Pierce v. Molet

BARKER, Judge,

concurring.

¶ 401 concur in the result but not all of the majority’s analysis. For instance, I find confusing the definitions the majority uses for “subjective” as opposed to “objective” in this context. Supra at ¶¶ 21-25. As those terms are used by the majority, a “subjective measuring standard ... would entail simply eliciting from the personal representative directly what her motive and purposes were.” Id. at ¶ 22. To my mind, this is more properly characterized as direct evidence of intent. “[Ojbjective determination” is used by the majority to mean “examining all the circumstances surrounding the conduct.” Id. at ¶ 24. To me, this is simply a statement that direct evidence, as well as indirect (or circumstantial) evidence, will be considered. Under Arizona Rules of Evidence 401 and 402, both direct and indirect evidence are admissible if relevant. Thus, I do not find the majority’s use of these terms to be meaningful in this context.

¶ 41 The real question, as to subjective as contrasted with objective, is whether (1) the actual, subjective good faith of the personal representative is the standard to determine *409the personal representative’s good faith (or lack of it) or (2) an objective or reasonable person standard is the standard by which a personal representative’s good faith (or lack of it) is determined. Because this issue was not briefed, we do not address it. Whatever standard applies, both direct and indirect evidence, if relevant, should be considered.

¶ 42 My analysis of the principal issue, in simplified form, is as follows. The statute does not require a finding of benefit to the estate; it requires “good faith” and that the entitlement to expenditures be for those that are “necessary.” A.R.S. § 14-3720. While the concepts of “good faith” and “benefit to the estate” may typically be the same, it does not follow that they always are.

¶43 Because this court previously held that “the only circumstances under which [the personal representative] may be reimbursed for her attorney’s fees is if services rendered by her attorney benefitted the estate,” In re Estate of Stephens, 117 Ariz. 579, 585, 574 P.2d 67, 73 (App.1978), and because the trial judge was bound to follow that holding, e.g., Francis v. Ariz. Dep’t of Transp., 192 Ariz. 269, 271, ¶ 10, 963 P.2d 1092, 1094 (App.1998) (“superior court is bound by decisions of the court of appeals”), reversal is required. Stare decisis must give way in the face of a clear error in the construction of a statute. See, e.g., State v. Pena, 140 Ariz. 545, 548, 683 P.2d 744, 747 (App.1983) (declining to follow prior precedent, “to avoid the perpetuation of error,” when it was based on an error in statutory interpretation). It is more important for the court to be right than to necessarily follow one of our own earlier decisions. See, e.g., Lowing v. Allstate Ins. Co., 176 Ariz. 101, 107, 859 P.2d 724, 730 (1993) (“[Stare decisis] is a doctrine of persuasion, however, and not an ironclad rule. Ultimately, the degree of adherence demanded by a prior judicial decision depends upon its merits, and it may be abandoned if ... it was clearly erroneous or manifestly wrong”).

¶ 44 I agree with the majority that “benefit to the estate” is a factor that may be considered, but is not dispositive, when determining whether a personal representative has or has not acted in “good faith” under the statute.

¶45 For these reasons, I agree that this matter must be vacated and remanded.