Petramala v.Maricopa County Public Fiduciary
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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 AND CONSERVATORSHIP
FOR:
MICHAEL PETRAMALA, an Adult,
________________________________
MICHAEL THOMAS PETRAMALA, an
Adult,
Petitioner/Appellant,
v.
MARICOPA COUNTY PUBLIC
FIDUCIARY, as Guardian and
Conservator of Michael T.
Petramala; JUDITH MORSE,
Guardian ad Litem for Michael T.
Petramala,
Respondents/Appellees.
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1 CA-CV 09-0549
DIVISION ONE
FILED: 01/4/11
RUTH WILLINGHAM,
ACTING CLERK
BY: DN
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Not for Publication –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. PB2006-002295
The Honorable Karen L. O’Connor, Judge
AFFIRMED IN PART; DISMISSED IN PART
Baumann, Doyle, Paytas & Bernstein, P.A.
By Michael J. Doyle
Attorneys for Petitioner/Appellant Michael T. Petramala
Phoenix
Jardine, Baker, Hickman & Houston, P.L.L.C.
By Michael Warzynski
Phoenix
Attorneys for Respondent/Appellee Maricopa County
Public Fiduciary
Kessler Law Offices
By Eric W. Kessler
Attorney for Respondent/Appellee Judith Morse Guardian
Ad Litem for Petitioner/Appellant Michael T. Petramala
Judith A. Morse, P.C.
By Judith A. Morse
Guardian Ad Litem for Petitioner/Appellant Michael T.
Petramala
Mesa
Phoenix
K E S S L E R, Judge
¶1
Michael Thomas Petramala (“Petramala”) appeals from a
superior court order denying his motion for a new trial arising
out of the court’s denial of his petition to remove his guardian
ad
litem
(“GAL”)
Petramala’s
(“MCPF”).
and
approval
conservator,
For
the
of
Maricopa
following
an
accounting
County
reasons,
we
provided
Public
affirm
by
Fiduciary
the
order
relating to the accounting issue and dismiss the appeal relating
to the GAL issue.
FACTUAL AND PROCEDURAL HISTORY 1
¶2
In December 2002, Petramala attended a party where,
according
to
his
allegations,
several
1
people
assaulted
him.
Our earlier decisions, In re Petramala, 1 CA-CV 07-0285,
2008 WL 4149005 (Ariz. App. Apr. 8, 2008) (mem. decision) and In
re Petramala, 1 CA-CV 08-0330, 2009 WL 3460742 (Ariz. App. Oct.
27, 2009) (mem. decision), detailed the superior court’s
appointment of a guardian and conservator for Petramala and its
disposition of his petition to terminate the guardianship and
conservatorship. We include those facts here as relevant to the
issues in this appeal.
2
Petramala
filed
a
number
of
lawsuits
against
the
persons
involved in the alleged assault, including the attorney who was
hired
to
represent
several
Petramala
then
of
the
defendants
in
Petramala’s
campaign
of
harassment
actions.
¶3
started
a
against the guests at the party, their family members, and their
lawyers.
This harassment included filing numerous and repeated
lawsuits against these individuals and repeatedly calling and
visiting them, their employers, and their families.
¶4
call
Petramala ignored a superior court order that he not
or
harass
these
individuals.
Ultimately,
the
court
dismissed Petramala’s lawsuits as a sanction for his behavior.
Petramala then initiated new legal proceedings and continued his
harassment.
The
court
Petramala
pay
sanctions
to
in
these
various
totaling
more
proceedings
than
ordered
$30,000.
In
addition, the superior court’s presiding judge found Petramala
to be a vexatious litigant and ordered that he could not file
any more lawsuits without the presiding judge’s prior approval.
However, Petramala’s harassment continued.
¶5
The
(“Morse”)
as
superior
court
Petramala’s
GAL
then
and
appointed
Judith
authorized
guardianship and/or mental health petition.
Morse
A.
to
Morse
file
a
Morse did file a
Petition for Permanent Appointment of Guardian and Conservator,
asking
the
court
to
appoint
MCPF
3
to
serve
as
Petramala’s
guardian with mental health authority and as his conservator.
jury
found
that
Morse
had
proven
by
clear
and
A
convincing
evidence that Petramala was in need of a guardian and the court
appointed MCPF as his guardian with mental health authority and
his conservator.
¶6
Five
guardian
and
months
after
conservator,
the
superior
Petramala
court
appointed
petitioned
the
terminate the guardianship and conservatorship.
the
court
to
The court held
a three-day hearing on Petramala’s petition to terminate.
It
found by clear and convincing evidence that Petramala remained
incapacitated
and
conservatorship
Petramala’s
needed
and
a
limited
medical,
guardian,
the
but
guardianship
psychiatric,
terminated
to
the
control
psychological,
or
over
other
professional care, counseling, treatment, or service.
¶7
MCPF then petitioned the superior court to approve its
accounting and request for fees in connection with the fiduciary
services it had provided to Petramala over the preceding two
years.
