Division One
In re the Estate of
Carl Wayne Carroll,
Deceased.
Brian K. Stanley, Appellant
v.
David Wayne Carroll, Appellee
No. 1 CA- CV 01-0077
OPENING BRIEF OF APPELLANT
BRIAN K. STANLEY
ON APPEAL FROM THE MARICOPA COUNTY SUPERIOR COURT
(SUPERIOR COURT CASE NUMBER: PB 1998-00912)
Brian K. Stanley
State Bar No. 004619
Attorney and Counselor at Law
(602) 956-9201
Appellant in pro. per.
August 30, 2001
Arizona Court of Appeals
Division One
In re the Estate of
Carl Wayne Carroll, Deceased
No. 1 CA-CV 01-0077
OPENING BRIEF OF APPELLANT
BRIAN K. STANLEY
CONTENTS
TABLE OF AUTHORITIES CITED………………………………………………………..
STATEMENT OF THE CASE……………………………………………………………………
QUESTIONS PRESENTED………………………………………………………………………..
STATEMENT OF FACTS………………………………………………………………………….
ARGUMENT
I. Statement Of Jurisdiction…………………………………………………………………
II. Standard Of Review…………………………………………………………………………
III. Interrogator Submitted No Substantive Claim Or Demand Of Any Kind To The Superior Court For Adjudication By It…………………………………………….
IV. Interrogator’s Contention That The Right For Which He Was Obliged To Seek Judicial Redress Was His “Right” To Conduct Widow’s Deposition Pursuant To Notice Under A.R.CIV.P. 30 (a) Is Simply An Absurd Effort To Lift Himself By His Own Bootstraps……………………………………………………………………………….
V. An Administrative Probate Matter Presenting No Claim Of An Adversarial Nature Clearly Cannot Satisfy The Legal Definition Of An “Action.”……………
CONCLUSION……………………………………………………………………………………………………..
TABLE OF AUTHORITIES CITED
CASES
Bryant v. Bloch Companies, 166 ARIZ. 46 (App. Div. 1 1990)………………………………………………………………… 17
In re Park’s Estate, 75 P.2D 842 (Kans. 1938)…………………………………………………………………………………………. 19
In re Welch, 84 N.W. 550 (Wisc. 1900)…………………………………………………………………………………………………….. 19
Ivancovich v. Meier, 122 ARIZ. 346, 353 (1979)……………………………………………………………………………………… 12
Phoenix Insurance Co. v. United States, 3 F.SUPP. 112 (D. Conn. 1932)………………………………………………… 19
Smith v. Westerfield 26 P. 206 (Cal. 1891)………………………………………………………………………………………………… 19
Society for Propagating the Gospel v. Whitcomb, 2 N.H. 227 (1820)……………………………………………………….. 18
Village of LaGrange Park v. Jarecki, 243 ILL. APP. 290 (Ill. App. 1927)……………………………………………….. 19
STATUTES
A.R.S. § 12-120.21 (A)……………………………………………………………………………………………………………………………… 12
A.R.S. § 12-2101 (B)…………………………………………………………………………………………………………………………………. 12
A.R.S. § 12-341.01 (C)………………………………………………………………………………………………………………………. passim
A.R.S. § 12-349………………………………………………………………………………………………………………………………….. passim
A.R.S. § 14-3933…………………………………………………………………………………………………………………………………………. 7
RULES
A.R.CIV.P. 1………………………………………………………………………………………………………………………………………. passim
A.R.CIV.P. 17……………………………………………………………………………………………………………………………………………… 8
A.R.CIV.P. 30 (a)………………………………………………………………………………………………………………………….. 1, 7, 8, 15
A.R.CIV.P. 37 (f)………………………………………………………………………………………………………………………………………… 8
A.R.CIV.P. 54 (b)………………………………………………………………………………………………………………………………….. 2, 12
A.R.Civ.P. Part V, Rules 26 through 37……………………………………………………………………………………………………. 11
A.R.CIV.P. Part V, Rules 26 through 37……………………………………………………………………………………………………… 2
A.R.S. § 12-341.01 (C)……………………………………………………………………………………………………………………. 2, 11, 20
FED.R.CIV.P. 1…………………………………………………………………………………………………………………………………………. 21
TREATISES, ENCYCLOPEDIAE, &C.
