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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     THOMAS K. KOMA, Deceased.
               ________________________________________

                     ALICE KOMA, Petitioner/Appellant,

                                        v.

         ARTHUR PETER WALTER, Counter-Petitioner/Appellee.

                             No. 1 CA-CV 14-0447
                              FILED 3-8-2016


           Appeal from the Superior Court in Yavapai County
                        No. P1300PB201100209
                The Honorable Michael R. Bluff, Judge

                                  AFFIRMED


                                   COUNSEL

Prescott Law Group, PLC, Prescott
By J. Andrew Jolley, Taylor R. Nelson
Counsel for Appellant
J. Jeffrey Coughlin, PLLC, Prescott
By J. Jeffrey Coughlin
Co-Counsel for Appellee

Eric S. Chester, Prescott
Co-Counsel for Appellee



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1             Alice Koma (Alice) appeals from a judgment, entered after a
bench trial, rejecting her challenges to a will for Thomas K. Koma (Thomas)
and to an amendment to Thomas’ trust, both signed in 2011. Because Alice
has shown no error, the judgment is affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In January 2000, Thomas created the Thomas K. Koma Trust,
naming himself trustee. In February 2001, Thomas named Alice successor
trustee. In April 2001, at a time when Alice was still married to another man,
Alice and Thomas held a marriage ceremony and thereafter often lived
together as a couple until Thomas died in September 2011.

¶3             After 2001, Thomas amended his trust several times using
documents prepared by California attorneys. In September 2004, Thomas
amended his trust (as amended, referred here as the 2004 Trust) to name
Alice the primary trust beneficiary. At the same time, Thomas executed a
will (the 2004 Will) naming Alice his personal representative and directing
that all of his property be transferred to the 2004 Trust upon his death.
Although each trust amendment after the 2001 marriage ceremony referred
to Alice as Thomas’ wife, Thomas did not tell Alice of the amendments




1 This court reviews the evidence in a light most favorable to sustaining the
judgment. In re Estate of Newman, 219 Ariz. 260, 263 ¶ 3 (App. 2008).



                                      2
                            KOMA v. WALTER
                            Decision of the Court

when he made them, nor did he consult Alice or keep her informed of his
estate plans.

¶4            In 2006, Alice moved from the home she shared with Thomas
in Lake Havasu to a home in Prescott; she lived there separately until
Thomas joined her in December 2009. After Thomas began living with Alice
again in late 2009, he spent “most of his time alone in his room,” reading
and watching television. After moving to Prescott, Thomas began attending
Christian Fellowship Church, commonly known as Potter’s House. Thomas
attended Potter’s House almost every Sunday from March 2010 until his
health made attendance impossible in April 2011. In March 2010, Thomas
met Arthur Peter Walter and Charles Foster at Potter’s House, and became
friends with both men. Walter had acted as a pastor for two different
congregations between 1983 and 1995. He was not, however, an employee
or in any position of authority at Potter’s House during the time he knew
Thomas.

¶5           Other than Alice and a few friends at Potter’s House, Thomas
generally kept to himself, rarely receiving visitors or visiting others.
Thomas did, however, frequently speak with Foster. During those
conversations, Thomas often mentioned his discontent with his marriage to
Alice. Thomas also told Foster of his desire to leave a portion of his estate
to Potter’s House, which would decrease what he left to Alice, first
mentioning this desire in the summer of 2010 and discussing it with Foster
several times thereafter. Thomas also stated that he relied on Alice for
transportation and feared that asking Alice to drive him to see an attorney
would cause problems.

¶6             In April 2011, Thomas suffered serious injuries from a fall that
resulted in his hospitalization and continuous care in medical facilities until
his death on September 24, 2011. During that time, Alice visited Thomas
twice each day. During an early visit, Thomas asked Alice to have Walter
come to visit him. At Thomas’ request, Walter thereafter acted as co-power
of attorney with Alice for Thomas’ medical decisions. Pastors from Potter’s
House and other church members also visited Thomas, including Foster,
who visited a few times per week.

