Goodrich v. Haeussler

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THE HOGSTROM FAMILY TRUST,
DATED JULY 28, 1997.
_________________________________
GORDON GOODRICH,
Plaintiff/Appellant,

v.

JUDY HAEUSSLER,
Defendant/Appellee.

No. 1 CA-CV 20-0667
FILED 12-23-2021

Appeal from the Superior Court in Maricopa County
No. PB2017-002735
The Honorable Amy Michelle Kalman, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Udall Law Firm, LLP, Tucson
By Debra Celene Boyer
Counsel for Plaintiff/Appellant

Barry Becker, PC, Phoenix
By Barry C. Becker
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.

M O R S E, Judge:

¶1 Gordon Goodrich appeals the superior court's determination
that he lacked standing to bring claims against Judy Haeussler under the
Adult Protection Services Act ("APSA"), and the sua sponte dismissal of his
remaining claims. For the following reasons, we affirm in part, vacate in
part, and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1997, Maxine Hogstrom and her husband created a trust
("Hogstrom Trust"). The Hogstrom Trust's principal asset was H & H
Management, Inc. ("H&H"). In 2005, Haeussler became president of H&H.
Later, Haeussler became successor trustee of the Hogstrom Trust.

¶3 Goodrich is Maxine Hogstrom's nephew and a beneficiary of
the Hogstrom Trust. After Maxine Hogstrom passed away in August 2016,
Haeussler, as trustee, wanted to sell the shares of H&H to herself for
$350,000, and asked Goodrich for his consent. Goodrich refused, and
Haeussler sought judicial approval for the transaction. Goodrich objected
and filed a counterclaim alleging breaches of fiduciary duty and violations
of the APSA. Goodrich also sought Haeussler's removal as trustee and an
accounting.

¶4 In early 2018, the parties reached an agreement in which
Goodrich withdrew his objection to the transaction, and Haeussler
purchased the H&H shares.

¶5 Subsequently, the parties filed multiple cross-motions for
summary judgment. The court noted a "large quantity" of disputed facts
and denied the parties' requests for summary judgment on the merits.
However, Haeussler separately argued that Goodrich did not have
standing to raise claims based on Haussler's fiduciary duty as president of
H&H because neither Goodrich nor the Hogstrom Trust remained a
shareholder. Goodrich did not respond to the standing argument but
instead tried to recast the fiduciary claims as violations of the APSA.

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Haeussler countered that Goodrich could not pursue APSA claims because
he failed to petition the court for permission to file a claim. See A.R.S. § 46-
456(G). The superior court agreed with both of Haeussler's arguments,
granted summary judgment on those claims, and determined no other
matters remained pending.

¶6 After a status conference, the court entered judgment for
Haeussler and dismissed Goodrich's complaint. Goodrich timely appealed,
and we have jurisdiction under A.R.S. § 12-2101(A)(9).

DISCUSSION

I. Standing Under the APSA.

¶7 We review the grant of summary judgment de novo. In re
Estate of Wyttenbach, 219 Ariz. 120, 122, ¶ 8 (App. 2008). "We also interpret
statutes de novo." In re Estate of Olsen, 251 Ariz. 209, 211, ¶ 8 (App. 2021).
"Our primary objective is to discern and give effect to the intent of the
legislature . . . ." Vega v. Sullivan, 199 Ariz. 504, 507, ¶ 8 (App. 2001). The
best and most reliable indicator of intent is the language of the statute. Id.
at ¶ 9. "If the language is unambiguous, it must be given effect as written."
Poulson v. Ofack, 220 Ariz. 294, 297, ¶ 8 (App. 2009).

¶8 The APSA provides broad protections from financial
exploitation for vulnerable adults. See A.R.S. § 46-456; In re Wyttenbach, 219
Ariz. at 123, ¶¶ 12, 15. Section 46-456(G) allows the "vulnerable adult, or
the duly appointed conservator or personal representative" to file APSA
claims. If those named entities do not commence an action, "any other
interested person . . . may petition the court for leave to file an action on
behalf of the vulnerable adult or the vulnerable adult's estate." A.R.S. § 46-
456(G).

¶9 As a trust beneficiary Goodrich is an "interested person,"
A.R.S. § 14-1201(33), but he did not petition the court for leave to file suit
on Maxine Hogstrom's behalf. Instead, Goodrich asserts that permission
from the court is not required and that the "statute merely addresses
priority for initiating a complaint thereunder." We disagree. The statute
provides an exception to traditional standing requirements, allowing a
party to pursue claims on behalf of a vulnerable adult. The statute's plain
language requires an interested person to "petition the court for leave" to
qualify for that exception. A.R.S. § 46-456(G). Goodrich did not comply
with the statutory scheme and therefore does not have standing. See In re
Stephens Revocable Tr., 249 Ariz. 523, 526, ¶ 13 (App. 2020) ("[A]n interested

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person seeking to file a financial exploitation complaint must seek leave of
court to file the complaint under APSA.")

