MacMullin v. Childers (In re Estate of Levering)
| Decision Date | 09 April 2013 |
| Docket Number | 1 CA-CV 12-0326 |
| Parties | In the Matter of the Estate of: SYLVIA M.H. LEVERING, Deceased. JOHN MACMULLIN, Petitioner/Appellant, v. DON CHILDERS, as Special Administrator; MARION L. HUBBARD, conservator (now deceased), Respondents/Appellees. |
| Court | Arizona Court of Appeals |
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
(Not for Publication -
of Civil Appellate
Procedure)
Appeal from the Superior Court in Maricopa County
Cause Nos. PB1995-001647; PB2003-004924
The Honorable David O. Cunanan, Judge
AFFIRMED
John MacMullin
Petitioner/Appellant In Propria Persona
Phoenix
Law Office of Scott E. Boehm, P.C.
by Scott E. Boehm
Phoenix
and
Hadley, Poach & Anderson, P.C.
by William G. Poach, Jr.
Attorneys for Respondents/Appellees
Peoria
¶1 This dispute arises from protracted proceedings involving the conservatorship and probate of the estate of Sylvia M. H. Levering, of which John MacMullin is a devisee. MacMullin appeals from the probate court's ruling determining that neither the Special Administrator nor his counsel acted in bad faith by erroneously asserting that MacMullin, rather than the estate, was accountable for certain fees and costs awarded in a previous appeal. MacMullin contends that the probate court improperly appointed a discovery master for the dispute, that the discovery master abused his discretion by denying discovery of attorney files and by refusing to consider a reply that MacMullin filed, and that the probate court's finding of no bad faith was not supported by the facts. We disagree with all of MacMullin's contentions, and therefore affirm.
¶2 In June 2007, by memorandum decision in 1 CA-CV 06-0333, this court largely affirmed the probate court in an appealby which MacMullin, as the sole appellant, challenged an award of fees and costs to the Conservator. Related to that decision, in August 2007, this court entered an order "awarding Appellee attorney's fees in the amount of $13,065.36 and costs in the amount of $183.86." This award of appellate fees and costs was invalid, however, because MacMullin had filed for Chapter 13 bankruptcy before its entry. Accordingly, once the bankruptcy stay was lifted, the Conservator moved to reinstate the award. In July 2008, after holding a telephonic hearing, this court entered an order "reinstating the court's order dated August 20, 2007, against the Estate for Appellee's attorney's [fees] in the amount of $13,065.36 and $183.86 in costs."
¶3 Almost two years later, in March 2011, the Special Administrator, Don Childers, filed a petition in the probate court requesting final settlement and distribution of the estate. The petition asserted that MacMullin had filed three appeals, all of the appeals had been resolved in favor of the estate, and attorney's fees and costs had been awarded against MacMullin in two of the appeals, including 1 CA-CV 06-0333. The Special Administrator argued that the amounts of the appellate fee and cost awards should be offset against MacMullin's share of the estate, and attached the August 2007 order from 1 CA-CV 06-0333. The July 2008 order, however, was not attached.
¶4 MacMullin filed an objection to that portion of the petition that sought to charge the fees and costs from 1 CA-CV 06-0333 against his share of the estate. Attaching a copy of the July 2008 order, MacMullin argued that that order clearly stated that the fees and costs were to be awarded "against the Estate."
¶5 In June 2011, the probate court held oral argument on the Special Administrator's petition and MacMullin's objection. At oral argument, the Special Administrator contended that the logical conclusion to be drawn from the award in 1 CA-CV 06-0333 was that the fees and costs were awarded against the appellant, MacMullin. MacMullin contended that the parties had argued in the Court of Appeals about whether the fees and costs should be applied against him, and that the court's July 2008 order specifically concluded that the fees and costs were to be awarded against the estate.
¶6 The probate court found that it was appropriate to assess the award against MacMullin, explaining:
It doesn't make sense to the Court that under that particular scenario, in essence, the Court of Appeals would have awarded fees against the estate, which would have been paid by the same party that was, the same party that was prevailing. It doesn't make sense, logical sense that they would do that within that context.
Accordingly, the probate court entered an order approving the Special Administrator's final account.
