In re Miller, (2023)

• Decision Date: 24 January 2023
• Docket Number: AP2022-0002,AP2022-0003,Ref: AV2020-0054
• Citation: In re Miller, AP2022-0002, AP2022-0003, Ref: AV2020-0054 (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Jan 24, 2023)
• Parties: In the Matter of the Estate of: Cecelia Mae Miller DOB: 06/25/1938 DOD: 05/06/2020 Decedent
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

In the Matter of the Estate of: Cecelia Mae Miller DOB: 06/25/1938 DOD: 05/06/2020 Decedent

Nos. AP2022-0002, AP2022-0003

Ref: AV2020-0054

Judicial Court of the Tohono O'odham Nation Adult Civil Division

January 24, 2023

Colin Bradley and AssociatedCounselAlisa Gray for AppellantsJennifer E. Miller and Richard J. Perry.

Roberta Armstrong and AssociatedCounselChristopher Jeffery for AppelleeSandra Miller.

Before Judges David M. Osterfeld, Barbara Atwood, and Mashone Antone.

OPINION

Having considered the Tohono O'odham Nation Trial Court("Trial Court") record, the filings on appeal, and argument presented December 13, 2022. this Court finds the Trial Court is not a convenient or practical forum for the probate of the Cecelia Mae Miller Estate ("Estate"), as the decedent was domiciled in Maricopa County, most assets are located there, most heirs live there, and ancillary probate proceedings have begun in Maricopa County Superior Court.This Court therefore directs the Trial Court to stay further proceedings in the probate of the Estate and to take all steps necessary to enable the Maricopa County Superior Court to move forward as the main probate of the Estate.

While this Court has consolidated AP2022-0002 and AP2022-0003 for this appeal, this decision addresses only AP2022-0002.For reasons explained below, we strike the Trial Court orders issued between August 27, 2021, to and including, the order denying Appellants' Motion to Dismiss filed May 31, 2022 except for the specific order to open probate in Maricopa County Superior Court included within the order filed November 8, 2021.Also, given this decision in AP2022-0002 and the stayed briefing and argument on the second appeal AP2022-0003, we direct the Trial Court to reconsider its orders issued before August 27, 2021, and after May 31, 2022.Appellants are not foreclosed from pursuing their appeal in AP2022-0003 after the Trial Court rules on reconsideration of the remaining Orders.

We have jurisdiction to hear this appeal under the Constitution of the Tohono O'odham Nation (the Nation's Constitution), Article VIII, § 7.The judicial power to adjudicate is in Art. VIII, Sections 2and10 of the Nation's Constitution.

I.FACTUAL BACKGROUND

Cecelia Mae Miller, a member of the Tohono O'odham Nation, died on May 6, 2020.On July 8, 2020, Ms. Miller's family through Appellants, filed a Petition to Appoint Personal Representative and Probate the Estate, attaching a copy of Ms. Miller's death certificate, proof of enrollment, and a copy of her Last Will and Testament, dated January 7, 2003.

The Trial Court held the initial hearing on August 26, 2020.In its resulting Order filed August 27, 2020, the Trial Court found Cecelia died with a valid will, appointed Appellants as co-personal representatives (also separately ordered on August 27, 2022), required filing of an inventory and appraisement by November 24, 2020, directed filing of the Perry Miller Trust documents, and set a review hearing for February 24, 2021.^[1]The Court issued letters of administration on September 9, 2020.

Appellants filed the Perry Miller Trust documents on October 29, 2020.They also filed a Preliminary Probate Report on January 11, 2021, noting Cecelia Mae Miller signed her will when she signed the Perry Miller Trust ("Trust").Although Cecelia had consulted an attorney in 2019 to draft a new will and Power of Appointment Trust, the Report said she died before approving and signing those documents.The Appellants also reported that all bank accounts and real estate were located off the Tohono O'odham Nation lands, listed the assets not yet transferred into the Trust, and documented the receivables and debts for the Estate.

The Trial Court issued a Letter of Appointment on January 14, 2021, letting the co-personal representatives act for the Estate, even independent of each other, and let them transfer and convey title to any Estate property.On February 24, 2021, the same day of the review hearing, Sandra Miller, Appellants' sister, and heir to the Estate, appeared through counselRoberta Armstrong and objected to any transfer of Cecelia Miller's 641 W. Linger Lane ("Linger Lane") home to the Perry Miller Trust.Sandra Miller also objected to any change to the operation and ownership of the Fry Bread House, L.L.C.Before Cecelia Mae Miller's death, she and Sandra Miller lived together at the Linger Lane home and Sandra managed and ran the Fry Bread House business.

