Erlick v. Davis ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Estate of:
MICHELE E. DAVIS, Deceased
___________________________________________
STEVE ERLICK, Petitioner/Appellee,
v.
JOHN DAVIS, Defendant/Appellant.
No. 1 CA-CV 22-0140
FILED 5-30-2023
Appeal from the Superior Court in Maricopa County
No. PB2015-001198
The Honorable Thomas L. Marquoit, Judge Pro Tempore
AFFIRMED
COUNSEL
John Davis, Eloy
Defendant/Appellant
Mazza + Niro, PLC, Scottsdale
By Stephen J.P. Kupiszewski, Daniel J. Mazza, Bri Niro, Jennifer L.
Kupiszewski,
Counsel for Petitioner/Appellee
ERLICK v. DAVIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 In this probate matter, John Davis appeals from an order
closing the estate of Michele Elizabeth Davis (Michele) and releasing the
estate’s personal representative. Because Davis has shown no error, the
order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2015, Davis repeatedly stabbed Michele, in front of
their children, killing her. Davis was immediately taken into custody and
has remained in custody ever since. He later pled guilty to second degree
murder, a Class 1 dangerous felony and a Domestic Violence Offense. As
specified in the plea, Davis was sentenced to 25 years “flat time” in prison.
¶3 Days after his arrest, Davis provided his mother, Carol
Maloney, a written power of attorney and directed her to take possession
of and liquidate the estate’s assets, including Michele’s interest in a
Goodyear, Arizona, house. In response, Michele’s uncle filed an Emergency
Petition for Formal Appointment of Special Administrator. Following an
April 2015 hearing, the court granted that petition. On May 1, 2015,
Michele’s father Steve Erlick (PR) filed a Verified Petition for Formal
Appointment of Personal Representative (PR Petition).
¶4 Although noting Michele had signed a disclaimer/quitclaim
deed in favor of Davis for the house, both petitions alleged the house was
purchased during the marriage with marital funds and that Michele had a
community interest in the property. The PR Petition also alleged Michele
signed the quitclaim deed “under duress and without consideration,”
meaning she retained a community interest in the house at the time of her
death. The PR Petition sought (among things) an order granting “an estate
interest, based upon the community interest, in all real property, bank
accounts and vehicles held in the name of John Davis.” The court set, and
later held, a May 26, 2015 hearing on the PR Petition.
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¶5 As reflected in a Certificate of Service filed with the court, on
May 7, 2015, the PR personally served Davis in the Fourth Avenue Jail with
the PR Petition, the notice of hearing and related documents. On May 11,
2015, the PR published notice of the hearing in The Record Reporter. Davis
did not timely file a written response contesting the PR Petition. See Ariz.
R. Prob. P. 17(D) (requiring that, for an objection to be timely, “[a]ny
interested person who opposes the relief requested in the petition shall file
with the court, at least three days before the hearing,” an objection) (2015).1
Nor did Davis seek a transportation order to attend the hearing so that he
could “appear . . . and orally object to the petition.” Ariz. R. Prob. P. 17(D)
(2015).
¶6 At the May 26, 2015 hearing, the PR provided the court copies
of, among other things, the notice of hearing, stating “Davis was personally
served.” Maloney also was present, having come from California. The PR
testified that, given the circumstances, he did not anticipate distributing
assets to Davis. After noting no objections had been filed, the court granted
the PR Petition and appointed the PR. The resulting order, issued May 26,
2015, found Arizona’s “Slayer Statute” applied, meaning Davis would not
be an estate beneficiary. See Ariz. Rev. Stat. (A.R.S.) § 14-2803. The court
also granted “an estate interest, based upon the community interest, in all
real property, bank accounts and vehicles held in the name of” Davis. Davis
did not timely object to that order.
¶7 In late June 2015, the PR moved for authority to sell the house,
noting the PR Petition “alleged that the residence was community property
and no objection was made.” The court set a “non-appearance” hearing for
August 2015 to consider the motion.
