Kingston v. Kingston

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Guardianship of:

RAYMOND F. KINGSTON, An Adult.

DOUGLAS J. KINGSTON, Petitioner/Appellant,

v.

LANCE KINGSTON, et al., Respondents/Appellees.

No. 1 CA-CV 21-0174
FILED 12-7-2021

Appeal from the Superior Court in Maricopa County
No. PB 2017-003648
The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED

COUNSEL

The Shumway Group PLC, Scottsdale
By Jeff A. Shumway
Counsel for Petitioner/Appellant
Murray Henner Esq., Scottsdale
By Murray Henner
Counsel for Respondent/Appellee Lance Kingston

Paul Theut Probate Law PLC, Phoenix
By Paul J. Theut
Counsel for Respondent/Appellee Raymond F. Kingston

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.

H O W E, Judge:

¶1 Douglas J. Kingston appeals the trial court’s order sanctioning
him and his counsel for bringing unjustified claims in a guardianship
proceeding involving his stepfather, Raymond Kingston.1 For the reasons
stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Raymond, in his late eighties, required extensive in-home
care for various health issues. Raymond appointed his son, Lance Kingston,
agent under various durable powers of attorney, to make his financial and
medical decisions. Douglas did not believe that Lance was providing
Raymond adequate care and supervision, however, and in December 2017,
petitioned for the appointment of a third-party temporary and permanent
guardian for Raymond. The court appointed Raymond counsel, and the
parties submitted medical reports on Raymond’s competency. Raymond
opposed the guardianship, believing that Douglas had requested
guardianship because he had recently changed the beneficiaries of his
estate. He also requested that if the court granted the petition, it would
appoint Lance as guardian and conservator. Heather Frenette, one of the
medical experts, examined Raymond and determined that he was
competent, although needing professional in-home care.

1 Because this case involves a family matter in which all parties have
the same last name, we respectfully address the parties by their first name
for clarity.

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¶3 Based in part on Frenette’s report, Douglas conceded that
Raymond was competent, and the parties agreed to a settlement,
submitting a stipulated order for the court. The order required Frenette to
oversee Raymond’s care and, among other things, to verify that his
medications were properly administered, that he remained satisfactorily
ambulatory, and that he maintained an appropriate diet and hygiene. The
court also ordered that Lance, when making a health-care decision as
Raymond’s agent, use all reasonable means to consult Douglas before or
during the decision-making process. Lance was also required to inform
Douglas or Frenette within three hours of Raymond’s unplanned admission
to a hospital or his receipt of other unplanned medical treatment. The court
then found that the petition for permanent guardianship was moot
(together “the April orders”).

¶4 In January 2019, Douglas petitioned for emergency
enforcement of the April orders and sought appointment of a guardian ad
litem for Raymond. Raymond and Lance opposed the petition, submitting
a physician’s affidavit that Raymond had “mental acuity” and “knows
what he wants and made that well known. He is lucid, alert, and
competent.” The physician also reported that Raymond did not want to see
Douglas because Douglas had continually “harassed” him.

¶5 The court found that it lacked authority to appoint a guardian
ad litem without a finding of incapacity (“the August order”). It also
reiterated that the April orders rendered moot both the temporary and
permanent petitions because the parties had decided to enter an agreement
“instead of the 2017 Petition going forward.” It did find, however, that
Lance had failed to fully comply with the April orders and made additional
orders consistent with those orders. Douglas moved for reconsideration
and the motion was denied.

¶6 Douglas obtained new counsel and moved in August 2020 for
a mental examination of Raymond under Arizona Rule of Civil Procedure
35, claiming that Raymond had not had an evaluation since the August
order. Raymond and Lance moved for sanctions because no issues were
pending before the court and no good cause existed for the Rule 35 order.
At the hearing, Douglas argued that the petition for temporary and
permanent guardianship was fairly before the court because no final
judgment had been entered. Raymond and Lance responded that the
parties had fully settled the temporary guardianship and that the court had
found both the temporary permanent guardianship moot in the April
orders. Douglas replied that the Rule 35 evaluation was impossible based
on medical records that he had received before the hearing, and he

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withdrew the motion at the end of the oral argument. He maintained,
however, that he wanted a hearing on whether a guardian ad litem was
required because the original petition was still before the court since no
final judgment had been entered under Arizona Rule of Civil Procedure
54(c), which states that a “judgment as to all claims and parties is not final
unless the judgment recites that no further matters remain pending and that
the judgment is entered under Rule 54(c).” Ariz. R. Civ. P. 54(c).