Petramala
objected
generally
to
the
petition
and
requested a hearing.
¶8
In a separate proceeding, Morse obtained an injunction
against
harassment
prohibiting
Petramala
from
contacting
her
“except through attorneys, legal process, [and] court hearings”
and
through
injunction
his
also
guardian
prohibited
and
court
Petramala
4
appointed
from
counsel.
going
to
or
The
near
Morse’s workplace.
Petramala petitioned the court to remove
Morse as his GAL on the grounds that the injunction against
harassment created a conflict of interest that prevented her
from representing his best interests. 2
¶9
The
superior
court
conducted
a
hearing
on
MCPF’s
petition for approval of its accounting and Petramala’s motion
to remove Morse as his GAL.
hearing.
Petramala did not appear at the
His counsel advised the court that he was not present
because of the injunction against harassment obtained by Morse
and asked it to continue the hearing, which the court denied.
¶10
After hearing argument on Petramala’s motion to remove
Morse
as
GAL,
the
superior
unsigned minute entry.
court
denied
the
motion
in
an
The court found no conflict of interest
based on the history of the case and Petramala’s conduct.
It
opined that a new GAL would only face the same issues that Morse
faced with Petramala.
The court ordered that Petramala could
contact Morse for purposes relating to her duties as GAL once
per business day, and only during business hours, via telephone,
facsimile, or electronic mail.
The court also granted Morse’s
unopposed request for an award of fees and costs arising out of
her service as Petramala’s GAL.
2
Petramala also requested the court’s permission to defend
himself in the proceedings on the injunction against harassment.
5
¶11
In the same hearing, the superior court heard argument
on MCPF’s request for fees.
Petramala’s counsel stated that
Petramala objected only to MCPF’s request for authorization to
collect its fees from him now or in the future, and not to
MCPF’s
time
expended
or
billed.
The
court
approved
MCPF’s
accounting in a signed order.
¶12
Petramala
filed
a
motion
for
new
trial
on
MCPF’s
petition for approval of its accounting, Morse’s petition for
award of fees and costs, and Petramala’s petition for removal of
Morse.
He
also
contact
with
challenged
Morse.
He
the
argued
court’s
he
was
order
denied
limiting
a
fair
his
trial
because he was not able to attend the hearing to present his
testimony
regarding
why
the
court
should
have
denied
MCPF’s
petition for approval of its accounting.
In support of his
motion,
that
he
offered
his
affidavit
stating
he
wanted
to
testify (1) that MCPF’s bills were not warranted because its
actions as his fiduciary had violated his constitutional rights,
and (2) that Maricopa County should not pay Morse’s attorneys’
fees because it would be an illegal use of tax dollars.
court denied the motion.
The
Petramala timely appealed.
JURISDICTION
¶13
We first consider whether this Court has jurisdiction
over Petramala’s appeal.
Sorensen v. Farmers Ins. Co. of Ariz.,
191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997) (stating
6
that an appellate court has an “independent duty to determine
whether it has jurisdiction to consider an appeal”). 3
¶14
Petramala appeals the superior court’s order denying
his motion for new trial.
appealable
section
pursuant
12-2101(F)(1)
to
Although such an order is generally
Arizona
(2003),
Revised
we
are
Statutes
nevertheless
(“A.R.S.”)
bound
to
examine the “character of the proceedings which resulted in the
order appealed from to ascertain jurisdiction in any particular
case.”
Maria v. Najera, 222 Ariz. 306, 308, ¶ 9, 214 P.3d 394,
396 (App. 2009) (citation and internal quotation marks omitted).
If the underlying order is not appealable, “appellate review may
not be obtained by filing a motion for new trial and appealing
from
the
denial
2101(F)(1).”
¶15
of
that
motion
pursuant
to
section
12-
Id. at ¶ 12.
Petramala’s motion for new trial was directed at the
court’s unsigned minute entry denying his petition to remove
Morse, and its signed minute entry approving MCPF’s accounting. 4
3
Pursuant to our August 4, 2010 order, the parties filed
simultaneous briefs addressing the Court’s jurisdiction to hear
this appeal.
4
Petramala’s motion also asked for a new trial on the
court’s granting of Morse’s petition for fees and costs,
limiting his contact with Morse, and denying his request to
represent himself in the proceedings brought by Morse involving
the injunction against harassment.
In his opening brief,
Petramala presented argument only on the denial of his petition
to remove Morse as his GAL; therefore, he waived review of the
other issues.
7
On appeal, Petramala argues these orders were final, appealable
orders pursuant to A.R.S. § 12-2101(J), which grants this Court
jurisdiction over appeals from a “judgment, decree, or order”
entered in any formal probate proceeding, provided the order is
similar to a final judgment or decree.
See Ivancovich v. Meier,
122 Ariz. 346, 353, 595 P.2d 24, 31 (1979).
¶16
The
superior
court’s
order
denying
Petramala’s
petition to remove his GAL is not appealable under A.R.S. § 122101(J).