1 MOORE’S FED. PRAC. 3D § 1.20 [1] [a] (1997)…………………………………………………………………………………. 21
1A C.J.S. Actions § 2 (b) (1985)………………………………………………………………………………………………………………… 18
4 WRIGHT & MILLER, FED. PROC. & PROC., CIVIL 2D, § 1028 (1987)…………………………………………… 21
Black’s Law Dictionary (5th ed. 1979)……………………………………………………………………………………………………….. 20
Arizona Court of Appeals
Division One
In re the Estate of Carl Wayne Carroll, Deceased
No. 1 CA-CV 01-0077
OPENING BRIEF OF APPELLANT
BRIAN K. STANLEY
STATEMENT OF THE CASE
Probate matter was initiated when decedent’s surviving son filed petition for determination of intestacy, but subsequently petitioning son and decedent’s surviving spouse filed stipulation to admit decedent’s will – under which no beneficial interest passed to stipulating son – to probate. Pursuant to stipulation, order admitting will to probate and appointing surviving spouse personal representative was entered. Thereafter, without filing any document asserting a claim of an adversarial nature, same surviving son served A.R.CIV.P. 30 (a) Notice of Deposition (of surviving spouse) upon attorney representing surviving spouse in probate matter. Surviving spouse objected to taking of deposition, contending nothing had happened in probate matter to make Civil Rules applicable. Probate judge eventually ordered that deposition go forward. Although attorney representing surviving spouse considered order permitting deposition to be without legal basis or authority, surviving spouse chose to appear for deposition in hope that providing answers under oath to such of surviving son’s questions as might be found unobjectionable would, as a practical matter, bring the bizarre non-proceeding to a close. After completion of deposition surviving son applied for award of attorney’s fees allegedly incurred in connection with procuring of deposition, citing A.R.S. §§ 12-341.01 (C) and 12-349. Probate judge granted application and entered judgment (with A.R.CIV.P. 54 (b) “finality” language) against attorney representing surviving spouse in probate matter for such fees. Attorney-judgment debtor appeals.
QUESTIONS PRESENTED
STATEMENT OF FACTS
In July, 1995, Patricia Ann Carroll (hereinafter, “Widow”) and her husband Carl Wayne Carroll (hereinafter, “Decedent”) adopted a professionally prepared estate plan, pursuant to which they jointly established the Carl & Patricia Carroll Revocable Living Trust and each executed a “pour-over” will leaving his or her residuary estate “to the Trustee of the aforementioned Carl & Patricia Carroll Revocable Living Trust,” to “be held and administered as an integral part of the Trust.” The executed original of Decedent’s will was eventually attached to a Stipulation To Vacate Order Of April 28, 1998, For Admission Of Will To Probate And For Appointment Of Surviving Spouse As Personal Representative filed in probate court on April 9, 1999. Index, Item 5.
The Indenture of Trust establishing and governing the Carl & Patricia Carroll Revocable Living Trust executed in July, 1995, as part of the aforementioned estate plan, provides for the division of the Trust assets, upon the death of the first-to-die Trustor, into Survivor’s and Decedent’s portions, in the manner which has become familiar as the “A-B Trust” or “Marital Deduction-Maximizing Trust.” Accordingly, the trust indenture makes the surviving spouse the “sprinkling” income beneficiary of the Decedent’s portion and the unrestricted beneficiary of the Survivor’s portion for the remainder of survivor’s lifetime. Upon the death of the surviving Trustor, any remaining trust assets are to be distributed to Paul A. Keagle, Jr. (Widow’s son by a former marriage) or, if he be deceased, his descendants. In short, the estate plan adopted by Decedent excludes Decedent’s three surviving children, one of whom is David Wayne Carroll (hereinafter, the “Interrogator”), as beneficiaries of Decedent’s estate.
Decedent died in February, 1997. Order of Probate of Will, entered April 16, 1999, Index, Item 7. In April, 1997, the first of four consecutive attorneys or law firms known to have been consulted by the Interrogator sent a letter to Widow by certified mail, asserting that Interrogator had information indicating that Decedent had had a life insurance policy “in excess of one million dollars” naming Decedent’s sons as beneficiaries but that “the beneficiary designation on this policy [had been] changed” approximately ten months before Decedent’s death. The letter requested Widow to provide copies of the estate plan documents together with “the change of beneficiary form.” Index, Item 64, Exhibit 1. Shortly after receiving this letter, Widow consulted an attorney, Appellant Brian K. Stanley (hereinafter, “Widow’s Attorney”) with regard to its subject matter. On May 6, 1997, Widow’s Attorney sent a written response to the aforementioned letter (Index, Item 64, Exhibit 2) providing, with regard to the subject of life insurance, essentially the same information Widow repeatedly kept providing to Interrogator’s various attorneys down through the eventual examination under oath to which Widow submitted on November 5, 1999.[1] In January, 1998, a new attorney for Interrogator initiated a second and similar exchange of correspondence. Index, Item 64, Exhibits 3 and 4.
In March, 1998, Interrogator, through this second attorney, filed in the Maricopa County Superior Court a verified Petition for Adjudication of Intestacy, Determination of Heirs and Appointment of Personal Representative (Index, Item 1), as a result of which the Probate Registrar of said court assigned a probate-matter number (PB 98-00912) and initialized a probate file for the Clerk’s maintenance of a record of the probate matter. (Inexplicably, the Petition for Adjudication of Intestacy, Determination of Heirs and Appointment of Personal Representative with which this probate file was opened on March 5, 1998, is misidentified, in the Clerk’s Index of Record on Appeal, as a “Complaint.”) Pursuant to his Petition, Interrogator was appointed Personal Representative on April 28, 1998. So far as the probate record reflects and to the best of Appellant’s knowledge, however, between that date and the appointment of Widow as successor Personal Representative on April 16, 1999 (pursuant to stipulation), Interrogator did absolutely nothing – except for eventually hiring yet another set of lawyers, but only in his own personal capacity and not as Personal Representative of Decedent’s estate – about ascertaining the existence of a will, identifying or collecting estate assets, or investigating any life insurance policies or transactions pertaining thereto.
