NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In the Matter of:
ELLEN H. GARDNER TRUST UNDER
AGREEMENT DATED DECEMBER 22, 1986
_________________________________
JAMES ELDEN GARDNER, JR., Appellant,
v.
FIRST INTERNATIONAL BANK & TRUST and CRAIG EALY;
DOTTYE OWEN GARDNER; LATISHA GUZMAN; DAVID GARDNER,
DAYTON GARDNER, BRANDON GARDNER, TAYLOR GARDNER,
CHELSEA HICKS, CAITLIN HARWARD, and STEPHEN K. GARDNER,
Appellees.
No. 1 CA-CV 15-0023
FILED 03-22-2016
Appeal from the Superior Court in Maricopa County
No. PB1999-005176
The Honorable Edward W. Bassett, Judge
AFFIRMED IN PART, VACATED IN PART
COUNSEL
James Elden Gardner, Jr., Mesa
Appellant
Tiffany & Bosco, PA, Phoenix
By Alisa J. Gray, Nora L. Jones, James A. Fassold
Counsel for Appellees First International Bank & Trust and Craig Ealy
Evans Dukarich LLP, Tempe
By Steven L. Evans, Gary Dukarich
Counsel for Appellee Dottye Owen Gardner
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 James Elden Gardner, Jr. appeals from an order approving
final payment of attorney's fees and costs to the law firm of the successor
trustee of his mother's estate and authorizing the successor trustee to pay
his late father's spouse for her attorney's fees as set forth in a settlement
agreement, and an order declaring him a vexatious litigant. For the
following reasons, we affirm the order approving final payment of
attorney's fees and authorizing payment of attorney's fees but vacate the
vexatious-litigant order.
FACTS AND PROCEDURAL BACKGROUND
¶2 Gardner's parents created a trust in 1986 naming Gardner and
his siblings as beneficiaries. The trust provided that upon the death of one
of Gardner's parents, the trust would be divided into two sub-trusts, the
"Survivor's Trust" and the "Decedent's Trust." Gardner's mother died in
1993. Upon her death, the Survivor's Trust was completely amendable and
revocable by Gardner's father as surviving trustor. After Gardner's father
married Dottye Owen Gardner ("Dottye"), he amended the Survivor's Trust
to provide that all the survivor's assets would go to Dottye.
¶3 In 2006, the superior court in PB1999-005176 (the "Probate
Matter") appointed First International Bank & Trust ("FIB&T") as successor
trustee of the Decedent's Trust. Gardner's father died in 2013. That same
day, Gardner filed a complaint in superior court, CV2013-092755 (the "Civil
Matter"), against Dottye, FIB&T, and related parties, alleging FIB&T
improperly made principal distributions and failed to exercise its
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GARDNER v. FIRST INTERNATIONAL et al.
Decision of the Court
affirmative obligations to marshal the Survivor's Trust's assets, and that
Dottye had received assets to which she was not entitled.
¶4 At a settlement conference, Gardner and other trust
beneficiaries, along with Dottye, FIB&T, and related parties entered into a
settlement agreement. The agreement authorized FIB&T to immediately
liquidate all trust holdings and petition for modification of the trust terms
to allow for termination of the Decedent's Trust upon completion of all
administrative tasks and to distribute all the available assets to the
beneficiaries.1 The parties also agreed to dismiss the Civil Matter. The
agreement permitted FIB&T to distribute $8,000 to Dottye as
reimbursement for a portion of her attorney's fees and costs incurred in the
Civil Matter.
¶5 FIB&T petitioned the court in the Probate Matter for an order
approving the settlement agreement and modifying and terminating the
Decedent's Trust. Gardner filed a petition challenging the approval of the
settlement agreement, which he later withdrew. The court approved the
settlement agreement and modified the terms of the trust agreement.
Gardner again filed a petition challenging the settlement agreement and
filed several related motions. Dottye moved for an order to declare Gardner
a vexatious litigant based on what she called Gardner's "voluminous,"
"frivolous and harassing" filings, all allegedly made in an "attempt to
withdraw from the Settlement Agreement," which the trial court denied.
¶6 FIB&T then petitioned for an order approving the final
distribution to the beneficiaries and releasing and discharging it as
successor trustee, to which Gardner objected. During the hearing on
FIB&T's petition, the court granted an oral motion to declare Gardner a
vexatious litigant. The court ultimately approved FIB&T's proposed final
distribution to the beneficiaries, approved final payment of attorney's fees
and costs of $6,500 to the law firm representing FIB&T in the Probate
Matter, authorized FIB&T to pay Dottye $8,000 for her attorney's fees as set
forth in the settlement agreement, and released and discharged FIB&T as
the successor trustee of the Decedent's Trust.
