                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                         In the Matter of:
            THE DOBYNS FAMILY TRUST dated July 10, 1998

  KAMILLE MULCAIRE, as the Personal Representative of the Estate of
       THOMAS E. MULCAIRE and MICHAEL MULCAIRE,
                    Petitioners/Appellants,

                                        v.

         DAVID MONGINI and CECIL WALLACE, Co-Trustees,
                     Respondents/Appellees.

                             No. 1 CA-CV 13-0612
                              FILED 12-11-2014


            Appeal from the Superior Court in Yavapai County
                         No. V1300PB201280021
               The Honorable Patricia A. Trebesch, Judge

                                  AFFIRMED


                                   COUNSEL

Dennis P. Bayless PC, Cottonwood
By Dennis P. Bayless
Counsel for Petitioners/Appellants
J. Leslie McLean PLLC, Cottonwood
By J. Leslie McLean
Co-Counsel for Respondents/Appellees

and

Choi & Fabian PLC, Chandler
By Veronika Fabian and Hyung S. Choi
Co-Counsel for Respondents/Appellees



                     MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.


G O U L D, Judge:

¶1           Thomas Mulcaire and Michael Mulcaire (the “Mulcaires”),
appeal from the trial court’s judgment in favor of David Mongini and
Cecil Wallace (the “Co-Trustees”). For the reasons discussed below, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            This appeal is based on a dispute between family members
over the administration of two trusts. In 1998, Erma and Faires Dobyns
(the “Dobyns”) established the Dobyns Family Trust (the “Family Trust”).
The Dobyns served as the initial co-trustees of the Family Trust. The
beneficiaries of the Family Trust are Erma Dobyns’ four children from a
prior marriage: Sheila Mongini, Michael Mulcaire, Patricia Wallace, and
Thomas Mulcaire.

¶3           The Family Trust was, by its express terms, fully revocable
while both of the Dobyns were alive, and it placed no restrictions on how
the Dobyns used the assets in the trust. The Family Trust provided that
upon the death of either Erma or Faires Dobyns it became irrevocable, and
was to be divided into two trusts: the Marital QTIP Trust (“Marital Trust”)
and the Decedent’s Trust.




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                  MULCAIRE v. MONGINI/WALLACE
                       Decision of the Court

¶4             The terms of the Family Trust govern the administration of
both the Marital Trust and the Decedent’s Trust. The Family Trust
provides that upon the death of either Erma or Faires as the surviving
spouse, the remaining principal in the Marital Trust is to be added to the
Decedent’s Trust and distributed according to the terms of the Decedent’s
Trust, in this case to the four beneficiaries equally.

¶5            The initial assets conveyed to the Family Trust were three
parcels of real property. There were no bank accounts, investment
accounts, or personal property listed as assets in the Family Trust.

¶6            In December 2003, the Dobyns sold a portion of one of the
parcels of property in the Family Trust for approximately $910,000. The
Dobyns received $100,000 in cash, an assigned promissory note from
Robert Flynn for $260,000,1 and a promissory note from G.M. Fratelli for
approximately $550,640 (the “Fratelli Note”). At the time of the sale, the
Family Trust was still revocable because both of the Dobyns were living;
therefore, under the terms of the Family Trust, the Dobyns were not
obligated to deposit any of the cash they received from the sale into the
trust.

¶7           In January 2004, Erma and Faires Dobyns opened a Chase
Bank Account ending in 1779 (the “Chase Account”). The Chase Account
was originally titled to Faires Dobyns or Erma Dobyns or Sheila Mongini,
as individuals and not as Trustees of the Family Trust. After Erma
Dobyns died on May 17, 2005, the Chase Account was retitled to Faires
Dobyns or Sheila Mongini, as individuals and not as Trustees of the
Family Trust. The signature card for the Chase Account did not state
whether there was a right of survivorship in the account.

¶8            Upon the death of Erma, Faires Dobyns retained an attorney,
Alexandra Shroufe, to assist in allocating the assets in the Family Trust
into the Marital Trust and Decedent’s Trust. Ms. Shroufe prepared the
allocation of assets for Faires Dobyns to sign and approve on August 24,
2009. However, in the allocation, Ms. Schroufe erroneously listed the
Chase Account as an asset of the Marital Trust.

¶9           On August 29, 2009, Faires Dobyns, the sole remaining
trustee, appointed David Mongini, the husband of Sheila Mongini, and


1       The Robert Flynn Note was paid off before the completion of the
sale.



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                  MULCAIRE v. MONGINI/WALLACE
                       Decision of the Court

Cecil Wallace, the husband of Patricia Wallace, “to act as current
[successor] Co-Trustees with him” of the Marital and Decedent’s Trusts.