Widow and Widow’s Attorney made an initial determination that any practical difference between Decedent’s alleged intestacy and his actual testacy by virtue of the will which he executed on July 14, 1995, was negligible. A review initiated after Widow brought the April 11, 1997 letter from Interrogator’s then-attorneys to Widow’s Attorney indicated that the efforts Decedent and Widow, assisted by their financial planner, had made to identify and transfer all assets into the corpus of the Carl & Patricia Carroll Revocable Living Trust had been successful, with only arguable exceptions as to certain tangible personal property items of comparatively small value. With regard to these items, even using liberal estimates of their value and pessimistic assumptions about the resolution of the various property-law issues which might be involved, it seemed very unlikely that the aggregate value of the probate estate’s (hypothetical) interest would suffice to offset the total of the statutory homestead allowance and exempt property amounts available to Widow. Widow’s Attorney therefore advised Widow that Decedent’s Will was somewhat academic, and counseled an initial “wait and see” attitude with regard to proceedings on Interrogator’s intestacy petition.
After nearly a year of waiting, what was seen was that Interrogator, as Personal Representative, and despite having the advice of a number of attorneys, either did not know of his duty to ascertain the existence of a will or knew of it but had no intention of fulfilling it. What was also seen was that if there were a “million-dollar-plus” life insurance policy or if Interrogator truly believed the existence of such policy to be a serious likelihood, Interrogator, as Personal Representative, and despite having the advice of a number of attorneys, either did not know of his powers with regard to the investigation of Decedent’s financial affairs or knew of them but had no intention of employing them in a search for information about this purported bonanza. And although no difficulty in administering the assets of the Revocable Living Trust had been experienced (pursuant to the typical pattern, the Trustors – Decedent and Widow – were also the original Co-Trustees and accordingly Widow was the sole surviving Trustee), Widow was expressing dissatisfaction because the open probate file and Interrogator’s do-nothing executorship left her feeling a “lack of closure.”
For these reasons, Widow’s Attorney initiated negotiations which led to the filing of (Interrogator’s and Widow’s) Stipulation To Vacate Order Of April 28, 1998, For Admission Of Will To Probate And For Appointment Of Surviving Spouse As Personal Representative (Index, Item 5) on April 9, 1999 and to the entry, one week later, of a formal written order declaring the July 14, 1995 instrument to be “the valid, unrevoked and last Will” of Decedent and admitting it to probate.[2] Index, Item 7. Widow’s only plan was to file a $0 assets / $0 distributions closing statement pursuant to A.R.S. § 14-3933 after expiration of the statutory period following her appointment, thereby bringing the probate matter to termination one year later and so achieving the universally desired “closure.”
Alas, this vision of dolce far niente in Widow’s sunset years was not to be realized. On May 24, 1999, Interrogator, by his attorneys, mailed to Widow’s Attorney a Notice of Deposition, purportedly invoking A.R.CIV.P. 30 to set Widow’s deposition for June 15, 1999. No effort was made to serve notice upon or otherwise provide notice to any of Decedent’s other survivors, or to creditors or other persons interested in the (hypothetical) probate estate. No basis for the identification of Widow or of Interrogator as a “party” within the meaning of A.R.CIV.P. 30 (a) was disclosed. Although Interrogator procured the issuance of a subpoena, no effort to have the subpoena personally served upon Widow was ever made. (Since it is no longer the practice, in Superior Court, to file a copy of a Notice of Deposition with the Clerk, even when suing out a subpoena to compel attendance at the deposition, Interrogator’s ensuing “Petition for Order to Show Cause re: Contempt” filed May 21, 1999, Index, Item 10, must be looked to as the closest thing to documentation of the Notice of Deposition which the record affords.)
When Widow’s Attorney inquired as to the basis for Interrogator’s implicit contention that a “suit of a civil nature,” within the meaning of A.R.CIV.P. 1, to which Interrogator and Widow were both “parties” within the meaning of A.R.CIV.P. 17 and/or 30 (a), was pending, he received in reply the only argument which has ever been put forward in support of Appellee’s position on the questions herein presented, to wit: There’s a probate-matter number, and that’s “just as good” as a civil case number; what’s more, how can Widow contend that there is no justiciable dispute or controversy before the court, when we’re obviously going to be (or are, or were) in front of the judge precisely because Widow is disputing Interrogator’s right to notice her deposition? This last observation, it was further explained to Widow’s Attorney, also provides the obvious answer to any question as to who the “parties” are. Widow’s Attorney notified Interrogator’s counsel in writing of his opinion that there was no legal basis for the deposition and that Widow would not be appearing pursuant to the Notice. After the date specified in the Notice of Deposition had come and gone, Interrogator – disdaining to seek any of the sanctions which might actually have been available, under A.R.CIV.P. 37 (f), if A.R.CIV.P. 30 (a) had been applicable in the first place – sought to have Widow and Widow’s Attorney held in contempt, and also demanded an award of attorney’s fees incurred in connection with the noticed deposition and the contempt petition. Index, Item 10.