¶7 The court again found no pending issue before it because the
April orders made the petition for temporary and permanent guardianship
moot. It found that Douglas and his attorney had engaged in unreasonable
conduct under A.R.S. § 14–1105, which provides that if a protected person
in a guardianship proceeding incurs fees for another party’s unreasonable
conduct, then the court may order that party to pay some or all the
protected person’s fees and costs. It then ordered the attorneys for
Raymond and Lance to apply for fees and costs associated with defending
against the recent motions.

¶8 Raymond requested $11,313.65 and Lance requested
$16,347.50. Each requested $400.00 an hour for almost 70 hours of total work
spent on defending the August 2020 motions. In his response, Douglas
argued that the amount requested for “responding to the total of four
paragraphs in the two filings” was unreasonable on its face. Douglas also
argued that Raymond sought $160 in fees unrelated to the motion and
Lance sought $1,800 for time spent before Douglas’s Rule 35 filing. Douglas
also argued that Raymond sought $2,560 and Lance sought $1,240 in fees
for work that they needed to perform under the April orders and therefore
was not related to the defense of the Rule 35 filing and associated hearing.
He also claimed that the attorneys “block” billed and failed to provide
specific detail to determine whether the bill was reasonable. Raymond’s
attorney responded by removing $160 in fees unrelated to the motion.

¶9 The court then sanctioned Douglas and his counsel, finding
that Douglas and his attorney had engaged in unreasonable conduct in
requesting an appointment of a guardian ad litem when no proceeding was
before the court and no finding of incapacity had been made, and in
withdrawing the Rule 35 motion at the end of oral argument when counsel
was aware before the start of the hearing that his motion had no basis. It
then awarded $11,153.65 to Raymond under A.R.S. § 14–1105 and A.R.S.
§ 12–349 and $16,347.50 to Lance under A.R.S. § 14–1105. It found the fees
reasonable because the attorneys exhibited appropriate skill and time
required in probate litigation to keep the litigation costs from going beyond
the oral argument. Also, their fee statements appropriately set forth their

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actual work performed, their substantial experience in this area of law, and
their success for their clients in compliance with the fee request
requirements of Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983)
and In re Guardianship of Sleeth, 226 Ariz. 171 (App. 2010). Douglas timely
appeals.

DISCUSSION

¶10 Douglas argues that the court erred in imposing sanctions
against him under A.R.S. §§ 14–1105 and 12–349 for Raymond’s and Lance’s
attorneys’ fees and that the fees were unreasonable. We review the evidence
in a manner “most favorable to sustaining the award and affirm unless the
trial court’s finding” is clearly erroneous. Goldman v. Sahl, 248 Ariz. 512, 531
¶ 65 (App. 2020); see also In re Conservatorship for Mallet, 233 Ariz. 29 ¶ 7
(App. 2013) (applying abuse of discretion standard for a fee award under
A.R.S. § 14–1105(B)). We review the trial court’s application of a statute,
however, de novo. See e.g., Goldman, 248 Ariz. at 531 ¶ 65.

I. Award of sanctions under A.R.S. §§ 14–1105 and 12–349

¶11 The trial court did not err in awarding attorneys’ fees to both
attorneys. Under A.R.S. § 14–1105(B), if the court finds that a “ward or
protected person has incurred professional fees or expenses because of
unreasonable conduct,” the court “may order the person who engaged in
the conduct or the person’s attorney, or both,” to pay for some or all of the
fees and expenses as the “court deems just under the circumstances.” Ward
is “a person for whom a guardian has been appointed,” and protected person
means a “person for whom a conservator has been appointed or any other
protective order has been made.” A.R.S.§ 14–5101(10), (16). The remedies
allowed under A.R.S. § 14–1105(B) extend to a protected person’s fiduciary,
including a person’s agent under a durable power of attorney or agent
under a health care power of attorney. A.R.S. § 14–1105(C), (D)(2). Douglas
does not dispute that Raymond was subject to a protective order after the
court’s April orders, see A.R.S. § 14–5101(10); A.R.S. § 14–5401(A), and that
Lance was Raymond’s fiduciary, A.R.S. § 14–1105 (D)(2).