1 The trust called for the trustee to distribute 25% of the principal trust
assets to the beneficiaries upon the death of Gardner's father, then
distribute the remaining 75% four years later.
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GARDNER v. FIRST INTERNATIONAL et al.
Decision of the Court
¶7 Gardner timely appealed. We have jurisdiction pursuant to
Arizona Revised Statues ("A.R.S.") sections 12-2101(A)(9), (A)(5)(b) (2016)
and –2102(A) (2016).2
DISCUSSION
¶8 In violation of the Arizona Rules of Civil Appellate
Procedure, Gardner's briefs fail to list discernible issues, develop
arguments, and cite authorities, statutes, or relevant parts of the record. See
ARCAP 13(a)(5)–(a)(7) (a brief shall contain a statement of facts, issues, and
arguments with appropriate citations to authorities, statutes, and references
to the record relied upon). We have discerned Gardner's arguments as best
we can and consider only those that are adequately supported by
explanation, record citations or authority. In re Aubuchon, 233 Ariz. 62, 64–
65, ¶ 6 (2013).3
A. Attorney's Fees to Dottye.4
¶9 Gardner argues that Dottye negotiated in bad faith at the
settlement conference and thus should "forgo the $8,000.00 bargained for in
the agreement." As best we can discern, Gardner argues he relied on
Dottye's "false assertions" of poverty in agreeing that the trust could
compensate her for legal fees she incurred defending the Civil Matter. He
contends that in reality, Dottye had received considerable assets from the
Survivor's Trust but had failed to disclose them.
¶10 Gardner agreed at the settlement conference that the
successor trustee would distribute $8,000 to Dottye as "reimbursement for
a portion of her attorneys' fees and costs incurred in the Civil
Matter." Gardner admits in his briefs that he agreed the trustee could pay
Dottye $8,000 "if she would reciprocate by facilitating the termination of the
2 Absent material revision after the date of the events at issue, we cite
a statute's current version.
3 Unsupported arguments are waived. Ritchie v. Krasner, 221 Ariz.
288, 305, ¶ 62 (App. 2009).
4 Dottye argues this court is without jurisdiction to consider an
attorney's fees award to her in the amount of $10,500, but Gardner does not
contest that award on appeal.
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GARDNER v. FIRST INTERNATIONAL et al.
Decision of the Court
Trust immediately." Parties are bound by their stipulations unless relieved
therefrom by the court. Higgins v. Guerin, 74 Ariz. 187, 190 (1952).5
¶11 In the superior court, however, Gardner never argued that
Dottye negotiated the $8,000 payment in bad faith at the settlement
conference. Indeed, in response to FIB&T's petition for an order approving
final distribution, Gardner agreed to the trustee's proposed distribution to
Dottye of $8,000 as negotiated at the settlement conference. Alleged errors
not raised in the superior court cannot be asserted on appeal. See Trantor v.
Fredrikson, 179 Ariz. 299, 300 (1994). Thus, we affirm the court's order
authorizing the successor trustee to pay Dottye $8,000 from the Decedent's
Trust as agreed to by Gardner.
B. Attorney's Fees to Successor Trustee's Law Firm.
¶12 Gardner argues the Decedent's Trust could not pay $6,500 in
attorney's fees to FIB&T's attorneys from the trust assets to complete the
final trust administration because no statute, case law, or any provision of
the trust or settlement agreement authorizes such payment. Gardner also
argues that the fees for the termination of the Decedent's Trust were the
personal obligation of the successor trustee and its agent. In support of this
contention, Gardner argues the order of dismissal of the Civil Matter
required all parties "to be responsible for their own attorney's fees." We
review an award of attorney's fees for abuse of discretion. In re Guardianship
of Sleeth, 226 Ariz. 171, 174, ¶ 12 (App. 2010).
