BALL v. BLUNT

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In the Matter of the Estate of: ARTHUR PAUL BLUNT, Deceased. _________________________________ DENNIS ANDREW BALL, Trustee of the Eleanor R. Ball Irrevocable Trust, Appellant, v. AMANDA BLUNT, as Personal Representative of the ESTATE OF ARTHUR PAUL BLUNT, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CV 11-0771 DIVISION ONE FILED: 11/13/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. PB2011-050547 The Honorable John R. Doody, Commissioner AFFIRMED Dennis Andrew Ball Appellant In Propria Persona Braun, Siler, Kruzel, P.C. By Kenneth J. Peace Kelley L. Cathie Attorneys for Appellee Phoenix Scottsdale H O W E, Judge ¶1 Dennis Andrew Ball ( Ball ) appeals from an order denying reconsideration of an order striking his petition for order to show cause that sought an inventory of the Estate of Arthur Paul Blunt from the personal representative ( PR ). For the reasons stated below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND1 ¶2 In 2004, Arthur Blunt, an attorney, began representing the guardian/conservator of Ball s elderly mother, Eleanor Ball. The superior court had established a guardianship because of financial disputes between Eleanor and Ball. away in May 2006, and the court Eleanor passed terminated the guardian/conservatorship and approved Blunt s fees in June 2007. No appeal was filed. Ball, however, had been unsuccessfully filing related actions in district court and bankruptcy court. ¶3 2011, Blunt passed away on March 9, 2011. Ball against filed Blunt s claims Estate in for Maricopa County unspecified On April 13, Superior personal Court injuries, conspiracy to defraud, and fraud against a vulnerable adult and Eleanor s Trust. The PR disallowed Ball s claim. Ball then 1 Much of the answering brief relies on pleadings in Eleanor Ball s probate matter, PB2004-001053. Although the PR included these pleadings in its appendix, these documents are not in the record on appeal. However, this court may take judicial notice of the records of the Superior Court. State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973). Accordingly, we refer to these probate court records. 2 filed a petition for order to show cause seeking an inventory of Blunt s Estate s assets. ¶4 The trial court granted the PR s motion to strike the petition for order to show cause pursuant to Arizona Rule of Civil Procedure 12(f).2 Ball filed a Reply to Order that the trial court deemed a motion for reconsideration and denied in an unsigned order. Ball filed a notice of appeal from that order. The trial court subsequently entered and signed an identical order denying the motion for reconsideration. DISCUSSION I. JURISDICTION ¶5 the The PR contends this court lacks jurisdiction because notice of appeal was premature. Although Ball filed a notice of appeal from an unsigned order, the trial court filed an identical, appeal. was signed, order two weeks after the notice of Ball did not amend his notice of appeal to indicate he appealing from this subsequent 2 signed order. However, The PR should have filed a motion to dismiss rather than a motion to strike. See In re Estate of Shumway, 197 Ariz. 57, 61, ¶ 6, 3 P.3d 977, 981 (App. 1999) (holding that a motion to strike that directly attacked the merits of [the] petition was inappropriate and a motion for summary judgment should have been used), vacated in part on other grounds by, 198 Ariz. 323, 9 P.3d 1062 (2000); see also Colboch v. Aviation Credit Corp., 64 Ariz. 88, 92, 166 P.2d 584, 587 (1946) (holding motion to strike does not serve the same purpose as a motion to dismiss, which tests the sufficiency of a pleading). Nonetheless, Ball s motion for reconsideration addressed the merits of the issue raised in the motion to strike, therefore, he was not prejudiced. 3 Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981), establishes a limited exception to the final judgment rule that allows a notice of appeal to be filed after the trial court has made its final decision, but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial. Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (emphasis added). No motions were pending when Ball filed his notice of appeal. The trial court s completion of the ministerial act of signing an identical copy of a previously unsigned order after the notice of appeal does not deprive this court of appellate jurisdiction. The Barassi exception applies, and the premature notice of appeal is effective in this case. ¶6 Ball asked this Court to sanction the PR pursuant to Rule 12(b)(6) for arguing that the premature notice of appeal was ineffective. for sanctions. This citation does not support Ball s request Furthermore, the PR s argument does not constitute sanctionable conduct. ¶7 The PR also argues that we lack jurisdiction because the order on appeal was not a final order; it merely confirmed Ball s status as a non-claimant. Ball appealed from the October 27, 2011, order that concluded that Ball s petition for order to show cause did not constitute an action on his claim against the Estate, which the PR had previously disallowed. 