Opinion
No. 2 CA-CV 2014-0071
02-25-2015
IN RE THE GUARDIANSHIP/CONSERVATORSHIP OF BESSIE B. GARNER, DECEASED, DENICE R. SHEPHERD, AS GUARDIAN AND CONSERVATOR FOR BESSIE B. GARNER, Plaintiff/Appellee, v. ARTHUR BURNS, Defendant/Appellant.
COUNSEL Denice R. Shepherd, P.C. By Denice R. Shepherd, Tucson Counsel for Appellee Arthur Burns, Tucson In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
No. GC20051109
The Honorable Charles V. Harrington, Judge The Honorable Kyle Bryson, Judge
AFFIRMED
COUNSEL Denice R. Shepherd, P.C.
By Denice R. Shepherd, Tucson
Counsel for Appellee
Arthur Burns, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Appellant Arthur Burns appeals from the trial court's judgment finding him in violation of the Arizona Adult Protective Service Act (APSA) and awarding damages in favor of appellee Denice Shepherd on behalf of Bessie Garner's estate. For the following reasons, we affirm.
Factual and Procedural Background
¶2 On November 15, 2005, Shepherd obtained an emergency appointment as guardian and conservator for Garner, then age 99, after an Adult Protective Services investigation revealed Garner's "physical state was deplorable," and she may have been financially exploited and neglected by her caretaker, Burns. The trial court also issued several temporary orders requiring Burns to vacate Garner's house and prohibiting him from engaging in certain financial transactions or having any contact with Garner. Later that day, Shepherd accompanied a Pima County Sheriff's Office detective to Garner's residence, where Burns was served with the temporary restraining order. When Shepherd and the detective entered the home, Garner was sitting in a wheelchair in a back bedroom, dressed in "stained and soiled" clothing. The detective noticed that she appeared dehydrated and undernourished, and she was transported to a hospital for an evaluation. Shepherd and the detective took "inventory" of the home and noted that it was "filthy" and "somewhat cluttered." Garner received treatment for dehydration and was placed in an adult care home.
¶3 Garner, an elderly widow with no children, had become acquainted with Burns some time during the late 1980s, and the two eventually became close friends. Garner had no close relatives living in Arizona, and Burns, who was significantly younger than Garner, often assisted her with errands and accompanied her during travel.
Burns claims he and Garner held themselves out as husband and wife, but concedes they were never legally married.
¶4 In 1999, Garner executed a will and power of attorney, naming two nieces as her heirs, and appointing a friend as her attorney-in-fact. In the spring of 2003, Garner moved to Virginia to be closer to family. She stayed briefly with relatives and then moved into an assisted living facility for one month before returning to Arizona.
¶5 In August 2003, Garner executed a general durable financial power of attorney naming Burns as her agent and a hand-written will entitled "Will of Bessie (Bess) Garner," leaving all her property to Burns. In May 2004, Garner also executed a health care power of attorney naming Burns as her agent, and recorded a beneficiary deed transferring her residence to Burns upon her death.
¶6 When Garner was removed from her home in November 2005, Burns had gained complete control over her financial assets. Financial records revealed that between April 2003 and May 2004, Burn's name was added to Garner's bank accounts, and the statements for those accounts were rerouted to his separate address. By late 2005, nearly all the money in Garner's checking and savings accounts had been transferred into Burns's separate accounts, which he apparently used to make "quite a few personal loans." Burns acknowledged making these transfers, but claimed Garner's funds had been moved to his personal accounts to "earn[] interest at a much higher rate."
¶7 After hearing Burns's testimony at a hearing on an order to show cause, the trial court granted the preliminary injunction and ordered Burns to transfer certain financial accounts to Shepherd. She eventually recovered over sixty thousand dollars from three of Burns's accounts.
¶8 In March 2007, a year after being appointed Garner's permanent guardian and conservator, Shepherd filed a complaint against Burns on Garner's behalf for breach of fiduciary duty, neglect, and financial exploitation. Two years later, Shepherd moved for summary judgment on the breach of fiduciary duty and financial exploitation claims. In her motion, she also asked the court to invalidate the estate planning documents benefiting Burns and to issue a permanent injunction ordering him to turn over all Garner's assets remaining in his possession. After Burns failed to file a timely response, the court granted summary judgment "in all respects," and made several findings of facts and conclusions of law regarding Shepherd's request for a permanent injunction, but noted it could not be entered until the issue of damages was resolved. The court also declared the estate planning documents benefiting Burns invalid, see former A.R.S. § 46-456(D), and imposed treble damages in accordance with former A.R.S. § 46-456(C). See 2003 Ariz. Sess. Laws, ch. 129, § 3. Burns then unsuccessfully filed numerous motions and documents to persuade the court to reconsider its ruling.