¶7 MacMullin promptly filed a petition for special action in this court, arguing, inter alia, that the probate court's order violated the June 2008 order. In a July 2011 decision order, this court accepted jurisdiction and granted relief to MacMullin regarding the 1 CA-CV 06-0333 award,1 concluding that the July 2008 order assessed fees and costs against the estate and not against MacMullin.
¶8 After the decision order issued, the Special Administrator again filed a petition in probate court for the final settlement and distribution of the estate. The petition included a request under A.R.S. § 14-3720 for an award of $7,962.89 in attorney's fees and expenses incurred between July 1, 2010, and July 31, 2011. The requested amount included fees and costs incurred in asserting the first petition for settlement and in defending against MacMullin's special action.
¶9 MacMullin objected to the fees and costs incurred in asserting the previous petition, responding to the previousobjection, and defending the special action. MacMullin argued that the Special Administrator's counsel, William G. Poach, Jr., did not act in good faith or for the benefit of the estate, as required by A.R.S. § 14-3720, when he attempted to impose the fees and costs awarded in 1 CA-CV 06-0333 against MacMullin's share of the estate. MacMullin argued that Poach sought to impose the fees against him despite actual knowledge of the proceedings in this court and the July 2008 order assessing the fees against the estate. MacMullin further argued that Poach and Peter Williams, counsel for the Conservator, had not been honest in the proceedings before the probate court concerning their knowledge of the prior appellate proceedings and orders.
¶10 The court set an evidentiary hearing on MacMullin's objection. In the course of seeking a possible continuance of the hearing, MacMullin sent an e-mail to Poach stating: "ok, as to documents I want all documents from you and Peter Williams, privileged or otherwise, mentioning the $13,000+ fees in Court of Appeals order 1 CA-CV 06-0333." MacMullin then filed a motion that requested: a continuance, a subpoena that would require Williams to produce all documents mentioning the fees awarded in 1 CA-CV 06-0333, and an order that would require the Special Administrator and Poach to produce all documents mentioning those fees. MacMullin argued that his discovery request was directly relevant to the issue of bad faith,alleging that Poach and Williams had lied to the probate court and the Court of Appeals, and had "failed to disclose . . . the fact that [MacMullin] was not obligated for the fees and costs at issue in that [July 2008] order."
¶11 In November 2011, the probate court held a brief telephonic status conference with MacMullin, Poach, and Williams, at which the parties discussed the pending discovery requests. Because the parties disputed both the appropriate scope of discovery, and whether or not the requested information was privileged, the court appointed the Honorable Robert D. Myers (Ret.) as discovery master.
¶12 MacMullin submitted an "Overview of Issues" to the discovery master. He contended that Poach and Williams knew that the Court of Appeals had decided in July 2008 that he was not responsible for the fees, and that they were dishonest about this fact during the June 2011 oral argument to the probate court on the original petition for settlement. MacMullin further argued that during the telephonic hearing before the Court of Appeals on his special action, Williams, in response to a direct question by the Honorable Daniel Barker, had lied about his knowledge of the earlier appellate orders. MacMullin explained that it was his objective to obtain testimony from Judge Barker at the evidentiary hearing, and that the goal ofhis discovery requests was to prove that Poach filed his fee application in bad faith.
¶13 In response to MacMullin's arguments, Williams argued that he attended the June 2011 oral argument regarding a matter other than the fees issue. He further explained that he recalled having told Judge Barker at the telephonic hearing on the special action that he could not remember events that had happened years earlier.
¶14 After reviewing the parties' briefing, the discovery master heard oral argument in December 2011. At oral argument, MacMullin alleged bad faith based on Poach and Williams' failure to provide the July 2008 order to the probate court and their failure to advise the probate court that the Court of Appeals did not intend to assess the fees against him. MacMullin contended that both Poach and Williams knew that the fees had not been imposed against him because they were present at the telephonic hearing that preceded the July 2008 order. He asserted that the purpose of the discovery was to obtain any documents from Poach and Williams "concerning that order and what their knowledge is of that order that's not privileged," and to have any allegedly privileged documents reviewed in camera to determine whether they could be released.
¶15 ...
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