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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


  LYNN VON WALD, individually and on behalf of THE ESTATE OF
        MILDRED B. CRABB, Deceased, Plaintiff/Appellee,

                                        v.

 GLENN R. CRABB, individually and as Successor Trustee of the Elton R.
& Mildred Irrevocable Trust Dated February 7, 1992, as Successor Trustee
of the Elton R. Crabb and Mildred B. Crabb Trust No. XL30 Dated October
   3, 1989, and as Successor Trustee of the “Undetermined” Crabb Trust,
                            Defendant/Appellant.

                             No. 1 CA-CV 15-0352
                               FILED 5-10-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-006467
             The Honorable Sally Schneider Duncan, Judge

                                  AFFIRMED


                                   COUNSEL

Lewis Roca Rothgerber Christie LLP, Phoenix
By Jill J. Ormond
Counsel for Plaintiff/Appellee

Murphy Law Firm, Inc., Phoenix
By Thomas J. Murphy
Counsel for Defendant/Appellant
                            VON WALD v. CRABB
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


G O U L D, Judge:

                  FACTS AND PROCEDURAL HISTORY

¶1             During their lifetime, Mildred B. and Elton R. Crabb created
several trusts (the “Trusts”).1 Their children, Lynn Von Wald and Glenn R.
Crabb, are co-beneficiaries of the Trusts. After Elton and Mildred’s deaths,
Glenn became the successor trustee for the Trusts.

¶2             In 2011, Lynn filed a complaint alleging Glenn mishandled
and fraudulently converted the Trusts’ assets. Lynn requested various
types of relief, including an award of her 50% interest in her parent’s estate.

¶3             Lynn and Glenn eventually participated in a settlement
conference, and, after reaching an agreement, placed it on the record
pursuant to Rule 80(d), Arizona Rules of Civil Procedure. The agreement
consisted of two components. First, the parties agreed to determine the
"final value" of their parents’ estate at the time of their father's death; in the
settlement, Lynn would be entitled to one-half of that value. Second, once
the "final value" was determined, the parties agreed to sell certain
properties titled in Glenn’s name. The proceeds from the sales would be
paid to Lynn until she received her 50% interest in the total value of the
estate; thereafter, Lynn and Glenn would share equally in any proceeds
from the sales.2



1      The three trusts involved in this case are: (1) The Elton R. & Mildred
B. Irrevocable Trust Dated February 7, 1992; (2) the Elton R. Crabb and
Mildred B. Crabb Trust No. XL30 dated October 3, 1989; and (3) an
“Undetermined” Crabb Trust, which Lynn alleges contains most of
Mildred’s assets.
2      The agreement also provided that if the properties were not sold, the
parties would share the income generated by management of the properties
according to the same formula.



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                            VON WALD v. CRABB
                             Decision of the Court

¶4           The properties were sold pursuant to the parties’ agreement.
However, a dispute arose when the proceeds from the sales amounted to
less than Lynn’s 50% interest in the final value of the estate. Lynn claimed
that Glenn had agreed to be personally liable for any shortfall, while Glenn
contended the Rule 80(d) agreement did not include a personal liability
provision.

¶5            Two hearings were held regarding the dispute. At the
hearings, the judge who participated in and presided over the settlement
conference advised the parties that based on her review of her notes, as well
as her independent recollection of the agreement, Glenn agreed to be
personally liable for any shortfall. As a result, the judge entered an Order
Regarding Settlement Agreement and Final Judgment stating that a “term
of the settlement agreement reached by the parties includes [Glenn’s]
personal responsibility to pay [Lynn] one half the value of [the parents’]
Estate, which is currently determined as no less than $206,541.76 . . . .” The
court then entered a judgment against Glenn in the amount of $206,541.76.3

¶6            Glenn timely appeals the court’s judgment.

