Opinion
2 CA-CV 2021-0073
12-09-2021
Rose A. Karam, Plaintiff/Appellant, v. Jane W. Karam, Defendant/Appellee.
Rose Ann Karam, Tucson In Propria Persona Waterfall, Economidis, Caldwell, Hanshaw &Villamana P.C., Tucson By Cory B. Larson and Cindy K. Schmidt Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20203713 The Honorable D. Douglas Metcalf, Judge
Rose Ann Karam, Tucson In Propria Persona
Waterfall, Economidis, Caldwell, Hanshaw &Villamana P.C., Tucson By Cory B. Larson and Cindy K. Schmidt Counsel for Defendant/Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Rose Karam appeals from the trial court's judgment dismissing with prejudice her civil complaint against her mother, Jane Karam. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 On appeal from the grant of a motion to dismiss, "we consider the facts alleged in the complaint to be true, and we view them in a light most favorable to the plaintiff to determine whether the complaint states a valid claim for relief." Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 552 (App. 1995). However, we do not accept as true "conclusions of law or unwarranted deductions of fact." Folk v. City of Phoenix, 27 Ariz.App. 146, 150 (1976).
¶3 In 1992, Jane and her husband, George, executed a family trust. When George died in 1995, the remaining trust estate was divided into two separate trusts, Trust A and Trust B, and Jane became the sole trustee of both. In early 2014, Rose severed ties with Jane.
¶4 In April 2015, Jane notified the beneficiaries of Trust B- including Rose-that it was in their best interest to terminate Trust B and transfer the assets to Trust A (i.e., decant Trust B). The notification letter provided the rationale for doing so in a draft petition to terminate Trust B, explained that approval from the probate court would be required, requested consent from the beneficiaries, and enclosed a consent form. Rose refused to consent.
¶5 In May 2015, Jane initiated a probate matter to decant Trust B into Trust A, as she had indicated would be necessary. She informed the probate court that she had removed Rose as a beneficiary of Trust B. In July, the probate court approved the decanting of Trust B without Rose's consent. In August, Jane-in her capacity as trustee-transferred all assets previously held by Trust B into Trust A. She continued as the sole trustee of Trust A.
¶6 Nearly five years later, in May 2020, Rose filed a petition in the probate court to set aside the termination of Trust B. She argued Trust B had been improperly terminated without her consent, alleging fraud, concealment, and conversion. In August, Jane filed a motion to dismiss pursuant to Rule 12(b)(6), Ariz. R. Civ. P. In November, after a hearing at which Rose failed to appear, the probate court granted Jane's motion to dismiss. Rose's appeal from that judgment is currently pending before this court. See In re Trust B Created Under the Karam Family Trust, No. 2 CA-CV 2021-0018.
We denied Jane's motion to consolidate Rose's two appeals.
¶7 On August 31, 2020-the same day Jane had, earlier in the afternoon, filed her motion to dismiss in the probate matter-Rose initiated the civil lawsuit that forms the basis for this appeal. Although Rose reframed her civil case as one for retaliation, it was based on the same allegation that, in 2015, Jane had improperly removed Rose as a beneficiary of Trust B after Rose refused to consent to its termination.
¶8 On December 29, Jane filed a motion to dismiss the civil matter, again pursuant to Rule 12(b)(6). She explained that Rose's civil lawsuit arose from the same cause of action already dismissed by the probate court, such that the civil lawsuit was precluded. Jane further explained that Rose's retaliation claim was based on inapplicable employment law and that "[t]here is no law that prevents a parent from 'retaliating' against an adult child that chooses to sever all ties by lawfully exercising a right to disinherit such adult child." Jane also requested an award of attorney fees and costs.
¶9 In January 2021, Rose filed an amended complaint and, the following day, a one-page "objection" to Jane's motion to dismiss. Although Rose complained about the timing and service of Jane's motion to dismiss, she did not address its substance.
¶10 On January 20, the trial court granted Jane's motion to dismiss. In so doing, the court took judicial notice of the probate case, determined that the two cases (including as presented in Rose's amended civil complaint) presented "the same claim" or arose "out of the same action," and ruled that Rose was barred from relitigating in the civil case a claim that had already been rejected in the probate matter. On March 3, the court entered a final judgment dismissing Rose's civil case with prejudice and awarding Jane attorney fees and costs. Rose has appealed.
Jurisdiction
¶11 Jane contends we lack jurisdiction. She first argues that Rose's notice of appeal expressly referenced only an unsigned, non-final order, not the trial court's final judgment entered in March 2021. This is correct: the January 2021 order named in Rose's notice of appeal was not signed, and it acknowledged that attorney fees and costs were still to be addressed in a later, final order. However, "[w]e liberally construe notices of appeal 'if the result is neither misleading nor prejudicial to the appellees involved.'" Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 30 (App. 1998) (quoting McKillip v. Smitty's Super Valu, Inc., 190 Ariz. 61, 63 (App. 1997)). Jane has not been prejudiced by Rose's failure to mention the March 2021 judgment in her notice of appeal. Indeed, Jane addressed the court's final judgment, including its award of attorney fees and costs, in her answering brief. See id. Moreover, other than timeliness, defects in a notice of appeal do not affect our jurisdiction. Ariz. R. Civ. App. P. 8(d); see also Schwab v. Ames Constr., 207 Ariz. 56, ¶ 11 (App. 2004) ("This court generally disfavors hypertechnical challenges to a notice of appeal," and "technical defects or omissions in a notice of appeal are usually not jurisdictional and do not render the notice ineffective absent prejudice to the appellee.").