¶7            During his visits with Foster, Thomas again discussed his
estate planning, telling Foster and Toni McMillan (another person he knew
from Potter’s House) that he wanted to disinherit Alice. Foster’s response
was that Thomas should consult an attorney. In approximately August
2011, Thomas asked Alice to bring him all of his trust documents, then
asked Walter to make and keep a copy of them. Because Thomas was


                                      3
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                            Decision of the Court

confined to medical facilities, he asked Walter and Foster to help find an
attorney to amend the 2004 Trust; neither, however, immediately acted on
that request. Thomas mentioned having doubts about the validity of his
marriage and gave Walter money to hire an investigator to look into
whether Alice was still married at the time of their April 2001 marriage
ceremony.

¶8            About a week after he first asked Walter to contact an
attorney, Thomas became upset when Walter had not yet done so. Walter
then began looking for an attorney in earnest. Rather than contacting the
attorney who drafted the trust and amendments, Walter contacted
attorneys in Prescott. On September 21, 2011, Walter contacted attorney Eric
Chester. Walter told Chester that Thomas was concerned about his
marriage, wanted an annulment and wanted to disinherit Alice. Chester
agreed to contact Thomas. That same day, Thomas received word from the
investigator that Alice was still married to another man when she and
Thomas performed their marriage ceremony in April 2001.

¶9             During September 2011, Thomas’ health deteriorated. On the
morning of September 22, 2011, Thomas participated in an interdisciplinary
meeting with his caregivers and holders of his medical powers of attorney.
By that time, Thomas was in the hospital. Walter, Alice and Thomas met
with five or six of Thomas’ medical providers and decided to end Thomas’
treatment and provide only comfort care going forward. Immediately after
that meeting, Walter told Jill Logan, the ethics director of the facility, that
Thomas wanted to consult with an attorney. Logan consulted with the
facility’s director of risk and quality, met with Thomas to verify his desire
as well as evaluate his capacity to receive visitors based on his
understanding of his circumstances, and found no reason to question his
capacity.

¶10            Walter arranged a meeting between Thomas and Chester, for
2:00 p.m. on September 22, 2011. Thomas agreed to have Chester prepare a
new will and trust amendment and requested the meeting to be at that time
because he did not want Alice to be there. The next day, Chester called
Walter and asked Walter to arrange for a person who knew Thomas to go
to the hospital to identify Thomas, stating Thomas did not have any
identification with him in the hospital. Although Walter drove Foster to the
hospital to allow Foster to identify Thomas, Walter did not go inside.

¶11           Foster, who met with Thomas that day, indicated Thomas was
alert and recognized him when he arrived. On September 23, 2011, Foster
signed a document for Chester that identified Thomas as Tom Koma. Foster


                                      4
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                            Decision of the Court

stayed while Thomas and two witnesses signed a sixth amendment to the
trust (the 2011 Amendment) as well as a last will and testament (the 2011
Will). Collectively, the 2011 Will and the 2011 Amendment revoked all of
Thomas’ prior wills, left Thomas’ estate to Potter’s House, disinherited
Alice and named Walter as Thomas’ personal representative.

¶12            Thomas died the next day, September 24, 2011, at
approximately 8:35 a.m. Alice first learned of the 2011 Amendment and the
2011 Will two days later at the funeral home, and she immediately sought
legal counsel.

¶13            On October 14, 2011, Alice filed a petition for formal probate
of the 2004 Will and the 2004 Trust. The petition alleged that the 2011 Will
and the 2011 Amendment were presumptively invalid because they were
the result of undue influence by Potter’s House. Chester, who had drafted
the 2011 Will and the 2011 Amendment, appeared as attorney of record for
Walter, Thomas’ personal representative, in December 2011. Walter
objected to Alice’s petition, arguing that her purported marriage to Thomas
was void because she was married when the April 2001 marriage ceremony
was held, and he filed a cross-petition for formal probate of the 2011 Will.

¶14             In early April 2012, Alice deposed Chester to obtain testimony
regarding the creation of the 2011 Will and the 2011 Amendment, but
Chester refused to answer various questions, invoking the attorney-client
privilege based on his provision of legal services to Thomas. Alice moved
to disqualify Chester from serving as counsel for Walter, Thomas’ personal
representative, arguing Chester was a material witness and the attorney-
client privilege should not apply. In May 2012, the superior court denied
the motion to disqualify without prejudice, allowing the parties to
undertake discovery. In April 2013, the court denied a renewed motion to
disqualify Chester, finding “his testimony is not needed to complete the
story;” that “Chester is not in a position to fill in the [factual] pieces that
Alice . . . claims are missing” and that Alice had not established that the
testimony sought could only be obtained from Chester.

