IN THE MATTER OF GUARDIANSHIP OF AND CONSERVATORSHIP FOR SILBE No. 1 CA-CV 12-0420.

In the Matter of the Guardianship of and Conservatorship for: HELEN SILBE, An Adult now Deceased. STEPHEN PIJAS, CHRISTOPHER PIJAS, and JOSEPH PIJAS; MILDRED PIJAS; and JON D. KITCHEL, Guardian Ad Litem for Mildred Pijas, Petitioners/Appellants, v. THE SUN VALLEY GROUP, INC., Respondent/Appellee.

Court of Appeals of Arizona, Division One, Department C.
Filed April 16, 2013.
Broening Oberg Woods & Wilson, P.C., Phoenix, By James R. Broening, Alicyn M. Freeman, Attorneys for Respondent/Appellee.

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

(Not for Publication — Rule 28, Arizona Rules of Civil Appellate Procedure)

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge.

¶1 Stephen, Christopher, Joseph and Mildred Pijas (collectively Pijas) appeal the superior court's order that they file a "substitute" surcharge petition and the dismissal of their petition with prejudice when they failed to comply with the court's order or otherwise prosecute their claims. Finding no abuse of discretion, the superior court's order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 This case began in 2006 as a guardianship and conservatorship proceeding in probate for Helen Silbe. After Helen's death, the superior court appointed Sun Valley Group, Inc. as conservator with authority to administer the estate. Prior to distributing and closing the estate, Sun Valley successfully petitioned to withdraw as conservator.

¶3 On February 18, 2011, the Pijas filed a Surcharge Petition against Sun Valley. On February 28, 2011, after a personal representative was appointed for the estate, the Pijas filed an Amendment to the Surcharge Petition, renewing their prior allegations and indicating the personal representative had assigned to the Pijas all claims by the estate against Sun Valley.

¶4 On March 18, 2011, Sun Valley filed a motion to dismiss the Petition pursuant to Arizona Rule of Civil Procedure (Civil Rule) 12(b)(6), made applicable by Arizona Rule of Probate Procedure (Probate Rule) 17(D). Along with claiming the Pijas lacked standing,1 Sun Valley argued the Petition — consisting of six numbered paragraphs over seven pages — did not comply with the pleading requirements set forth in Civil Rule 8(a) and Probate Rule 17(B). Later in March 2011, Sun Valley filed a petition for approval of final accounting.

¶5 The Pijas opposed Sun Valley's motion to dismiss, arguing that the Petition met all applicable procedural requirements. The Pijas did not argue that the court's consideration of the motion to dismiss should be delayed pending consideration of the final accounting; they did not argue the motion was linked in any way to the final accounting. Sun Valley's reply cited additional alleged deficiencies and asked that the Petition either be dismissed or that the Pijas be required to file an amended petition curing the deficiencies.

¶6 At an April 21, 2011 hearing, the superior court denied the motion to dismiss but ordered the Pijas to file a substitute petition that cured the Petition's deficiencies. When the Pijas requested a week or ten days to be able to draft and file a substitute petition, the superior court ordered that the amended pleading be filed in "ten days."

¶7 The Pijas failed to file a substitute petition within ten days of April 21, 2011. In fact, the Pijas never filed a substitute petition.

¶8 On December 6, 2011, Sun Valley filed a motion to dismiss the Petition with prejudice. This motion repeated the arguments in the original motion and also argued the Pijas failed to comply with the court's order to file a substitute petition and failed to prosecute the surcharge action. In a response filed in late December 2011, the Pijas acknowledged the April 2011 order, stated a substitute petition "will be filed" but did not specify when and expressed a desire for the substitute petition to be heard at the same time as the 2011 petition for approval of final accounting. Sun Valley's reply provided additional supporting authority for its request that the Petition be dismissed with prejudice, and cited Civil Rule 41(b) for the first time.

¶9 In February 2012, the superior court set a hearing on March 15, 2012 to address the new motion to dismiss. At that hearing, the court heard argument and granted the motion to dismiss with prejudice pursuant to Civil Rule 41(b).2

¶10 The Pijas timely appealed from the resulting judgment. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(9).3

DISCUSSION

I. Standard of Review.

¶11 The superior court's order requiring the Pijas to file a substitute petition is reviewed for an abuse of discretion. In re Cassidy's Estate, 77 Ariz. 288, 297, 270 P.2d 1079, 1085 (1954). The superior court's order dismissing the Petition with prejudice pursuant to Civil Rule 41(b) also is reviewed for an abuse of discretion. Troxler v. Holohan, 9 Ariz.App. 304, 306, 451 P.2d 662, 664 (1969).