Interrogator’s contempt petition was argued to the probate judge on July 26, 1999. No award of attorney’s fees or other expenses was made to Interrogator, but it was ordered
directing Patricia Carroll [Widow] to submit to a statement under oath before a court reporter and is to answer those questions which are properly put to her by counsel for David Wayne Carroll [Interrogator]. Those questions may be questions regarding life insurance policies, real property in the estate,[3] whether a will exists,[4] and other questions which may be relevant to heirs in this estate. Index, Item 11.
It seemed that the probate judge was being careful not to call this examination a “deposition.” The probate judge’s order reflected no attempt to answer such fundamental questions as by what authority and to what purpose such examination was being ordered, so it is not surprising that it also provided no direction with regard to such less radical but more practical questions as: when and where the examination was to be conducted; who was entitled to notice of the time and place; who was to arrange (and pay) for the attendance of the court reporter; and who (if anybody) besides Patricia Carroll and counsel for David Wayne Carroll was entitled to be present.
Answers to such practical questions left open by the July 26, 1999, order had to be obtained through a series of further court proceedings. There is no need to recite these in detail. Widow’s examination was commenced and concluded in the offices of Interrogator’s attorneys, with Interrogator present, on the afternoon of November 5, 1999. All questions pertaining to insurance on Decedent’s life, or pertaining directly to Widow’s and Decedent’s adoption of an estate plan in July, 1995, the execution of documents relating to the same or the provisions or administration of the Revocable Living Trust were answered, as were general biographical questions about Widow, Decedent, and their marriage. Several times Interrogator’s counsel began a line of questioning that: (a.) clearly amounted to “fishing” for details about Widow’s relationship with Decedent or with other members of Decedent’s family which either Interrogator’s attorneys hoped might enable them to concoct some colorable challenge to the Decedent’s estate planning arrangements[5] or about which Interrogator himself was simply curious; (b.) called for the disclosure of the content of communications between Widow and Widow’s Attorney; and/or (c.) required Widow to discuss reasons for actions and positions taken by or on behalf of Widow in connection with the probate matter and, therefore, since the actions and positions in question had been taken by or in consultation with Widow’s Attorney, to discuss the mental impressions, conclusions, opinions or legal theories of Widow’s Attorney. On each such occasion, Widow’s Attorney stated that Widow found the line of questioning objectionable and advised Widow that she need not answer, whereupon Widow declined to answer further questions in the same line, whereupon Interrogator’s counsel, after declaring that a motion to compel would be filed along with a petition for contempt and that Widow, Widow’s Attorney or both would be punished or mulcted in various ways, proceeded with the examination by taking up a different line of questioning.
No motion to compel or other form of proceeding which would have called for a ruling from the probate judge as to the propriety vel non of Widow’s refusal to answer certain questions at the examination was ever initiated. In mid-January of 2000, however, Interrogator filed his Petition For Award Of Attorney’s Fees And Costs Pursuant To A.R.S. §§ 12-341.01 (C) and 12-349. Index, Item 25. Widow and Widow’s Attorney filed a response in opposition, setting forth their contentions that the referenced statutes are inapplicable because no “contested action” and no “civil action,” within their respective meanings, had been commenced or was pending and that a crucial implicit premise of Interrogator’s Petition, to wit, that A.R.CIV.P. 26 through 37 are applicable, was likewise incorrect because no “suit of a civil nature,” within the meaning of A.R.CIV.P. 1, had been commenced or was pending . Index, Item 28.
The probate judge signed a formal written Order and Judgment granting Interrogator’s Petition For Award Of Attorney’s Fees And Costs Pursuant To A.R.S. §§ 12-341.01 (C) and 12-349 and entering money judgment against Widow’s Attorney which was filed on March 20, 2000. Index, Item 35. Widow’s Attorney commenced an appeal, which was docketed as No. 1 CA-CV 00-0229 in this Court. Prior to the filing of briefs, Department M of this Court, noting that “this Court is obligated to inquire into its own jurisdiction,” spontaneously considered the appealability of the March 20, 2000, “Order and Judgment:”
The order from which this appeal was taken is an order imposing attorneys’ fees as a sanction against attorney Brian K. Stanley and/or Patricia Carroll, jointly or severally. The order contains no certification of finality pursuant to Rule 54 (b), Arizona Rules of Civil Procedure, and is therefore not appealable under A.R.S. section 12-1202 (B)[6]. Further, the order is not “similar to a final judgment or decree” entered in a formal probate proceeding because it does not finally adjudicate a particular aspect of the probate proceeding so as to be appealable pursuant to A.R.S. section 12-2101 (J). See Ivancovich v. Meier, 122 ARIZ. 346, 353, 595 P.2D 24, 31 (1979) Accordingly, this court is without jurisdiction over this appeal. Order dismissing No. 1 CA-CV 00-0229, filed June 23, 2000, 3rd paragraph.
Following notification of the dismissal of that appeal, Interrogator sought and obtained an “Amended Judgment and Order,” entered on August 31, 2000, which was essentially identical, but for the addition of A.R.CIV.P. 54 (b) “certification” language. Index, Item 62. Widow’s Attorney filed his Notice of Appeal from the Amended Judgment and Order on October 2, 2000.[7] Index, Item 67.