¶15           Alice filed a timely written jury trial demand on the issues of
undue influence and lack of testamentary capacity. When no objection was
filed, the superior court originally set the matter for a jury trial. After a
change of judge overseeing the case, however, the court set the matter for a
bench trial. Alice then filed another written jury trial demand, which Walter
opposed. After hearing argument, the court found Alice had no right to a
jury trial.




                                      5
                            KOMA v. WALTER
                            Decision of the Court

¶16            The court held a five-day bench trial in May 2014. Several
witnesses testified regarding Thomas’ mental state and to whether he was
susceptible to undue influence. Terese Sitiko, Chester’s employee who
acted as witness for the 2011 Will and the 2011 Amendment, testified that
when the documents were signed, Thomas’ eyes were clear; he was alert;
he greeted his friends by name and he responded intelligently to questions.
Dr. Timothy Missey, who provided medical care for Thomas, testified that
in the days leading up to his death, Thomas was understandably scared but
understood his condition and did not lack mental capacity. Jill Logan, the
ethics director at the facility caring for Thomas, found no reason to question
his capacity, testifying Thomas was alert and responsive and made helpful
contributions to the conversation at the interdisciplinary meeting held the
day before the documents were signed.

¶17           After receiving evidence and hearing arguments, in a ruling
from the bench issued May 13, 2014, the superior court found the 2011 Will
and the 2011 Amendment were valid and appointed Walter as Thomas’
personal representative. Alice moved for a new trial, arguing Walter failed
to make required disclosures under Arizona Rule of Civil Procedure 26.1
(2016).2 The court denied the motion, finding Alice failed to show how the
claimed disclosure failures had prejudiced her and, alternatively, the facts
she claimed were not properly disclosed were not relevant to the court’s
decision.

¶18           Alice timely appealed the May 13, 2014 bench ruling. This
court has jurisdiction pursuant to the Arizona Constitution, Article 6,
Section 9, and Arizona Revised Statutes sections 12-2101(A)(1) and -
120.21(A)(1).

                               DISCUSSION

¶19           Alice argues the superior court erred by: (1) holding a bench
(rather than a jury) trial after the matter was reassigned to a different judge;
(2) finding Thomas had testamentary capacity to execute the 2011 Will and
the 2011 Amendment; (3) ruling the 2011 Will and the 2011 Amendment
were not presumed to be the product of undue influence pursuant to A.R.S.
§ 14-2712(E)(1); (4) permitting Chester to represent Walter as personal
representative; and (5) denying her post-trial motions based on Walter’s
alleged failure to properly disclose information.



2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

                                       6
                            KOMA v. WALTER
                            Decision of the Court

I.     The Superior Court Did Not Err By Denying A Jury Trial.

¶20            Alice argues her “right to a jury trial was secured” when, after
Walter failed to object to her original jury demand, the court set the matter
for a jury trial. She argues that because of that decision, the subsequent
decision by a different judge to hold a bench trial constitutes an improper
horizontal appeal, and the new judge lacked the authority to reconsider the
issue absent the presentation of new facts and circumstances.

¶21           “A party seeks a ‘horizontal appeal’ when it requests 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) (citation omitted).
Although horizontal appeals have been criticized on various grounds, in
this context, the court’s first ruling did not create a jurisdictional or
substantive limitation on the court’s power to revisit the ruling to get to the
correct result. See id. (noting superior court has substantial discretion to
reconsider an earlier decision and “must not afford this procedural doctrine
undue emphasis.”). Alice has not argued on appeal that she has a
constitutional or statutory right to a jury trial, and therefore has not shown
the superior court reached the incorrect legal decision. Nor has she shown
how the superior court lacked the authority to reconsider the jury trial issue
or abused its discretion in doing so. Accordingly, her argument fails.

