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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM JOHN CHALMERS, Plaintiff/Appellant,

v.

EAST VALLEY FIDUCIARY SERVICES, INC., et al., Defendants/Appellees.

No. 1 CA-CV 21-0163

Appeal from the Superior Court in Maricopa County

No. PB2017-001373

The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

William John Chalmers, Chandler

Plaintiff/Appellant

FILED 12-14-2021
2

Gallagher & Kennedy, P.A., Phoenix

By Mark C. Dangerfield, Hannah H. Porter

Counsel for Defendant/Appellee East Valley Fiduciary Services, Inc.

Broening Oberg Woods & Wilson, P.C., Phoenix

By Donald Wilson, Jr., Jathan P. McLaughlin, Kelley M. Jancaitis

Counsel for Defendants/Appellees Doyle Defendants

Zelms Erlich & Mack, Phoenix

By Robert B. Zelms, Anthony S. Vitagliano, Ian R. King

Counsel for Defendants/Appellees Scharber Defendants

Brian J. Theut, Phoenix

Defendant/Appellee

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.

C R U Z, Judge:

¶1 William John Chalmers appeals from the superior court’s 

order approving the final inventory and accounting of East Valley 

Fiduciary Services, Inc. (“EVFS”). For the following reasons, we affirm in 

part, vacate, and remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 During dissolution proceedings, Chalmers’ divorce counsel 

filed a motion to appoint a guardian ad litem for Chalmers and a notice to 

withdraw as counsel. The court appointed Brian J. Theut as Chalmers’ 

guardian ad litem, and Theut subsequently filed emergency petitions for a 

temporary guardianship and conservatorship on Chalmers’ behalf in this 

probate matter.

¶3 The court granted the petitions, appointing EVFS as 

temporary guardian and temporary conservator. EVFS retained Ryan M. 

Scharber to represent it as the temporary guardian and conservator for 

Chalmers’ estate, and appointed John M. McKindles as Chalmers’ counsel 

in the dissolution matters. Theut continued to serve as Chalmers’ guardian 
CHALMERS v. EAST VALLEY FIDUCIARY, et al.

Decision of the Court

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ad litem. The court appointed Michael J. and Gary T. Doyle to serve as 

Chalmers’ counsel in the probate matters. Following their appointment, as 

required by Arizona Revised Statutes (“A.R.S.”) section 14-5109(A), the 

Doyles filed a notice of the basis of compensation. The record indicates that

EVFS, Scharber, McKindles, and Theut never filed such a notice.

¶4 The guardianship was dismissed after about a month and a 

half, but the conservatorship continued for just over a year. During the 

conservatorship, the Doyles, EVFS, Scharber, McKindles, and Theut filed 

Arizona Rule of Probate Procedure (“Rule”) 33 petitions, requesting 

approval of compensation for their services to be paid from Chalmers’ 

estate. The superior court approved the Rule 33 petitions and fees totaling

$312,939.23 (the “2018 fee orders”).

¶5 After the conservatorship concluded, EVFS submitted its final 

inventory and accounting for approval. EVFS, Scharber, McKindles, and 

Theut each filed a final Rule 33 petition collectively seeking over $80,000 in 

additional fees. The Doyles withdrew as Chalmers’ counsel, and S. Alan 

Cook appeared as Chalmers’ new counsel.

¶6 Shortly after, the case was reassigned. The newly-assigned 

judge issued a minute entry in which he found that only the Doyles filed 

the required notice of the basis of compensation. EVFS filed a response to 

the court’s minute entry and characterized its failure to file a notice as a

regrettable “oversight,” but contended that Chalmers was aware of its basis 

for compensation throughout the conservatorship. None of the other 

parties acknowledged the failure to file a notice of compensation.

¶7 Cook later filed a motion to withdraw from representation of 

Chalmers. An evidentiary hearing was held as to the final inventory and 

accounting, as well as the pending Rule 33 petitions. Chalmers appeared 

without representation and objected to EVFS’s final account and Rule 33 

petitions. Chalmers also challenged the previously granted 2018 fee orders

to EVFS, Scharber, McKindles, and Theut, which were also recorded in the 

final account.

¶8 The court affirmed the 2018 fee orders finding that any review 

of those orders would constitute an improper horizontal appeal, and that it 

had no authority to reconsider a prior judge’s rulings. The superior court 

further ruled that Chalmers could not appeal the fee request orders because 

they were final orders with Arizona Rule of Civil Procedure 54 language, 

and the time to appeal had passed. However, the court found that EVFS, 

Scharber, McKindles, and Theut failed to comply with the notice 
CHALMERS v. EAST VALLEY FIDUCIARY, et al.

Decision of the Court

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requirements under A.R.S. § 14-5109, and denied the outstanding Rule 33 

petitions. The court then approved the remaining final account.

¶9 Chalmers timely appealed. We have jurisdiction pursuant to 

A.R.S. § 12-2101(A).