ARGUMENT
I. Statement Of Jurisdiction
This appeal was instituted pursuant to A.R.S. § 12-2101 (B). This Court has jurisdiction of the appeal under A.R.S. § 12-120.21 (A).
II. Standard Of Review
Since each of the issues presented involves only the determination of a pure question of (procedural) law, the applicable standard of review in this Court, as to all issues, is the de novo standard.
III. Interrogator Submitted No Substantive Claim Or Demand Of Any Kind To The Superior Court For Adjudication By It.
The original Petition for Adjudication of Intestacy, Determination of Heirs and Appointment of Personal Representative (Index, Item 1) filed on Interrogator’s behalf in March, 1998, was clearly superseded and rendered functus officio by his joinder in the Stipulation To Vacate Order Of April 28, 1998, For Admission Of Will To Probate And For Appointment Of Surviving Spouse As Personal Representative (Index, Item 5) filed by both Interrogator and Widow on April 9, 1999. Clearly, after the entry of the formal written Order Of Probate Of Will And Appointment Of Personal Representative pursuant to said Stipulation, on April 16, 1999, there was simply an administrative probate matter in the Superior Court and Interrogator’s status with respect to that matter was solely that of a surviving relative of Decedent who would, presumptively, have been entitled to share in the net probate estate but for Decedent’s Will of July 14, 1995, which had been declared to be the valid, unrevoked and last will of the Decedent and accordingly admitted to probate, and under the terms of which Interrogator was not entitled to receive any share of Decedent’s estate. He retained precisely the same status through the date of the inception of this appeal.
Widow’s Attorney fears that the Court will glance at the trial court record and find it hard to believe that this entire mountain of papers was generated and filed and pored over by the probate judge while there was literally nothing pending in the trial court which sought, or which would if prosecuted to conclusion lead to, any judicial determination of any substantive rights or liabilities, to the benefit or detriment of the legal or equitable interests of any individual, group or organization. Nevertheless, such is the case presented. Although attorneys representing Interrogator had, merely in correspondence directed to Widow or to Widow’s Attorney, vaguely alluded to some second-hand story about “a significant life insurance policy,” and darkly hinted at their client’s suspicion that Widow must, in some wholly unspecified but undoubtedly nefarious manner, have been responsible for misdirecting or misappropriating death benefits “in excess of one million dollars” paid or payable by one or more unknown insurance companies, some unspecified share of which should rightly have gone or be going to Interrogator,[8] that is as close as Interrogator ever came to even identifying any sort of a basis for concern.
After March 5, 1998, when his (subsequently abandoned and superseded) Petition for Adjudication of Intestacy was filed, and through October 2, 2000, when this appeal was initiated, not a single document was filed on Interrogator’s behalf in this matter which even arguably presents, however inartistically or otherwise imperfectly, a claim to any substantive entitlement, a demand for judicial redress of rights, or even an allegation that Interrogator has suffered any injury to person, property or other legally protected interest.
It is, of course, fairly common for a particular controversy as to some disputed interest in property, right of succession, contractual entitlement or obligation or the like to arise, or to reach the point at which lawyers are hired by the disputants, within the context of an administrative probate matter. In this connection, sometimes the question whether the controversy is sufficiently particularized, in terms of the rights and persons affected, and appropriately framed, in terms of claim and defense, claimant and respondent, as an issue which can an should be resolved as an item distinct from (even if highly important to) the overall administration of the underlying probate matter, to be properly regarded as an adversarial proceeding within the probate matter, and hence to be treated, for various procedural purposes, as the functional equivalent of a separate civil action. The case here presented is not of such kind. Apart from Interrogator’s self-appropriation of adjective or procedural rights which would be his only if a “suit of a civil nature” or functional equivalent had been brought into the trial court for adjudication there, this record reflects not the least glimmer of a justiciable claim by either Interrogator or Widow against the other (at least, not since the filing of the Stipulation To Vacate Order Of April 28, 1998, For Admission Of Will To Probate And For Appointment Of Surviving Spouse As Personal Representative, Index, Item 5).
IV. Interrogator’s Contention That The Right For Which He Was Obliged To Seek Judicial Redress Was His “Right” To Conduct Widow’s Deposition Pursuant To Notice Under A.R.CIV.P. 30 (a) Is Simply An Absurd Effort To Lift Himself By His Own Bootstraps.
From the time his counsel framed the Petition For Order To Show Cause Re: Contempt which was filed on his behalf after Widow declined to honor the Notice of Deposition Interrogator purported to issue under A.R.CIV.P. 30 (a) – and notwithstanding the limited success of that Petition – Interrogator has simply assumed the applicability of the Civil Rules. When Widow’s Attorney has pointed out that on their face the Rules of Civil Procedure limit their application to “suits of a civil nature,” citing A.R.CIV.P. 1, Interrogator or his counsel have merely shrugged, as if to say, “There’s obviously a controversy: We say we can notice Widow’s deposition and you say we can’t. What would you call that, a criminal case?”