¶8 In mid-July 2015, Davis asked the court to deny the motion to
sell the house. Claiming he was “never informed of the” PR Petition, Davis
argued he “did not have [an] opportunity to file a motion objecting” to the
PR Petition. Davis argued he “was not present on the May 26th, 2015 court
hearing due to . . . being incarcerated and th[e] court did not request” that
he be transported to the hearing, which he claimed violated his due process
rights. Conceding the house was purchased during the marriage, Davis
alleged Michele had “bad credit” at that time and she was not listed on the
loan to facilitate financing. Davis also alleged Michele signed away her
1 Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The rules have
changed since the May 2015 hearing, with the current counterpart set forth
in Rule 15(e).
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ERLICK v. DAVIS
Decision of the Court
interest in the property “for the bank to approve the loan.” Arguing the
house was his sole and separate property, Davis asked the court to deny the
PR’s request for authority to sell the house.
¶9 Davis filed his own motion for authority to sell the house,
asking that the court allow Maloney, as his power of attorney, to sell the
property. The PR opposed the motion, noting that Davis (1) had been
personally served with the PR Petition, notice of hearing and related
documents on May 6, 2015; (2) had not sought a transportation order to the
hearing and the court was under no sua sponte obligation to secure
transportation for him and (3) had more than two weeks to object in writing
to the PR Petition but failed to do so. “Therefore, Mr. Davis is outside of his
timeframe to make any objections and/or respond to the” PR Petition. The
PR also noted Davis “was given the opportunity to object that the property
was community property; however, he did not. The Court concluded the
marital home was community property at the” May 26, 2015 hearing.
¶10 The court later granted the PR’s motion and denied Davis’
motion. In doing so, the court reaffirmed the May 26, 2015 ruling that the
estate had a half interest in the house, representing Michele’s interest at the
time of her death, and granted the PR the authority to sell the house.
¶11 Starting on August 21, 2015, the PR published three weekly
notices to creditors in The Record Reporter, stating that claims against the
estate had to be made within four months after the first notice or they would
be barred. Also in August 2015, the PR provided the court with proof of
mailing an inventory and appraisement to the decedent’s heirs and
devisees. Substantial additional litigation followed.
¶12 By August 2017, the court granted the PR’s request that Davis
be designated a vexatious litigant. See A.R.S. § 12-3401; Ariz. R. Prob. P.
10(G) (2017). Among other things, the court noted Davis had “repeatedly
filed” unauthorized documents “that unreasonably expand and/or delay
the proceedings” and that he made repeated filings “that argue points and
request relief for matters that have been the subject of previous rulings . . .,
including but not limited to ownership of a title to a residence.” The order
designating him a vexatious litigant required Davis obtain leave of court
before making new filings.
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¶13 In mid-2021, the PR petitioned to close the estate and be
released as personal representative, also requesting attorneys’ fees and
costs. Davis opposed the petition and the court held an evidentiary hearing
in December 2021. The PR and one of Davis’ former neighbors testified, and
Davis cross-examined them. Davis sought to call Maloney as a witness, but
the court sustained the PR’s objection because Davis had not disclosed her
address or phone number. Davis testified on his own behalf.
¶14 After considering the filings, evidence and argument, the
court issued a six-page minute entry granting the PR’s petition and
awarding the PR about $15,000 in attorneys’ fees and costs. Davis timely
appealed. This court has jurisdiction under Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).
DISCUSSION
¶15 Although claiming 15 reversible errors on appeal, Davis does
not challenge the finding that the Slayer Statute applies. The Slayer Statute
provides, among other things, that a “person who feloniously and
intentionally kills the decedent forfeits all benefits under [the Probate Code]
with respect to the decedent’s estate.” A.R.S. § 14-2803(A); accord Castro v.
Ballesteros–Suarez, 222 Ariz. 48, 53 ¶ 16 (App. 2009) (explaining Slayer
Statute means “a killer cannot profit from that person’s wrong”).
¶16 In considering Davis’ arguments on appeal, this court will not
set aside the court’s “findings of fact unless clearly erroneous, giving due
regard to the opportunity of the court to judge the credibility of witnesses.”
Matter of Ghostley, 248 Ariz. 112, 115 ¶ 8 (App. 2020) (citation omitted). This
court reviews legal conclusions de novo, id., including the characterization
of property as separate or community, Bell–Kilbourn v. Bell–Kilbourn, 216
Ariz. 521, 523 ¶ 4 (App. 2007).
I. Davis Has Shown No Error in the Court’s Determination that the
House Was Community Property.
