to probate. In doing so, the court denied admission of the 2002 will, removed Brian as personal representative, and appointed Mariaicela instead. This appeal followed.
Discussion
¶4 Brian does not explicitly challenge the validity of the 2010 will. Instead, he alleges that Mariaicela should not have been allowed to testify at the May 2013 hearing, that the witnesses to the 2010 will execution were not credible, and that the trial court failed to recognize a presumption of undue influence by Mariaicela over the decedent prior to the 2010 will's formation. But Brian's appellate brief has failed to substantially comply with the rules of civil appellate procedure, which require appellate briefs to cite to the certified record on appeal. See Ariz. R. Civ. App. P. 13(a) and 11 (governing composition of record on appeal). Instead, Brian cites exclusively to the items contained within the appendix he created and attached to his opening brief. This appendix does not cite to the record on appeal, and includes as "exhibits" items explicitly disallowed by this court. This practice "fails to inform [us] whether the item referred to is, in fact, included in the record on appeal pursuant to Rule 11(a)(1) and (3), . . . and it does not substitute for a citation to the record as it is numbered pursuant to Rule 11(a)(2)." Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, n.2, 263 P.3d 683, 686 n.2 (App. 2011). Although Brian is proceeding in propria persona, he is held to the same standards as a "qualified member of the bar," and "is entitled to no more consideration than if he had been represented by counsel." Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983).
Brian also fails in his opening brief to indicate the basis of this court's jurisdiction, as required by Rule 13(a)(3), Ariz. R. Civ. App. P.
For example, Brian had filed a motion to modify the record on appeal, requesting that this court include three additional exhibits in the certified record. We denied his motion, noting there was "no avowal the submitted documents were considered by the trial court." These documents nonetheless appear in Brian's appellate brief appendix.
¶5 Because we must verify that all documents cited in a brief are actually included within the certified record on appeal, citing exclusively to an appendix places an additional burden on this court to locate documents, a burden that should be borne by the litigants. See Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993) (court will not consider matters not in the record before it); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 343, 678 P.2d 525, 528 (App. 1984) ("We are not required to assume the duties of an advocate and search voluminous records and exhibits to substantiate an appellant's claims."). Such impermissible practice is a ground for this court to find a party's argument waived. See Delmastro, 228 Ariz. 134, n.2, 263 P.3d at 686 n.2; Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (finding waiver based on failure to comply with appellate procedural rules).
Brian admits in his reply brief the impropriety of making factual assertions without appropriate citations and directs that "this Court needn't consider" certain of his exhibits. But this is not an adequate remedy for the brief's noncompliance with our rules, and requires us to expend even greater effort to determine whether the appendix citations exist in the record on review. See Lewis, 178 Ariz. at 338, 873 P.2d at 676; Adams, 139 Ariz. at 343, 678 P.2d at 528. Additionally, Brian cites to his appendix throughout his reply brief and, in certain places, omits any supporting reference entirely.
¶6 A similar issue arose in Delmastro when the appellant failed to provide record citations for critical documents in either the fact or argument sections of his opening brief. 228 Ariz. 134, n.2, 263 P.3d at 686 n.2. We noted that even though the appellant had filed an appendix to his brief, the brief failed to comply with the rules of appellate procedure or provide us with sufficient information to address the party's arguments without further research into the record on appeal. Id. We decided, however, that because opposing counsel did not object to the deficiencies, we would, in our discretion consider arguments we might otherwise have found waived. Id. Here, by contrast, Mariaicela has explicitly urged this court to dismiss the appeal due to Brian's failure to "me[e]t the minimum standards . . . of . . . Rule 13." We thus find Brian's arguments waived.
Mariaicela also included her own statement of the case, facts, and issues, which she noted is not the responsibility of an appellee. See Ariz. R. Civ. App. P. 13(b) (directing an appellee to include such statements only when it finds appellant's statements to be insufficient or incorrect).
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¶7 Even were we to simply disregard Brian's reliance on his appendix, we cannot overlook the fact that the arguments contained in Brian's brief are unsupported by the record. Rule 13(a)(6) requires an appellant to set forth his argument, "which shall contain the contentions . . . with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." This is more than a mere technical requirement, as Brian's noncompliance prevents meaningful review. For example, in Brian's first argument, he claims Mariaicela should have been disqualified from testifying at trial by "Arizona's 'Dead Man's Statute,'" and that the trial court erred by "ma[king] no objections or rules regarding [such] disqualification." But Brian has directed us to no part of the record where this "objection[] or rule[]" would have been appropriate, nor where Brian so moved the court, thereby preserving his objection. See Ariz. R. Evid. 103 (to preserve claim of error in admitting evidence, party must timely object).
¶8 Similarly, Brian's second argument challenges the credibility of two witnesses; but the record on appeal contains no transcript from the May 2014 hearing, precluding our evaluation of the witnesses' testimony. Brian, as appellant, was responsible for making certain the record on appeal contained any transcripts or other documents necessary for us to consider the arguments he raised on appeal. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); Ariz. R. Civ. App. P. 11(b). Any necessary documents omitted from the record on appeal are presumed to have supported the trial court's findings and conclusions. Baker, 183 Ariz. at 73, 900 P.2d at 767; Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 4, 119 P.3d 467, 470 (App. 2005). Thus, even were we to overlook the defects in Brian's appellate brief, we would be unable to address his claims properly.
¶9 Mariaicela has requested her attorney fees on appeal pursuant to A.R.S. § 12-349. In our discretion, we decline to award such fees.
Disposition
¶10 For the foregoing reasons, we affirm the trial court.