¶10 Goodrich alternatively argues that petitioning the court is
unnecessary and inconsistent with the statute's broad purpose. Although
the APSA creates "broad protective provisions," Delgado v. Manor Care of
Tucson AZ, LLC, 242 Ariz. 309, 313, ¶ 16 (2017), we cannot ignore the
statute's express requirements, see Bilke v. State, 206 Ariz. 462, 464, ¶ 11
(2003) ("The court must give effect to each word of the statute."); Canon Sch.
Dist. No. 50 v. W.E.S. Const. Co., 177 Ariz. 526, 529 (1994) (noting "we are
reluctant to construe the words of a statute to mean something other than
what they plainly state").

¶11 Finally, Goodrich argues his "APSA claim was a compulsory
counterclaim" and the statute does not address such a situation. Assuming
arguendo that Goodrich's APSA claims are compulsory counterclaims,
Goodrich does not cite, and we cannot find, authority making
counterclaims immune from complying with procedural requirements.
And, in other contexts we have assumed prefiling conditions applied
equally to counterclaims. See Flood Control Dist. of Maricopa Cnty. v. Paloma
Inv. Ltd., 230 Ariz. 29, 43, 45, ¶¶ 44-46, 54 (App. 2012) (finding counterclaim
timely complied with "notice of claim" statute); State v. Mabery Ranch, Co.,
LLC, 216 Ariz. 233, 244, ¶¶ 45-46 (App. 2007) (discussing applicability of
"notice of claim" statute to a counterclaim for injunctive relief). Because
A.R.S. § 46-456(G)'s petition requirement does not distinguish between
claims and counterclaims, it applies to both. In sum, the court did not err
in concluding that Goodrich lacked standing to bring claims under the
APSA.1

II. Dismissal of Remaining Claims.

¶12 Goodrich also asserts his other claims "were not all under the
penumbra of the APSA and his claims should not have been dismissed with
prejudice for lack of standing."

¶13 The superior court denied Haeussler's first summary
judgment motion. Haeussler's second motion only sought summary
judgment for claims based on Haeussler's fiduciary duties as president of

1 We decline to consider additional arguments raised for the first time
in Goodrich's reply brief. See Ariz. Dep't of Revenue v. Ormond Builders, Inc.,
216 Ariz. 379, 385, ¶ 24 n.7 (App. 2007) ("We will not address arguments
raised for the first time in the reply brief.").

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H&H and under the APSA. The court granted that motion, but then noted
that "[i]t appears that no further matters remain pending." The court's
judgment, prepared by Haeussler's counsel, ordered Goodrich's complaint
dismissed with prejudice.

¶14 But Goodrich's complaint asserted other claims, including
breach of Haeussler's fiduciary duty as trustee of the Hogstrom Trust, for
an accounting, and for Haeussler's removal as trustee. Goodrich may have
standing to assert such claims. See, e.g., A.R.S. § 14-10706 (noting that "a
beneficiary may request the court to remove a trustee"); In re Indenture of Tr.
Dated Jan. 13, 1964, 235 Ariz. 40, 44, ¶¶ 5-6 (App. 2014) (noting that a trust
beneficiary may petition for an accounting); Restatement (Second) of Trusts
§ 199(c) (stating that a trust beneficiary may maintain a suit "to compel the
trustee to redress a breach of trust"). Haeussler's standing motion did not
address these issues. Although Haeussler later asserted to the superior
court that Goodrich comingled the various fiduciary duty claims, we will
not determine in the first instance whether the claim for alleged breached
fiduciary duties to the Hogstrom Trust survive judgment for Haeussler on
the claimed breached duties to H&H or Maxine Hogstrom personally.

¶15 Haeussler counters that Goodrich waived this issue by not
bringing it to the superior court's attention. Specifically, the court held a
status conference after ruling on the summary judgment motions, and
Goodrich's counsel did not object to the proposed order. Although the
interests of judicial economy would have certainly been better served if
Goodrich had objected to the proposed form of order, Goodrich preserved
this issue by opposing the grant of summary judgment. See Schoenfelder v.
Ariz. Bank, 165 Ariz. 79, 89 (1990) (arguments raised in summary judgment
motion are preserved for review); Golonka v. Gen. Motors Corp., 204 Ariz.
575, 580, ¶ 12 n.1 (App. 2003) (noting an issue raised and ruled upon was
preserved for review).

¶16 Because the superior court did not explain its dismissal of the
remaining claims, and Haeussler's motion did not seek summary judgment
on them, we cannot affirm the dismissal. Cf. Acker v. CSO Chevira, 188 Ariz.
252, 256 (App. 1997) (noting that when court dismisses complaint "by
invoking its inherent authority to dismiss frivolous actions, it should make
findings which explain its action"). Accordingly, on this record, the
superior court erred in sua sponte dismissing Goodrich's remaining claims.
We express no opinion on the merits of Goodrich's claims.

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CONCLUSION

¶17 We affirm in part, vacate in part, and remand for proceedings
consistent with this decision. We deny Goodrich's request for fees and
costs.

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

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