¶17 Davis argues the court erred in finding the house, purchased
during the marriage with community funds, was community property. As
noted above, after being served with the Verified PR Petition in early May
2015, Davis failed to timely object to the allegations in that pleading. Based
on the allegations in the verified PR Petition and the evidence received on
May 26, 2015, the court determined that the house was community
property. That finding allowed the PR to properly obtain orders to sell the
house, given the estate’s one-half interest in the property.
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Decision of the Court
¶18 Davis argues the court erred in finding that Michele’s
disclaimer/quitclaim deed was unenforceable given the allegation that she
signed the deed “under duress and without consideration.” See, e.g., Inter-
Tel, Inc. v. Bank of Am., Ariz., 195 Ariz. 111, 117 ¶ 36 (App. 1999); USLife Title
Co. of Ariz. v. Gutkin, 152 Ariz. 349, 356 (App. 1986). As noted above, Davis
waived any challenge to that determination when he failed to timely object
to the verified PR Petition. Cf. Ariz. R. Prob. P. 17(D) (2015) & Comment; id.
at 3(A) (2015) (stating Ariz. R. Civ. P. apply “[u]nless otherwise provided);
Ariz. R. Civ. P. 11(c) (2015) (requiring that response to verified pleading
seeking equitable relief must be under oath). And for these same reasons,
Davis’ argument that the court improperly treated other property
(including cars) as community property fails.
¶19 Moreover, whether a party acted under duress is a question
of fact, see Inter-Tel, 195 Ariz. at 117, and Davis has not shown that the
superior court’s determinations were not supported by the record or were
clearly erroneous, see State v. Hulsey, 243 Ariz. 367, 377 ¶ 17 (2018); see also
John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 Ariz. 532, 537
(App. 2004) (“We defer to the trial court with respect to any factual findings
explicitly or implicitly made, affirming them so long as they are not clearly
erroneous . . . .”); In re Harber’s Est., 104 Ariz. 79, 89 (1969) (court “will be
deemed to have made every finding of fact necessary to support its
judgment”). For these reasons, Davis has shown no error.
II. Davis Was Provided Sufficient Notice and Time to Present Claims.
¶20 Davis argues the court erred in finding the PR “complied with
A.R.S. § 14-3801, giving written notice to” Davis. The PR, however,
complied with that requirement by both personally serving Davis with the
PR Petition and notice of hearing and also publishing in The Record Reporter.
Davis has shown no right to additional notice, particularly given the
application of the Slayer Statute. Because Davis had no claim against the
estate, he was not a “reasonably ascertainable creditor” that required
further notice. Cf. In re Estate of Travers, 192 Ariz. 333, 335 ¶ 14 (App. 1998)
(individual or entity with a claim against the estate is a reasonably
ascertainable claimant).
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ERLICK v. DAVIS
Decision of the Court
¶21 Davis also argues the court erred in finding the time for
presenting claims had expired. The PR published the required notice in The
Record Reporter for three consecutive weeks starting August 21, 2015,
advising that claims against the estate had to be made within four months
or they would be barred. See A.R.S. § 14-3801(A). Davis, however, did not
present his claims against the estate until August 2021, years after that time
expired. Again, Davis has shown no error.
III. Davis Has Shown No Reversible Error at the December 2021
Evidentiary Hearing.
¶22 Davis argues various errors occurred at the December 2021
evidentiary hearing. Addressing his arguments in turn, he has shown no
reversible error.
¶23 First, Davis claims the court erred by not allowing Maloney
to testify. Davis, however, failed to disclose her address and telephone
number, which he claimed were “confidential.” Moreover, Maloney
ignored at least three subpoenas to take her testimony. As a result, the PR
could not depose Maloney. The superior court has broad discretion in
addressing disclosure issues. See Marquez v. Ortega, 231 Ariz. 437, 441 ¶ 14
(App. 2013). Davis has shown no error in the court precluding Maloney
from testifying.
¶24 Second, Davis argues the court erred in denying him leave to
supplement the record with “Exhibits 25 and 26.” The court, however,
concluded that the exhibits Davis sought to offer (other than prior filings,
which the court took judicial notice of under Ariz. R. Evid. 201) either
lacked foundation or were not relevant. On the record presented, Davis has
shown no abuse of discretion in those conclusions. See McMurtry v.