4 The court had previously ruled that Ball lacked standing to demand an order to show cause because he had no claim against the Estate. October 27 order was final and appealable The because conclusively disposed of Ball s claims against the Estate. it See Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981) (holding to final judgments which dispose of all claims and all parties ). This order that jurisdiction effectively Estate. October No 27 appealable pursuant claims order. order to disposed of of remain appeals all before Therefore, and Arizona we have Revised we is Ball s the limited claims trial conclude jurisdiction Statutes against court it over ( A.R.S. ) was after the the a final, this appeal section 12- 2101(A)(1) (Westlaw 2012).3 II. ¶8 DENIAL OF MOTION FOR RECONSIDERATION As noted above, the trial court treated Ball s Reply to Order (Hearing) as a motion for reconsideration. We review the trial court s ruling on a motion for reconsideration for an abuse of discretion. See McGovern v. McGovern, 201 Ariz. 172, 175, ¶ 6, 33 P.3d 506, 509 (App. 2001). ¶9 Ball argues that he was entitled to receive a copy of the inventory of Estate assets pursuant to a March 2011 order to the PR that required the PR to provide an inventory to any 3 Absent material revisions to this decision, we cite the current version of applicable statutes. 5 interested 3706(B). persons who requested a copy. See A.R.S. § 14- But Ball had no legitimate interest in Blunt s Estate. An interested person is defined in A.R.S. § 14-1201(28) as any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. . . . Ball had no action or claim pending against Blunt s Estate in any court when the PR mailed the inventory and moved to strike the petition for order to show cause. Ball s claim on May 11, 2011. The PR had disallowed By that time, all of the related actions had been dismissed or terminated. ¶10 Ball contends he was an interested party with a pending claim because he responded to the denial of his claim in a timely manner by filing a petition for order to show cause within sixty days from the date his claim was disallowed, as A.R.S. § 14-3806(A) requires. the claimant has sixty days Once the PR disallows a claim, under § 14-3806(A) to file a petition for allowance in the court or commence[] a proceeding against the [PR]. ¶11 But as the trial court concluded, Ball s petition for order to show cause did not constitute an action of his claim against [Blunt s] estate[.] The petition for order to show cause merely cited the Arizona federal court proceedings filed 6 April 4, 2011. This did not satisfy § 14-3806(A). Furthermore, this proceeding terminated on August 2, 2011, and because all claims had been either disallowed or terminated, Ball was not an interested person entitled to a copy of the inventory.4 See A.R.S. §§ 14-1201(28), -3706(B). III. Attorneys Fees on Appeal ¶12 The PR requests an award of damages and attorneys fees on appeal as a sanction pursuant to A.R.S. § 14-1105 and Arizona Rule of Civil Appellate Procedure ( ARCAP ) 25. Section 14-1105(A) authorizes an award of attorneys fees and expenses to the estate when unreasonable conduct. the opposing party has engaged in Sanctions are authorized under ARCAP 25 when an appeal or motion is frivolous or taken solely for the purpose of delay, or when a party is guilty of an unreasonable infraction of the rules of appellate procedure. ¶13 Ball s appeal is frivolous. Since 2005, Ball has filed numerous petitions, actions and pleadings against Blunt and his Estate in the Maricopa County Superior Court, United States District Court for the District of Arizona, United States Bankruptcy Court, and United States District Court for the Southern District of Illinois, all of which arose from the same 4 On appeal, Ball refers to A.R.S. § 46-456, which provides a civil remedy for financial exploitation of vulnerable adults. No such claim is pending in any court as far as this record indicates. Accordingly, we do not address this issue. 7 event.5 In each case, Ball s claims were dismissed; nevertheless continues to litigate against Blunt s Estate. the reasons set forth in this decision, this conduct he For is unreasonable and a violation of both ARCAP 25 and A.R.S. § 141105. We therefore award the PR its reasonable costs and We have appellate jurisdiction over this appeal. We attorneys fees upon its compliance with ARCAP 21. CONCLUSION ¶14 affirm the orders striking Ball s petition for order to show cause. __/s/__________________________________ RANDALL M. HOWE, Judge CONCURRING: _/s/____________________________ MAURICE PORTLEY, Presiding Judge _/s/____________________________ PATRICIA A. OROZCO, Judge 5 In 2005, Ball, acting as the successor trustee to Eleanor s Living Trust, filed an action in the United States Bankruptcy Court for the District of Arizona. The bankruptcy court dismissed the matter in December 2007. Ball also filed two Adversary Proceedings in the bankruptcy court in 2009. The first named Morgan Stanley as a defendant, and the court terminated the proceeding in 2009. The second named Blunt s Estate as one of several defendants, and the court terminated it in 2011. Ball filed a civil action in the United States District Court for the District of Arizona simultaneously with the second Adversary Proceeding. The civil case was also terminated in 2011. In May 2009, Ball alleged in the United States District Court for the Southern District of Illinois that Blunt defrauded Eleanor s Trust. The district court dismissed the action. 8

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