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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Estate of:
VERLE CLIFFORD DOUGHERTY, An Adult.
STEVEN DOUGHERTY, Petitioner/Appellee,
v.
KLIFTON HOYER, Respondent/Appellant,
EDANA RECORD, et al., Appellees.
No. 1 CA-CV 21-0237
FILED 1-13-2022
Appeal from the Superior Court in Maricopa County
Nos. PB 2014-070812
PB 2019-004972
The Honorable Thomas Marquoit, Judge Pro Tempore
AFFIRMED
COUNSEL
Frazer, Ryan, Goldberg & Arnold LLP, Phoenix
By Joshua D. Moya, John R. Fitzpatrick
Counsel for Respondent/Appellant
Andersen PLLC, Scottsdale
By Mark E. Andersen, Samantha G. Stirling, Mark W. Hawkins
Counsel for Petitioner/Appellee
Becker & House PLLC, Scottsdale
By Mark E. House, Andrea B. O’Neill, Amanda L. Barney
Co-Counsel for Appellees, Record, Teichert, B. Dougherty, A. Dougherty
Jones Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis Gilbride
Co-Counsel for Appellees, Record, Teichert, B. Dougherty, A. Dougherty
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
C A M P B E L L, Judge:
¶1 Klifton Hoyer appeals from a probate court order clarifying
that he was entitled to a 2/15 share of his grandfather’s intestate estate. He
argues that an earlier order granting summary judgment indicated he was
entitled to a 1/3 share of the estate—the entire share his natural mother
would have received had she survived his grandfather—even though this
result is inconsistent with Arizona’s intestacy statutes. See A.R.S. §§ 14-
2103(1), 14-2106(A). Because the court’s interpretation of the earlier order
was correct, and because the court had discretion to modify that order, we
affirm.
BACKGROUND
¶2 Hoyer’s grandfather, Verle Dougherty, died in 2019. Verle
was survived by his son, appellee Steven Dougherty, and five
grandchildren from two predeceased children, Larry Dougherty and Lorna
Hoyer. Four of the grandchildren are Larry’s daughters, who are also
appellees; the fifth is Klifton, Lorna Hoyer’s son.
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
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HOYER v. DOUGHERTY, et al.
Decision of the Court
¶3 Steven, who had been Verle’s guardian and conservator
before his death, petitioned to be appointed personal representative of the
estate. Steven alleged that he was unaware of Verle having a valid will.
¶4 Before his appointment, and without counsel, Steven also
petitioned the probate court for instruction as to Klifton’s entitlement to
inherit an intestate share of Verle’s estate. Steven’s concern related to
Klifton’s adoption by a stepmother decades earlier. Believing the adoption
had caused Lorna to “sever[] all rights to Klifton,” Steven requested the
court to “[o]rder[] as follows:”
A. Determining [Klifton] is/is not entitled to inherit 1/3 of
the intestate estate of [Verle].
B. Directing the Personal Representative to divide the
intestate estate 1/3 to [Steven], 1/3 to [Klifton]; and 1/3
divided equally to [Verle’s four granddaughters].
C. Alternatively directing the Personal Representative to
divide the intestate estate half to [Steven] and the other
half equally to [Verle’s four granddaughters].
¶5 In response, Klifton filed a motion for summary judgment,
citing Arizona law confirming his right as a child adopted by the spouse of
a natural parent “to inherit from or through” both natural and adoptive
parents. See A.R.S. § 14-2114(B); see Demetrius L. v. Joshlynn F., 239 Ariz. 1, 5,
¶ 17 (2016). Klifton requested the court “provide instructions that, by
representation, [he] [wa]s entitled to inherit his [m]other’s share of [Verle’s]
intestate estate.”
¶6 Klifton’s motion went unopposed, and the probate court
issued its proposed order (the inheritance order), providing, in relevant
part, the following:
IT IS ORDERED granting the Motion for Summary Judgment.
IT IS FURTHER ORDERED determining and instructing the
Personal Representative that pursuant to A.R.S. §§ 14-2103(1)
and 14-2114(B), and by representation, [Klifton] is entitled to
inherit the share of his mother, [Lorna], in the intestate [e]state
of [Verle].