DISCUSSION

¶10 In reviewing the superior court’s judgment in a probate 

matter, we accept the superior court’s findings of fact if they are supported 

by the record. In re Estate of Stephens, 117 Ariz. 579, 586 (App. 1978). We 

review the superior court’s rulings on questions of law de novo. In re Estate 

of Headstream, 214 Ariz. 530, 532, ¶ 9 (App. 2007).

¶11 As an initial matter, although the superior court found that

the time to appeal the 2018 fee orders had passed, they do not contain the 

full Arizona Rule of Civil Procedure 54(b) or (c) language. See Ariz. R. Civ. 

P. 54(c) (“A judgment as to all claims and parties is not final unless the 

judgment recites that no further matters remain pending and that the 

judgment is entered under Rule 54(c)”); Ariz. R. Civ. P. 54(b) (“[T]he court 

may direct entry of a final judgment as to one or more, but fewer than all, 

claims or parties only if the court expressly determines there is no just 

reason for delay and recites that the judgment is entered under Rule 

54(b).”). Accordingly, the 2018 fee orders were never properly certified as

final orders, and the time to appeal has not begun to run on those orders.

¶12 Chalmers contends the superior court erred in failing to 

reverse the 2018 fee orders for EVFS, Theut, Scharber, and McKindles on 

the basis that doing so would constitute “an impermissible horizontal 

appeal.” A horizontal appeal is a request to “a second trial judge to

reconsider the decision of the first trial judge in the same matter, even 

though no new circumstances have arisen in the interim and no other 

reason justifies reconsideration.” Powell–Cerkoney v. TCR–Mont. Ranch Joint 

Venture, II, 176 Ariz. 275, 278-79 (App. 1993). The policy against horizontal 

appeals will not be applied “when an error in the first decision renders it 

manifestly erroneous or unjust.” Id. at 279; see also Donlann v. Macgurn, 203 

Ariz. 380, 385-86, ¶ 29 (App. 2002). Although the superior court found no 

new circumstances justified reconsidering the 2018 fee orders, the court did 

not address whether the orders were “manifestly erroneous or unjust.” See 

id.

¶13 In this case, the superior court found that neither EVFS, 

Theut, Scharber, or McKindles complied with A.R.S. § 14-5109, which 

provides:
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When a guardian, a conservator, an attorney or a guardian ad 

litem who intends to seek compensation from the estate of a 

ward or protected person first appears in the proceeding, that 

person must give written notice of the basis of the 

compensation by filing a statement with the court and 

providing a copy of the statement to all persons entitled to 

notice pursuant to §§ 14-5309 and 14-5405. The statement 

must provide a general explanation of the compensation 

arrangement and how the compensation will be computed.

A.R.S. § 14-5109(A) (emphasis added).

¶14 In an effort to obviate the requirements of A.R.S. § 14-5109, 

Theut argues Chalmers was aware attorneys’ fees would be charged 

because: he included his hourly rate within the emergency petition for

temporary conservatorship, Chalmers was present for the hearing on 

August 18, 2017, Chalmers signed the settlement agreement regarding the 

family court matter, and both applications for attorneys’ fees and costs were 

filed with the clerk of the court and mailed to Chalmer’s counsel. However, 

Theut’s reference to attorneys’ fees in the emergency petition was one 

sentence in a nearly fifty-page document that did not “provide a general 

explanation of the compensation arrangement and how the compensation 

will be computed.” A.R.S. § 14-5109(A). Moreover, Theut was not only 

required to file the notice of the basis for compensation with the court, but 

he was also required to provide timely notice to all persons entitled to it, 

such as Chalmers’ spouse and adult children. Id.; see also A.R.S. §§ 14-5309, 

-5405. There is no evidence that Theut complied with the statute’s notice 

requirements or that Chalmers waived the same.

¶15 We remand to the superior court to decide whether EVFS’s, 

Theut’s, Scharber’s, and McKindles’ failure to comply with this statute 

waived their right to seek compensation, and thus whether the 2018 fee 

orders were manifestly erroneous or unjust.

¶16 Finally, Chalmers contends it was error to approve the final 

account because it is “misleading,” and he was unable to cross-examine 

EVFS at the December 2020 hearing regarding its final inventory and 

accounting. Chalmers fails to provide evidence that the final account 

information was inaccurate. Further, EVFS was present at the hearing, and 

Chalmers provided no evidence he was denied the opportunity to call EVFS

as a witness. We find no error in the court’s approval of the remaining final 

account.
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Decision of the Court

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¶17 We vacate the superior court’s order denying review of the 

2018 fee orders, and we vacate that portion of the entry of the final 

inventory and accounting. We affirm the court’s approval of the remaining 

final account.

CONCLUSION

¶18 For the foregoing reasons, we affirm in part, vacate in part, 

and remand for further proceedings consistent with this decision. The 

parties request their attorneys’ fees and costs on appeal. In the exercise of 

our discretion, we decline to award fees and costs.