¶12 Jane emphasizes that the clerk of the trial court stamped Rose's notice of appeal four minutes before it stamped the court's final judgment. But the two documents were undeniably filed the same day. We have no basis to conclude that the four-minute discrepancy is attributable to Rose's actions, as opposed to the vagaries of the clerk's stamping process. Cf. Hill v. City of Phoenix, 193 Ariz. 570, ¶ 10 (1999) ("[W]here adequate notice has been given an opposing party, fairness demands that 'no mere technical error should prevent the appellate court from reaching the merits of the appeal.'" (quoting Hanen v. Willis, 102 Ariz. 6, 9 (1967))). Indeed, the trial court refused to rule on Rose's post-judgment motions on the ground that her notice of appeal had divested the trial court of jurisdiction. See Henderson v. Henderson, 241 Ariz. 580, ¶ 27 (App. 2017) ("filing of a notice of appeal generally divests the trial court of jurisdiction").
¶13 In this context, we conclude that Rose's notice of appeal was sufficient to confer jurisdiction over the appeal from the trial court's final judgment. See A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); see also Ariz. R. Civ. App. P. 9(c) (notice of appeal filed after order but before entry of resulting final judgment "treated as filed on the date of, and after the entry of, the judgment").
Discussion
¶14 Rose asks us to reverse the trial court's judgment dismissing her case with prejudice. She first complains that the court "failed to acknowledge or rule on" her objection to Jane's motion to dismiss. This is not accurate. The court expressly addressed Rose's response to Jane's motion, noting it did "not directly address [Jane]'s argument" and instead "raise[d] technical issues concerning how [Jane] filed her motion." The court concluded that Rose's objection was "not responsive" and "not well-taken."
¶15 Rose raises the same unfounded procedural challenges on appeal. She first argues that Jane's motion to dismiss was untimely and that, in ruling on it, the court evinced "bias as [Jane] was allowed to file whenever she wanted without consequence." Rose contends as she did below that, because Jane was personally served with the civil complaint on December 4, 2020, her motion should have been filed by December 24. See Ariz. R. Civ. P. 12(a)(1)(A)(i) (responsive pleading due "within 20 days after being served with the summons and complaint"). But, due to Rose's delay in filing the return of service with the trial court, Case Management Services entered an order dismissing the case for lack of service on December 20. Thus, Jane could not have filed her motion to dismiss at that time because the case had been dismissed. After Rose filed the return of service, the court vacated the order of dismissal and reinstated the civil case on December 29. Jane filed her motion to dismiss that day-the earliest she could have done so after Case Management Services entered the order of dismissal. Jane's motion was therefore timely and properly considered by the trial court.
¶16 Rose also contends Jane only filed a motion to dismiss the original complaint, not the amended complaint, and that she was deprived "of being able to respond appropriately" to a motion to dismiss her amended complaint. But Jane's motion to dismiss was still pending when Rose filed her amended complaint, and the trial court properly ruled on the motion as applied to the amended complaint. See Ariz. R. Civ. P. 15(a)(3) (after filing of motion under Rule 12(b), "amending a pleading as a matter of course does not, by itself, make moot the motion as to the adequacy of the pleading's allegations as revised in the amended pleading"). Indeed, the court expressly addressed and dismissed Rose's amended complaint.
¶17 Substantively, Rose challenges the trial court's conclusion that her claim in this case was barred because it is essentially the same claim already litigated before the probate court. She argues the court "failed to recognize this was a civil rights claim versus a probate claim." Rose, however, did not raise these issues in her response to Jane's motion to dismiss, which argued for precisely the preclusion ruling the trial court ultimately entered. Indeed, she did not raise them until her motion for reconsideration, filed in April 2021 after she had already appealed to this court. We therefore decline to address them. See Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, ¶ 15 (App. 2006) ("Generally we do not consider arguments on appeal that were raised for the first time at the trial court in a motion for reconsideration.").
¶18 Finally, Rose contends the trial court erred in refusing to stay this appeal to consider her motion for reconsideration. But Rose herself filed the notice of appeal in this case in March 2021, which led the trial court to conclude it had been divested of jurisdiction. See Henderson, 241 Ariz. 580, ¶ 27. She never filed a motion with this court seeking, much less articulating good cause for, suspension of her appeal. See Ariz. R. Civ. App. P. 3(b).
Attorney Fees
¶19 Jane requests an award of attorney fees, citing multiple potential grounds therefore. She contends inter alia that Trust A has incurred expenses as a result of this litigation, which are recoverable under A.R.S. § 14-11004. That statute authorizes us to order that "a party's reasonable fees, expenses and disbursements" arising out of and relating to a trustee's "good faith defense" of a judicial proceeding "involving the administration of the trust"-including attorney fees and costs-"be paid by any other party" to the judicial proceeding. Id. We, like the trial court, therefore grant Jane's request that Rose be required to reimburse Jane, as trustee, for the reasonable attorney fees and costs arising out of this appeal, pending Jane's compliance with Rule 21(b), Ariz. R. Civ. App. P. Rose's request for an award of costs on appeal is denied.
Disposition
¶20 For the foregoing reasons, we affirm the judgment of the trial court and award Jane her attorney fees and costs on appeal.