¶10          When Faires Dobyns discovered that he had erroneously
allocated the Chase Account to the Marital Trust, he directed Shelia
Mongini and the Co-Trustees to remove the Chase Account from the
Marital Trust. In October 2011, Ms. Shroufe prepared an amendment to
the August 24, 2009 allocation removing the Chase Account from the
Marital Trust; at the direction of Faires Dobyns, the amendment was
approved by the Co-Trustees.

¶11          Faires Dobyns died on December, 11, 2011. The Mulcaires
sent a written request for a trust accounting to the Co-Trustees on
February 9, 2012. The Co-Trustees sent a preliminary accounting along
with some financial documents to the Mulcaires on February 29, 2012.
Less than two weeks later, the Mulcaires filed a Petition for Remedy of
Breach of Trust (“Complaint”) seeking an accounting and removal of the
Co-Trustees.

¶12           The Co-Trustees then retained Phil Schutte, a certified public
accountant, to complete an accounting of the trusts, and submitted Mr.
Schutte’s accounting to the Mulcaires on June 21, 2012. The trial court
then ordered the Co-Trustees to prepare a second accounting, which Co-
Trustees did, again, through the services of Mr. Schutte.

¶13            The court held a bench trial on three separate days in
September and October 2012 and in May 2013. Following the trial, the
court found the accountings provided by the Co-Trustees (1) satisfied
their fiduciary duties under the trusts, and (2) established that all of the
assets of the trusts were accounted for and intact. Further, the court found
there was no evidence showing the loss of any trust asset or depreciation
of value of any trust asset while the Co-Trustees were responsible for
administering the trusts. Finally, the court determined that the Chase
Account was not a trust asset and belonged to Sheila Mongini.

¶14          Based on the above findings, the trial court determined that
the Co-Trustees did not materially breach their fiduciary duties to the
Mulcaires, and denied the relief sought in the Complaint. The Mulcaires
timely appealed.

                              DISCUSSION

¶15           We apply a de novo standard of review to the trial court’s
legal conclusions, In re Estate of Newman, 219 Ariz. 260, 265 ¶ 13, 196 P.3d


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                   MULCAIRE v. MONGINI/WALLACE
                        Decision of the Court

863, 868 (App. 2008), and we accept the trial court’s factual findings unless
they are clearly erroneous, In re Estate of Zaritsky, 198 Ariz. 599, 601 ¶ 5, 12
P.3d 1203, 1205 (App. 2000).

I. Chase Account

¶16           The Mulcaires assert that the Co-Trustees violated their duty
to control and protect trust assets by permitting Shelia Mongini to take
possession of the funds in the Chase Account after Faires Dobyns’ death.
Ariz. Rev. Stat. (“A.R.S.”) § 14-10809 (2014) (stating that trustees are under
a duty to “take reasonable steps to take control of and protect trust
property.”) The Mulcaires contend that the funds in the Chase Account
were trust funds, and should have reverted to the Decedent’s Trust upon
the death of Faires Dobyns.

¶17           The Chase Account was a multiple party bank account that
was titled to both Faires Dobyns and Sheila Mongini; both parties were
authorized to use the account. A.R.S. § 14-6201(5) (defining a multiple
party account as “an account payable on request to one or more of two or
more parties…”). Under A.R.S. § 14-6212, unless the terms of a multiple
party account expressly state otherwise, upon the death of one party, the
funds in the account are presumed to belong to the surviving party.
A.R.S. § 14-6212(A) (stating that after the “death of a party, sums on
deposit in a multiple party account belong to the surviving party or
parties”); A.R.S. § 14-6212(C) (a deceased’s net contribution to a multiple
party account passes to the decedent’s estate if the terms of account
expressly designate it as a tenancy in common or provide that there is no
right of survivorship); see also A.R.S. §§ 14-6213(B), -6216 (B) (stating that
“[a] right of survivorship arising from the express terms of the account,
section 14–6212 or a pay on death designation may not be altered by will.”)
(emphasis added).

¶18           Here, nothing in the terms of the Chase Account rebuts the
statutory presumption that it was a multiple party bank account that
belonged to Sheila Mongini after the death of Faires Dobyns. The record
shows that the Chase Account belonged to Sheila Mongini, and was not a
trust asset.   As a result, the evidence supports the trial court’s
determination that the Co-Trustees had no duty to collect or control the
funds in the Chase Account.

II. The Fratelli Note

¶19          The Mulcaires argue that the records provided by the Co-
Trustees do not account for all of the money paid under the Fratelli Note.


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                    MULCAIRE v. MONGINI/WALLACE
                         Decision of the Court

The Mulcaires allege the Co-Trustees breached their duty to protect trust
assets by failing to investigate and provide an accounting for these funds.
The Mulcaires have shown no error.

