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In re Perry C. Redden Family Trust

Court of Appeals of Arizona, First Division, Department D

August 29, 2013

In re the Matter of: PERRY C. REDDEN FAMILY TRUST, Under Agreement dated February 13, 1980, and Amendments Thereto.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. PB2003-004879 The Honorable Robert D. Myers, Judge (Retired)

Brunn W. Roysden, Jr. Attorney for Plaintiffs/Appellants

Curley & Allison, LLP By Roger D. Curley Kiernan S. Curley Attorneys for Defendant/Appellee Judith Bowers

Frazer, Ryan, Goldberg & Arnold, LLP By Timothy James Ryan John R. Fitzpatrick Attorneys for Appellees/Defendants Tamara Beatson, Dorinda Bowers and Michelle Sommers



¶1 Beneficiaries of the Perry C. Redden Family Trust ("Trust") appeal certain orders of the probate court. For the reasons that follow, we affirm.


¶2 Over the course of protracted probate litigation, certain Trust beneficiaries have aligned into two groups -- the "Redden Group" and the "Bowers Group."[1] In May 2010, the beneficiaries reached an agreement resolving their disputes ("May 2010 Agreement") . When they could not agree on final terms, Trustee filed a petition to enforce the May 2010 Agreement, and three members of the Bowers Group ("Three Bowers")[2] joined with Trustee. The petition asked the court to, inter alia, distribute Trust assets according to the May 2010 Agreement and order payment for Trustee's attorneys' fees and fiduciary services.

¶3 After an evidentiary hearing, the probate court ruled that the May 2010 Agreement was valid and binding and confirmed its allocation of Trust assets among the beneficiaries. The court ordered Trustee and her counsel to file statements detailing fees incurred after March 1, 2010 ("Rule 33 Affidavits"), which they did. See Ariz. R. Prob. P. ("Probate Rule") 33 (compensation for fiduciaries and attorneys). The Redden Group filed numerous objections, questioning Trustee's actions and the reasonableness of the fees sought. The Three Bowers supported the Rule 33 Affidavits, but urged the court to allocate payment solely to the Redden Group based on its "repeated and continued objections and refusals to honor" the May 2010 Agreement and because the Redden Group's "claims were without substantial justification, constituted harassment, and were meant only to delay and expand the proceedings."

¶4 The court approved the attorneys' fees request, but declined to apportion those fees solely to the Redden Group. The court, however, labeled the Redden Group's objections to the fiduciary fees request "absolutely barren of any evidence" and ordered that those fees "be paid to the Trustee from the trust resources due and payable to the Redden Grandchildren and Deborah and Erik Bowers" pursuant to Arizona Revised Statutes ("A.R.S.") Sections 12-341.01 and 14-11004. Meanwhile, the Redden Group had stipulated to an attachment of its assets, granting its former counsel, Alvarez & Gilbert, the "first $75, 000.00 of distributions to which Redden Grandchildren are entitled" ("A&G Allocation").

¶5 As the litigation progressed, the Redden Group continued to challenge Trustee's actions, including her treatment of certain gold and silver coins. In August 2011, Trustee filed an "Amended Petition for Determination Whether Actions of Trustee Were Appropriate, " asking the court to, inter alia, approve additional attorneys' fees and expenses. The Three Bowers supported the request, but claimed most of the fees were incurred in responding to Redden Group filings. They asked the court to allocate responsibility, minus a small amount related to trust administration, to the Redden Group pursuant to A.R.S. § 14-11004(B).

¶6 In September 2011, the court conducted a two-day evidentiary hearing on Trustee's petition. In a signed order entered September 30 ("September 30 Order"), the court reaffirmed the terms of the May 2010 Agreement and prior rulings relating to that agreement. The court ruled Trustee had not breached her fiduciary duties and concluded the requested Trust expenses and attorneys' fees were reasonable; that the attorneys' fees and costs were incurred to defend against the Redden Group's objections; and that the Redden Group "failed to present any evidence in connection with their objections." The court ordered Trustee's attorneys' fees and costs to be paid from assets of the Redden Group. Paragraph K of the September 30 Order states:

Insofar as the "Bowers Three" Petition for Allocation of Approved Attorneys' Fees is concerned, although there has not been a specific objection to it, it is denied. All payments requested by the Bowers Three are approved and shall be paid from the Trust assets as expenses incurred in connection with the defense of the attack on the [May 2010 Agreement].

¶7 Paragraph F confirmed the A&G Allocation and required Trustee to withhold $12, 500 from each Redden Group member's share. The court denied "[a]ny additional petitions, counter petitions or motions filed by the Redden Group" and included language of finality pursuant to Rule 54(b), Arizona Rules of Civil Procedure ("Rule").

¶8 Trustee divided the assets into the "Redden Sub-trust" and "Bowers Sub-trust" in accordance with the September 30 Order. The Redden Group filed a motion for new trial, which the court denied. The Redden Group then filed a notice of appeal from the September ...

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