But a procedural right can only exist in a procedural context. It is obvious that neither Interrogator nor the probate judge whose Amended Order And Judgment is here under appeal believe that all of the Civil Rules are automatically applicable to every probate matter which is assigned a “PB” number by the Registrar. Where, for instance, is there the slightest indication in the record that anybody ever did anything about complying with the mandatory requirements of A.R.CIV.P. 26.1, or even took notice of the complete absence of any attempt at compliance? What document in this record (or in the average decedent’s estate probate matter) might be even colorably analogized to the R. 26.1 (b) “responsive pleading to the Complaint,” so as to make possible the computation of the R. 26.1 (b) due dates and deadlines?
And if the disclosure and discovery rules are applicable in every administrative probate matter, how are we to interpret that “bedrock” provision of the discovery rules, R. 26 (b), incorporated or referred to again and again throughout the rest of Part V of the Civil Rules?
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party … . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
If “the pending action” does not necessarily present any claim or defense, of any “party,” then we obviously won’t get much help from the “relates to the claim or defense” language. What is “the subject matter involved” in such an “action”? Anything that might affect any of the assets of the estate, their collection, preservation, administration and distribution, or any claimed liability of the estate, its validity, allowance, liquidation and/or settlement? And evidence inadmissible or admissible at what trial? Unless there is some reasonable basis for projecting on what issue or issues evidence might be offered, how can one even begin to make an analysis of its admissibility or inadmissibility?
According to the logic of Interrogator and the trial judge, once Grampa passes to his eternal reward, if anyone permitted to do so by statute files a testacy or intestacy petition pertaining to Grampa’s estate, then every interested person (including any relative who would be an heir at law in the event of intestacy, and perhaps some who would not, all beneficiaries under any will offered for probate, all creditors and the Department of Revenue) automatically has the right to notice the deposition of any other interested person, and then to examine the designated deponent – but, regarding what? If we take an administrative and non-adversarial probate matter and try to apply the discovery rules, simply resolving at the outset that we are going to ignore the many ways in which these rules simply don’t fit such a proceeding, it’s difficult to see how any practical subject-matter limitation could be formulated. So it’s open fishing season, then: “Which one of us did Grampa say he loved the most?” “Isn’t it true you seduced Grampa at the 1966 office Christmas party?” “Why would Grampa leave the model trains to you, when I’m the only one who would ever join him when he played with them?”
V. An Administrative Probate Matter Presenting No Claim Of An Adversarial Nature Clearly Cannot Satisfy The Legal Definition Of An “Action.”
A.R.S. §§ 12-341.01 (C) and 12-349 are each, on their face, applicable only in an “action” (a “contested action,” in the case of § 12-341.01 (C) and a “civil action commenced or appealed in a court of record,” in the case of § 12-349). In each instance, this technical, legal term is clearly used in its established technical, legal sense. This Court has expressly held that the existence of an “action,” in such sense, is a prerequisite to the trial court’s authority to make an award of attorney’s fees as a sanction under A.R.S. §§ 12-341.01 (C) or A.R.S. § 12-349. Bryant v. Bloch Companies, 166 ARIZ. 46, 48-49 (App. Div. 1 1990). Under the reasoning of Bryant, the trial court could have had authority to entertain Interrogator’s Petition For Award Of Attorney’s Fees And Costs Pursuant To A.R.S. §§ 12-341.01 (C) And 12-349 only if a probate matter, open for the administration of decedent’s estate following the granting of an uncontested petition to admit decedent’s will to probate, constitutes a pending “action” within the meaning of these statutes.
“Action,” as a legal term of art, is a word with a long and well developed history. Although slightly different wording is used by various authorities defining this term, the essential concept and its essential elements are clear:
The word, “action,” though, in general, it signifies merely motion or an act, yet, when applied to legal subjects, means a proceeding by one party against another to try their mutual rights; or as it is more technically expressed in some books, a process [writ], to which there may be pleadings. [Citing Coke Upon Littleton and Blackstone’s Commentaries, in addition to cases.] Society for Propagating the Gospel v. Whitcomb, 2 N.H. 227, 229 (1820).
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To constitute an action, ordinarily, there must be a legal proceeding in a court of justice by a plaintiff against a defendant, for a breach of a primary duty owed by defendant with regard to a primary right possessed by plaintiff.
* * *
… The vital idea of an action is a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law.
Accordingly, an action has been characterized as the act of three parties, plaintiff, defendant and the court, actor, reus, and judex … . 1A C.J.S. p. 304, Actions § 2 (b) (1985) (emphasis in original).
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Every judicial action has in it certain necessary elements – a primary right belonging to the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant, which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing out of this delict; and finally, remedy or relief itself. Every action, however simple, must contain these essential elements … . [Quoting earlier case law.] Phoenix Insurance Co. v. United States, 3 F.SUPP. 112, 113 (D. Conn. 1932).
Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. [Quoting authorities.] Village of LaGrange Park v. Jarecki, 243 ILL. APP. 290, 295 (Ill. App. 1927).