¶13 Contrary to Gardner's assertions, section VIII(I) of the trust
authorizes the trustee to pay attorney fees from the trust assets. Moreover,
Arizona statutes permit the trustee to exercise powers conferred by the trust
and to compensate employees and agents of the trust. A.R.S. § 14-
10815(A)(1) (2016) (setting forth general trustee powers); § 14-10816(15)
(2016) (setting forth specific trustee powers). The Arizona Trust Code
specifically allows reimbursement of a trustee for "reasonable fees,
expenses and disbursement, including attorney fees and costs, that arise out
of . . . the good faith defense or prosecution of a judicial . . . proceeding
involving the administration of the trust[.]" A.R.S. § 14-11004(A) (2016)
(emphasis added). Nothing in the settlement agreement prevents payment
from trust assets as authorized by state law to FIB&T's attorneys for work
performed in terminating the Decedent's Trust. Finally, a requirement in
5 Agreements between parties in civil lawsuits are binding if their
terms are in writing pursuant to Arizona Rule of Civil Procedure ("Rule")
80(d).
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GARDNER v. FIRST INTERNATIONAL et al.
Decision of the Court
the Civil Matter that each party would bear its own attorney's fees has no
bearing in the Probate Matter.
¶14 Finding no abuse of discretion, we affirm the ruling of the
court approving final payment of attorney's fees and costs to FIB&T's
attorneys.
C. Vexatious-Litigant Order.
¶15 Gardner also argues there was no basis for the court to
designate him as a vexatious litigant under Arizona Rule of Probate
Procedure 10(G)(1)(a). As provided by that rule, a person designated as a
vexatious litigant "shall obtain the court's permission to file future
pleadings and other papers in the probate case or in other cases."6 A
vexatious litigant order essentially is a grant of injunctive relief. Madison
v. Groseth, 230 Ariz. 8, 13 n.8, ¶ 16 (App. 2012). A trial court has "inherent
authority to curtail a vexatious litigant's ability to initiate additional
lawsuits." Id. at 14, ¶ 17.
¶16 In Madison, we adopted four principles governing when a
court may impose pre-filing restrictions on a vexatious litigant: (1) the
litigant must be given notice and an opportunity to oppose the order, (2)
the court must list all cases and motions leading to the vexatious litigant
order, (3) the court must make "substantive findings as to the frivolous or
harassing nature of the litigant's actions," and (4) the order "must be
narrowly tailored to closely fit the specific vice encountered." 230 Ariz. at
14, ¶ 18 (quoting De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990)).
We may vacate a vexatious-litigant order where the court fails to adhere to
these principles. Id. at 14–15, ¶¶ 18, 21.
¶17 Here, at the hearing on FIB&T's petition for order approving
final distribution, Gardner advised the court that he contemplated further
filings regarding the trustee's alleged obligation to "marshal the survivor's
trust." Gardner's stated intent to further litigate an issue that the court
found had been resolved by the settlement agreement caused the court to
grant an oral motion to declare Gardner a vexatious litigant. The court
found that Gardner:
6 Although the court made the vexatious-litigant ruling in a minute
entry and not the final ruling, in an appeal from a final judgment, we may
review all orders and rulings assigned as error. A.R.S. § 12–2102(A).
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GARDNER v. FIRST INTERNATIONAL et al.
Decision of the Court
has engaged in vexatious conduct by habitual repetitive
conduct that causes unreasonable delays in the proceedings
and causes unnecessary expense. The Court previously
determined that Mr. Gardner was acting in good faith. The
Court cannot find that these actions continue to be
undertaken in good faith. Accordingly,
IT IS ORDERED under Rule 10(G)(1)(a) that Mr. Gardner
must obtain Court permission to file future pleadings in the
probate case as well as other cases.
¶18 Although the court understandably was frustrated by
Gardner's declaration that he would persist in seeking to undo the court's
orders concerning administration of the trusts, nothing in the record gave
Gardner notice before the hearing that FIB&T would make an oral motion
to declare him a vexatious litigant. In making its ruling, the court did not
list the cases and motions leading to the vexatious litigant order. Nor did
the court make any substantive findings as to the frivolous or harassing
nature of Gardner's actions. Finally, the order is not narrowly tailored, but
restricts pre-filing in all cases, which restricts Gardner's fundamental right
of access to courts. Madison, 230 Ariz. at 14, ¶ 17. Accordingly, we vacate
the court's order declaring Gardner a vexatious litigant.
CONCLUSION
¶19 For the foregoing reasons, we affirm in part and vacate in
part. In our discretion, pursuant to A.R.S. § 14-11004, we award FIB&T its
costs and reasonable attorney's fees upon compliance with Arizona Rule of
Civil Appellate Procedure 21.
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