(emphasis added).
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HOYER v. DOUGHERTY, et al.
Decision of the Court
¶7 More than a year later, after a change of judge, Klifton took
the position that the inheritance order entitled him to a 1/3 share of Verle’s
estate—the share his mother would have received had she survived—even
though it is undisputed that Arizona’s intestacy statutes only entitled him
to a 2/15 or 13.33% share. See A.R.S. §§ 14-2103(1), 14-2106(A). When a
decedent is survived only by his descendants, his intestate estate passes to
them by representation. See A.R.S. § 14-2103(1). In Arizona, representation
occurs per capita at each generation, unless otherwise specified in a
decedent’s will. See A.R.S. §§ 14-2101, 14-2106. Under this system, survivors
in each generation receive an equal share. See A.R.S. § 14-2106. The shares
of predeceased members of the generation who have surviving descendants
of their own are then recombined and distributed in the same manner at the
next generation with survivors. See id. This system of representation is
distinct from the traditional per stirpes system under which the shares of
predeceased members pass directly to their descendants. Here, Steven
should receive a 1/3 share; Klifton and Larry’s four daughters should
receive equal portions of the combined shares Lorna and Larry would have
received had they survived (1/3 each), meaning each grandchild should
receive a 2/15 share (2/3 divided five ways).2
¶8 Steven, now acting as personal representative through
counsel, moved for clarification regarding whether the inheritance order
directed deviation from Arizona’s intestacy statutes.3
¶9 At the conclusion of oral argument on the personal
representative’s motion, the probate court described the inheritance order
as “inartfully drafted” and “not clear” and declined to adopt an
“interpret[ation] . . . that is not allowed under the law.” In March 2021, the
court granted the motion for clarification issuing an order (the clarification
order), confirming that “[t]he effect of [the inheritance order]” entitled
Klifton only to a 13.33% share of Verle’s intestate estate. Klifton timely
appealed from the clarification order.
2 Steven’s petition for instruction appears to be based on a per stirpes
system of representation— a mistake as to the law which the probate court
had an obligation to correct.
3 Below, we refer to Steven as the personal representative when acting in
that capacity.
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HOYER v. DOUGHERTY, et al.
Decision of the Court
DISCUSSION
I. Clarification of Inheritance Order
¶10 Klifton’s sole argument on appeal is that the probate court
erred in interpreting the inheritance order. The interpretation and
application of statutes and court orders are issues of law, which we review
de novo. In re Estate of Friedman, 217 Ariz. 548, 553, ¶ 13 (App. 2008). In
interpreting court orders, “we apply the general rules of construction for
any written instrument.” Cohen v. Frey, 215 Ariz. 62, 66, ¶ 11 (App. 2007).
The first step is to determine if the order’s language is ambiguous, meaning
it “is reasonably susceptible to more than one interpretation.” Id. (internal
quotation marks omitted). In evaluating meaning, we consider the context
of the words and the context of the order, and we construe its language
“according to [its] natural and legal import.” Id. (internal quotation marks
omitted). If a provision is ambiguous, we adopt the meaning that is most
consistent with other provisions in the order and with “the court’s statutory
duty.” Id. at 66–67, ¶¶ 13–14.
¶11 Klifton argues that, by referencing “the share of his mother,”
the inheritance order plainly granted him the 1/3 share of Verle’s estate
Lorna would have inherited had she survived. He posits that the probate
court would have mentioned Larry’s share had it meant for him to receive
a portion of Larry and Lorna’s combined shares.
¶12 Contrary to Klifton’s argument, the inheritance order did not
state the size of the share to which Klifton was entitled. Instead, it instructed
the personal representative that Klifton was entitled to inherit “by
representation . . . pursuant to [§] 14-2103(1),” which governs intestate
distribution, “and [§] 14-2114(B),” which confirms the right of an adopted
stepchild to inherit “from or through” both natural parents. Because
Arizona’s intestacy statutes, including its representation provisions, would
not grant Klifton “the share of his mother,” the inheritance order is, at a
minimum, ambiguous, if not plainly contrary to the interpretation Klifton
urges this court to adopt.
