Opinion
1 CA-CV 23-0821
10-29-2024
In the Matter of the Estate of: CHARLENE ANDREWS, WILLIAM HENRY ANDREWS JR. Deceased. v. JDR LAW PLLC; RICK KILFOY, Appellees. AVA EVANS; DENISE ANDREWS, Personal Representatives/Appellants,
Clement Leslie, Esq., Glendale By Clement Leslie Counsel for Appellants Broening Oberg Woods &Wilson, PC, Phoenix By Kelley M. Jancaitis Counsel for Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. PB2022-071361 The Honorable Sarah Selzer, Judge Pro Tempore
Clement Leslie, Esq., Glendale By Clement Leslie Counsel for Appellants
Broening Oberg Woods &Wilson, PC, Phoenix By Kelley M. Jancaitis Counsel for Appellees
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE
¶1 Ava Evans and Denise Andrews (collectively, "the daughters") appeal the probate court's award of attorney fees to JDR Law, PLLC ("JDR") and Rick Kilfoy ("Kilfoy"). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Charlene Andrews died in January 2023. Near the end, she suffered from Alzheimer's and Parkinson's diseases, so her adult daughters managed her healthcare and finances.
¶3 A month before Charlene died, her grandson, Kelvin Andrews, petitioned to be appointed her guardian and conservator. He alleged the daughters spent over $70,000 from Charlene's bank accounts in two years and neglected her physically and mentally. Ava filed a competing petition.
¶4 The superior court appointed JDR to represent Charlene. JDR then learned that Charlene could not communicate and thus requested a guardian ad litem ("GAL") to advocate for her best interests. The court appointed Kilfoy as Charlene's GAL to help resolve Ava's and Kelvin's dueling petitions for appointment as guardian and conservator.
¶5 JDR discovered that Charlene's late husband William never had his estate go through formal probate, and the daughters had been actively using Charlene and her late husband's bank accounts. The court thus issued a temporary restraining order ("TRO") freezing the bank accounts and preventing Charlene's removal from her care facility.
¶6 After Charlene died, JDR informed the court that the daughters had violated the TRO and might lose their inheritance. It asked the probate court to extend the TRO and continue its appointment to address the misconduct and ensure a proper accounting of the estate.
¶7 In June 2024, after five months of contentious litigation, the parties entered a stipulation that:
[JDR] and counsel Kilfoy should be discharged and released of liability in this matter, in a concerted effort to save costs and reduce fees in this matter. In doing so, the Parties stipulate to not object to the Court's consideration of [JDR's] and counsel Kilfoy's reasonable fees, which will be paid by the Estate of Charlene Andrews, and/or the Estate of William Henry Andrews, Jr., including, but not limited to, their estate assets and/or any assets that may have transferred by nonprobate transfer, after review by this Court.
¶8 The court granted the stipulated motion and awarded $13,516.48 in fees to JDR and Kilfoy. The daughters timely appealed. We have jurisdiction. A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Waiver.
¶9 As a threshold matter, we must determine whether the daughters waived their right to contest the fee award under the June 6 stipulation. We interpret contracts (like the stipulation here) de novo as a question of law. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). And we consider the plain meaning of the words in a contract to determine and enforce the parties' intent. See Dunn v. FastMed Urgent Care PC, 245 Ariz. 35, 38, ¶ 10 (App. 2018).
¶10 The daughters did not waive their objection. They stipulated only "to not object to the Court's consideration" of the fee award's reasonableness. They never stipulated to the amount of fees or forfeited their right to challenge whether the amount of attorney fees was reasonable. See Am. Cont'l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55 (1980) (waiver must be express).
II. The Fee Award.
¶11 The daughters contest the attorney fees awarded to JDR and Kilfoy. We review fee awards for an abuse of discretion, In re Guardianship of Sleeth, 226 Ariz. 171, 174, ¶ 12 (App. 2010), and "will affirm unless there is no reasonable basis for the award," Hawk v. PC Vill. Ass'n, 233 Ariz. 94, 100, ¶ 19 (App. 2013).
¶12 Appointed attorneys and GALs are entitled by statute to reasonable compensation for their services. A.R.S. §§ 14-5314(A), -5414(A). The daughters argue that any time entries after Charlene's death are unreasonable per se because any duty terminated after the ward's death. Not so. The probate statutes contemplate that an attorney's role will continue after death. See, e.g., A.R.S. § 14-5306 (termination does not affect the guardian's obligation to account for funds and assets of the guardian's ward). JDR and Kilfoy remained appointed counsel after Charlene's death as part of their duty to wind up the estate. The superior court did not abuse its discretion.
CONCLUSION
¶13 We affirm.
¶14 JDR and Kilfoy request an award of attorney fees on appeal under A.R.S. § 12-349(A) and § 14-11004, which we decline in our discretion.