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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        PATRICIA R LAMBERT;
                    WILLIAM H LAMBERT, Deceased.
                   _________________________________

                 KURT TITTELBACH, Petitioner/Appellee,

                                       v.

            PATRICIA ANN JACOBS, Respondent/Appellant,
                _________________________________

                        KAREN BEATTIE, Appellee.


                            No. 1 CA-CV 17-0198
                              FILED 2-6-2018


          Appeal from the Superior Court in Maricopa County
                         No. PB2015-051494
                         No. PB2016-051336
                            (Consolidated)
           The Honorable Andrew J. Russell, Commissioner

                                 AFFIRMED
                                  COUNSEL

Jaburg & Wilk, PC, Phoenix
By Lauren L. Garner, Kathi N. Sandweiss
Counsel for Petitioner/Appellee

Stinson Leonard Street, LLP, Phoenix
By Sharon Ng, Jennifer L. Allen
Counsel for Respondent/Appellant

Law Office of Jeffery S. Slater, P.C., Scottsdale
By Jeffery S. Slater
Counsel for the Estate of William H. Lambert



                       MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.


M O R S E, Judge:

¶1             Appellant Patricia Ann Jacobs ("Jacobs") appeals from the
superior court's final judgment, which distributes the assets of decedent
Patricia Lambert ("Patricia") and denies Jacobs' motion for reconsideration
or to vacate judgment. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Patricia and her husband, William Lambert ("William"),
executed the Last Will and Testament of William H. and Patricia R. Lambert
in 2004 (the "Joint Will"). The Joint Will directed "[i]f William dies first,
everything goes to Patricia. If Patricia dies first, everything goes to
William." Pursuant to the Joint Will, in the event William and Patricia died
simultaneously, other than specifically exempted items, one half of the
estate would go to Jacobs, William's sister, and the other half would go to
Mike Billings and Karen Beattie, Patricia's brother and niece.

¶3            In 2015, William executed the Last Will and Testament of
William H. Lambert (the "2015 Will"), which revoked his part of the Joint
Will. Under the 2015 Will, William's assets were to pass into his separate
Trust to be administrated for the benefit of Patricia, and upon her death, the


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                      TITTELBACH v. JACOBS, et al.
                          Decision of the Court

remainder to be distributed to Jacobs.        William died four days after
executing the 2015 Will.

¶4           Patricia died in in the spring of 2016. A few months later, the
superior court admitted the Joint Will to probate.

¶5            In November 2016, Patricia's personal representative, Kurt
Tittelbach (the "PR"), a licensed fiduciary, filed a petition for instructions
and requested a hearing to determine the proper devisees of Patricia's
estate.1 Jacobs received a copy of the petition.

¶6            The court set a hearing on the petition, and the PR filed a
notice of hearing. The notice stated:

       IF YOU OBJECT TO ANY PART OF THE PETITION OR
       MOTION THAT WAS PREVIOUSLY SENT TO YOU . . .
       YOU MUST FILE WITH THE COURT A WRITTEN
       OBJECTION DESCRIBING THE LEGAL BASIS FOR
       YOUR OBJECTION AT LEAST THREE (3) DAYS BEFORE
       THE HEARING DATE, OR YOU MUST APPEAR IN
       PERSON OR THROUGH AN ATTORNEY AT THE TIME
       AND PLACE SET FORTH IN THIS NOTICE OF
       HEARING.

¶7             Two weeks before the hearing, the PR lodged a proposed
form of Order on the petition (the "Order"). The Order directed that
Patricia's assets, other than specifically exempted items, be distributed to
Karen Beattie.

¶8            One week before the hearing, the attorney for William's
estate, Stanna Michelle Slater, notified Jacobs' adult children that she had
not been advocating in any way for or against Jacobs.2 Slater also confirmed
the Order would not provide Jacobs any of the assets in Patricia's estate and
advised "if your mother desires to take a position with regard to [Patricia's]

1The Petition for Instructions provides two interpretations of the Joint Will:
(1) Patricia's entire estate passes to Karen Beattie (Mike Billings predeceased
Patricia) or (2) half of Patricia's assets pass to Karen Beattie and the other
half to Jacobs. The Petition ultimately argues for the first interpretation and
requests the court determine the proper devisee(s).

2Because Jacobs does not have a landline or internet service, Ms. Slater
emailed with Jacobs' adult children, who relayed the information to Jacobs.



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                      TITTELBACH v. JACOBS, et al.
                          Decision of the Court

estate then your mother probably should consult legal counsel and act
promptly." Jacobs admits she knew William's estate would not be
advocating on her behalf at the hearing. Jacobs did not file an objection to
the petition or the Order prior to the hearing and did not attend the hearing,
either personally or through a representative.

¶9            At the hearing, the court entered the Order after noting that
"[t]his hearing has been properly noticed. We're ten minutes into it. No
one showed up to object. No one's filed anything . . . ."