¶13 Considering the references to Arizona’s intestacy and
adoption statutes, along with the probate court’s statutory duty to
effectuate these laws, the inheritance order most plausibly meant that
Klifton was entitled to inherit through his mother, by representation. See
A.R.S. § 14-2103(1) (“[T]he entire intestate estate if there is no surviving
spouse passes . . . [t]o the decedent’s descendants by representation.”); see
also A.R.S. § 14-2114(B) (child adopted by natural parent’s spouse has right
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HOYER v. DOUGHERTY, et al.
Decision of the Court
to inherit “from or through the other natural parent”). The order does not
appear intended to specify what share Klifton should receive; instead, it
provides the personal representative the guidance he needed to calculate
Klifton’s share under Arizona’s intestacy statutes.
¶14 Klifton argues the reference to § 14-2103(1) does not render
the inheritance order ambiguous because § 14-2103(1) “is not the statute
that explains the meaning of ‘by representation.’” The meaning of “by
representation” is explained, however, by a provision in the same article, §
14-2106(A). The probate court did not need to list every relevant provision
of that article to provide the personal representative the guidance he
sought. See Guzman v. Guzman, 175 Ariz. 183, 187 (App. 1993) (“It is a
cardinal rule of construction that statutory provisions must be considered
in the context of the entire statute . . . .”). If this court were to adopt Klifton’s
interpretation of the order, it would render the order’s reference to
Arizona’s intestacy law meaningless, contrary to how we interpret
ambiguous text. See Cohen, 215 Ariz. at 66, ¶ 12 (“[W]e may not assign
meaning to one provision which would render other provisions
meaningless.”). Moreover, because Klifton’s mother predeceased Verle, she
was not entitled to any share. A literal interpretation of the phrase “the
share of his mother” would not entitle him to anything.
¶15 Klifton further argues that, even if the inheritance order was
ambiguous, context renders the probate court’s clarification unreasonable.
He contends the order must have granted him a 1/3 share because the
probate court granted his motion for summary judgment, which referenced
“his [m]other’s share” of Verle’s estate, or alternatively, because it
addressed the personal representative’s petition, which asked whether
Klifton was entitled to a 1/3 share. But Klifton’s motion for summary
judgment and proposed order only claimed his entitlement to inherit his
mother’s share by representation. Under Arizona law, his mother’s share
(along with Larry’s share) would be split equally among all five
grandchildren—the net result being that Klifton would receive far less than
“the share of his mother.” See A.R.S. § 14-2106(A).
¶16 Furthermore, contrary to Klifton’s argument, the probate
court did not necessarily grant the relief requested by the parties. See Fenter
v. Homestead Dev. & Tr. Co., 3 Ariz. App. 248, 252 (1966) (noting that “litigant
is entitled to relief in conformity with the evidence presented to the court,”
even if different than relief sought in prayer). It had discretion to issue any
order that would reasonably protect the interests of Klifton and the other
heirs. See A.R.S. § 14-3607(A) (authorizing court to restrain personal
representative, exercise his powers, or “make any other order to secure
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HOYER v. DOUGHERTY, et al.
Decision of the Court
proper performance of his duty” upon petition from interested person if
necessary to protect interested parties).4 And it had discretion to give the
personal representative any guidance that would help him properly
administer the estate. See A.R.S. § 14-3704 (allowing personal representative
to invoke probate court’s jurisdiction “to resolve questions concerning the
estate or its administration”). The court was not bound to perpetuate what
Klifton characterizes as the personal representative’s “misunderstanding”
of Arizona’s intestacy statutes.
¶17 On this record, Klifton has not shown that the probate court
erred in concluding it was not plausible that the judge who issued the
inheritance order intended to convey to Klifton anything other than what
he was entitled to under Arizona statute. See A.R.S. §§ 14-2103(1), 14-
2106(A); see also Cohen, 215 Ariz. at 67, ¶ 14 (presuming court complied with
statutory duty in issuing orders).
