MacMullin v. Hon. Cunanan/Childers

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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 JOHN MACMULLIN, ) ) Petitioner, ) ) v. ) ) THE HONORABLE DAVID O. CUNANAN, ) Commissioner of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of ) MARICOPA, ) ) Respondent Commissioner, ) ) DONAL D. CHILDERS, Special ) Administrator of the Estate of ) Sylvia M. H. Levering, ) (Decedent); MARION HUBBARD, ) Conservator, ) ) Real Parties in Interest. ) __________________________________) Court of Appeals Division One No. 1 CA-SA 11-0155 DIVISION ONE FILED: 07/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL Maricopa County Superior Court No. PB1995-001647 PB2003-004924 DEPARTMENT B DECISION ORDER The court has reviewed the Petition for Special Action, the Special Administrator s response, the Conservator s response, and petitioner s reply. We may accept jurisdiction when the case presents a pure question of law for which there is no equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a); see also State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001). [T]he appropriate method of seeking review of a trial court s judgment on remand entered pursuant to specific directions of an appellate court is through special action appellate because court s] appealable. entry judgment mandate specific of based and opinion on [an is not Scates v. Ariz. Corp. Comm n, 124 Ariz. 73, 75, 76, 601 P.2d 1357, 1359, 1360 (App. 1979). In the exercise of our discretion, we accept jurisdiction of this special action and, for the following reasons, grant relief in part. Petitioner first argues the superior court misconstrued a prior order of this court in ordering on June 3, 2011 that an award of attorney s fees and costs in the amount of $13,249.22 in favor of the Conservator be petitioner s share of the estate. offset entirely against We agree with the petitioner. Our order dated July 1, 2008, provided that the award to the Conservator of $13,065.36 in attorney s fees and $183.86 in costs be assessed against the Estate, not against petitioner. Petitioner offset against also his argues share the of superior the court distribution erroneously the entire liability for $1,820.00 in attorney s fees and $70.00 in costs awarded to the Special Administrator by this court in an order dated July 3, 2007. We disagree with the petitioner. This court awarded the Special Administrator s request for fees and 2 costs based on Arizona Rule of Civil Appellate Procedure 25, for the reason that an appeal petitioner brought had no merit. Finally, petitioner argues the superior court violated our mandate by approving Conservator s already counsel approved payment that and of fees constitute paid. incurred double Petitioner by of payment argues the the fees Special Administrator did not demonstrate that this court s mandate had been complied with in that regard. We are unable to conclude from court the record that the superior erred in approving payment of the Conservator s attorney s fees. Accordingly, and upon consideration, IT IS ORDERED exercising our discretion to accept jurisdiction of this special action; IT IS FURTHER ORDERED granting petitioner relief only insofar as we vacate that portion of the superior court s June 3, 2011, judgment that provides that the entire liability for this court s award attorney s fees petitioner, and to and we the $183.86 direct on Conservator in costs remand of be that $13,065.36 assessed the in against superior court adjust the distribution so that the estate, and not petitioner, is liable for that award; IT IS FURTHER ORDERED denying consolidate; 3 petitioner s motion to IT IS FURTHER ORDERED dissolving the stay entered on June 21, 2011. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ DANIEL A. BARKER, Presiding Judge /s/ MAURICE PORTLEY, Judge 4 this court

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