The motion did not address the neglect claim.
Effective July 2009, A.R.S. § 46-456(C) was renumbered as 46-456(B) and A.R.S. § 46-456(D) was renumbered as 46-456(C). See 2009 Ariz. Sess. Laws, ch. 119, § 9. We refer to the version of the statute in effect at the time this action was commenced. See Bouldin v. Turek, 125 Ariz. 77, 78, 607 P.2d 954, 955 (1979).
¶9 Garner died in February 2010. A few months later, Shepherd filed a "petition seeking [c]ourt instructions as to various . . . testamentary instruments in her possession." Shepherd had apparently learned of a hand-written codicil dated January 3, 2001, which "eliminate[d]" one of two beneficiaries from Garner's 1999 will.
Shepherd also learned the remaining beneficiary had predeceased Garner and none of Garner's appointees for personal representative of her estate were available to serve in that position.
¶10 In October 2010, Shepherd filed a petition for formal probate seeking appointment as personal representative pursuant to A.R.S. § 14-3203 and "family nominations." Shepherd's petition also stated that "[a] copy of a Will executed by . . . Garner dated July 9, 2002, ha[d] since been found that [wa]s incorporated in the Bessie B. Garner Revocable Living Trust of the same date." Because the 2001 holographic codicil, the 2002 will, and the associated trust had not been discovered until after the court issued its summary judgment ruling declaring the 1999 will valid, Shepherd asked the court to enter orders determining whether they were to be recognized as part of Garner's estate plan.
¶11 Burns moved to set aside Garner's 1999 will and asked that Leigh Bernstein, Garner's court-appointed attorney, be appointed personal representative. Burns also moved for clarification on whether he could present evidence as to the 2003 holographic will, which had been invalidated in the trial court's summary judgment order. The court agreed that a trial should be held to determine which, "if any" of the three sets of documents, including the 2003 holographic will, was Garner's "valid Last Will and Testament." The trial was held in July 2011, after which the court affirmed its prior summary judgment rulings, admitted the 1999 will to probate, and appointed Shepherd as personal representative of Garner's estate.
¶12 A bench trial on the issue of damages was held in late 2013. In February 2014, after taking the matter under advisement, the trial court issued its ruling incorporating the June 11, 2009, ruling, finding total damages after trebling to be $247,531.23. The court also determined that Burns was entitled to a $65,155.99 deduction for amounts previously collected. A final judgment was entered on March 17, 2014, and Burns appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶13 Burns raises numerous issues on appeal, which we categorize as: (1) issues relating to the order granting summary judgment in Shepherd's favor, (2) the motion to remove Shepherd as guardian and conservator and related attorney fees, and (3) damages.
Summary Judgment
¶14 Burns first contends the trial court erred in granting summary judgment on Shepherd's APSA claim "without giving [him] a fact-finding trial." He specifically argues that summary judgment was inappropriate because his answer "dispute[d the] factual allegations of [the] complaint," and Shepherd failed to prove "all necessary elements" of each claim, thus failing to "satisfy the requirements of Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 [(1990)]."
¶15 To prevail on a motion for summary judgment, the moving party has the burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 12, 180 P.3d 977, 979-80 (App. 2008). A plaintiff seeking summary judgment must establish every element of its claim with admissible "evidence sufficient to satisfy the applicable burden of proof." Comerica Bank v. Mahmoodi, 224 Ariz. 289, ¶¶ 19-20, 229 P.3d 1031, 1034-35 (App. 2010). If this burden is met, the defendant must provide the court with evidence demonstrating a genuine factual issue for trial, see Thruston, 218 Ariz. 112, ¶ 12, 180 P.3d at 980, rather than merely relying on allegations or denials in its own answer, see Ariz. R. Civ. P. 56(e)(4). We review the court's decision to grant summary judgment de novo, considering the facts and any inferences drawn from those facts in the light most favorable to the party opposing the motion. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 15, 165 P.3d 173, 177 (App. 2007).