II.    The Superior Court Did Not Err By Finding Thomas Had Capacity.

¶22           Alice argues the superior court erred by finding, at the end of
trial, that Thomas had capacity to sign the 2011 Will and the 2011
Amendment. “It is a rebuttable presumption that a person who executes a
governing instrument is presumed to have capacity to execute the
governing instrument and to have done so free from undue influence and
duress.” A.R.S. § 14-2712(B); see also A.R.S. § 14-1201(22) (defining
“governing instrument” as including a will or trust). At oral argument,
Alice argued the superior court erred by placing on her the burden to show
lack of testamentary capacity, citing In re Vermeersch’s Estate, 109 Ariz. 125
(1973). As the party contesting the validity of the 2011 Will and the 2011
Amendment, however, Alice had the burden to rebut this presumption. See
id. at 128.

¶23            “To successfully challenge the validity of the will for lack of
testamentary capacity, the burden was on the contestant to prove a lack of
one of the following elements: (a) the ability to know the nature and extent



                                      7
                            KOMA v. WALTER
                            Decision of the Court

of one’s property, (b) the ability to know the natural objects of one’s bounty,
and (c) the ability to understand the nature of the testamentary act.” Id.
(citations omitted); accord Matter of Estate of Killen, 188 Ariz. 562, 565 (App.
1996) (similar).3 Testamentary capacity is determined at the time the
documents are signed. See In re O’Connor’s Estate, 74 Ariz. 248, 257-58 (1952).
Factual findings regarding testamentary capacity will be reversed only if
clearly erroneous. See In re Thomas’ Estate, 105 Ariz. 186, 189 (1969); see also
In re Estate of Pouser, 193 Ariz. 574, 579 (1999) (noting superior court’s
decision regarding testamentary capacity will be affirmed if supported by
substantial evidence).

¶24            Alice argues the superior court abused its discretion in
rejecting, after considering the evidence, her challenges to the 2011 Will and
the 2011 Amendment. More specifically, Alice argues the court should have
concluded that Thomas failed to understand his marital status when he
executed those documents. This argument relies on the fact that the
documents refer to Thomas as a married man and refer to Alice as his wife,
even though he had learned that his marriage to her was not valid. But the
superior court noted that fact, and still rejected Alice’s challenges, noting it
had “placed little weight” on the fact that Alice was referred to as Thomas’
wife in the documents. Moreover, the same documents that list Alice as
Thomas’ wife completely disinherited her. Accordingly, the documents
themselves did not compel the superior court to conclude that Thomas was
incapable of knowing the natural objects of his bounty.

¶25           The superior court received other evidence of Thomas’
capacity. Thomas was alert and coherent on September 21, 2011 –- two days
before he signed the 2011 Will and the 2011 Amendment -- when he
received a report from a private investigator confirming Alice was still
married when she purported to marry Thomas. On September 22, 2011 –-
the day before Thomas signed the documents -- Dr. Missey and Jill Logan
determined that Thomas was alert, responsive and capable of meeting with
an attorney. Then, on September 23, 2011, Thomas greeted Foster by name
just before signing the documents, further indicating he understood his
personal relationships. On this record, Alice has not shown an abuse of
discretion.

¶26          Alice argues the superior court erred by giving more weight
to the testimony of Dr. Missey and Jill Logan than to that of Foster and

3The parties do not argue that the capacity analysis applicable to the 2011
Will and the 2011 Amendment should differ and, accordingly, the court
uses the same analysis for both documents.

                                       8
                            KOMA v. WALTER
                            Decision of the Court

Sitiko, who were present when the documents were executed. Weighing
and assessing evidence, however, is for the finder of fact at trial, not this
court on appeal. See Pouser, 193 Ariz. at 579. And although Dr. Missey and
Jill Logan were not present at the signing, their testimony is relevant to
Thomas’ mental state at the time the documents were signed. See In re
O’Connor’s Estate, 74 Ariz. at 257-58. Because there was substantial evidence
to support a finding that Thomas had capacity on September 23, 2011, and
because Alice did not present evidence sufficient to overcome the
presumption of validity, the superior court did not abuse its discretion in
concluding that Thomas had testamentary capacity when signing the 2011
Will and the 2011 Amendment.

III.   The Superior Court Did Not Err By Finding Walter Was Not A
       Principal Beneficiary, And Consequently, A Statutory
       Presumption of Undue Influence Did Not Apply.