¶10           The next month, Jacobs moved to reconsider or vacate the
Order, requesting that the court find her failure to respond to the petition
or appear at the hearing was a result of excusable neglect or mistake. The
court denied Jacobs' motion.

¶11          The court ultimately entered final judgment pursuant to
Arizona Rule of Civil Procedure ("Rule") 54(b). The final judgment
determined that upon William's death, the couple's joint assets passed to
Patricia by operation of law and denied Jacobs' motion to reconsider or
vacate judgment.

¶12           Jacobs timely appealed the final judgment.3 We have
jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-
2101(A)(9).

                        STANDARD OF REVIEW

¶13           We review both the superior court's denial of a motion for
reconsideration and a motion to vacate for an abuse of discretion. Tilley v.
Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009) (motions to reconsider); Maher v.
Urman, 211 Ariz. 543, 550, ¶ 21 (App. 2005) (Rule 60 motions).




3 Jacobs originally filed a premature notice of appeal from the Order and
the unsigned minute entry denying her motion to reconsider or vacate. She
then filed a motion to dismiss appeal without prejudice, which this court
denied. We stayed the appeal and revested jurisdiction in the superior
court to permit Jacobs to obtain an appealable order. Jacobs obtained the
final judgment and filed it with this court.




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                       TITTELBACH v. JACOBS, et al.
                           Decision of the Court

                                DISCUSSION

¶14         Jacobs argues that her mistaken belief that William's estate
would represent her interests at the hearing constituted excusable neglect
under Rule 60(b)(1); therefore, the superior court abused its discretion in
denying her motion.

¶15            The superior court may relieve a party from a final judgment
based upon "excusable neglect." Ariz. R. Civ. P. 60(b)(1).4 The standard for
determining "excusable" conduct is whether the neglect or inadvertence
would cause a reasonably prudent person to take the same action under
those circumstances. City of Phoenix v. Geyler, 144 Ariz. 323, 331-32 (1985)
(citing Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120 (1957)). Neither
ignorance of procedural rules nor mere carelessness constitutes excusable
neglect. Daou v. Harris, 139 Ariz. 353, 359 (1984); see also Searchtoppers.com,
L.L.C. v. TrustCash LLC, 231 Ariz. 236, 241-42, ¶¶ 22-23 (App. 2012)
(determining that the defendant failed to demonstrate excusable neglect in
regard to its failure to timely answer the complaint by offering evidence
that it intended to forward the complaint to counsel, but failed to do so).

¶16            In General Electric Capital Corp. v. Osterkamp, 172 Ariz. 185, 190
(App. 1992), the defendant failed to file an answer based upon a
misunderstanding of the procedural rules, namely that if an answer was
filed after the 10-day grace period provided for by Rule 55, but before a
motion for entry of default judgment was filed, the answer would still be
valid, the delay in the filing of the motion for entry of default having created
an inadvertent extension. The superior court held that ignorance or
misunderstanding of the rules did not constitute excusable neglect. Id. The
court found "[t]here was no evidence from which the trial court could have
concluded that counsel had a reasonable basis for believing that an extension
existed." Id.

¶17           Likewise, in this matter, the record lacks evidence that Jacobs'
failure to advocate on her own behalf due to her belief that William's estate
would act in her interests was reasonable. Jacobs does not dispute that she
knew a week before the hearing that William's estate would not advocate
on her behalf. William's counsel advised Jacobs, through her children, to


4The current version of Rule 60(b)(1) was amended effective January 1,
2017. The relevant part of Rule 60(b)(1) is nearly identical to former Rule
60(c) and most of the excusable neglect case law refers to Rule 60(c).




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                      TITTELBACH v. JACOBS, et al.
                          Decision of the Court

"consult legal counsel and act promptly." Yet Jacobs still failed to object to
the petition, appear at the hearing, or hire counsel to appear on her behalf.
Such conduct was not reasonable or prudent. Geyler, 144 Ariz. at 331-32.
Therefore, we find the court did not abuse its discretion in denying Jacobs'
motion because Jacobs failed to demonstrate excusable neglect under Rule
60(b)(1).5

                    ATTORNEYS' FEES AND COSTS

¶18            The PR requests an award of attorneys' fees pursuant to A.R.S.
§ 14-1105(A), arguing that Jacobs acted unreasonably by raising the issue of
intent for the first time on appeal. After a review of the record, we conclude
that Jacobs did raise the issue of William's intent in the superior court.
Therefore, we decline to award attorneys' fees. We award costs to the PR
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

                               CONCLUSION

¶19           We affirm the superior court's denial of Jacobs' motion to
reconsider or vacate the final judgment.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




5Jacobs also argues that the court erred in interpreting the Joint Will.
Because we conclude that Jacobs failed to demonstrate excusable neglect,
we do not need to consider the intent of William and Patricia.




                                         6
