Tucker v. Boydston (In re Robert Boydston & Joan Boydston 1990 Living Revocable Trust)

In the Matter of: THE ROBERT BOYDSTON AND JOAN BOYDSTON 1990 LIVING REVOCABLE TRUST, A Trust.

ELIZABETH ANN TUCKER and THOMAS A. BOYDSTON, Petitioners/Appellants, v. JOHN BOYDSTON, as Successor Trustee of The Robert Boydstonand Joan Boydston 1990 Living Revocable Trust, as Amended, Respondent/Appellee.

No. 1 CA-CV 16-0074

ARIZONA COURT OF APPEALS DIVISION ONE

April 11, 2017

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. PB2015-001210

The Honorable Lisa Ann VandenBerg, Judge Pro Tempore

AFFIRMED

COUNSEL

Zapata Law PLLC, Chandler

By Julio M. Zapata

Counsel for Petitioners/Appellants

Tiffany & Bosco PA, Phoenix

By Alisa J. Gray, Nora L. Jones, David W. Cowles

Co-counsel for Respondent/Appellee

McFarland & Bostock PLLC, Sedona

By Elizabeth A. McFarland, R. Alan Bostock

Co-counsel for Respondent/Appellee

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.

DOWNIE, Judge:

¶1 Elizabeth Ann Tucker and Thomas A. Boydston (collectively, "Appellants") challenge the probate court's dismissal of their verified petition. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 1990, Robert and Joan Boydston established "The Robert Boydston and Joan Boydston 1990 Living Revocable Trust" ("the Trust"), naming themselves as co-trustees. The Trust was later amended several times. While Robert and Joan were both alive, Appellants and their brother, John, were equal beneficiaries under the Trust.

¶3 Robert died in 2010. According to Appellants, John thereafter isolated Joan — who suffered from anxiety and paranoia — from the rest of the family. Appellants allege that Joan could not manage her own affairs and that John persuaded her to change her estate planning documents.

¶4 Joan executed a Fourth Amendment to the Trust in April 2012, naming herself as sole trustee. The Fourth Amendment also changed the beneficiary allocations: John was now entitled to receive two-thirds of the Trust assets upon Joan's death and would oversee the remaining one-third, which was to be held in trust for Thomas. Elizabeth received nothing under the Fourth Amendment. The Fourth Amendment also named John as a successor trustee.

¶5 Joan resigned as trustee in August 2013, and John accepted the appointment as successor trustee. Joan died in September 2014.

¶6 In April 2015, Appellants filed a "Verified Petition for Finding of Exploitation of a Vulnerable Adult; and Accounting." John moved to dismiss the petition, arguing that the probate court lacked personal jurisdiction over him and that Appellants could not maintain a claim under the Adult Protective Services Act ("APSA"). After the motion was briefed, Appellants sought leave to file an amended petition to add a claim for "tortious interference with expectancy of inheritance."

¶7 The probate court granted the motion to dismiss, concluding it lacked jurisdiction over John as to the accounting claim and dismissing the APSA claim under Arizona Rule of Civil Procedure ("Rule") 12(b)(6). The court later clarified that, in granting the motion to dismiss, it had considered "the information in [Appellants'] proposed amended petition."

¶8 Appellants filed a notice of appeal while John's claim for attorneys' fees was pending. We dismissed that appeal as premature. Appellants later obtained a final judgment pursuant to Rule 54(c) and filed a timely notice of appeal from that judgment. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(9).

DISCUSSION

I. Count 1

¶9 The probate court dismissed count 1 of Appellants' petition — the APSA claim — for failure to state a claim upon which relief can be granted. We review that ruling de novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We assume the truth of all well-pleaded facts, giving Appellants the benefit of all reasonable inferences arising therefrom. Botma v. Huser, 202 Ariz. 14, 15, ¶ 2 (App. 2002).

¶10 The APSA count alleges a violation of A.R.S. § 46-456(A), which requires individuals in positions of trust and confidence to vulnerable adults to "use the vulnerable adult's assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person's relatives." Section 46-456(G) identifies the individuals who may file a civil action alleging exploitation of a vulnerable adult, stating, in pertinent part:

The vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult's estate haspriority to, and may file, a civil action under this section. If an action is not filed by the vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult's estate, any other interested person, as defined in § 14-1201, may petition the court for leave to file an action on behalf of the vulnerable adult or the vulnerable adult's estate.