¶16 APSA "provides a statutory cause of action for incapacitated or vulnerable adults who are the victims of neglect, abuse or exploitation." In re Estate of Wyttenbach, 219 Ariz. 120, ¶ 12, 193 P.3d 814, 817 (App. 2008). At the time this action was commenced, a "person in a position of trust and confidence to [a] vulnerable adult" violated A.R.S. § 46-456 if he or she either "[A] failed to act for the benefit of the vulnerable adult to the same extent as a trustee . . . or [B] by intimidation or deception knowingly took control, title, use or management of the vulnerable adult's property with the intent to permanently deprive the vulnerable person of the property." Davis v. Zlatos, 211 Ariz. 519, ¶ 32, 123 P.3d 1156, 1164 (App. 2005) (emphasis added); see 2003 Ariz. Sess. Laws, ch. 129, § 3.
¶17 When Shepherd's action was filed, the definition of a person in a "position of trust and confidence" included "[o]ne who has assumed a duty to provide care to the incapacitated or vulnerable adult," and "[a] joint tenant or tenant in common with an incapacitated or vulnerable adult." 2003 Ariz. Sess. Laws, ch. 129, § 3; see also In re Estate of Newman, 219 Ariz. 260, ¶ 34, 196 P.3d 863, 873 (App. 2008). A "vulnerable adult" was defined as an adult "unable to protect [her]self from abuse, neglect or exploitation by others because of a mental or physical impairment," 1991 Ariz. Sess. Laws, ch. 219, § 1; A.R.S. § 46-451(A)(9), even if able to make informed decisions, Davis, 211 Ariz. 519, ¶ 23, 123 P.3d at 1162. And an "impairment" was "something that causes a 'decrease in strength, value, amount, or quality.'" Davis, 211 Ariz. 519, ¶ 24, 123 P.3d at 1162 (noting APSA does not define "impairment" and applying ordinary meaning), quoting Websters II, New College Dictionary 553 (2001).
¶18 Once a person was found to be in a position of trust and confidence to an incapacitated or vulnerable adult, a trial court next determined whether that person "act[ed] for the benefit of that [adult] to the same extent as a trustee pursuant to title 14, chapter 7, article 3." 2003 Ariz. Sess. Laws, ch. 129, § 3; see § 46-456(A). At all relevant times, Arizona law required a trustee to "observe the standard in dealing with the trust assets that would be observed by a prudent man dealing with the property of another." 1996 Ariz. Sess. Laws, ch. 107, § 1; see also Davis, 211 Ariz. 519, ¶ 33, 123 P.3d at 1164.
¶19 In dealing with a vulnerable adult's assets, a person in a position of trust and confidence must put the vulnerable adult's interests first, particularly when the trustee's self-interest is involved. See Davis, 211 Ariz. 519, ¶ 34, 123 P.3d at 1164. "At the very least, a prudent trustee dealing with [a trustor]'s assets would have advised her to seek the help of a family member or lawyer in making such transfers," id., and "a trustee who accept[ed] money from a vulnerable adult must be prepared to explain how the vulnerable adult benefited from the transfer." Id. ¶ 36.
¶20 Here, Shepherd established through her statement of facts and competent evidence that Burns had assumed the position of caretaker to Garner and was a joint tenant on her bank accounts, placing him in a "position of trust and confidence." See 2003 Ariz. Sess. Laws, ch. 129, § 3. Further, at all relevant times Garner suffered from progressive dementia and mobility impairments, which rendered most household chores and personal care difficult, leaving her vulnerable to abuse, neglect, and exploitation. "Given that the two threshold elements [were] met, [Burns] had an affirmative duty to 'act for the benefit of [Garner] to the same extent as a trustee.'" In re Estate of Newman, 219 Ariz. 260, ¶ 35, 196 P.3d at 873, quoting former § 46-456(A). Further, the evidence presented with Shepherd's motion clearly demonstrated that Burns had breached this duty by failing to keep clear and accurate records, commingling Garner's and his funds, and engaging in transactions that benefitted him. Once Shepherd presented a prima facie case for a violation of former § 46-456(A), the burden shifted to Burns to produce evidence of genuine disputed material facts. See Thruston, 218 Ariz. 112, ¶ 12, 180 P.3d at 979-80.
