REDKEY v. CLARKE

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID WAYNE REDKEY, Petitioner/Appellant,

v.

WILLIAM A. CLARKE, et al., Respondents/Appellees.

No. 1 CA-CV 24-0476 PB
FILED 12-23-2025

Appeal from the Superior Court in Maricopa County
No. PB2009-002224
The Honorable Lisa Ann VandenBerg, Judge (ret.)

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

David Redkey, Phoenix
Petitioner/Appellant

Spencer Fane LLP, Phoenix
By J. Scott Rhodes, Jessica A. Gale
Counsel for Respondent/Appellee Clarke

Mark J. Theut, Phoenix
Respondent/Appellee

Theut & Scaringelli & Kupiszewski, Scottsdale
By Lawrence F. Scaringelli, James X. Theut
Counsel for Respondent/Appellee McCollum
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Broening Oberg Woods & Wilson, P.C., Phoenix
By Kelley M. Jancaitis
Counsel for Respondent/Appellee Kilfoy

Bryan Cave Leighton Paisner LLP, Phoenix
By Jacob A. Maskovich, Matthew J. Stanford
Counsel for Respondent/Appellee First Western Trust Bank

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Veronika Fabian joined.

M O R S E, Judge:

¶1 David Wayne Redkey appeals the superior court's order
approving the Third Annual Accounting and the Fourth and Final
Accounting ("Third and Fourth Accountings") of his former conservator,
First Western Trust Bank ("First Western"), and the estate budget of his
replacement conservator, Stephanie McCollum ("McCollum"). Redkey
objects to the attorney fees approved for the periods covering the Third and
Fourth Accountings, and the proposed attorney and administrative fees
approved as part of the estate budget of then-conservator McCollum. We
affirm in part and vacate and remand in part.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2007, Redkey suffered a brain injury in an accident, leading
to a substantial monetary settlement. In 2009, represented by attorney
William Clarke ("Clarke"), Redkey petitioned for and obtained the
establishment of a conservatorship to manage those funds. The superior
court appointed JPMorgan Chase Bank as the initial conservator. Clarke
then represented JPMorgan Chase Bank as conservator.

¶3 In June 2016, MB Financial Bank succeeded JPMorgan Chase
Bank as conservator. Clarke then represented MB Financial Bank as
conservator. In December 2016, the court appointed attorney Rick Kilfoy
("Kilfoy") to represent Redkey. Kilfoy filed an Entry of Appearance and

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Disclosure of Fee in July 2017.1 The filing does not state which parties, if
any, received notice of the filing. In 2019, First Western succeeded MB
Financial Bank as conservator for Redkey. Around the same time, Clarke
began representing First Western as conservator and filed a Notice of Basis
of Compensation with the superior court. The document does not state
which parties, if any, received notice of the filing. In 2020, Kilfoy filed an
Amended Disclosure of Basis to update his hourly fee, but the document
only demonstrates notice to Clarke. Kilfoy updated his fee again in October
of 2022, once again with a document which only demonstrates notice to
Clarke.

¶4 In September 2022, First Western attempted to resign as
Redkey's conservator and moved for the appointment of a guardian ad
litem for Redkey. Redkey opposed both the resignation of First Western as
conservator and the appointment of a guardian ad litem. Redkey opposed
the resignation of First Western because he objected to their proposed
successor and sought to have his wife appointed conservator instead. The
superior court ordered the appointment of Mark Theut ("Theut") to serve
as guardian ad litem for Redkey. During the dispute over First Western's
resignation, in December 2022, First Western filed its Third Annual
Accounting and a request for conservator fees with the superior court.
Clarke filed a request for attorney fees through his law firm. Around this
time, Redkey began making pro se filings with the superior court to express
his dissatisfaction with the conservatorship proceedings.

¶5 Eventually, the superior court accepted the resignation of
First Western and appointed McCollum as the new conservator in January
2023. In May 2023, McCollum filed her proposed estate budget. Redkey,
through Kilfoy, filed an objection.

¶6 In June 2023, First Western filed its Fourth and Final
Accounting and a request for conservator fees with the superior court.
Clarke requested attorney fees. Kilfoy also requested attorney fees. The
superior court then held a hearing in which it discharged Kilfoy from his
duties as Redkey's court-appointed attorney and decided that the
outstanding issues surrounding the estate budget and the Third and Fourth
Accountings would be resolved together.

