Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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ABOUD & ABOUD, P.C.
100 North Stone Avenue, Suite 303 Tucson, Arizona 85701 (520) 623-5721 MICHAEL J. ABOUD, ESQ. State Bar No. 002647

BOYTE & MINORE, P.C. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v.
150 West Second Street Yuma, Arizona 85634 (928) 329-7838 MARY BOYTE State Bar No. 014969

Attorneys for Plaintiff Fox

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, and as Personal Representative of the Estate of Kelly Mikkelsen, on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOX-TANGA, Plaintiffs, CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband and wife; DOES I through V, inclusive, Defendants.
On the grounds and for the reasons set forth in the Memorandum below, Tracy Tanga-Fox, in her capacity as Conservator, natural mother and next friend of Taylor R. Fox, a minor child of the decedent, Kelly Mikkelsen, respectfully moves that Rubecca Mikkelsen be removed as Personal Representative of the Estate of Kelly Mikkelsen, that she be removed as the statutory plaintiff in the within lawsuit and replaced by Tracy Tanga-Fox. Case 2:02-cv-02252-JAT Document 305 Filed 11/16/2005 Page 1 of 4

No. CIV 02-2252-PHX-JAT

MOTION TO REMOVE RUBECCA MIKKELSEN AS PERSONAL REPRESENTATIVE AND AS STATUTORY PLAINTIFF AND TO APPOINT SUBSTITUTE PERSONAL REPRESENTATIVE AND STATUTORY PLAINTIFF

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RESPECTFULLY SUBMITTED this November 16, 2005. ABOUD & ABOUD, P.C. and BOYTE & MINORE, P.C. By__/s/__________________________ Michael J. Aboud Attorney for Plaintiff Fox MEMORANDUM Undersigned counsel learned for the very first time at the telephonic conference with the Court on Tuesday, November 15, 2005, that the attorneys for the statutory plaintiff and the Estate of Kelly Mikkelsen have been negotiating a settlement of only the claims of the Mikkelsens and have purposely excluded Taylor Fox who is a minor and the first-born child of the decedent. Furthermore, when undersigned attempted to learn the details of the negotiations and amounts being offered, he was told by Jim Barnhouse that such information could not be shared, that the negotiations were confidential. When asked what the defense had in mind with respect to Taylor Fox, Jack Klecan advised that they did not intend to include her and that she would be expected to dismiss her claim. As this Court knows, ARS § 12-612 and the case law interpreting it makes clear that there is but one cause of action for the wrongful death of a person regardless of the various legal theories that may support a claim of wrongful death, that any of the named statutory beneficiaries may bring that action but whomever brings suit does so on behalf of all of the statutory beneficiaries. Wilmot v. Wilmot, 203 Ariz. 565, 58 P.3d 507 (2002). The Arizona Supreme Court made clear in Wilmot that both the statutory plaintiff and her counsel have a fiduciary duty to all of the statutory beneficiaries and are prohibited from doing anything that would prejudice the claims of any of them. The court held: ¶ 34 We hold that our wrongful death statute imposes fiduciary duties on a statutory plaintiff acting, as he or she must, on behalf of all statutory beneficiaries. We cannot attempt to draw a bright line applicable to the myriad factual situations that may and do present themselves. Suffice it to say that a fiduciary duty of care requires that the statutory plaintiff and her lawyer act to protect the rights and interests of all beneficiaries who seek or may seek to assert their claims. The Wilmot court also said that the fiduciary duties of the statutory plaintiff and her counsel include making full disclosure to all of the statutory beneficiaries and to obtain their approval of any settlement, but above -2Document 305

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all, the Supreme Court instructs that they should do nothing that would prejudice the claims of the various beneficiaries. This is not new or novel law. As the Wilmot court noted, these principles were also enunciated in In re Millman's Estate, 101 Ariz. 54, 415 P.2d 877 (1966). Rubecca Mikkelsen also serves as personal representative of the estate of her deceased husband. In addition to having fiduciary obligations pursuant to the wrongful death statute and case law such as the Wilmot decision, she has fiduciary obligations pursuant to the Arizona probate code. Per ARS § 14-1201 (18) and (38), a personal representative acts in a fiduciary capacity. As this Court knows, a claim pursuant to §1983 has been asserted by the Estate of Kelly Mikkelsen. That claim is an important part of the pending lawsuit. What Rubecca Mikkelsen and her counsel intend to do would severely prejudice the claims of Taylor Fox. There have been more than 30, perhaps as many as 35, depositions in this case. There are hundreds of exhibits, hundreds of pleadings to which undersigned have been only a token participant. Despite your undersigned's repeated offers to help, he has been essentially excluded from the preparation of this case other than with respect to his preparation of his client's claim of damages. We have not participated in nor been allowed to participate in the liability aspects of the case, and this is in accord with the rule enunciated in Williams v. Superior Court, 169 Ariz. 468, 820 P.2d 332 (App. 1991), a case the court may be familiar with as the court's former law firm represented one of the parties. In that decision, the court held that while statutory beneficiaries may attend depositions and participate in discovery in a wrongful death action, they may do so only with respect to the issue of damages. Inasmuch as undersigned had no reason to believe that Rubecca Mikkelsen and her attorneys were only looking after the interests of the Mikkelsens and were intending to violate their fiduciary responsibilities to Taylor Fox, undersigned did not participate in the discovery, in the liability aspects of the case and did not employ his own liability experts. To have this dropped on Taylor Fox and her attorneys two weeks prior to trial is extremely prejudicial and extremely unprofessional. Mr. Klecan, one of the attorneys for the defense has also advised your undersigned that if they are able to reach agreement with the Mikkelsens, that would eliminate the § 1983 claim since the estate would no longer be a plaintiff ­ additional prejudice to young Ms. Fox. -3Document 305

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The Court should not condone these kinds of tactics. Both the statutory plaintiff and her counsel and the defense are conspiring to purposely harm Taylor Fox and effectively destroy her claim for the death of her father. Consequently, undersigned moves for an order removing Rubecca Mikkelsen and her attorneys from control of the case, from her position as the statutory plaintiff and personal representative of the Estate, granting a reasonable continuance, an immediate hearing on this motion and such other and further relief as the Court deems appropriate under the circumstances. Respectfully submitted this November 16, 2005. ABOUD & ABOUD, P.C. and BOYTE & MINORE, P.C.

By: __/s/_______________________________ Michael Aboud, attorneys for Tracy FoxTanga and Taylor Fox, a minor E-filed with the U.S. District Court this date and faxed and mailed to: Honorable James A. Teilborg U. S. District Court 401 West Washington Street Phoenix, Arizona 85003 John Micheaels

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1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen
A. James Clark

CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al,
James Barnhouse John Klecan

RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., etc.

Case 2:02-cv-02252-JAT

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