¶27            Alice claims the superior court erred by finding, as a matter
of law, that a statutory presumption of undue influence by Walter did not
apply to the facts presented. By statute, a will or trust “is presumed to be
the product of undue influence if . . . [a] person who had a confidential
relationship to the creator of the governing instrument was active in
procuring its creation and execution and is a principal beneficiary of the
governing instrument.” A.R.S. § 14-2712(E)(1). Unless the facts are
undisputed and one party is entitled to judgment as a matter of law,
whether a person is a primary beneficiary is a question of fact “to be
determined by the totality of the circumstances.” A.R.S. § 14-2712(G). This
court will uphold the superior court’s findings of fact if “substantial
evidence exists to support the trial court’s action.” Pouser, 193 Ariz. at 579.

¶28             Walter was not named a beneficiary in the 2011 Will or the
2011 Amendment. Alice, however, argues that Walter was acting as an
agent of Potter’s House, which was a named beneficiary. Any such agency
relationship, even if supported factually, would not make Walter (as
opposed to Potter’s House) a principal beneficiary under A.R.S. § 14-
2712(E)(1). It remains the case, as noted by the superior court, that Alice has
not provided any authority construing A.R.S. § 14-2712(E)(1) that
“suggest[s] that a church member, employee or representative is a principal
beneficiary when a church is named as the beneficiary in a will or trust.”
Alice has not shown that the superior court erred in finding that Walter was
not a principal beneficiary under the 2011 Will or the 2011 Amendment.

¶29           Similarly, Alice has not shown the superior court erred by
rejecting her claim that Walter should be treated as a principal beneficiary


                                      9
                           KOMA v. WALTER
                           Decision of the Court

based on agency concepts. “Agency is the fiduciary relationship that arises
when one person (a ‘principal’) manifests assent to another person (an
‘agent’) that the agent shall act on the principal's behalf and subject to the
principal's control, and the agent manifests assent or otherwise consents so
to act.” Restatement (Third) of Agency § 1.01 (2006). The evidence offered
at trial supports the superior court’s conclusion that Walter was not acting
as an agent of Potter’s House during the relevant time period leading up to
Thomas signing the 2011 Will and the 2011 Amendment.

¶30             Although Walter had been a pastor and employee at Potter’s
House in the past, he was not serving in either capacity during the time he
knew Thomas. Alice argues that, for a principal-agent relationship to exist,
it is “sufficient that the Potter’s House encouraged [Walter] to pursue” the
2011 Will and the 2011 Amendment. Alice does not cite any legal authority
for that proposition, however, and she does not cite to any record evidence
that Potter’s House encouraged Walter to pursue the 2011 Will and the 2011
Amendment. Although Alice points to various pastors accompanying
Walter to visit Thomas leading up to September 24, 2011, there is no
evidence that Thomas discussed his estate plans during those visits or that
Potter’s House encouraged Walter to assist in procuring the 2011 Will or
the 2011 Amendment. Indeed, there is no evidence that any Potter’s House
official knew of Walter’s actions regarding Thomas’ estate plans, much less
that Potter’s House was controlling or directing Walter’s actions. Given this
evidentiary void, Alice has not shown the superior court, as finder of fact,
erred by failing to find that Walter was an agent for Potter’s House at any
relevant time leading up to the execution of the 2011 Will and the 2011
Amendment. For this additional reason, the superior court did not err by
concluding the presumption set forth in A.R.S. § 14-2712(E)(1) did not
apply.

IV.    The Superior Court Did Not Abuse Its Discretion By Finding Alice
       Had Not Shown Undue Influence.

¶31           Absent the presumption of undue influence under A.R.S. §
14-2712(E), a will or trust is presumed to be created free of undue influence
or duress. See A.R.S. § 14-2712(B). As applicable here, to successfully
challenge the validity of the 2011 Will and the 2011 Amendment, Alice bore
the burden to show the invalidity of the documents by a preponderance of
the evidence, A.R.S. § 14-2712(D), based on the following factors:

              [w]hether the alleged influencer has made
              fraudulent representations to the [testator];
              whether the execution of the will was the


                                     10
                            KOMA v. WALTER
                            Decision of the Court

              product of hasty action; whether the execution
              of the will was concealed from others; whether
              the person benefited by the will was active in
              securing its drafting and execution; whether the
              will as drawn was consistent or inconsistent
              with prior declarations and plannings of the
              [testator]; whether the will was reasonable
              rather than unnatural in view of the [testator’s]
              circumstances, attitudes, and family; whether
              the [testator] was a person susceptible to undue
              influence; and whether the [testator] and the
              beneficiary have been in a confidential
              relationship.