¶11 Appellants are not Joan's "duly appointed conservator or personal representative," they did not obtain leave of court to bring their APSA claim, and they are not seeking to recover damages on behalf of Joan or her estate. Appellants cite no authority, and we are aware of none, extending APSA's reach to individuals aggrieved by lost inheritances. See A.R.S. § 46-456(B) ("A person who violates subsection A . . . shall be subject to actual damages and reasonable costs and attorney fees in a civil action brought by or on behalf of a vulnerable adult . . . .") (emphasis added); In re Estate of Wyttenbach, 219 Ariz. 120, 126, ¶ 27 (App. 2008) ("A personal representative is permitted to bring a claim under the APSA on behalf of the incapacitated or vulnerable adult. The statute, however, does not provide for claims by others."). Under these circumstances, the probate court properly dismissed count 1 for failure to state a claim upon which relief can be granted.

II. Count 2

¶12 Count 2 of the petition is captioned "Accounting/Report." Citing A.R.S. §§ 14-10813(A) and (C), Appellants allege John "has failed to keep the qualified beneficiaries of the Trust reasonably informed about the administration of the Trust and of the material facts necessary for them to protect their interests." They also allege John "has failed to produce an acceptable inventory, accounting or report."

¶13 As a threshold matter, we agree that only Thomas has standing to maintain this claim. Elizabeth is not a beneficiary under the Fourth Amendment and thus is not owed the duties alleged in count 2.

¶14 We next consider John's contention that count 2 is moot, obviating the need to resolve the personal jurisdiction issue. We may dismiss an appeal that raises a moot issue. See Dougherty v. Ellsberry, 45 Ariz. 175, 175 (1935) (dismissing appeal because the issue of whether to recall a director was moot once the director's term of office expired). When circumstances in a case change to the extent that a reviewing court's actionwould have no effect on the parties, the issue becomes moot for purposes of appeal. Vinson v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988).

¶15 Considering the complaint in the light most favorable to Thomas, count 2 sets forth claims unrelated to and in addition to the demand for an accounting. Additionally, although John avows that he has provided the required accounting, the appellate record includes no documentation that would permit us to review that assertion. We therefore deny John's Motion to Dismiss Issue on Appeal.

¶16 We review the probate court's jurisdictional determination de novo. See Hoag v. French, 238 Ariz. 118, 122, ¶ 17 (App. 2015). To survive a motion to dismiss based on Rule 12(b)(2), Thomas was required to make a prima facie showing of jurisdiction. Beverage v. Pullman & Comley, LLC, 232 Ariz. 414, 417, ¶ 10 (App. 2013), aff'd as modified, 234 Ariz. 1 (2014).

A. Statutory Jurisdiction

¶17 A trustee submits to personal jurisdiction in Arizona "[b]y accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, or . . . by declaring that the trust is subject to the jurisdiction of the courts of this state." A.R.S. § 14-10202(A). Personal jurisdiction over a trustee is "tied to the principal place where the trust is currently being administered." Hoag, 238 Ariz. at 121, ¶ 14. Comments to the Uniform Trust Code provision upon which § 14-10202 is based state that "[a] trust's principal place of administration ordinarily will be the place where the trustee is located." Unif. Tr. Code § 108, Comment (2000); see also May v. Ellis, 208 Ariz. 229, 232, ¶ 12 (2004) (When "a statute is based on a uniform act, we assume that the legislature intended to adopt the construction placed on the act by its drafters, and commentary to such a uniform act is highly persuasive.").

¶18 Although Thomas contends John lives in Arizona for six months each year and that a Scottsdale brokerage firm holds Trust assets, he did not make a prima facie showing that the Trust is administered in Arizona. Meanwhile, John submitted an affidavit stating, as relevant here, that: (1) when he accepted the appointment as successor trustee and "at all relevant times," he has resided primarily in Maine, spending "time off from work" in Arizona; (2) he has been employed for 36 years by the State of Maine as a park ranger; (3) he files taxes in Maine; and (4) he holds a Mainedriver's license.¹ In addition, the record reflects that the Scottsdale brokerage firm sends Trust account information to:

JOHN BOYDSTON TTEE

U/A DTD JUN 20, 1990

ROBERT BOYDSTON & JOAN BOYDSTON

1990 LIVING REVOCABLE TRUST

PO BOX 73

GREENVILLE ME 04441-0073737

The record before the probate court established that the Trust is administered in Maine,...