¶21 Burns failed to submit a timely response to the motion for summary judgment, but instead filed several letters labeled "Statement of Fact" within the deadline for filing a response. These letters, however, did not comply with Rule 56(c), Ariz. R. Civ. P., and contained only unsworn assertions unsupported by any evidence. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5-6, 795 P.2d 827, 831-32 (App. 1990) (party opposing summary judgment may not rely solely on unsworn assertions of fact to controvert motion supported by sworn facts and competent evidence). Thus, Burns failed to controvert any of Shepherd's factual averments. See Ariz. R. Civ. P. 56(c)(3).
¶22 Further, although Burns's answer to the complaint denied several allegations, including that Garner was incapacitated, it effectively admitted (1) Burns had gained control over all Garner's assets and placed almost all of them into joint accounts, eventually transferring the assets to separate accounts in his own name; (2) he had loaned $15,000 to his son from one of the joint accounts; (3) Burns had assumed responsibility for assisting Garner with day-to-day care, including meal preparation; and (4) Garner, who was in her late nineties, had significant physical limitations, being unable to drive or shower independently. That Burns "dispute[d] factual allegations of [the] complaint," is of little moment because blanket unsworn assertions are insufficient to defeat a motion for summary judgment. See Ariz. R. Civ. P. 56(e)(4) (party opposing motion for summary judgment "may not rely merely on allegations or denials of its own pleading" but must respond "by affidavits or . . . otherwise" "set[ting] forth specific facts showing a genuine issue for trial"). Instead, Burns was required to produce competent evidence in support of his claims, which he failed to do. Accordingly, the trial court did not err in finding no genuine issues of material fact to preclude the entry of summary judgment.
In a related argument, Burns claims the trial court found him "in violation of the entire body of law codified as A.R.S. § 46-451, et seq.," portions of which require proof of "mens rea[] or subjective intent," which he argues is inappropriate for summary judgment disposition. Though the court's order did not plainly state which section of APSA its ruling was based on, it is clear from the record that summary judgment was granted on Shepherd's § 46-456(A) claim. Cf. Sanchez v. Tucson Orthopaedic Inst., P.C., 220 Ariz. 37, ¶ 7, 202 P.3d 502, 504 (App. 2008) (we may uphold trial court's entry of summary judgment if correct for any reason supported by record). Shepherd sought summary judgment only under § 46-456(A), and she presented a preponderance of evidence on its specific elements, thus carrying her burden of persuasion. See Mahmoodi, 224 Ariz. 289, n.5, 229 P.3d at 1035 n.5 (at summary judgment stage, court views evidence through lens of substantive burden of proof); cf. A.R.S. § 46-456(F) (applying A.R.S. § 46-455's preponderance of the evidence standard to § 46-456 claims).
Claimed Irregularity in Proceedings
¶23 Burns next argues the trial court granted summary judgment "in a highly irregular manner," asserting he "was blocked from offering anything in dispute at the scheduled hearing because it was not held." He offers no authority in support of his argument and cites only to his motion for reconsideration below, which provides little guidance in clarifying his position. Cf. Ritchie v. Krasner, 221 Ariz. 288, ¶ 62, 211 P.3d 1272, 1290 (App. 2009) (opening briefs must present and address significant arguments, supported by authority setting forth appellant's position). We therefore deem the argument waived and decline to address it. See Ariz. R. Civ. App. P. 13(a)(7) (each contention on appeal shall include citations to authorities, statutes and parts of record relied on) and 13(b); cf. Ritchie, 221 Ariz. 288, ¶ 62, 211 P.3d at 1289 (failure to properly support claim can constitute abandonment and waiver).
Lack of Signature on Summary Judgment Order
¶24 Burns also asserts that the trial court's order granting summary judgment is "invalid on its face" because it was not signed. But lack of a signature has no impact on the validity of a court ruling or order; instead, a signature's significance relates to whether the order or ruling is final and may be appealed. Cf. Davis v. Davis, 230 Ariz. 333, n.2, 284 P.3d 23, 25 n.2 (App. 2012) (unsigned minute entry not appealable). While a judgment requires signature, Ariz. R. Civ. P. 58(a), an unsigned order or minute entry is not a judgment, may not be appealed, and is subject to being vacated or modified, see Phillips v. Adler, 134 Ariz. 480, 481-82, 657 P.2d 893, 894- 95 (App. 1982). The order granting summary judgment was not a judgment and, thus, did not require signature.