In re McCauley's Estate, 101 Ariz. 8, 10-11 (1966) (citations omitted).
“Whether undue influence has been exerted to bring about the making of a
particular will is a question of fact.” Id. at 10. On appeal, the evidence is not
reweighed but, instead, reviewed to determine whether there is substantial
evidence to support the superior court’s decision. See Pouser, 193 Ariz. at
579.

¶32           Alice argues the superior court “abused its discretion when it
dismissed several of the McCauley factors from its balancing test.” She
argues that because the court found several McCauley factors weighed in
favor of undue influence, yet ultimately rejected her undue influence claim,
the court “erred in its weighing of the McCauley factors.” On this record,
however, Alice has not shown the superior court abused its discretion by
weighing the McCauley factors, as the finder of fact, in ultimately rejecting
her challenge to the 2011 Will and the 2011 Amendment.

¶33            The superior court properly applied McCauley, prefacing its
analysis by stating that the undue influence issue was “a very much closer
call” than the question of Thomas’ capacity, and adding “I do believe that
the Potter’s House and . . . Walter did influence his decision on what –
where to leave his property, but I don’t find that it was undue influence.”
The superior court then discussed each McCauley factor, noting that some
of the factors supported Alice’s claim and some did not, and concluded:
“[b]ased on the totality of all of those factors, I do not find that there was
undue influence concerning the execution of the 2011 estate documents.”
Although Alice argues the superior court should have applied the McCauley
factors to reach a different conclusion, the record supports the findings, and
her argument is an invitation to reweigh the evidence, which this court will
not do. See Pouser, 193 Ariz. at 579.


                                       11
                             KOMA v. WALTER
                             Decision of the Court

¶34           Alice did not cite to any fraudulent statements that induced
the creation of the 2011 documents, and the superior court thus found that
any alleged fraudulent statements were immaterial. Although noting the
signing of the documents “was the product of hasty action,” the superior
court noted “that was the result of necessity, and it’s really not disputed too
much by” Alice. Although the superior court noted the documents were
concealed from Alice and that Walter and Thomas had a confidential
relationship, Potter’s House did not directly procure the creation of the
documents. And as discussed above, the record does not support the
finding that Walter acted as an agent for Potter’s House.

¶35            Although the changes reflected in the 2011 Will and the 2011
Amendment were inconsistent with the 2004 Will and prior trust
amendments, the superior court found that the changes were “reasonable
rather than unnatural . . . based on my view of the evidence.” More
specifically, the changes were reasonable in light of Thomas’ attitude and
family situation, particularly given Thomas’ statements to friends over
several months that he wanted to leave money to Potter’s House. Moreover,
the evidence indicated Thomas was unhappy in his relationship with Alice
and had recently learned his marriage was likely invalid. Finally, witnesses
testified Thomas was willful and headstrong, not the type of person to be
easily swayed, causing the superior court to conclude “that he was a strong-
willed individual and . . . did things the way he wanted them done, so I
don’t find that he was susceptible to undue influence.” Because there was
substantial evidence supporting this analysis by the superior court, Alice
has not established an abuse of discretion. See Pouser, 193 Ariz. at 579.

V.     The Superior Court Did Not Err By Allowing Chester to Represent
       Walter As Personal Representative.

¶36           Alice argues the superior court erred by denying her motion
to disqualify Chester and by allowing him to represent Walter as personal
representative because the “Arizona Rules of Professional Conduct
prohibit[] an attorney who is ‘a necessary witness’ from being an advocate
in the same matter.” See Ariz. R. Sup. Ct. 42, ER 3.7(a). Alice contends
Chester was a necessary witness because he was the only person who could
testify as to whether he met with Thomas individually, and to Thomas’
mental state and other circumstances if such a meeting took place.