Under such principles, it is scarcely surprising to find that administrative probate proceedings, where there is no assertion of a right by one party as against another, with a corresponding demand for a judicial remedy to be imposed in favor of the first and against the second, have consistently been distinguished from “actions” when the question of applying therein procedural standards prescribed for “actions” or “civil actions” has arisen. See, e.g., In re Park’s Estate, 75 P.2D 842, 848 (Kans. 1938) (proceeding for administration of intestate’s estate not an “action” within meaning of procedural statutes); In re Welch, 84 N.W. 550, 551-52 (Wisc. 1900) (guardianship proceeding not an “action” within meaning of procedural statute); Smith v. Westerfield 26 P. 206, 207 (Cal. 1891) (intestacy proceeding in probate not a “civil action” within meaning of procedural statute).
To direct our attention to A.R.S. § 12-341.01 (C), how can the issue of whether a “claim or defense constitutes harassment, is groundless and is not made in good faith” even arise, much less be rationally resolved, if no “claim or defense” is even presented on the record? Turning to A.R.S. § 12-349, if “civil action” in sub-section A were not clear enough, wouldn’t it be apparent from sub-section C that at least some type of proceeding in which the offending party or attorney had the option of effecting “voluntary dismissal” is contemplated by the statute? Title 14 of the Revised Statutes will be searched in vain for any provision relating to “voluntary dismissal,” whether by a petitioner or some other interested person, of a formal testacy (or intestacy) proceeding.
The A.R.CIV.P. 1 restriction of the applicability of the Rules of Civil Procedure to “suits of a civil nature” similarly implies the requirement of a basic but distinctive framework. In Black’s Law Dictionary (5th ed. 1979), at p. 1286,“suit” is defined as a term
referring to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity.
Again, a particular claim of substantive right or entitlement, asserted by an identified claimant who demands a legal remedy from or against some other identified person or persons, and submits his claim to a competent tribunal for binding adjudication, whether in favor of or against the claimant, are discernible as essential elements defining the type or class of proceeding to which a prescribed procedural standard or standards (in this instance, the Civil Rules, including Rules 26 through 37) is to be applied. Only if the “what” of the proceeding conforms to this requirement do the Civil Rules, on their face, become applicable to prescribe the “how” of the proceeding.
Since John Marshall’s day it has been held that no probate or divorce matter can be considered a “Case or Controversy” within the meaning of Article II of the federal Constitution, so that an Article II court cannot entertain such a matter, even where it would otherwise lie within the court’s diversity jurisdiction and removal to the federal court has been sought by a defending party on that basis. For this reason, there are no reported cases discussing the application of FED.R.CIV.P. 1 to probate matters. However, it has been said that, in order to hold the Federal Rules of Civil Procedure to be applicable to a proceeding,
The courts have generally required that the proceeding must be adversarial in nature and must be brought to pursue a [substantive] remedy. 1 MOORE’S FED. PRAC. 3D § 1.20 [1] [a] (1997).
While another authority has stated that
[A]ll adversary proceedings of a civil nature are governed by the Federal Rules of Civil Procedure. … On the other hand, the administration of estates in receivership is not dealt with by the federal rules but is left to be treated by the local rules of the various district courts. 4 WRIGHT & MILLER, FED. PROC. & PROC., CIVIL 2D, pp. 109-110, § 1028 (1987).
In responding to Interrogator’s Petition For Award Of Attorney’s Fees And Costs Pursuant To A.R.S. §§ 12-341.01 (C) And 12-349 (Index, Item 25), Widow
Point[ed] out once again that a civil action – or an adversary proceeding in probate in the nature of a civil action – has parties, who make, and are responsible for the making of, factual and legal allegations, admissions and denials. Each party’s assertions must be relevant to a claim of substantive entitlement put forward by or on behalf of the party to whom such entitlement (if it exists) belongs, or to a defense against a claim which, if established, would adversely affect such party’s interests. If the action is a contested one, then there is a judicial mechanism for deciding the truth or falsity of each of the relevant factual allegations and denials, and for determining substantive legal rights and responsibilities on the basis of such decisions.
Here, [Interrogator] has never assumed responsibility for making any claim of substantive entitlement, nor a single factual allegation relevant to any such claim. Response To Application For Award Of Attorneys’ Fees, Index, Item 28, p. 2.
CONCLUSION
The Amended Order And Judgment appealed from should be reversed, and the matter remanded to the Superior Court with directions to vacate said Amended Order And Judgment.
DATED August 30, 2001.
______________________________
Brian K. Stanley
Appellant in pro. per.
Pursuant to the requirements of Rule 14 (b), ARIZ.R.CIV.APP.PROC., I hereby certify that: (1.) This brief uses proportionally spaced, 14 pt., roman, non-script typefaces, except that a slightly smaller typeface is used in tables and for footnotes and page footers and slightly larger typefaces are used for certain headings; (2.) Its word count is approximately 6,100 words; and (3.) This brief otherwise complies with the requirements of said Rule.
DATED: August 30, 2001.
_________________________________
Brian K. Stanley
Appellant in pro. per.
CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that two (2) copies of the foregoing Brief were served upon each of the following:
Ms. Suzanna Goldman
Goldman Soderquist Law Offices
1542 W. McDowell Rd.
Phoenix, AZ 85007-1634
Appellee in pro. per.
