Esparza v. Warner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARY JANE BAUMGARTEN, An Adult.

DANIEL J. ESPARZA, Petitioner/Appellant,

v.

KATIE L. WARNER, et al., Respondents/Appellees.

No. 1 CA-CV 24-0678 PB
FILED 04-24-2025

Appeal from the Superior Court in Maricopa County
No. PB2023-070396
The Honorable Joseph M. Rhoades, Commissioner

AFFIRMED

COUNSEL

Daniel J. Esparza, Goodyear
Petitioner/Appellant Pro Se
McDonald Warner, Phoenix
By Katie Warner, Kelly McDonald
Counsel for Respondent/Appellee

Asimou & Associates, PLC, Phoenix
By Thomas Asimou, Meagan Pollnow
Counsel for Respondent/Appellee Camelback

Stacey L. Johnson, PLLC, Glendale
By Stacey L. Johnson, Hillary Gagnon
Counsel for Respondent/Appellee Wayne Patrick

James Baumgarten, Dallas, Texas
Respondent/Appellee Pro Se

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Cynthia J. Bailey and Judge Andrew M. Jacobs
joined.

H O W E, Judge:

¶1 Daniel Esparza appeals the superior court’s affirmance of its
prior denial of his petition for attorney’s fees and costs. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In March 2023, acting on advice from the Arizona State Bar
Ethics Hotline, Esparza, who is an attorney, petitioned for the appointment
of a guardian ad litem for Mary Jane Baumgarten. The superior court held
a hearing at which Baumgarten’s friends and family testified. Both Esparza
and Baumgarten made statements, and Baumgarten answered questions
from the court about her well-being. At the conclusion of the hearing, the
court denied the petition and Esparza requested permission to submit
attorney’s fees. The court advised him “that he may file anything he wishes
to file.” Months later, Esparza petitioned to recover his attorney’s fees and
costs under Arizona Rule of Probate Procedure 33. Baumgarten’s court-
appointed attorney objected to the request, arguing it was premature

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because the court could review the issue at an upcoming evidentiary
hearing.

¶3 The court denied Esparza’s petition without prejudice,
agreeing that “given the procedural posture of this matter and the
circumstances of Mr. Esparza’s participation” the fees application was
premature and “better reviewed after the [upcoming] evidentiary hearing”
related to the ongoing guardianship case. The denial did not include
language designating it final under Arizona Rule of Civil Procedure
(“Rule”) 54. At this time, Esparza was no longer the attorney of record.
Although Esparza did not refile the attorney’s fees petition, in a later order
the court noted that “the Rule 33 Petition from Counsel Esparza remains
under advisement until all the Rule 33 Petitions are ripe for decision” and
ordered “that all parties seeking payment for their work on this matter will
submit Rule 33 Petitions by March 15, 2024.” Recognizing that issues
remained outstanding, the court designated this order as final under
Arizona Rule of Civil Procedure 54(b). After the deadline passed, Esparza
inquired with the court regarding his petition for fees, believing it to still be
pending. The court issued a minute entry affirming its previous denial of
his petition because “Mr. Esparza was required to refile his petition by
[March 15, 2024] for his petition to be timely considered for relief.” The
court also noted the absence of Rule 54(c) language in its initial denial and
thus signed its reaffirmation of Esparza’s denial as final and appealable
under Rule 54(c).

¶4 Esparza moved for reconsideration, arguing that because
“[t]he Court stated [] that the Rule 33 Petition(s) remained under
advisement” he was not required to refile his petition and “at the very least,
this would justify the Court allowing an amendment or supplement to the
original Rule 33 Petition, in the interest of justice.” The court issued another
minute entry, acknowledging that upon review it “believe[d] that the Court
misspoke when making the statement ‘under advisement,’” but did not rule
on the motion for reconsideration, providing the other parties opportunity
to respond. Before they could do so, Esparza appealed from the court’s
reaffirmation of its denial of his fees petition. The court thus never ruled on
his motion for reconsideration because it no longer had jurisdiction to do
so. See Moreno v. Beltran, 250 Ariz. 379, 382 ¶ 14 (App. 2020) (noting that,
barring certain exceptions, “the superior court typically loses jurisdiction
after a notice of appeal has been filed”).

¶5 We have jurisdiction over Esparza’s timely appeal. See A.R.S.
§ 12-2101(A).

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DISCUSSION

¶6 Esparza appeals the superior court’s affirmance of its denial
of his petition for attorney’s fees and costs. We review challenges to the
court’s decision on attorney’s fees for abuse of discretion and view the
record in the light most favorable to upholding the superior court’s
decision. Indenture of Tr. Dated Jan. 13, 1964, 235 Ariz. 40, 51 ¶ 41 (App. 2014).
And we review the court’s reconsideration of its prior orders for abuse of
discretion. Davis v. Davis, 195 Ariz. 158, 162 ¶ 14 (App. 1999). The Arizona
Rules of Civil Procedure “apply to probate proceedings unless they are
inconsistent with the[] probate rules.” Ariz. R. Prob. P. 4(a)(1).