¶12 The parties’ stipulated agreement addressed all concerns in
the original petition for a temporary and permanent guardian or
conservator, thereby making the original petition moot. See Workman v.
Verde Wellness Ctr., Inc., 240 Ariz. 597, 603 ¶ 17 (App. 2016) (A case becomes
moot if “an event occurs that ends the underlying controversy” and
transforms the litigation into an abstract question that does not arise upon
existing facts or rights.); cf. Contempo-Tempe Mobile Home Owners Ass’n v.

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Steinert, 144 Ariz. 227, 230 (App. 1985) (finding that the parties’ stipulation
can moot an issue). In enforcing the April orders against Lance in the
August order, the court properly rejected Douglas’s motion for the
appointment of a guardian ad litem because nothing in the April orders
suggested that Raymond was incapacitated. See A.R.S. § 14–1408 (stating
that the court may appoint guardian ad litem to represent the interest of an
incapacitated person). It also reiterated that the stipulated agreement and
signed order made Douglas’s original petition moot and that the parties
had decided not to proceed with the original petition. The court thus clearly
held that it had found the petition for guardianship or conservatorship to
be substantively ended by the stipulated agreement and that no matters
remained pending before it. The court therefore did not abuse its discretion
in finding that Douglas’s subsequent 2020 motions were frivolous and that
Douglas’s request for guardian ad litem at the end of the August 2020
hearing was unreasonable.

¶13 The court also found that Douglas’s failure to withdraw his
request for Rule 35 mental examination was unreasonable. Under Rule
35(a)(2)(A), at any time during a proceeding, the court may order an
examination only on motion for “good cause.” No proceeding was before
the court, so no good cause existed for a Rule 35 examination. Indeed,
Douglas’s counsel conceded during the hearing that information he had
received before the hearing made such an examination unjustified. The
court therefore did not abuse its discretion in finding that Douglas’s failure
to withdraw his Rule 35 motion before the hearing was unreasonable
conduct. Cf. Roberts v. Kino Cmty. Hosp., 159 Ariz. 333, 336 (App. 1988)
(finding that plaintiff’s motion to dismiss unjustified claim before the
hearing set on the matter and two days after realizing claim was unjustified
was reasonable and therefore did not warrant sanctions).

¶14 Douglas nevertheless argues that the court erred in
sanctioning him when no final judgment had been entered under Arizona
Rule of Civil Procedure 54(c). He claims that because the April and August
orders did not have the requisite finality language under Rule 54(c), were
merely temporary, and did not finally resolve the original petition. While
true that the court’s failure to provide the requisite finality language
required by Rule 54(c) kept the order from being a final judgment under
Rule 54 and procedurally appealable, Ariz. R. Civ. P. 54; see also In re
Guardianship of Sommer, 241 Ariz. 308, 313–14 ¶ 26 (App. 2016) (appellate
court lacked jurisdiction to consider appeal from guardianship and
conservatorship petitions without Rule 54(c) finality language), the lack of
language necessary to make an order appealable does not affect the order’s
conclusive effect as to the case’s substantive issues. A trial court’s order that

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“adjudicates the rights of the parties with regard to the issues raised in the
guardianship and conservatorship petition” is “similar to a final
judgment.” In re Guardianship of Sommer, 241 Ariz. at 312 ¶ 19; see also A.R.S.
§ 12–2101(A)(9). The April and August orders thus resolved the matters
before the trial court, and Douglas and his counsel’s further litigation on
resolved matters was improper and sanctionable regardless of the lack of
finality language.

¶15 Douglas next argues that if the court had intended the April
orders to substantively resolve the original petition, then it would not have
heard his August 2019 emergency motion. This is incorrect. The court
retained jurisdiction to enforce its order memorializing the parties’
agreement. See A.R.S. § 14–1302(B), –12205. Even so, it reiterated its earlier
order finding the original petition moot and refused to address issues
arising from the original petition that were outside what the parties had
stipulated to in the agreement. See Home Builders Ass’n of Cent. Ariz. v. Kard,
219 Ariz. 374, 377 ¶ 9 (App. 2008). Because we affirm based on A.R.S. § 14–
1105, we need not review the trial court’s award under A.R.S.
§ 12–349.

II. Reasonableness of the awarded attorneys’ fees

¶16 Douglas also argues that the awarded fees were
unreasonable. We review an award of attorneys’ fees and costs for an abuse
of discretion. Sleeth, 226 Ariz. at 174 ¶ 12. “In reviewing for an abuse of
discretion, the question is not whether the judges of this court would have
made an original like ruling, but whether a judicial mind, in view of the law
and circumstances, could have made the ruling without exceeding the
bounds of reason. We cannot substitute our discretion for that of the trial
judge.” Solimeno v. Yonan, 224 Ariz. 74, 82 ¶ 36 (App. 2010).