II. The Superior Court Did Not Abuse Its Discretion In Ordering The Pijas To File A Substitute Petition.

¶12 The superior court found that the Petition did not comply with the Civil Rules and the Probate Rules and ordered the Pijas to file a substitute petition that complied with the applicable rules. The Pijas claim the court erred in requiring a substitute petition because the Petition complied with the applicable rules.

¶13 Under the applicable rules, a petition is required to contain any "statements necessary to support the requested relief," along with "a short and plain statement of the relief being requested." Probate Rule 17(B). The statements in such a petition are required to "be set forth in simple, concise, and direct paragraphs, each of which shall be separately numbered." Id. Because Civil Rules 8-11 apply to a probate petition, id., such a petition also must contain a "short and plain statement" showing jurisdiction, "unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it." Civil Rule 8(a)(1). Further, each averment must "be simple, concise, and direct," Civil Rule 8(e), and "averments of claim. . . shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances." Civil Rule 10(b).

¶14 Notwithstanding these requirements, the seven page Petition contains only six numbered paragraphs. Contrary to these requirements, each of the six numbered paragraphs includes lengthy recitations of numerous allegations. Paragraph 3, for example, contains at least a dozen sentences and covers parts of three pages. Similarly, paragraph 5 covers parts of three pages, contains at least a dozen sentences and makes allegations about what occurred over the course of at least three tax years. Given these deficiencies, the superior court did not abuse its discretion by ordering the Pijas to file a substitute petition that complied with the applicable rules. Patterson v. City of Phoenix, 103 Ariz. 64, 71, 436 P.2d 613, 620 (1968) (superior court has discretion to issue orders to ensure pleadings comply with Civil Rule 10(b)).

III. The Superior Court Did Not Err In Dismissing The Petition With Prejudice.

¶15 If a party pressing a claim fails "to prosecute or to comply with" procedural rules or "any order of court," the opposing party may "move for dismissal of an action or of any claim against" the moving party. Civil Rule 41(b).4 "Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication on the merits." Id. In granting the motion to dismiss with prejudice, the superior court noted as follows:

Based upon the matters presented and the dilatory conduct of counsel for not timely filing an amended petition nor making legitimate inquiries with regards to factual information which counsel suggests he needed prior to filing an amended petition, THE COURT FINDS the reasons provided to the Court are far from convincing, all as discussed on the record. IT IS THEREFORE ORDERED GRANTING the motion to dismiss the Petition for Surcharge.

Accordingly, the court dismissed the Petition with prejudice based on the Pijas' failure to timely prosecute the Petition and the Pijas' failure to comply with the court's orders.

¶16 The Pijas argue that "it was error for the court to dismiss [the] Petition for failure to timely prosecute" when the March 2011 petition for approval of final accounting had not been "reviewed or approved by the court." The Pijas have cited, and this court has found, no authority for the argument that a superior court, sitting in probate, may not require the petitioner in a surcharge matter to proceed — by ordering a substitute petition in compliance with applicable pleading rules — before the final accounting has been approved. Moreover, Sun Valley's petition for approval of final accounting had been on file for approximately a month before the April 2011 hearing where, at the Pijas' request, they were given ten days to file a substitute petition.

¶17 On this record, the pendency of the final accounting did not prevent the court from ordering the Pijas to file a substitute petition or from imposing consequences when the Pijas failed to comply with that order.

¶18 The sole case the Pijas cite — Department of Revenue v. Southern Union Gas Co. — stated that dismissal under Civil Rule 41(b) should not be ordered "[u]nless such an unreasonable period of time has elapsed that it can be concluded that a party has abandoned his case or that he has failed to comply with the Rules of Civil Procedure or an order of the court." 119 Ariz. 512, 514, 582 P.2d 158, 160 (1978). As applied, each of these three grounds supports the order of dismissal.