¶7 No answering brief was filed. If an appellant’s opening brief
and the record reveal a debatable question and no good cause appears for
the appellee’s failure to file, we will assume “a confession of reversible error
on the part of the appellee.” See Navarro v. State, 32 Ariz. 119, 120–21 (1927);
see also Tiller v. Tiller, 98 Ariz. 156, 157 (1965). However, we decline to find
a confession of error because, as explained below, the record clearly
resolves the issues Esparza raises. See Air E., Inc. v. Wheatley, 14 Ariz. App.
290, 294 (1971) (holding that an issue is not debatable when the record
“clearly” resolves it); see also Lothman v. Lothman, 11 Ariz. App. 419, 420–21
(1970) (affirming the portion of a judgment raising no debatable issue on
appeal).

¶8 First, Esparza argues that he “was not required to re-file his
Rule 33 Petition . . . because the Court rescinded [its] dismissal of the Rule
33 Petitions prior to issuing a Judgment under ARCP Rule 54.” He argues
that, because the original denial of his fees petition included “[n]o Rule 54
expression of finality,” it “was subject to modification by the [superior]
Court.” He also argues that the court’s later minute entry stating that the
fees petition was under advisement was such a modification and “can be
taken in no other way than to say that the Court was changing its earlier,
non-final ruling.”

¶9 The court’s initial denial of Esparza’s fees petition without
prejudice did not resolve all claims by all parties. For this reason, the court
properly declined to employ Rule 54(c) language. See Ariz. R. Civ. P. 54(c);
Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, 224–25 ¶ 11 (App.
2014) (holding that “inclusion of Rule 54(c) language in a judgment that
does not resolve all claims by all parties” is improper); see also Workman v.
Verde Wellness Ctr., Inc., 240 Ariz. 597, 600 ¶ 7 (App. 2016) (“[A]n order
dismissing without prejudice is not a final judgment because the plaintiff
can refile the action.”). And the court properly did not finalize its decision

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on attorney’s fees in the order certified under Rule 54(b). See Kim v.
Mansoori, 214 Ariz. 457, 461 ¶¶ 10, 13 (App. 2007) (holding that Rule 54(b)
does not authorize “a judgment on an attorney fee claim preceding a
decision on the merits”). The court’s orders were properly certified.

¶10 Although the superior court has “inherent authority” to
modify a non-final order, Motley v. Simmons, 256 Ariz. 317, 322 ¶ 15 (App.
2023), the court’s later “under advisement” statement was no such
modification. While stating that Esparza’s petition was “under
advisement,” the court also ordered “all parties seeking payment for their
work” to “submit Rule 33 Petitions by March 15, 2024.” (Emphasis added.)
Esparza failed to do so. Further, the court stated that it believed the “under
advisement” language was a mistake, not a modification. And Esparza
could have inquired or moved for clarification following this order but
before the deadline for filing a petition. He failed to do so, requesting
clarification only after the deadline had expired.

¶11 Second, Esparza argues that “if the Rule 33 Petition . . . [was]
properly dismissed for failure to timely re-file, the Superior Court may
relieve [him] from the dismissal under ARCP Rule 60.” Although the
superior court could have granted Esparza relief from the filing deadline,
see generally A.R.S. § 14-5110(a) (allowing the court to set a later deadline for
a claim for compensation), it was not required to do so. See Ariz. R. Prob. P.
33(e) (“An attorney, a guardian ad litem, or a statutory representative
waives compensation from the estate of a ward or protected person if a
request is not timely submitted under A.R.S. § 14-5110.”); Ariz. R. Civ. P.
60(b)(5) (“[T]he court may relieve a party or its legal representative from a
final judgment . . . [if] it is based on an earlier judgment that has been
reversed or vacated.”) (emphasis added). Esparza argues that the superior
court “certainly has the discretion here to grant relief from its order,” but
fails to explain why it was an abuse of discretion for the superior court not
to give him relief from the deadline for filing a fees petition. And even if the
superior court should have granted Esparza’s motion for reconsideration,
his premature notice of appeal divested the court of authority to grant that
relief. See Moreno, 250 Ariz. at 382 ¶ 14 (noting that, barring certain
exceptions, “the superior court typically loses jurisdiction after a notice of
appeal has been filed.”). The superior court thus did not abuse its discretion
in denying Esparza’s fees petition.

¶12 Finally, Esparza requests his attorney’s fees on appeal.
Because he cites no provision of law authorizing us to award those fees, see
ARCAP 13, and because he represented himself on appeal, we deny his
request for attorney’s fees. See Munger Chadwick, P.L.C. v. Farwest Dev. &

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Constr. of the Sw., LLC, 235 Ariz. 125, 128 ¶ 11 (App. 2014) (“[A] pro se
attorney who works in [his] spare time on a case representing [him]self . . .
is [] not entitled to an award of attorney fees.”).

CONCLUSION

¶13 We affirm.

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

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