¶7 Redkey filed a number of documents pro se in which he
objected to the Third and Fourth Accountings, the estate budget, and many

1 The superior court incorrectly stated Kilfoy began representing
Redkey in August of 2019.

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other aspects of the conservatorship. The superior court advised Redkey in
September 2023 that it would not address filings made pro se, because he
had access to court-appointed counsel. Later that month, David Mazza
("Mazza") took over as Redkey's court-appointed counsel. Around this
time, Kilfoy submitted a fee request for the period covering the Third
Annual Accounting. Redkey filed over twenty more pro se filings. In
November 2023, the superior court struck all of Redkey's pro se pleadings,
except for his motion to proceed pro se, which the superior court denied.

¶8 In January 2024, the superior court declined to hold a hearing
before resolving the issues on the estate budget and the Third and Fourth
Accountings. The court invited Mazza to file any objections on behalf of
Redkey. Mazza objected to the estate budget and the Third and Fourth
Accountings on behalf of Redkey, alleging excess charges. In February
2024, the superior court issued an order reducing and partially approving
the attorney fees for Kilfoy and Clarke for the periods covering the Third
and Fourth Accountings, instructing Clarke and Kilfoy to return any fees
above those approved by the superior court. The order also approved the
estate budget and requested more information about the conservator fees
of First Western for the periods covering the Third and Fourth Accountings.
While the superior court waited for the information, Redkey filed several
motions to disqualify the assigned judge. The superior court denied those
motions. After receiving the additional information from First Western, the
superior court issued a final order in May of 2024, approving the
conservator fees of First Western for the periods covering the Third and
Fourth Accountings, affirming all previously made findings and rulings
related to the Third and Fourth Accountings, and approving the estate
budget. On July 23, 2024, the superior court designated the May order
under Arizona Rule of Civil Procedure ("Rule") 54(b) as a final appealable
judgment for the periods covering the Third and Fourth Accountings.
However, the superior court did not include the estate budget in its Rule
54(b) designation.

¶9 Redkey timely appealed.2 We have an independent duty to
determine our jurisdiction. Sorensen v. Farmers Ins. Co. of Arizona, 191 Ariz.

2 This is Redkey's third attempt to seek review in this case. Redkey
filed the first appeal (1 CA-CV 23-0771) in December 2023. This Court
dismissed that appeal for lack of jurisdiction on March 27, 2024. Redkey
filed a second appeal (1 CA-CV 24-0247/2 CA-CV 24-0107) in March 2023.
This Court dismissed it for lack of jurisdiction on May 2, 2024. Redkey also
filed a special action related to this case (1 CA-SA 24-0114), and this Court
declined jurisdiction on June 10, 2024.

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464, 465 (App. 1997). We have jurisdiction over Redkey's claims related to
the Third and Fourth Accountings under A.R.S. §§ 12-2101(A)(1), (9) and
12-120.21(A)(1). Redkey also challenges the approval of McCollum's estate
budget. Because the superior court expressly limited its final judgment
language under Rule 54(b) to issues related to the Third and Fourth
Accountings, and the estate budget is not related to the Third and Fourth
Accountings, we do not have jurisdiction over and do not consider
Redkey's estate-budget claims. See Brumett v. MGA Home Healthcare, L.L.C.,
240 Ariz. 420, 428, ¶ 13 (App. 2016) (explaining a probate order is only
appealable when it includes Rule 54 final judgment language).

DISCUSSION

¶10 A party waives arguments on appeal if the party did not raise
those arguments before the superior court. Airfreight Exp. Ltd. v. Evergreen
Air Ctr., Inc., 215 Ariz. 103, 109–110, ¶ 17 (App. 2007). We review an award
of attorney fees and costs for an abuse of discretion and issues of statutory
interpretation de novo. In re Guardianship of Sleeth, 226 Ariz. 171, 174, ¶ 12
(App. 2010). We do not reweigh the superior court's factual findings on
appeal unless they are clearly erroneous. In re Estate of Newman, 219 Ariz.
260, 265, ¶ 13 (App. 2008).

I. Notice under A.R.S. § 14-5109.

¶11 Redkey argues that because Attorneys Clarke and Kilfoy
failed to provide notice of their basis for compensation under A.R.S. § 14-
5109 when they first appeared in this proceeding, they waived their right
to compensation. Our supreme court recently rejected the argument that
the failure to file such a notice forfeits the right to fees. See Matter of
Conservatorship of Chalmers, --- Ariz. ---, ---, ¶ 28, 571 P.3d 885, 891 (2025).
However, the court also held that "the cure for failing to comply with § 14-
5109 is subject to the discretion of the court." Id. The supreme court
explained that the failure to provide proper notice under § 14-5109(A) may
be considered as a factor under § 14-5109(C) when determining the
reasonableness of fees. Id. at 890–91, ¶ 24. Because the superior court
lacked Chalmers guidance, it is not clear whether it considered whether
Clarke and Kilfoy's failure to provide notice under § 14-5109(A) would
impact the award of attorney fees. Thus, we vacate the order of the superior
court regarding the superior court's award of attorney fees for Clarke and
Kilfoy related to the periods covering the Third and Fourth Accountings
and remand for reconsideration in light of Chalmers.