Weatherford Hotel, Inc., 231 Ariz. 244, 258 ¶ 44 (App. 2013) (“[C]hallenges to
the court’s admission or exclusion of evidence [are reviewed] for an abuse
of discretion.”).
¶25 Third, Davis argues the court erred by finding he “did not
meaningfully impeach” a witness. The superior court at trial, not this court
on appeal, assesses witness credibility. In re U.S. Currency in Amount of
$26,980.00, 199 Ariz. 291, 295 ¶ 10 (App. 2000); see also Hurd v. Hurd, 223
Ariz. 48, 52 ¶ 16 (App. 2009) (“We must give due regard to the trial court’s
opportunity to judge the credibility of the witnesses.”). Davis has shown no
error.
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ERLICK v. DAVIS
Decision of the Court
¶26 Fourth, and similarly, Davis has shown no error in the
superior court’s conclusion that the PR “was very familiar with the contents
of” the house. The evidence supports this conclusion. Moreover, the
possibility that the court could have reached a different conclusion does not
show error. See In re U.S. Currency in Amount of $26,980.00, 199 Ariz. at 296
¶ 16 (citations omitted).
¶27 Fifth, Davis has failed to show the superior court erred in
allowing the PR to testify that certain personal property had an estimated
value of $2,500. Noting that Davis objected that the PR “was not a fiduciary
so his estimate of value was outside of his expertise,” the superior court
cited case law allowing an owner to estimate value of the owner’s property
“whether he qualified as an expert or not.” See Atkinson v. Marquart, 112
Ariz. 304, 307 (1975). Although the PR was not the owner, the court noted
“he testified to familiarity with the items of the same nature that an owner
would normally do,” adding Davis (1) prevented Michele from being able
to testify to their value and (2) did not provide “any evidence or argument
that the proposed value . . . was inaccurate or excessive.” Moreover, how
the PR “arrived at that value merely goes to the weight” of his testimony,
not admissibility. See Santa Fe Pacific R.R. Co. v. Cord, 14 Ariz. App. 254, 265
(1971) (affirming admissibility of trustee on valuation of trust claims)
(citation omitted); see also Ariz. R. Evid. 602; 701. On this record, Davis has
not shown the court committed reversible error in allowing the PR’s
valuation testimony.
IV. Davis Has Shown No Error in His Designation as a Vexatious
Litigant.
¶28 Davis seeks to challenge the court’s August 2017 order
declaring him to be a vexatious litigant. Whether such a determination may
be challenged in an appeal depends on the type of order designating a party
a vexatious litigant. If a party is designated a vexatious litigant in an
administrative order, this court lacks appellate jurisdiction to consider such
a challenge. Madison v. Groseth, 230 Ariz. 8, 13 ¶ 16 n.8 (App. 2012). The
designation here was in an August 2017 order, not an administrative order,
meaning it could have been challenged in a timely appeal. See id. Such an
order “may be appealed, notwithstanding [its] interlocutory nature”
without finality certification. Brumett v. MGA Home Healthcare, LLC, 240
Ariz. 420, 430 ¶ 19 (App. 2016). Davis, however, did not timely appeal from
that August 2017 order, waiting years to first seek to challenge the ruling
on appeal. See ARCAP 9(a). Even if this court had appellate jurisdiction over
the order, Davis has shown no error by the superior court finding that he
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Decision of the Court
unreasonably expanded or delayed court proceedings and designating him
a vexatious litigant. See A.R.S. § 12–3201(E)(1)(b).2
V. Davis Has Shown No Other Reversible Error.
¶29 Davis challenges various other actions by the superior court
but has shown no reversible error. Although complaining that, during the
April 2015 hearing, the court expressed familiarity with the Slayer Statute,
how it applied in similar cases and stated “I can’t imagine” when told how
Michele’s murder had affected her mother and the PR, Davis has not tried
to tie these actions to any ruling he challenges. See Simon v. Maricopa Med.
Ctr., 225 Ariz. 55, 63 ¶ 29 (App. 2010) (noting party challenging judicial
impartiality has the burden to overcome presumption of partiality by a
preponderance of the evidence).
