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In re Guardianship and Conservatorship of Sommer

Court of Appeals of Arizona, Second Division

December 12, 2016

In re the Guardianship and Conservatorship of: Robert Sommer

         Appeal from the Superior Court in Pima County No. GC20150525 The Honorable Charles V. Harrington, Judge

         MOTION TO DISMISS DENIED; REMANDED

         COUNSEL

          Laber & Laber, PLC, Tucson By Edward Harris Laber and Edward Jerome Laber Counsel for Appellant

          Phillips, Moeller & Conway, PLLC, Tucson By Katrina M. Conway Counsel for Appellees

          Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Vásquez concurred.

          OPINION

          HOWARD, Presiding Judge:

          ¶1 Robert Sommer appeals from the probate court's order finding that he was an incapacitated adult under articles 3 and 4 of title 14 of the Arizona Revised Statutes and appointing a guardian and a conservator. The conservator, Ruth Considine, and the guardian, Martha Sommer, (appellees) have moved to dismiss the appeal arguing that this court lacks appellate jurisdiction because the order was not final. We conclude the order is substantively appealable, but we do not have jurisdiction because the order lacks Rule 54(c), Ariz. R. Civ. P., language. Accordingly, we deny the motion to dismiss, but remand and re-vest jurisdiction in the probate court to allow either party to request from the court, and the court to consider adding, language pursuant to Rule 54(c).

         Factual and Procedural Background

         ¶2 Sommer is an eighty-nine-year-old man who lived at home with a long-term care giver. He experienced some medical problems in 2010 and executed a durable power of attorney to his daughter, Ruth. After additional issues arose, Ruth, along with Sommer's other children, became concerned about their father's decision-making ability and level of cognitive function. They petitioned the trial court to grant a conservatorship to Ruth and a guardianship to Sommer's other daughter, Martha.

         ¶3 The probate court conducted proceedings pursuant to title 14, chapter 5, and, on May 11, 2016, held a bench trial to determine the issue of incapacity and the propriety of granting the guardianship and conservatorship. At the conclusion of the trial, the court found by clear and convincing evidence that Sommer was statutorily incapacitated and that the appointment of both a guardian and a conservator was necessary. See A.R.S. § 14-5101(1). The court appointed Ruth and Martha as conservator and guardian, respectively, and established an accounting schedule.

         ¶4 As part of the accounting process, the probate court ordered the conservator to file an annual accounting, a notice of hearing, and a petition for approval of accounting. The court also required that the guardian annually file a report regarding Sommer's health and welfare and send a copy of the report to Sommer and "any other interested person as required" on the report form. The court also set a compliance hearing for September 2016, during which the court would review the accounting and the report, but noted that no additional notice of the hearing would be given, and "[n]o one need appear at [the] hearing." Sommer timely appealed.

         Jurisdiction

         ¶5Appellees move to dismiss the appeal on the ground that we lack jurisdiction because the probate court's May 11 order 1) was not a final judgment, but instead an interlocutory order, not subject to appeal under A.R.S. § 12-2101(A)(9) and 2) was not certified under Rule 54. "We, in turn, have an independent duty to confirm our jurisdiction over the appeal before us." Anderso ...


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