                          NOTICE: NOT FOR PUBLICATION.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:

                        LINDA J. BERKLEY TRUST.
                      ______________________________

TROY BERKLEY, Individually, and as Trustee of the ESTATE OF LINDA
     J. BERKLEY TRUST; SHERRI CORTEZ, Petitioners/Appellees,

                                        v.

                  RICK G. KOENIG, Respondent/Appellant.

                             No. 1 CA-CV 13-0659
                               FILED 10-09-2014


          Appeal from the Superior Court in Maricopa County
                         No. PB2011-001479
            The Honorable Brian S. Rees, Judge Pro Tempore
        The Honorable Richard L. Nothwehr, Judge Pro Tempore

      AFFIRMED IN PART; REVERSED IN PART; REMANDED


                                   COUNSEL

Troy Berkley, Phoenix
Petitioner/Appellee

Jayne M. Sassano, Attorney at Law, Phoenix
By Jayne M. Sassano
Counsel for Respondent/Appellant
                       BERKLEY et al. v. KOENIG
                         Decision of the Court


                      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            Appellant Rick Koenig, former trustee of the Linda J. Berkley
Living Trust dated March 13, 2010 (“Trust”), appeals from the denial of
his motion for new trial. He argues the court improperly denied his
request for reimbursement from the Trust for expenses he incurred as
trustee and challenges the finding that loans made by, and liens held by,
the Trust had been satisfied. Finding that the court did not decide the
propriety of Rick’s reimbursement requests, we remand on that issue and
otherwise affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Linda Berkley is survived by four adult children, including
Troy Berkley, Jr. and Rick Koenig. Linda had set up a Trust. The Trust
provided that, after satisfying specific bequests, the trustee was to
distribute Trust assets in four equal shares to Linda’s four children. Rick
was the original trustee; he was removed on Troy’s petition, and Troy was
then named successor trustee.

¶3           Troy claimed Rick mismanaged the Trust by wrongly
repossessing and then selling Troy’s 2000 BMW on which Rick claimed
the Trust had a lien. Troy also claimed Rick failed to distribute $56,188.39
received from the sale of a house owned by the Trust to the beneficiaries.
On the other hand, Rick sought reimbursement from the Trust for
expenses he claimed were properly made while he was trustee.

¶4           The court held three evidentiary hearings on these issues,
the first two with one Commissioner and the third with a different
Commissioner. After the first evidentiary hearing, Rick deposited $30,000
with the court pursuant to the court’s order. This amount, Rick claimed,
was the net proceeds from the sale of the house owed to the Trust.

¶5            During the second evidentiary hearing, the court questioned
Rick in some detail about his reimbursement request; however, it did not
rule on the appropriateness of his claimed Trust expenses. The court then


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                         Decision of the Court

ordered a third evidentiary hearing to consider Troy’s claims for
reimbursement to the Trust from certain unrelated credit union accounts.
The first Commissioner also ordered Rick to deposit with the court an
additional $26,188, representing its determination of the balance of the
sale price received from the house. Rick did not comply with this order.

¶6            After the second evidentiary hearing, the court also found
the Trust had a lien on Troy’s BMW, but found no evidence the BMW was
properly repossessed.      Accordingly, because the repossession was
improper, the court ordered the Trust to pay Troy the proceeds from the
sale of the BMW in the amount of $3,600 less the value of the outstanding
lien.

¶7            The case was then transferred to the second Commissioner,
who presided over the third evidentiary hearing. At the third hearing,
Rick claimed he had not had the opportunity to present evidence
supporting his reimbursement request for Trust expenses incurred while
he was trustee, and wanted to do so as a setoff to the $26,188 deposit
required by the court. The court, however, understood the hearing was
solely to resolve the credit union account issue and that Rick’s request for
reimbursement had already been resolved. Also, despite Rick’s argument
to the contrary, the court deemed the issue of proceeds from the sale of the
BMW resolved. The court directed that judgment be entered against Rick
for the $26,188 that he had not yet deposited.

¶8            Rick moved for a new trial. He challenged the rejection of
his reimbursement request and the release of $3,600 from the Trust to Troy
for the BMW without any reduction for the lien. The court found that
Rick had attempted to present evidence of Trust-related expenses as a
setoff before the first Commissioner. The court also noted the first
Commissioner ordered Rick to reimburse the full amount without any
setoff. Accordingly, the court concluded the issue had been resolved on
the merits and denied Rick’s request that it be reconsidered. The court
similarly denied the motion for new trial regarding the amount of any lien
on the BMW.

¶9          Rick timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(5)(a), (A)(9) (West
2013).

                              DISCUSSION

¶10           We review the denial of a motion for new trial for an abuse
of discretion; “the burden is on the party seeking to overturn the trial


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                          Decision of the Court

court’s judgment to show such an abuse.” Sandretto v. Payson Healthcare
Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8, 322 P.3d 168, 172 (App. 2014). In doing
so we do not reweigh the evidence. Adroit Supply Co. v. Elec. Mut. Liab.
Ins. Co., 112 Ariz. 385, 390, 542 P.2d 810, 815 (1975). An abuse of discretion
is discretion “manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.” Quigley v. City Court of Tucson, 132
Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). We consider the evidence in
the light most favorable to the prevailing party. Hibbitts v. Walter Jacoby &
Sons, 9 Ariz. App. 486, 487, 453 P.2d 997, 998 (1969).

