Opinion
No. 2 CA-CV 2014-0139
05-13-2015
IN RE THE ESTATE OF A. C. MILLER
Michael D. Hunter, San Diego, California 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NOT FOR PUBLICATION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. PB20050195
The Honorable Kyle A. Bryson, Judge
AFFIRMED
Michael D. Hunter, San Diego, California
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Howard concurred. ECKERSTROM, Chief Judge:
¶1 This appeal is the most recent of several Michael Hunter has brought concerning the decedent's estate. See, e.g., In re Estate of Miller, No. 2 CA-CV 2012-0095 (memorandum decision filed Apr. 30, 2013); In re Estate of Miller, No. 2 CA-CV 2010-0146 (memorandum decision filed Apr. 26, 2011). We lack jurisdiction to consider most of Hunter's claims, and we affirm the probate court's order for the reasons set forth below.
Factual and Procedural Background
¶2 This court previously affirmed the distribution of the estate in April 2013. Estate of Miller, No. 2 CA-CV 2012-0095, ¶ 1. Consistent with that decision, the probate court entered a signed, final order that fully settled the estate and closed its file on December 13, 2013. Hunter filed and subsequently withdrew an appeal from that judgment, and thereafter he filed a pro se motion in the probate court to set aside the judgment pursuant to Rule 60(c), Ariz. R. Civ. P., in June 2014. The court scheduled a hearing on the motion. The estate's personal representative, Robert Fleming, filed a motion to vacate the hearing on the grounds that Hunter's motion was "unfounded, barred by the doctrine of res judicata, and [subject to] dismissal based on A.R.S. § 14-1109." The court summarily dismissed Hunter's motion to set aside the judgment on July 18, 2014, and Hunter filed the present notice of appeal challenging that order.
Discussion
¶3 In the civil context, the right of appeal exists only by virtue of statute. Green v. Lisa Frank, Inc., 221 Ariz. 138, ¶ 14, 211 P.3d 16, 24 (App. 2009). This court's appellate jurisdiction is likewise provided and limited by law. Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 2, 270 P.3d 879, 881 (App. 2012). An appellant must establish our appellate jurisdiction, pursuant to Rule 13(a)(4), Ariz. R. Civ. App. P. "We, in turn, have an independent duty to confirm our jurisdiction over the appeal before us." Anderson, 229 Ariz. 52, ¶ 2, 270 P.3d at 881.
¶4 Although the denial of a Rule 60(c) motion generally may be appealed as a special order made after a final judgment pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2), see In re Rose's Estate, 108 Ariz. 207, 208-09, 495 P.2d 138, 139-40 (1972), an appeal is available only when the motion presents different questions than those that would be presented in an appeal from the judgment. See Reidy v. O'Malley Lumber Co., 92 Ariz. 130, 136, 374 P.2d 882, 886 (1962); In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). Our jurisdiction is equally limited by § 12-2101(A)(9), which Hunter has not cited or addressed. That provision, like others relating to our jurisdiction, is designed to make orders terminating a formal probate proceeding subject to a timely appeal, thereby allowing reliance upon such orders. See In re Estate of McGathy, 226 Ariz. 277, ¶¶ 13-15, 17 & n.2, 246 P.3d 628, 630-31 & 631 n.2 (2010).
It allows an appeal "[f]rom a judgment, decree or order entered in any formal proceedings under title 14." § 12-2101(A)(9).
¶5 Hunter has failed to develop an argument that the order he now challenges is subject to appeal. As we understand his contentions, he primarily contests the personal representative's status as an attorney of record in this case and the validity of the estate's opposition to his Rule 60(c) motion. A probate court, however, may deny a repetitive motion—that is, one that requests the same or substantially similar relief as a motion filed within the prior year—even "without a response or objection being filed and without a hearing or oral argument." § 14-1109. Because a court may exercise this power of summary dismissal sua sponte, Fleming's status as personal representative and the details concerning his opposition are irrelevant to the court's ruling on Hunter's motion to set aside the judgment.
¶6 Hunter's motion in fact repeated many allegations of fraud, misrepresentation, and misconduct by Fleming from a prior Rule 60(c) motion Hunter had filed in September 2013, which attacked various accountings underlying the estate's distribution. The probate court rejected those claims—including claims related to Fleming's appointment and appearance—in a ruling filed in November 2013. As we indicated above, Hunter filed a notice of appeal from the December 2013 judgment that encompassed this ruling. After he obtained an extension of time to submit a brief in that appeal, we dismissed it on Hunter's request. In re Estate of Miller, No. 2 CA-CV 2014-0036 (order filed June 2, 2014).
¶7 In light of that dismissal, many of the issues Hunter now attempts to raise cannot be adjudicated in the present appeal. Our procedural rules are designed to provide finality to judgments and bring an end to litigation at some ascertainable point. See Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981); Mezey v. Fioramonti, 204 Ariz. 599, ¶ 27, 65 P.3d 980, 987 (App. 2003), disapproved on other grounds by Bilke v. State, 206 Ariz. 462, ¶ 28, 80 P.3d 269, 275 (2003); In re 1971 Dodge, 130 Ariz. 510, 511, 637 P.2d 312, 313 (App. 1981). Parties may not litigate untimely or previously decided issues simply by filing an additional motion and appealing its denial. Were our statutes and rules so easily circumvented, "'[c]ontrol of appellate jurisdiction would be ceded to the parties and appellate jurisdiction would be virtually unlimited.'" Maria v. Najera, 222 Ariz. 306, n.1, 214 P.3d 394, 396 n.1 (App. 2009), quoting Mezey, 204 Ariz. 599, ¶ 27, 65 P.3d at 987.
¶8 Except as indicated below, Hunter has failed to establish that the current motion to set aside the judgment presents any relevant issues different from those that would have been presented in an appeal from the judgment itself or that this court otherwise has jurisdiction over this matter. We therefore do not address most of his contentions due to a lack of appellate jurisdiction.
¶9 In our review of Hunter's appellate brief, we have identified only one issue that we have jurisdiction to review. Specifically, Hunter contends he was not given proper notice of the December 11, 2013 trial on pending motions that supported the judgment. Rule 60(c) allows a party to challenge a judgment, under certain limited circumstances, based on a lack of notice. See Park v. Strick, 137 Ariz. 100, 104, 669 P.2d 78, 82 (1983). The record here, however, reveals Hunter was present in court when the trial was scheduled. He also received a copy of the minute entry containing this trial date. We will not reverse for purely technical errors. Ariz. Const. art. VI, § 27. Thus, we find no merit in Hunter's argument concerning a lack of notice.
This issue is neither identified in Hunter's general statement of the issues for review nor a "subsidiary issue fairly comprised within the statement." Ariz. R. Civ. App. P. 13(a)(6).
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Disposition
¶10 For the foregoing reasons, the order is affirmed.