¶37            As noted by the superior court, particularly given that a party
has a right to counsel of his or her choice, a motion to disqualify opposing
counsel should not be granted for mere strategic or tactical reasons. See
Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 335 (1986); accord


                                        12
                            KOMA v. WALTER
                            Decision of the Court

Amparano v. ASARCO, Inc., 208 Ariz. 370, 376 ¶ 22 (App. 2004) (noting
Ethical Rules “are not designed to be used as a means to disqualify
counsel”). Moreover, there is no dispute that any testimony sought from
Chester would be subject to the attorney-client privilege, which did not
terminate upon Thomas’ death, as well as Chester’s duty of confidentiality.
See A.R.S. 12-2234(A); State v. Macumber, 112 Ariz. 569, 571 (1976) (noting
attorney-client privilege does not terminate upon death of client); Ariz. R.
Sup. Ct. 42, E.R. 1.6 (setting forth confidentiality obligation). Alice has not
shown what testimony she believes that Chester could have provided
consistent with his obligations of confidentiality. On this basis alone, Alice
has not shown the superior court abused its discretion in refusing to
disqualify Chester as a necessary witness. See Amparano, 208 Ariz. at 376 ¶
22.

¶38            Similarly, Alice has not shown the superior court erred by
analyzing whether any testimony that might be obtained from Chester was
necessary and could only be obtained from him. The documents Chester
prepared that Thomas signed were consistent with the intentions Thomas
related to other witnesses. Because Alice has not alleged any conspiracy or
malfeasance by Chester, there is no reason to believe any desires expressed
in a hypothetical private meeting would differ from those related at other
meetings. Moreover, to the extent that Alice sought testimony from Chester
about Thomas’ capacity on September 23, 2011, several other witnesses
testified to Thomas’ capacity both in the days leading up to, and at the
execution of, the 2011 documents. Indeed, the superior court concluded that
information Alice had provided “establishes that she has obtained the
information from other sources and that there are other witnesses besides .
. . Chester who can provide the other information she seeks.” For this reason
as well, Alice has not shown the superior court abused its discretion by
refusing to disqualify Chester as a necessary witness. See Amparano, 208
Ariz. at 377 ¶ 22.

VI.    The Superior Court Did Not Err By Not Granting Alice A New
       Trial.

¶39            Claiming Walter failed to make proper required disclosures,
Alice filed a timely post-trial motion, seeking to vacate the superior court’s
decision and requesting a new trial based on “[m]isconduct of the . . .
prevailing party.” Ariz. R. Civ. P. 59(a)(2).4 A new trial is proper, however,

4Alice also unsuccessfully sought relief under Rule 60(c)(3) for these same
alleged disclosure failures. Alice did not, however, properly appeal from



                                      13
                            KOMA v. WALTER
                            Decision of the Court

only where it appears probable the misconduct actually affected the
judgment. Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 215 (App. 1984)
(discussing motion for new trial following jury verdict). The superior court
is in the best position to determine if conduct influenced the judgment. Ring
v. Taylor, 141 Ariz. 56, 61 (App. 1984). This court will reverse a ruling on a
motion for new trial “only if it reflects a manifest abuse of discretion given
the record and circumstances of the case.” Styles v. Ceranski, 185 Ariz. 448,
450 (App. 1996).

¶40           Alice’s arguments regarding her request for a new trial are
unavailing. The superior court concluded she had “failed to prove that
[Chester’s] disclosure violations substantially interfered with her ability to
fully and fairly prepare for trial,” meaning the court found no basis for a
new trial. With respect to disclosures suggesting a witness might have bias,
the court noted it “initially found this late disclosure disturbing,” but added
that it gave no weight to the witness’ testimony, relying instead on
testimony from medical professionals. Although Alice alleged seven
additional areas of non-disclosure, the superior court noted the information
was eventually discovered by other means at or shortly before trial. The
court further noted that Alice did not explain how that information was
relevant, adding “[m]ore importantly though, the Court found [the
information] did not affect the Court’s final decision in the case.” All of
these findings are supported by the record, and Alice does not provide any
arguments for how the failure to disclose these other items may have
affected the judgment. Accordingly, and although this court does not
condone any failure to make appropriate and timely disclosure as required
by Rule 26.1, Alice has not shown the superior court abused its discretion
by denying her motion for new trial.




the superior court’s denial of relief under Rule 60(c)(3), as determined by
this court’s January 6, 2015 order and the time for her to do so has long since
passed. As a result, the Rule 60(c)(3) ruling is now final and binding, and
this court lacks jurisdiction to further consider that ruling.




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                        KOMA v. WALTER
                        Decision of the Court

                           CONCLUSION

¶41            Because Alice has shown no error, the superior court’s
decision is affirmed.




                               :ama




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