Yamamoto v. Yamamoto

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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 Guardianship ) of and Conservatorship of: ) ) MIYUKI K. YAMAMOTO, ) ) An Adult. ) _________________________________ ) ) DAVID YAMAMOTO, ) ) Appellant, ) ) v. ) ) JEANNIE YAMAMOTO, MIYUKI ) YAMAMOTO, ) ) Appellees. ) ) DIVISION ONE FILED: 05/08/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0132 DEPARTMENT A MEMORANDUM DECISION (Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. PB2010-000297 The Honorable Cynthia L. Gialketsis, Commissioner APPEAL DISMISSED Dominguez Law Firm by Antonio Dominguez Attorney for Appellant Phoenix Kercsmar & Feltus PLLC by Todd Feltus Jenessa GB Coccaro Attorneys for Appellees Scottsdale P O R T L E Y, Judge ¶1 David Yamamoto ( David ) appeals from the order directing him to return assets belonging to his mother, Miyuki Yamamoto ( Mother ), and freezing the remaining assets identified by Jeannie Yamamoto ( Jeannie ) in her Motion for Return of Assets and Either Releasing All Assets or Freezing Assets in Question. For the following reasons, we dismiss the appeal for lack of jurisdiction. PROCEDURAL BACKGROUND ¶2 David filed a Petition for Appointment of Guardian and Conservator in the probate division of the superior court, and voluntarily dismissed it in July 2010. A week later, Jeannie filed an ex parte motion to freeze assets, but the motion was denied on July 28, 2010. ¶3 with She filed a motion to reopen on August 20, 2010, along a Petition/Complaint for Return of Assets, Misrepresentation to the Tribunal, Elder Abuse, Exploitation of a Vulnerable Adult and Theft. The court granted her motion to reopen six days later and set a hearing in September 2010, which was subsequently continued to December. 2 After the parties filed a number of contested motions, the court eventually signed the order that forms the basis of this appeal. JURISDICTION ¶4 Our first task is to ensure that we have jurisdiction. Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997) (citation omitted). Although Jeannie and Mother believe there is jurisdiction, we disagree. ¶5 David filed his petition, but later voluntarily dismissed it before anyone had filed an answer or objection, or moved for summary judgment. As a result, the case was uncontested, see Ariz. R. Prob. P. 27, and the dismissal was automatic pursuant to Arizona Rule of Civil Procedure 41(a)(1)(A) even before the court formally signed the dismissal order. Spring v. Spring, 3 Ariz. App. 381, 383, 414 P.2d 769, 771 (1966) (dismissal is completely effective upon filing of the notice of dismissal). ¶6 The motion David filed to voluntarily dismiss his petition ended the matter and the court lost all jurisdiction to enter any further orders or take any other action with regard thereto. Id. The probate court therefore correctly determined that it did not have jurisdiction to address Jeannie s ex parte motion. The court similarly did 3 not have jurisdiction to address her motion to reopen the case to allow her to file a separate petition. ¶7 Although Jeannie filed her motion to reopen, there was nothing for the probate court to do. Moreover, the motion did not articulate a legal reason to reopen the dismissed case and reinstate David s petition because nothing was pending at the time the case was dismissed. motion did not conservatorship (West 2012). seek pursuant And, the petition accompanying the to to establish Ariz. Rev. a guardianship Stat. section or 14-1302 As a result, the court did not have jurisdiction to decide any motions after the case was dismissed and those actions are a nullity. Ariz. 530, 533, 652 See McHazlett v. Otis Eng'g Corp., 133 P.2d 1377, 1380 (1982). Furthermore, because the court lacked jurisdiction to reopen the case and rule upon the motions, we do not have jurisdiction over this appeal. Id. (citations omitted) ( If a [trial] court has no jurisdiction to issue an order an appeal from that order gives the appellate court no jurisdiction appeal. ). 4 except to dismiss the CONCLUSION ¶9 Based on the foregoing, we dismiss this matter for a lack of appellate jurisdiction. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ ANN A. SCOTT TIMMER, Judge /s/ ______________________________ ANDREW W. GOULD, Judge 5

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