The court entered a signed judgment incorporating its summary judgment ruling following the damages trial.
Treble Damages
¶25 Burns next argues the trial court erred in awarding treble damages pursuant to former § 46-456(C). See 2003 Ariz. Sess. Laws, ch. 129, § 3. Specifically, he contends that, at the time Shepherd filed the complaint against him, Garner had suffered no actual damages because her estate had already recovered all the converted funds. Shepherd responds that Burns failed to contest the imposition of treble damages below and, consequently, has waived the issue. See Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238-39 (App. 2007) (arguments raised for first time on appeal waived). The record reflects that, although Burns disputed damages generally on multiple occasions, he never addressed treble damages or raised any argument regarding actual damages below. Accordingly, we find Burns's claims relating to treble damages waived.
The current version of the statute provides that "the court may award additional damages in an amount up to two times the amount of damages." A.R.S. § 46-456(B).
In his reply brief, Burns asserts the issue is not waived because he "had no way of knowing that the court would mis-apply the statute and err[] in calculating the actual damages to which the triple damage calculus be applied, so there was nothing to object to." We find this argument unpersuasive, however, particularly in light of the fact that Shepherd acknowledged in her motion for summary judgment that she had already recovered "the monies that were in the accounts titled in Mr. Burns'[s] name," and specifically requested treble damages on the amount recovered pursuant to § 46-456(C). Burns was thus on notice as early as 2009, but failed to argue that applying "the triple damage calculus" to recovered damages was inappropriate. See Price v. City of Mesa, 236 Ariz. 267, n.3, 339 P.3d 650, 652 n.3 (App. 2014) (arguments not presented to trial court generally waived on appeal).
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Reduction in Value Damages
¶26 Burns also contends "the award of damages for reduction in value of [Garner's] realty is not supported by the law," and that such damages should be barred because "Shepherd ma[de] no claims for reduction in sale price of the real property or waste" in her complaint. As Shepherd points out, however, Burns did not make the latter argument below. Thus, we agree he is precluded from challenging the sufficiency of the complaint for the first time on appeal, and find the issue waived. See Airfreight Express Ltd., 215 Ariz. 103, ¶ 17, 158 P.3d at 238-39.
¶27 In contesting the damages award for reduction in value to Garner's home, Burns asserts he "is not attacking the evidence proffered by Shepherd," but instead "challeng[es] th[e] . . . award based upon the court's analysis" of Atkinson v. Marquart, 112 Ariz. 304, 541 P.2d 556 (1975). We review a trial court's decision to admit or exclude evidence for abuse of discretion. John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶ 33, 96 P.3d 532, 541 (App. 2004).
¶28 Shepherd testified at the damages trial that Garner had sustained a loss of $15,000 on the sale of her real property due to the deteriorated condition of the house. The trial court noted, "[n]o appraisal or expert testimony was provided to support that amount," but allowed Shepherd, as personal representative, to testify regarding the estimated loss in value. The court cited Atkinson for the proposition that "an owner may estimate the value of his real or personal property whether he qualified as an expert or not." 112 Ariz. at 307, 541 P.2d at 559. The court further noted that Shepherd was not the owner of the property, but was "satisfied that, in her role as a fiduciary, [Shepherd] ha[d] similar knowledge of the value of the property in her charge."
¶29 Burns argues that estimating "how much a property would have sold for if it had been in different shape," unlike "an owner estimating the actual value of their property," "requires conjecture and speculation, [in] the realm of expert testimony." Citing Jowdy v. Guerin, 10 Ariz. App. 205, 457 P.2d 745 (1969), Burns maintains the trial court erred by permitting Shepherd to speculate that the poor condition of Garner's home reduced its value by $15,000.