¶17 An attorney’s affidavit supporting a fee application should
include at a minimum the type of legal services provided, the date the
service was provided, the attorney providing the service, and the time spent
in providing the service. Schweiger, 138 Ariz. at 188. In assessing the
reasonableness of the requested fees, courts consider (1) the qualities of the
advocate; (2) the character of the work to be done; (3) the work performed
by the lawyer; and (4) the result. Id. at 187. Once a party establishes its
entitlement to fees and meets the minimum requirements in its application
and affidavit for fees, the burden shifts to the party opposing the fee award
to show the impropriety or unreasonableness of the requested fees. Nolan
v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 490–91 ¶ 38 (App. 2007).
To successfully challenge the application for attorneys’ fees, the opposing

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party must do so with specificity. Cook v. Grebe, 245 Ariz. 367, 370 ¶ 11 (App.
2018).

¶18 The court found that the requested fees were reasonable
considering the character of the work in the probate field and the attorneys’
related experience and skill. The fees requested were detailed enough to
allow the court to determine what occurred, even if the specific topics of
discussion were not exhaustively listed. In overruling Douglas’s objections,
the court found that the awarded fees were from the time that Douglas’s
new attorney noticed his appearance and therefore related to Douglas’s and
his attorney’s behavior in the litigation. Reviewing the record, we cannot
find that the court “exceed[ed] the bounds of reason” and abused its
discretion in its fees award. See Solimeno, 224 Ariz. at 82 ¶ 36.

¶19 Douglas argues that the fee application consisted of block
billing in violation of the Arizona Code of Judicial Administration
§ 3–303(D)(2)(c). Under the code, block billing occurs when a “timekeeper
provides only a total amount of time spent working on multiple tasks,
rather than itemization of the time expended on a specific task.” Ariz. Code
of Jud. Admin. § 3–303(D)(2)(c). In Sleeth, this court found that an
attorney’s “recording of only half-hour or one-hour increments and his
practice of grouping tasks together in a block” could not be reviewed for its
reasonableness. 226 Ariz. at 178 ¶ 34. The record does not support
Douglas’s argument that either attorney block-billed, however. Unlike the
billing practices in Sleeth, the attorneys here billed at a tenth of an hour,
providing multiple entries for each date and listing only one activity for the
time billed. While the fee applications showed that the attorneys billed
“research” in longer periods of time, the entries provided details about
what the research entailed, allowing the court to determine the
reasonableness of the activity and fee. Nothing in the code requires
attorneys to record a more particularized and itemized list of what exactly
they looked at in their research. Ariz. Code of Jud. Admin. § 3–303(D)(2)(c).
Thus, the court did not abuse its discretion in finding that the only instance,
perhaps, of block billing occurred for non-charged services. Douglas’s
remaining arguments are unpersuasive.

III. Attorneys’ fees on appeal

¶20 Both parties request attorneys’ fees under A.R.S. § 12–349.
Under A.R.S. § 12–349, a court shall assess reasonable attorney fees if an
attorney or party brings or defends a claim without substantial justification,
brings or defends a claim solely or primarily for delay or harassment,
unreasonably expands or delays the proceeding, or engages in an abuse of

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discovery. A.R.S. § 12–349(A). Without substantial justification means that
the “claim or defense is groundless and is not made in good faith.” A.R.S.
§ 12–349(F).

¶21 We deny Douglas his attorneys’ fees because he did not
succeed on appeal. We award Raymond and Lance’s request for reasonable
attorneys’ fees, however, because the appeal was brought without
substantial justification. A.R.S. § 12–349(A)(1). The trial court had twice told
Douglas before the August 2020 motions and hearing that no action was
pending. Yet Douglas requested a concededly “impossible” Rule 35 hearing
and did not dismiss or vacate the hearing upon realizing its lack of
justification. Douglas’s appeal from that determination is both groundless
and is not made in good faith and therefore unjustified under A.R.S.
§ 12–349(A)(1). Cf. Roberts, 159 Ariz. at 336. As the prevailing party,
Raymond and Lance are also awarded their costs on appeal upon their
compliance with ARCAP 21.

CONCLUSION

¶22 For the reasons stated, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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