¶18 Finally, even were Klifton correct that the inheritance order
attempted to erroneously grant him a 1/3 share of Verle’s estate, the
probate court would have committed no error by correcting the mistake in
the clarification order. The inheritance order, which had not been reduced
to a final judgment, remained interlocutory, meaning the probate court
retained jurisdiction to clarify, revise or even vacate it. See Stevens v.
Mehagian’s Home Furnishings, Inc., 90 Ariz. 42, 45 (1961); see also Ariz. R. Civ.
P. 54(b).
¶19 In sum, the probate court did not err in clarifying that the
inheritance order entitled Klifton to a 13.33% share of Verle’s intestate
estate.
II. Sanctions
¶20 The personal representative and the granddaughters request
attorneys’ fees as a sanction pursuant to ARCAP 25. Under ARCAP 25, we
have discretion to impose sanctions, including attorneys’ fees, on an
attorney or a party if an appeal is frivolous. An appeal is frivolous if “any
reasonable attorney” would believe it is “completely without merit.” Evans
v. Arthur, 139 Ariz. 362, 363 n.1 (1984) (internal quotation marks omitted).
We impose sanctions under ARCAP 25 “with great reservation” and only
where an appeal is not supported by “any legal theory about which
4 Klifton’s motion for summary judgment is a “petition” for purposes of
§ 14-3607. See A.R.S. § 14-1201(48) (defining “petition” as “a written request
to the court for an order after notice”).
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HOYER v. DOUGHERTY, et al.
Decision of the Court
reasonable attorneys could differ.” Ariz. Tax Rsch. Ass’n v. Dep’t of Revenue,
163 Ariz. 255, 258 (1989) (internal quotation marks omitted).
¶21 During oral argument, the probate court asked Klifton’s
counsel what legal basis there was, other than the inheritance order, for him
to receive a 1/3 share of Verle’s intestate estate. Counsel responded,
“[t]here wouldn’t be one.” Indeed, Klifton concedes in his opening brief that
Arizona’s intestacy statutes “direct that” he receive a 13.33% share of
Verle’s estate. Stated differently, Klifton’s argument is that the probate
court erred as a matter of law by implying that he was entitled to a 1/3
share, and then erred again by declining to adopt an interpretation binding
itself to that error.
¶22 Even were we to agree with Klifton’s interpretation of the
inheritance order, he could only prevail if the probate court would have
committed error by correcting the previous order. See Robert Schalkenbach
Found. v. Lincoln Found., Inc., 208 Ariz. 176, 181, ¶ 21 (App. 2004) (“We will
affirm a trial court’s decision if it is correct for the wrong reason.”).
Essentially, Klifton’s argument is a misapplication of the law of the case
doctrine, which, at the trial court level and absent an intervening appeal,
involves prudential limits on when the court may reconsider its prior
rulings. See State v. King, 180 Ariz. 268, 279 (1994). As relevant here, that
doctrine does not prevent a judge from reconsidering nonfinal orders,
including those made by a different judge in the same case. Id. This
principle is embodied in Rule 54(b), which provides that any decision
without an express recital of finality “may be revised at any time” before
entry of a final judgment. See Ariz. R. Civ. P. 54(b).
¶23 Klifton does not cite any contrary legal authority; he merely
argues that the probate court could not amend the inheritance order in
response to a motion for clarification. On this record, Klifton’s appeal is not
supported by any arguably-sound legal theory. Accordingly, we award the
personal representative and the four granddaughters their reasonable
attorneys’ fees incurred on appeal, as a sanction pursuant to ARCAP 25,
and taxable costs on appeal, all pending their compliance with ARCAP 21.
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HOYER v. DOUGHERTY, et al.
Decision of the Court
CONCLUSION
¶24 For the reasons above, we affirm the probate court’s order
filed March 3, 2021.
AMY M. WOOD • Clerk of the Court
FILED: AA
9
Hoyer v. Dougherty
Combined Opinion