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Woestman v. Russell

Court of Appeals of Arizona, First Division

July 28, 2015

MICHAEL A. WOESTMAN, Petitioner,
v.
THE HONORABLE ANDREW J. RUSSELL, Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Commissioner, DOUGLAS A. BRYAN; JOSsEPH M. BOYLE; STEVEN D. KEIST, Real Parties in Interest

Petition for Special Action from the Superior Court in Maricopa County. No. PB2015-000075. The Honorable Andrew J. Russell, Commissioner.

Perry Childers Hanlon & Hudson, PLC, Phoenix, By Christopher J. Bork, Gary L. Hudson, Counsel for Petitioner.

Steven D. Keist, PC, Glendale, By Steven D. Keist, Counsel for Real Parties in Interest.

Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Andrew W. Gould and Judge Peter B. Swann joined.

OPINION

Page 320

Randall M. Howe, Judge.

[¶1] In this petition for special action, Michael A. Woestman challenges the trial court's appointment of a conservator for Douglas A. Bryan. We accept jurisdiction because Woestman has no adequate remedy by appeal and the issue is one of first impression. Ariz. R.P. Spec. Act. 1(a); Azore, LLC v. Bassett, 236 Ariz. 424, 426 ¶ 2, 341 P.3d 466 (App. 2014).

[¶2]Woestman contends that the trial court (1) does not have jurisdiction to appoint a conservator because Bryan does not have a significant connection to Arizona under A.R.S. § 14-12203 and (2) did not have sufficient grounds to appoint Bryan a conservator under A.R.S. § 14-5401(A)(2). But because Bryan has a significant connection to Arizona and his whereabouts are unknown, the court properly exercised its jurisdiction in appointing a conservator for Bryan. Accordingly, we deny relief.

FACTS AND PROCEDURAL HISTORY

[¶3] In November 2012, Woestman struck Bryan with his car. Bryan subsequently retained an attorney to sue Woestman for personal injury. After filing suit, Bryan's attorney moved to appoint Bryan a guardian ad litem (" GAL" ) because he was concerned that Bryan was unable to make decisions about his case. The court appointed Bryan a GAL.

[¶4] During the course of the litigation, the GAL could not locate Bryan. Consequently, the GAL moved to appoint a conservator for Bryan. Woestman objected, arguing that (1) the trial court lacked personal jurisdiction over Bryan; (2) Bryan could not be served with notice of the conservatorship proceeding; (3) a court investigator could not interview Bryan pursuant to A.R.S. § 14-5407(B) and therefore no psychological evaluation could occur; and (4) the GAL had failed to prove Bryan's " disappearance" element under the conservatorship statutes. The GAL contended, however, that Woestman could not object to the appointment of a conservator because Woestman was not an " interested person" under A.R.S. § 14-1201(28).

[¶5] The trial court found that Woestman was an " interested person" under A.R.S. § 14-1201(28) because Woestman may have a claim against Bryan for taxable costs if Woestman prevails in the underlying lawsuit. The court also found that it had jurisdiction to appoint a conservator because Bryan had a significant connection to Arizona and Bryan did not have a " home state." The court reasoned that Bryan had a significant connection to Arizona because he was involved in a car accident in Arizona, received medical treatment in Arizona, and retained an attorney to sue Woestman in Maricopa County Superior Court in Arizona. The court further reasoned that Bryan had been declared incompetent in an unrelated criminal proceeding in Maricopa County Superior Court

Page 321

and has a sister that resides in Maricopa County. The court therefore concluded that appointing a conservator was warranted because Bryan had disappeared and was ...


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