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II. Waived and Unpresented Issues.

¶12 The remaining issues—racketeering, conflict of interest, and
disqualification—raised by Redkey are either waived or not properly before
the Court. In objecting to the Third and Fourth Accountings, neither of
Redkey's court-appointed attorneys raised Redkey's accusation of a conflict
of interest by Clarke or his charges of racketeering and fraud. Redkey
attempted to raise Clarke's alleged conflict of interest in his pro se
pleadings, but the superior court struck those pleadings because they were
not made through Redkey's court-appointed counsel. See Lincoln v. Lincoln, 155 Ariz. 272, 274 (App. 1987) (approving of striking pro se filings because
"[a] person who is represented by counsel in litigation has no right to
personally conduct any aspect of the litigation except through counsel").

¶13 Redkey also requested that the assigned judge be removed for
cause. But Redkey did not urge the grounds for disqualification to the
superior court that he raises on appeal until after he filed his notice of
appeal. As a result, the Court cannot consider those arguments as part of
this appeal. See Sycamore Hills Ests. Homeowners Ass'n v. Zablotny, 250 Ariz.
479, 486, ¶ 25 (App. 2021) (explaining the Court lacks jurisdiction to
consider matters which are not covered by the notice of appeal). Similarly,
the superior court addressed Redkey's demand for a jury trial after Redkey
filed his notice of appeal. The Court does not have jurisdiction to address
this issue. Id.; see also Southwest Gas Corp. v. Irwin, 229 Ariz. 198, 202, ¶ 12
(App. 2012) (noting "trial courts generally retain jurisdiction to address
matters unrelated to the appeal of a judgment properly certified as final").

III. Attorney Fees and Costs on Appeal.

¶14 Theut and McCollum request attorney fees and costs under
ARCAP 21, but that is a procedural rule only and does not create any
substantive right to attorney fees or costs. Bed Mart, Inc. v. Kelley, 202 Ariz.
370, 375, ¶ 24 (App. 2002). Because Theut and McCollum fail to cite
authority for an award of attorney fees, their requests are denied. Bank of
New York Mellon v. Dodev, 246 Ariz. 1, 12, ¶ 41 (App. 2018) (explaining that
when a party fails "to provide us with authority or argument to award
attorney's fees on appeal, we deny the [party's] request").

¶15 First Western requests attorney fees and costs under A.R.S. §§
12-349 and 14-5314. A.R.S. § 12-349 provides that "the court shall assess
reasonable attorney fees, [and] expenses" against a party if that party
"brings or defends a claim without substantial justification," among other
offenses. A.R.S. § 12-349(A)(1). Because Redkey raised a non-frivolous

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claim on appeal, we decline to award attorney fees under § 12-349. See
Montano v. Luff, 250 Ariz. 401, 407, ¶ 18 (App. 2020) (holding that when a
party prevailed on one issue on appeal, an award under § 12-349 was not
appropriate). First Western also requests attorney fees under A.R.S. § 14-
5314, but that statute applies to compensation in guardianship cases. Cf.
Sleeth, 226 Ariz. at 174, ¶¶ 13–14 (acknowledging different fee statutes
apply to guardianships and conservatorships). Because First Western has
requested attorney fees under an inapplicable statute, the request is denied.
Bank of New York Mellon, 246 Ariz. at 12, ¶ 41.

¶16 We award costs on appeal to McCollum, Theut, and First
Western as completely prevailing parties under A.R.S. § 12-341 upon
compliance with ARCAP 21. Because we vacate and remand on the issue
of attorney fees for the Third and Fourth Accountings, we do not award
costs at this time between Redkey, Kilfoy, and Clarke. The superior court
may determine which parties, if any, are eligible for an award of costs after
proceedings on remand. See Barry Goldwater Inst. for Pub. Pol'y Rsch. Ctr. v.
City of Phoenix, 249 Ariz. 182, ---, ¶ 35, 563 P.3d 656, 665 (App. 2025), review
granted (Sept. 9, 2025).

CONCLUSION

¶17 We affirm the superior court's order, except as to the attorney
fees of Clarke and Kilfoy related to the periods covering the Third and
Fourth Accountings. The superior court's order as to the attorney fees of
Clarke and Kilfoy related to the periods covering the Third and Fourth
Accountings is vacated. We remand to the superior court to reconsider
those attorney fees in light of Chalmers.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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