¶19 By the time of the March 15, 2012 hearing, the Petition had been pending for thirteen months. During that period, the record shows no attempts on behalf of the Pijas to prosecute the claims made in the Petition. The only relevant filings by the Pijas were in response to Sun Valley's motions. Even those filings do not reflect that the Pijas took any action to prosecute the Petition.

¶20 The superior court further found "dilatory conduct" on behalf of the Pijas and a failure to make "legitimate inquiries with regards to factual information" claimed to be necessary, concluding that "the reasons provided to the Court [to justify such delay and inaction] are far from convincing, all as discussed on the record." Given that the Pijas failed to provide the transcript from that hearing, this record contains no contrary facts or anything to suggest that these findings lacked support. See State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003).

¶21 The Pijas could have and should have been pressing forward with their Petition (including filing a substitute Petition to comply with applicable rules and the court's order, pursuing informal and formal discovery and other actions). Instead, the Pijas allowed the Petition to languish. The court accountant's report and recommendation did not identify any of the areas of concern raised in the Petition, suggesting there is no overlap between the two and undermining the Pijas' contention that they could not file a substitute Petition until after final review of the accounting. Even after the court accountant recommended approving the final accounting, the Pijas took no action; they did not object to the final accounting even though they had the court accountant's recommendation weeks in advance of the March 15, 2012 hearing. On this record, the superior court did not abuse its discretion in dismissing the Pijas' Petition for failure to prosecute pursuant to Civil Rule 41(b). See Slaughter v. Maricopa County, 227 Ariz. 323, 326-27, ¶¶ 14-17, 258 P.3d 141, 144-45 (App. 2011).

¶22 The superior court also properly found the Pijas failed to comply with the applicable procedural rules (as discussed above) and the court's orders. In mid-April 2011, the court ordered the Pijas to file a substitute petition. When the court asked the Pijas' counsel how much time was needed, counsel replied "[a] week, ten days," and the court granted the requested ten days to comply. The Pijas failed to meet that court-ordered deadline and failed to seek relief from that deadline. See Civil Rule 6(b). When faced with Sun Valley's motion to dismiss with prejudice, the Pijas offered no cognizable justification for their failure to comply with the rules and the court's order. Having ordered the Pijas to file a proper substitute petition by early May 2011 — a date the Pijas themselves suggested — the court did not abuse its discretion in dismissing the Petition for failure to comply with rules and the court's order when, ten months later, the Pijas had not filed an amended pleading. See Carman v. Hefter, 136 Ariz. 597, 600-01, 667 P.2d 1312, 1315-16 (1983) (no abuse of discretion in dismissing with prejudice under Civil Rule 41(b) for intentional or willful non-compliance with court order).

CONCLUSION

¶23 Because the superior court did not abuse its discretion, the order and resulting judgment dismissing the Petition with prejudice is affirmed.

MICHAEL J. BROWN, Judge and DIANE M. JOHNSEN, Judge, concurring.

FootNotes


1. Sun Valley argued the Pijas did not have standing under A.R.S. § 14-3808(D) to bring a petition for surcharge. The superior court did not decide that issue and no appeal was taken regarding that issue. Given the resolution of the Pijas' appeal, this court need not address (and expressly does not decide) that issue.
2. Although the March 15, 2012 hearing was set as a status conference on the motion to dismiss, at that hearing, counsel argued the motion and no objection to hearing argument appears in the record. Other than two pages of a transcript from the April 21, 2011 hearing provided by Sun Valley, this court has not been provided copies of any transcripts, as is the Pijas' duty. ARCAP 11(b). Accordingly, on this appeal, the transcript of any hearing is presumed to support the rulings made by the superior court at that hearing or by subsequent order.  , 30, ¶ 16, , 73 (App. 2003).
3. Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
4. In dismissing the petition, the court cited Civil Rule 41(b). Although Sun Valley first raised Civil Rule 41(b) as grounds for dismissal in its reply to the second motion to dismiss, the record shows no objection to the superior court's consideration of Civil Rule 41(b) as untimely raised, and the Pijas do not argue on appeal that the court erred by considering Civil Rule 41(b). On appeal, both parties rely on Civil Rule 41(b) and authority construing that provision. The Probate Rules provide that the Civil Rules "apply to probate proceedings," unless otherwise provided in, or inconsistent with, the Probate Rules. Probate Rule 3(A). The parties have not cited, and this court has not found, any Probate Rule indicating Civil Rule 41(b) should not apply here.

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