Friedman v. Burgess – 2/12/2008

February 14, 2008

Arizona Court of Appeals Division One Holds Indirect Injury from Court Ruling Does Not Give Standing to Appeal, the Probate Court Cannot Require Heirs to Pay for Investigation of Elder Abuse Claim Unless Claim Was Reported with Malice, and Appellate Ruling Can Extend to Non-Appealing Parties When Justice Requires .

During the probate of Victor Friedman’s estate, Dennis and Libby Friedman filed a petition accusing Jo Ann Friedman of elder abuse against Victor, which would have prevented Jo Ann from inheriting from the estate.  A special administrator investigated the claim and found that there was no basis for the elder abuse claim. The Court ordered Dennis and Libby to pay the costs of the investigation from their share of the estate.  Dennis appealed on behalf of Libby and himself.

On appeal, the Arizona Appeals Court held Dennis did not have standing to appeal on behalf of Libby because he was not aggrieved by the judgment against her.  Dennis argued he was aggrieved by the judgment against Libby, because Libby and he had agreed to share attorneys’ fees, and if Libby received less money from the estate, she would be less able to contribute to the attorneys’ fees.  The Court held the judgment against Libby affected Dennis only indirectly due to the separate agreement concerning fees, and that a party cannot make an argument on a non-appealing party’s behalf.

The Court then held the probate Court may have erred in ordering the costs of the investigation to be paid from Dennis and Libby’s share of the estate.  Balancing the probate code’s interest in efficiently administering estates with the public policy of encouraging good faith inquiries into cases of elder abuse, the Court held an heir is only required to pay the costs of an elder abuse investigation if the heir raised the issue with malice.  Malice requires the primary purpose in raising the elder abuse claim was other than to protect the adult or the estate.  The Court’s reasoning was bolstered by A.R.S. § 46-453(A), which immunizes reporters of elder abuse from civil liability unless they acted with malice.  Accordingly, the Court remanded the case to determine if Dennis and Libby acted with malice in reporting the elder abuse claim.

Finally, the Court held both Dennis and Libby would be entitled to relief from costs if they did not act with malice, even though Libby did not join in the appeal.  Although the general rule requires a party to join in an appeal in order to benefit from it, the Court borrowed an exception from other states that allow the Court to extend an appellate ruling to benefit a non-appealing party if justice so requires.  The Court believed justice required an exception in this case because both Dennis and Libby were in an identical position.

Judge Kessler authored the opinion, with Presiding Judge Brown and Judge Winthrop Concurring.