I.     Rick’s Request for Reimbursement for Expenses as Trustee.

¶11           A trustee is entitled to reimbursement from the Trust for
expenses properly incurred in the administration of the Trust. A.R.S.
§§ 14-10709, -10801. On appeal, Rick contends the evidence presented at
the first two evidentiary hearings did not support the first
Commissioner’s order that Rick deposit the full $26,188 without setoff for
expenses. He argues the court abused its discretion in refusing to
reconsider that order.1

¶12            The first Commissioner did not enter any ruling expressly
approving or rejecting Rick’s reimbursement requests in whole or in part.
At the second evidentiary hearing, the court expressed concerns with at
least certain aspects of Rick’s reimbursement request. The court noted
that the explanatory annotations were insufficient and vague, contrary to
Arizona Rule of Probate Procedure 33(B), and that certain entries
appeared to reflect Rick’s personal expenses. Rick also conceded that
some of the expenses were for services to Linda’s empty house that should
have been discontinued, such as internet, DirecTV, and newspaper
delivery. Following the hearing, the first Commissioner ordered Rick to
deposit with the court the $26,188 balance from the sale of the home. But
there is no statement in the record that, in doing so, the first
Commissioner was denying Rick’s request for reimbursement in its
entirety, or even addressing that request.




1       Rick also contends that the scope of the third evidentiary hearing
was improperly constrained to not address his reimbursement request.
The stated purpose of the third evidentiary hearing was to address the
credit union accounts, not reimbursement. Accordingly, the court did not
err in delineating the scope of the third evidentiary hearing.



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                          Decision of the Court

¶13           Rick’s request for reimbursement sought payment for
various expenses, including Linda’s funeral expenses and property taxes
on the home. If factually supported, these expenses appear to be
legitimate Trust expenses subject to reimbursement. See A.R.S. § 14-10709.
The nature of these claimed expenses undercuts the second
Commissioner’s conclusion that the first Commissioner’s order that Rick
deposit the $26,188 balance from the sale of the home was an implicit
rejection of Rick’s request for reimbursement in its entirety. Such a
conclusion is not supported by the record. See King v. Superior Ct., 138
Ariz. 147, 152, 673 P.2d 787, 792 (1983) (“If a trial judge realizes that an
erroneous ruling has been made, he must act to prevent a miscarriage of
justice.”). Accordingly, the court’s decision not to consider Rick’s request
for reimbursement is vacated.

II.    The BMW Lien.

¶14           Rick also argues that the second Commissioner wrongly
permitted Troy to pay himself $3,600 from the Trust without any
determination of the outstanding amount of the lien the court found
existed on the BMW. The first Commissioner found that the Trust held a
lien on the BMW, a finding not challenged in this appeal. Although Rick
testified Linda told him the loan had not been repaid, no evidence was
presented about the original amount of the loan or the amount, if any, still
owing.

¶15           Rick had ample opportunity to establish the amount of the
lien during the evidentiary hearings, but admitted he had no
documentation or knowledge as to the outstanding lien amount. Thus,
the record does not reflect any proof the lien remained outstanding. Rick
had more than one opportunity to prove any outstanding amount and has
failed to do so; Rick is not now entitled to a new trial on the issue. See
Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602, 694 P.2d 1213, 1216
(App. 1984) (stating that a court will only grant a new trial if it appears the
newly discovered evidence could not have been discovered earlier by
exercise of due diligence).

III.   Other Loans.

¶16           Finally, Rick argues Troy received loans from Linda for as
much as $80,000 that should be repaid to the Trust and the proceeds
distributed to the beneficiaries. He relies on a Loans List to support his
claim. The Loans List is a copy of a handwritten list of dates, amounts,
and check numbers or other annotations. Rick testified that the document



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                          Decision of the Court

was prepared by Linda and that it represented the loans she made to Troy
and expected to be repaid. Copies of two checks corresponding to two
items on the Loans List show that Troy received at least those amounts.
However, the document on its face is not identifiable as a list of loans as
opposed to a list of expenses or gifts, or as being concerned only with
Troy. Furthermore, Troy offered testimony disputing Rick’s claims.

¶17            Having weighed and assessed the evidence, including
credibility, the first Commissioner found that any advances “were more of
a personal distribution, and not necessarily an advance of a Trust asset.”
The evidence was equivocal and conflicting. This court will not reweigh
the evidence, and defers to the trial court on matters of witness credibility.
In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999)
(reweighing evidence); Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13,
972 P.2d 676, 680-81 (App. 1998) (witness credibility). Because the trial
court’s ruling was not contrary to the weight of the evidence, there was no
abuse of discretion in denying Rick’s motion for new trial on the issue of
the alleged loans made to Troy.

IV.    Rick’s Request for Attorney Fees.

¶18             Rick requests an award of costs and attorney fees for
proceedings in both this court and the superior court pursuant to A.R.S.
§ 14-11004(B) (stating that a court “may order that a party’s reasonable
fees . . . be paid by any other party or the trust”). On remand, we direct
the trial court to reconsider whether Rick may be awarded attorney fees
incurred at the trial court and appellate level litigating the reimbursement
issue. See Broemmer v. Abortion Serv. Of Phx., Ltd., 173 Ariz. 148, 153, 840
P.2d 1013, 1018 (1992). We deny Rick’s request for costs; each party shall
bear his own costs.




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                      BERKLEY et al. v. KOENIG
                        Decision of the Court

                            CONCLUSION

¶19           We vacate that portion of the order denying Rick’s motion
for a new trial with respect to his reimbursement request and remand for
further proceedings on that issue. In all other respects, the superior
court’s order is affirmed.




                                :gsh




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