Mr. David W. Carroll
P.O. Box 2463
Sedona, AZ 86339
Appellee in pro. per.
by depositing the same, postage prepaid, each enclosed within an envelope addressed as set forth above, in the United States Mails at Phoenix on August 30, 2001.
DATED: August 30, 2001.
______________________________
Brian K. Stanley
Appellant in pro. per.
[BKS-GRGA]\\BKSDesk\C:\WP\Carroll Probate Litigation\Appeal (taken 2000-10-02)\Appellant’s Opening Brief.doc : 08/30/01 :BKS
[1]. Although exhaustive information and documentation regarding the “two small polices” – including issued policies with schedules, riders and supplements, beneficiary designation documents and all forms and letters submitted or received in connection with the payment of death benefits – was not provided until the November 5, 1999, examination was held, the truth is that the Interrogator and his several attorneys never showed any interest in the “two small policies” or asked for further information concerning them. To the best of Appellant’s knowledge, until November 5, 1999, Interrogator and his counsel never even determined the identity of the issuing companies.
Widow’s Attorney accumulated full documentation regarding the “two small policies” for production at the examination principally in the hope that, confronted with the stark contrast between the detailed information available with regard to the real life insurance policies and the perfect blank (documentary and oral) where information regarding the purported “million-dollar-plus” policy was concerned, Interrogator and his then-attorneys would finally see the absurdity of Interrogator’s implied insistence that Widow prove the factum negativum that no such policy ever existed.
Since it is well known that life insurance companies share information about insureds, coverage amounts and death-benefit claims made, and anyone interested enough to look into the matter would find that the insurance industry supports a nationwide information pool for such purposes, the lack of interest in the “two small policies” exhibited by Interrogator and his counsel is curious. Anyone seriously attempting to determine whether there was any substance to the story about a “$1,000,000+” policy would have responded to the May 6, 1997 letter from Widow’s Attorney by asking about the issuers and policy numbers of the “two small policies,” as an obvious first step in toward obtaining through Decedent’s known life insurers information regarding any other policy on Decedent’s life which might have been issued by a cooperating company.
[3]. To the best of Appellant’s knowledge, this stray remark from the bench represents the first, last and only time anybody has so much as obliquely alluded to a possibility that Decedent’s probate estate includes, should include or even might include any interest in any real property, anywhere.
[4]. Just over three months earlier, this same probate judge had examined the original of the Will which Interrogator and Widow stipulated to be the valid, unrevoked and last will of the Decedent, had found and declared it to be the valid, unrevoked and last will of the Decedent, ordered it admitted to probate as the valid, unrevoked and last will of the Decedent, and had accordingly caused the Clerk to enter a formal written adjudication of probate. Index, Items 5 and 7. Neither at the time of the July 26, 1999 announcement from the bench here quoted nor at any other time prior to the inception of the present appeal had Interrogator (personally or through counsel) indicated any desire or intention to withdraw or seek release from his Stipulation as to the validity (and thus, implicitly – one would think – to the existence) of the probated Will. Since both the very Will whose validity he himself had judicially declared and the formal Order he had signed so declaring were on the bench in front of him even as he spoke, the words “whether a will exists,” when they fell from the judge’s lips, left Appellant literally speechless for several minutes, and they leave him bewildered even now.
[5]. From this and other indications, Appellant inferred that Interrogator’s counsel either were not aware of, or believed they knew a way of circumventing, the severe limitations imposed upon any such challenge by Interrogator under A.R.S. § 14-3412. See Note 2 and accompanying text, above, p. 7.
[6]. So in original. Since the cited statute deals with the provision of “sufficient drivers or herders to confine” livestock when using a private way of necessity, it seems likely the Court meant to refer to A.R.S. § 12-2101 (B).
[7]. The thirtieth day after the entry of the order appealed from, September 30, 2000, fell on a Saturday; Monday, October 2, 2000 was the next day on which the offices of the Clerk and Probate Registrar were open to accept filings.
[8]. Without even bothering to keep the hints made by successive attorneys, vague and shadowy as they were, from being flagrantly inconsistent. It will be noted that according to the first letter, written by V. I. Duncan in April, 1997 (Index, Item 64, Exhibit 1), Decedent “told his sons” about a life insurance policy “in excess of one million dollars” whose beneficiaries were Widow, her son and Decedent’s sons, and that after Decedent’s death Interrogator was “shocked” upon hearing (from a person or persons unspecified) that “the beneficiary designation on this policy was changed” sometime around April, 1996. According to the second letter, written by B. A. Valdez in January, 1998 (Index, Item 64, Exhibit 3), Decedent told his son Jeff (who, presumably, told Interrogator) about an insurance policy “in the amount of one million dollars” whose beneficiaries were Decedent’s sons, and that after Decedent’s death Interrogator was told by Decedent’s financial planner that the beneficiary designation had been changed about a year before and then by Widow that the policy “had been ‘rolled over’” – whatever that might mean, as applied to a life insurance policy – three years before that, and that these “discrepancies [sic] concerning the insurance policies [sic]” had given rise to Interrogator’s “serious concern.”