In its resulting Order from the February 24, 2021 review hearing, the Trial Court found Cecelia died with a valid will and testament, found the Linger Lane property was in Maricopa County, Arizona, and asked the parties to brief five issues.First, whether Cecelia Miller had issued any written direction on acts related to the Linger Lane property and the Fry Bread House.Second, whether Cecelia Mae Miller owned the Linger Lane property at her death.Third, whether the statute of frauds would bar Sandra Miller's claim to the Linger Lane property.Fourth, whether the Maricopa County Superior Court should resolve the dispute over the Linger Lane property given that the property is in Maricopa County and "[the trial][c]ourt's subject matter jurisdiction is limited since it cannot entertain a quiet title action".Fifth and final, whether the Linger Lane property and the Fry Bread House L.L.C, were subject to equal division among the heirs or were subject to the pour over provisions of the existing will.The Trial Court also scheduled a Status Hearing for August 25, 2021.

The parties finished briefing their answers to the Trial Court's questions in late August and the Court held the scheduled August 25, 2021, Status Hearing.The resulting Order recognized the Linger Lane property was not within the Nation's jurisdictional boundaries and held it would "likely overstep its subject-matter jurisdiction by ordering the Linger Lane property is subject to being poured over''^[2] to the Perry Miller trust.The Court then set a Status Hearing for October 13, 2021.

On November 8.2021, the Trial Court issued its Order reviewing the October 13, 2021, Status Hearing.The Court found that it lacked subject matter jurisdiction over the Linger Lane property and directed the parties to file an ancillary probate in the Maricopa County Superior Court.The Court set a status hearing on January 12, 2022, to review the probate's progress.

After the January 12, 2022, status hearing, the trial court denied Appellants' request for a stay of its Order directing the parties to open an ancillary probate for the Linger Lane property in Maricopa County.The Court also set a status hearing for February 16, 2022, at 1:30 p.m.

On February 22, 2022, the Trial Court issued its status hearing order reviewing the case and expressed concern the Appellants had not yet started the ancillary probate in Maricopa County as it had directed on November 8, 2021.The Court repeated that it lacked subject matter jurisdiction over the Linger Lane property and reviewed the basis for its conclusion that Sandra Miller had a claim for unjust enrichment because Appellants had caused an undue delay.Based on these conclusions, the Trial Court directed Sandra Miller's attorneys, Roberta Armstrong and Christopher Jeffery, to file an Affidavit of Attorney's Fees and to serve it on the Appellants.The Trial Court also ordered the parties to exchange specific information it believed would help further claims before the Maricopa County Superior Court.Finally, the Court set a status hearing for March 9, 2022.

On March 7, 2022, Appellants filed their request for the Court to issue certified, embossed copies of Cecelia Miller's Last Will and Testament, Letters of Administration issued August 27, 2020, and an Order of the same date finding Cecelia Miller died leaving a valid will.Then, on March 8, 2022, Appellants filed notice they had hired an attorney to help them file the ancillary probate in Maricopa County as ordered, and reported they expected to file it that week.

At the March 9, 2022, status hearing, the Court heard Appellants' request for certified, embossed copies of documents from the record and explained Appellants would receive certified copies of the copy of the will, not the original.At this notice, attorney Roberta Armstrong asked if the Court opened probate with a copy of the will and not the original version.The Court confirmed, noting that Appellants' Petition clarified they filed a copy of the will.The Court offered to have the Appellants testify under oath about the copy of the will they filed and if they knew where the original version of the will was located.The testimony from Appellants and Sandra Miller revealed no one knew the location of Cecelia Miller's original will.^[3]

The Court then noted that Roberta Armstrong entered the case after the initial hearing.The Court confirmed it had elicited testimony, to its satisfaction, to open the probate.The Court also affirmed its power to open probate with a copy of the will.The Court let every party present ask questions of the Appellants to elicit testimony and information to determine whether the copy of the will could sustain the probate.After the questioning and having evaluated the testimony, the Court found the copy of the will sufficient to move forward with the probate.No party objected to that finding.The Court then scheduled a continued Status Hearing on March 16, 2022.^[4]

At the continued Status Hearing on March 16, 2022, the Court again confirmed it lacked subject matter jurisdiction over the Linger Lane property and again requested an affidavit of attorneys' fees from Sandra Miller.The Court also placed Richard Perry, Jennifer Miller, and Sandra Miller under oath and asked them...