¶30 Davis also claims a violation of his rights and judicial bias
when the superior court noted Davis’ credibility issues “are substantial due
to his violent felony conviction.” Davis argues that his “Second Degree
Murder conviction has no weight on” his “credibility or candor.” Davis’
arguments, however, are contrary to the law. See, e.g., Ariz. R. Evid. 609(a)
(allowing admissibility of a felony conviction to “attack[] a witness’s
character for truthfulness”); see also Brown v. Dembow, 248 Ariz. 374, 378 ¶
15 (“Stated bluntly, the common law view was that felons were prone to lie
(and could be impeached with felony convictions), while misdemeanants
were not.”). And as to Davis’ general allegations of improper bias or
wrongdoing by at least three different judicial officers, the record does not
support his claims. Again, Davis has shown no error.
2 Relatedly, Davis has shown no error in the court’s denying his October
2021 “Motion For Leave To File his Petition For An Order To Enforce Claim
Against [Personal Representative] For Effects of Fraud.” The superior court
found Davis provided no good cause for the motion. Davis cites no
authority to support his argument that this conclusion was in error.
Additionally, although denial was without prejudice, Davis never sought
to show good cause to refile the motion or reassert this claim in any way.
And the allegations in the proposed petition sought to relitigate the
allocation of community property, which was time-barred. See A.R.S. § 14-
3803. Finally, this court rejects any attempt by Davis to ask this court on
appeal to find the PR acted fraudulently. See State v. Schackart, 190 Ariz. 238,
247 (1997) (appellate court “does not act as a fact-finder”).
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Decision of the Court
VI. Davis Lacks Standing to Challenge the PR’s Compliance with
A.R.S. § 14-3706.
¶31 Davis argues the court erred in finding the PR complied with
A.R.S. § 14-3706, which requires the personal representative to provide an
inventory of property owned by the decedent within 90 days of being
appointed. Davis argues that the PR, instead, mailed the inventory 91 days
after being appointed. Davis has shown no injury as a result and, also
recognizing the Slayer Statute applies, Davis lacks standing to assert any
such claim. See Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 140 ¶ 6
(2005).
VII. Davis Has Shown No Error in The Superior Court’s Awarding the
PR Attorneys’ Fees.
¶32 Before the December 2021 hearing, the PR timely requested
an award of attorneys’ fees under A.R.S. § 12-349(A)(3), which allows for
fees if the opposing party unreasonably expands or delays the proceeding.
Over Davis’ objection, the court granted the request, awarding the PR fees
and costs totaling slightly more than $15,000. The court found Davis
unreasonably expanded and delayed the proceeding by making filings
without the court’s permission, in violation of the vexatious litigant order
and A.R.S. § 12-3201(B). The court also found Davis, a non-lawyer,
improperly engaged in the unauthorized practice of law by filing a claim
against the estate on behalf of another person.
¶33 Although contending the court erred in awarding fees, by
failing to cite any authority supporting his claim of error, Davis’ argument
fails. See MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011). The
record shows that Davis made many filings that unreasonably expanded
and delayed the proceeding. See Bennett v. Baxter Grp., Inc., 223 Ariz. 414,
421–22 ¶¶ 29–30 (App. 2010). The record also shows that Davis made many
filings without prior leave of the court in violation of the vexatious litigant
order. The record further shows Davis filing claims against the estate on
behalf of another person. On this record, Davis has shown no error. See
Maleki v. Desert Palms Pro. Props., L.L.C., 222 Ariz. 327, 334 ¶ 32 (App. 2009).
VIII. Attorneys’ Fees on Appeal.
¶34 Davis seeks attorneys’ fees and costs incurred on appeal
under A.R.S. §§ 12-341 and -342. Because he is self-represented and has
shown no basis for an award of fees, his request for fees is denied. Because
he is not the successful party, his request for costs is denied.
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Decision of the Court
¶35 The PR seeks attorneys’ fees and costs incurred on appeal
under A.R.S. §§ 14-1105 and 12-342. In the court’s discretion, it denies the
PR’s request for attorneys’ fees. As the prevailing party, however, the PR is
awarded taxable costs contingent upon compliance with ARCAP 21.
CONCLUSION
¶36 The order closing the estate of Michele Elizabeth Davis and
releasing the estate’s personal representative is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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