                                DISCUSSION

¶7              The court effectively granted summary judgment regarding
the estate’s valuation and the existence of the personal liability term in the
parties’ settlement agreement; as a result, “we employ the summary
judgment standard of review.” Robertson v. Alling, 237 Ariz. 345, 347, ¶ 8
(2015). We therefore review de novo whether a genuine issue of material
fact exists, viewing the facts in a light most favorable to the non-prevailing
party. Id.

I.     Evidentiary Hearing

¶8            Glenn argues the court erred in denying his request for an
evidentiary hearing because there was a genuine fact dispute about the
existence of the personal liability term.

¶9            A court must conduct an evidentiary hearing if a genuine
factual dispute exists as to whether a term is part of a settlement agreement.
Brake Masters Sys., Inc. v. Gabbay, 206 Ariz. 360, 365, ¶ 13 (App. 2003); see also
Gatz v. Southwest Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir. 1988) (a court
must hold an evidentiary hearing if a substantial factual dispute exists

3      Pursuant to the parties’ settlement agreement, this amount is offset
by the proceeds from the sales of the properties.

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                          VON WALD v. CRABB
                           Decision of the Court

regarding the terms of the settlement agreement.) Conversely, if no
genuine dispute exists, an evidentiary hearing is not required. Brake
Masters Sys., Inc., 206 Ariz. at 365, ¶ 14.

¶10             Neither in the trial court nor on appeal does Glenn argue that
if the court had set an evidentiary hearing, he would have offered any
evidence – beyond his own testimony – denying he agreed he would be
obligated to make up any shortfall. He does not argue there were
documents he would have put before the court, or that he would have
offered evidence of conduct by Lynn inconsistent with the agreement the
court found. Given his failure to make such an offer of proof, the settlement
judge did not abuse her discretion by denying his request for a hearing.
While the parties disagreed about whether the personal liability term was
part of the settlement agreement, the settlement conference judge reviewed
her notes and specifically recalled this term was part of the agreement.
Thus, although the transcript is silent about this term, the judge made a
factual finding that Glenn did agree to be personally liable for any shortfall.
Additionally, the shortfall term logically follows from the parties’
agreement that Lynn was to receive 50% of the “final value” of the estate.
If the sale of the properties failed to produce sufficient revenues to satisfy
this agreement, it naturally follows that Glenn would have to come up with
the remainder.

¶11            Moreover, even if there was a genuine issue of material fact,
the court’s failure to provide a formal evidentiary hearing did not prejudice
Glenn, and therefore any error was harmless. Cf. Walters v. First Fed. Sav.
and Loan Ass’n of Phoenix, 131 Ariz. 321, 326 (1982) (“In order to justify
reversal . . . error must be prejudicial to the substantial rights of the
appealing party.”) The court conducted two hearings regarding the
disputed term; at both hearings, the parties were given an opportunity to
present their arguments orally and in writing. Additionally, the judge
stated the basis for her finding. We find no error.

II.    Value of the Estate

¶12          Glenn also argues the court erred in denying his request for
an evidentiary hearing regarding the estate’s value.

¶13          Lynn submitted a valuation of her parents’ estate supported
by several pages of financial information and documentation. Although
Glenn made some conclusory statements objecting to Lynn’s valuation, he
did not provide any evidence supporting these objections. Such conclusory
statements are insufficient to raise a genuine issue of material fact. Peabody



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                           VON WALD v. CRABB
                            Decision of the Court

Coal Co. v. State, 158 Ariz. 190, 197 (App. 1998); Cf. Ariz. R. Civ. Proc.
56(e)(4)(a party opposing summary judgment “may not rely merely on
allegations or denials of its own pleading”; rather, it “must set forth specific
facts showing a genuine issue for trial”). Accordingly, we find no error.

                               CONCLUSION

¶14          For the above reasons, we affirm. In our discretion, we deny
Lynn’s request for attorneys’ fees. However, as the prevailing party Lynn
is awarded her costs upon compliance with ARCAP 21.




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