¶20            The basic rule for interpretation of a trust document is to
ascertain the intent of the settlor. In re Estate of Zilles, 219 Ariz. 527, 530 ¶
8, 200 P.3d 1024, 1027 (App. 2008); In re Gardiner’s Estate, 5 Ariz. App. 239,
240, 425 P.2d 427, 428 (1967). Exculpatory provisions regarding trustees
are enforceable with the exception of conduct “committed in bad faith or
intentionally or with reckless indifference to the interest of the beneficiary,
or of liability for any profit which Trustee has derived from a breach of
trust.” Restatement (Second) of Trusts § 222(1) (1959).

¶21            By express provision, the Family Trust permits the Co-
Trustees, as successor trustees, to “accept the trust assets delivered to
[them] by or on behalf of [their] predecessor trustee as constituting the
entire trust estate.” The Family Trust states that the Co-Trustees “shall not
be required to take any action to recover further assets or investigate any
acts done by any predecessor trustee.” Additionally, the Family Trust
provides that as successor trustees, the Co-Trustees “shall not be
personally liable for any act or omission of any predecessor trustee.”

¶22            Based on the express language of the Family Trust, the Co-
Trustees are not responsible for providing an accounting of the Fratelli
Note. The sale involving the Fratelli Note occurred in 2003, more than
five years before the Co-Trustees’ appointment. In addition, at the time of
the sale, the Dobyns were not required to deposit any of the funds from
the Fratelli Note into the Family Trust. See supra, ¶ 6. Accordingly, the
Mulcaires have shown no error in the trial court’s findings concerning the
Fratelli note.

III. Impartiality

¶23            The Mulcaires claim the Co-Trustees beached their duty of
impartiality by allowing Sheila Mongini to take possession of the funds in
the Chase Account. A.R.S. § 14-10803 (“If a trust has two or more
beneficiaries, the trustee shall act impartially in investing, managing and
distributing the trust property…”). However, because the Chase Account
was not a trust asset, the Co-Trustees had no duty to collect or control the
funds in the account for the benefit of the Mulcaires. See supra, ¶ 22.

¶24         The Mulcaires also allege that the Co-Trustees breached their
duty of impartiality by engaging in legal, factual and strategic planning



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                  MULCAIRE v. MONGINI/WALLACE
                       Decision of the Court

discussions with Mongini and her counsel to show that the Chase Account
was not a trust asset.

¶25            We find no reversible error.          The Co-Trustees were
permitted to defend themselves after the Mulcaires sued them for breach
of their duties. See In re Estate of Thurston, 199 Ariz. 215, ¶ 34, 221-22, 16
P.3d 776, 782-83 (App. 2000) (holding the estate’s attorneys were entitled
to appear and defend themselves without violating their duty of fairness
to the beneficiaries). Both parties identified Sheila Mongini as a non-party
witness with knowledge about the Chase Account. The Co-Trustees were
entitled, in presenting their defense, to communicate with Sheila Mongini
and her counsel to show that the Chase Account was not a trust asset. Id.

IV. Accounting

¶26         Finally, the Mulcaires assert that the Co-Trustees failed to
provide them with an accurate accounting of the trust property.

¶27           A trustee is required to keep beneficiaries “reasonably
informed about the administration of the trust and of the material facts
necessary for them to protect their interests.” A.R.S. § 14-10813(A). In
addition, a trustee “shall promptly respond to a beneficiary’s request for
information related to the administration of the trust” unless the trustee
determines that “it is unreasonable under the circumstances to do so.” Id.

¶28            The Co-Trustees submitted three accountings: (1) a
preliminary accounting in February 2012; (2) a second accounting in June
2012; and (3) a third accounting in August 2012. The court accountant
initially recommended that the trial court not approve the Co-Trustees’
August 2012 accounting. However, after the Co-Trustees filed a response
addressing the court accountant’s concerns, the court accountant was able
to determine that all of the trust assets were accounted for and intact.
Based on the report of the court accountant and the trial court’s review of
all three accountings, the trial court determined that the Co-Trustees met
their obligation to provide an accounting to the Mulcaires.

¶29          The record supports the trial court’s finding that the Co-
Trustees provided an accurate accounting of the trust property.
Accordingly, we affirm.




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                  MULCAIRE v. MONGINI/WALLACE
                       Decision of the Court



                           ATTORNEYS’ FEES

¶30          The Co-Trustees seek their attorneys’ fees incurred for
defending this appeal pursuant to A.R.S. § 14-11004. We grant Co-
Trustees’ fee request, and direct Co-Trustees to file an application in
compliance with Arizona Rule of Civil Procedure 21(c).

                             CONCLUSION

¶31            For the foregoing reasons, we affirm the judgment of the
trial court.




                                 :ama




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