Procedurally,
we
lack
jurisdiction
to
consider
Petramala’s petition to remove his GAL because the minute entry
denying the motion for new trial was not signed.
See Ariz. R.
Civ. P. 58(a); Eaton Fruit Co. v. Cal. Spray-Chem. Corp., 102
Ariz. 129, 130, 426 P.2d 397, 398 (1967).
Substantively, we
lack jurisdiction because the order denying the petition did not
resolve
the
formal
court-supervised
making the appeal interlocutory.
guardianship
proceedings,
See In re Estate of McGathy,
CV-10-0102-PR, 2010 WL 4878290, at *2, ¶ 10, *4, ¶ 17 (Ariz.
Dec. 02, 2010) (holding that A.R.S. § 12-2101(J) “permits appeal
of the final disposition of each formal proceeding instituted in
an
unsupervised
interlocutory
administration”
appeal
before
a
but
final
8
does
order
not
is
permit
entered
in
an
a
estate). 5
supervised administration of an
without
jurisdiction
to
consider
Therefore, we are
Petramala’s
appeal
of
the
court’s denial of his motion for new trial on the GAL issue.
¶17
However, the superior court’s order approving MCPF’s
accounting is appealable under A.R.S. § 12-2101(J), as it is a
signed order and addresses the first and final accounting filed
by
MCPF
in
therefore
its
have
capacity
as
jurisdiction
Petramala’s
over
conservator.
Petramala’s
appeal
We
from
the
court’s denial of his motion for new trial directed at that
order.
McGathy, CV-10-0102-PR, 2010 WL 4878290, at *2, ¶ 10;
Maria, 222 Ariz. at 308, ¶ 12, 214 P.3d at 396.
DISCUSSION
¶18
Petramala
argues
that
the
superior
court
erred
in
denying his motion for new trial, which was based on the court’s
approval of MCPF’s accounting.
pursuant
to
Rule
59(a)(1)
Petramala moved for a new trial
of
the
Arizona
Rules
of
Civil
Procedure, which permits a court to grant a new trial when an
irregularity of the proceedings caused the moving party to be
deprived of a fair trial. 6
We review a court's decision to deny
5
While Petramala could have sought special action review of
the superior court’s denial of his petition to remove his GAL,
we decline to consider his appeal as a special action.
6
Although Petramala’s motion cited other provisions of Rule
59, it did not contain any discussion of, or argument pursuant
to, those provisions.
9
a motion for new trial for an abuse of discretion.
White v.
Greater Ariz. Bicycling Ass’n, 216 Ariz. 133, 135, ¶ 6, 163 P.3d
1083, 1085 (App. 2007).
¶19
Petramala contends the accounting hearing was unfair
because Morse’s injunction against harassment prevented him from
participating
MCPF’s
in
the
petition.
permitted
hearing
We
Petramala
proceedings.
or
testifying
disagree.
contact
The
with
in
opposition
injunction
Morse
to
expressly
through
legal
Therefore, the injunction was not an impediment to
his participation in the hearing, either telephonically or in
person.
his
Moreover, Petramala was represented at the hearing by
counsel,
and
the
record
contains
no
indication
that
he
argued Petramala was prejudiced by not being at the hearing or
made an offer of proof regarding the testimony Petramala would
have offered if he had been present.
Valley Nat’l Bank of Ariz.
v. Meneghin, 130 Ariz. 119, 122, 634 P.2d 570, 573 (1981) (“Any
irregularity in procedure may be waived if a party expressly or
implicitly
consents
to
it,
as
by
acquiescing
or
failing
to
object to the procedure.”); see also Stewart v. Woodruff, 19
Ariz. App. 190, 195, 505 P.2d 1081, 1086 (1973) (stating that
the party offering evidence must make an offer of proof in order
to preserve any claim that the exclusion of the evidence was
10
error). 7
Indeed, the court’s minute entry description of the
hearing indicates that Petramala’s counsel expressly avowed that
Petramala did not object to the time MCPF billed or expended in
providing services to him.
¶20
We find no error in the superior court’s denial of
Petramala’s motion for new trial on MCPF’s request for approval
of its accounting.
CONCLUSION
¶21
For
the
foregoing
reasons,
we
affirm
the
superior
court’s denial of Petramala’s motion for new trial as to the
7
Petramala’s counsel did move to continue the hearing, but
because Petramala has not provided a transcript of the hearing
on appeal, we cannot determine the basis of the motion.
See
ARCAP 11(b). In any event, we assume the court’s denial of that
request was supported by the evidence.
Baker v. Baker, 183
Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
11
accounting issue and dismiss for lack of jurisdiction the appeal
as to the issue relating to the GAL.
/s/
DONN KESSLER, Presiding Judge
CONCURRING:
/s/
DANIEL A. BARKER, Judge
/s/
JON W. THOMPSON, Judge
12
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