¶30 First, we disagree with Burns's implication that all lay estimations of loss in value are inherently based on mere "conjecture and speculation," making such estimations categorically inadmissible. Notably, Jowdy, the case Burns relies upon, upheld a trial court's decision to admit into evidence an owner's opinion of the value of her property to establish the loss in market value caused by destruction of residential improvements made on the property. Id. at 207, 210, 457 P.2d at 747, 750. In so holding, the court noted that "the evidence on the issue of amount of damages was [minimal]," but it could not say "it was based on mere speculation or conjecture." Id. at 210, 457 P.2d at 750. Moreover, that an owner may not be an expert goes to the weight of the evidence, not its competency. See Atkinson, 112 Ariz. at 307, 541 P.2d at 559. Although Shepherd was not the de facto "owner" of the property, she stood in the shoes of the owner as a result of her status as both guardian and conservator, and then personal representative for Garner. See, e.g., A.R.S. § 14-5420 (appointment of conservator vests in conservator title as trustee to all property of protected person); cf. United California Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 302-03, 681 P.2d 390, 454-55 (App. 1983) (owner-opinion rule applied to corporate officers, directors, and shareholders).
¶31 However, even assuming Shepherd would not qualify as an owner under the owner-opinion rule, she was not necessarily disqualified from offering her opinion regarding the loss in value to Garner's home. See Ariz. R. Evid. 701 (lay witness opinion admissible when rationally based on witness's perception, helpful to determining fact in issue, and not based on specialized knowledge within scope of expert witness testimony). The question of whether a lay witness may testify as to any matter of opinion is a determination within the sound discretion of the trial court. Groener v. Briehl, 135 Ariz. 395, 398, 661 P.2d 659, 662 (App. 1983). Burns did not provide a transcript of the damages trial, and in its absence we must assume Shepherd's testimony supported the trial court's ruling, including her method of valuation. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Given that presumption, we cannot say on the record before us that the court abused its discretion in admitting Shepherd's testimony regarding diminution in value damages.
Motion to Remove Shepherd & Resulting Sanction
¶32 Finally, Burns argues the trial court erred in denying his "Motion to Remove Denice R. Shepherd As Guardian, Conservator And Personal Representative Of Bessie B. Garner Ab Initio For Fraud." In essence, the motion alleged that all proceedings that had occurred in this matter were void because Shepherd had "lie[d] . . . to the court." The trial court found the motion moot as to the guardianship and conservatorship because both "terminated when Ms. Garner died on February 18, 2010."
¶33 Although the ruling did not specifically address Burns's claim that Shepherd should be removed as personal representative, the record supports its denial of the motion on that ground as well. See Tumacacori Mission Land Dev., Ltd., v. Union Pac. R.R. Co., 231 Ariz. 517, ¶ 4, 297 P.3d 923, 925 (App. 2013) (When trial court does not state the basis for its ruling, "we will affirm if the result is correct for any reason."). In addition to finding the motion moot, the court noted that "Burns cites no authority for his standing to raise any objection on behalf of . . . Garner." Indeed, the record reflects Burns was not a named beneficiary under Garner's Last Will and Testament dated August 3, 1999, which the court reinstated on June 11, 2009, and her actual beneficiaries had renounced their right to appointment as Personal Representative. Thus, we find no error in the trial court's denial of Burns's motion to remove Shepherd.
¶34 In denying Burns's motion, the trial court also granted Shepherd's request that Burns be ordered to pay "her reasonable fees and costs in defending th[e] motion" as a sanction for filing it. Burns challenges the award, which we review for an abuse of discretion and will affirm if "appropriate under any of the authorities relied upon by the proponent." Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, ¶ 5, 330 P.3d 961, 963 (App. 2014).
¶35 In her response to Burns's motion, Shepherd asserted that "Burns'[s] conduct violate[d] [A.R.S. §§] 12-340.01, 12-349, 14-1105, 14-1109 and Rule 11, Ariz. R[.] Civ. P[.]," and asked the court to "impose sanctions against [him] for filing it." The court's decision to award fees was consistent with A.R.S. § 14-1105(B), which grants the trial court authority to order a "person who engaged in [unreasonable] conduct" to "pay [a] ward or protected person for some or all of the [professional] fees and expenses [incurred]" as a result of the unreasonable conduct. "Professional fees or expenses" include attorney fees. § 14-1105(D)(5). Because the trial court's award of attorney fees and costs is supported by the record, particularly the lack of any merit to Burns's motion, as well as the law, there is no basis for disturbing it.
Attorney Fees on Appeal
¶36 Shepherd requests attorney fees on appeal pursuant to § 14-1105 and Rule 25, Ariz. R. Civ. App. P. In our discretion, we decline her request because we cannot say Burns has engaged in unreasonable conduct on appeal.
Disposition
¶37 For the foregoing reasons, the trial court's judgment is affirmed.