Opinion
No. 2 CA-CV 2017-0090
02-28-2018
IN RE THE ESTATE OF MARY A. RILEY, DECEASED. R.J. RILEY, REGINA M. RILEY, F. MARTIN RILEY, NEYSA KALIL, NORA J. SIMONS, CECELIA RILEY, JUDE S. RILEY, LORETTA LACORTE, AND JULIA RILEY, Objectors/Appellants, v. JOHN D. BARKLEY, Successor Personal Representative/Appellee.
COUNSEL Jonathan W. Reich, P.C., Tucson By Jonathan Reich Counsel for Objectors/Appellants Miller, Pitt, Feldman & McAnally, P.C., Tucson By Gerald Maltz and Mesch, Clark & Rothschild, P.C., Tucson By J. Emery Barker Counsel for Successor Personal Representative/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. P26266
The Honorable Sarah R. Simmons, Judge
AFFIRMED
COUNSEL Jonathan W. Reich, P.C., Tucson
By Jonathan Reich
Counsel for Objectors/Appellants Miller, Pitt, Feldman & McAnally, P.C., Tucson
By Gerald Maltz and Mesch, Clark & Rothschild, P.C., Tucson
By J. Emery Barker
Counsel for Successor Personal Representative/Appellee
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Appellants R.J. Riley, Regina M. Riley, F. Martin Riley, Neysa Kalil, Nora J. Simons, Cecelia Riley, Jude S. Riley, Loretta LaCorte, and Julia Riley (known in these proceedings as the Objectors), are heirs to the estate of Mary Riley. They challenge the probate court's denial of their request to remove the successor personal representative, John Barkley, and to disqualify Barkley's attorney, and its denial of their motion for a new trial on the disqualification issue or sanctions for disclosure violations. They also contest the amount of attorney fees the court awarded them after granting their motion to dismiss Barkley's petition for instructions. For the following reasons, we affirm.
Factual and Procedural Background
¶2 For purposes of this appeal, we relate only a portion of the lengthy history of this case, which dates back to 1996, when Mary Riley died. Her will designated her thirteen children as the beneficiaries of her estate. Two of the heirs, Joseph Riley and Mary Benge, were appointed co-personal representatives of the estate, but they resigned in July 2006 and John Barkley was appointed successor personal representative. Barkley objected to accountings filed by the former personal representatives and sought a surcharge from them. A mediation held in March 2009 produced a settlement agreement between Barkley, on behalf of the estate, and Joseph Riley and Mary Benge.
Further references to Barkley are in his capacity as successor personal representative of the estate unless otherwise indicated.
¶3 The probate court approved the settlement after a hearing on the merits, concluding it was reasonable and entered into in good faith. The Objectors, however, appealed that ruling, and our supreme court ultimately held in their favor, determining that because A.R.S. § 14-3952 requires the signatures of all beneficiaries whose interests are affected by such an agreement, the probate court's approval of the settlement pursuant to that statute did not bind the Objectors. See In re Estate of Riley, 231 Ariz. 330, ¶¶ 6, 13 (2013). Nevertheless, the supreme court's opinion also noted that the settlement was not "void for all purposes" and suggested a number of alternative ways Barkley could have entered the settlement without court approval or could "invoke the jurisdiction of the [probate] court . . . to resolve questions concerning the estate or its administration." Id. ¶¶ 15, 17, quoting A.R.S. § 14-3704.
¶4 On remand to the probate court, Barkley filed a "petition for instructions" under A.R.S. §§ 14-3704 and 14-3105, which the supreme court had referred to in its decision, see Riley, 231 Ariz. 330, ¶ 15, and again asked the probate court to approve the settlement agreement. In response, the Objectors filed a cross-petition for removal of Barkley as personal representative of the estate pursuant to A.R.S. § 14-3611 and disqualification of his attorney, Emery Barker, pursuant to Rule 42, Ariz. R. Sup. Ct., ER 1.9(a), alleging a conflict of interest.
¶5 After a two-day trial on the Objectors' cross-petition in April and May 2014, the probate court denied their requests to remove Barkley and disqualify his attorney, and granted Barkley's application for his attorney fees and costs to be paid by the estate. The Objectors' appeal of that ruling was dismissed by this court for lack of jurisdiction because the probate court's ruling did not resolve Barkley's petition for instructions or contain the requisite language under Rule 54(b), Ariz. R. Civ. P., to make the entry of judgment on fewer than all claims a final, appealable order. See In re Estate of Riley, No. 2 CA-CV 2014-0145, ¶¶ 5-6, 12 (Ariz. App. May 29, 2015) (mem. decision).
¶6 The Objectors returned to the probate court and filed a motion to dismiss Barkley's petition for instructions, which the court granted. The Objectors appealed that order. This court suspended the appeal upon the Objectors' request to permit them to seek an order with finality language required by Rule 54(c), Ariz. R. Civ. P., but dismissed the appeal after no such order was obtained. At that point, the Objectors filed a motion for a new trial on their cross-petition and for sanctions "based upon misconduct of [Barkley] for failing to disclose important documents." Following a hearing, the probate court denied that motion.
¶7 The probate court ultimately entered a final judgment in April 2017 pursuant to Rule 54(c), encompassing the dismissal of Barkley's petition for instructions, the denial of the Objectors' cross-petition, and the denial of the Objectors' motion for new trial and for sanctions. The Objectors again appealed; we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(9).
Removal of Successor Personal Representative
¶8 We first address the Objectors' contention that the probate court erred in denying their cross-petition to remove Barkley as personal representative of the estate. Specifically, they argue Barkley's petition for instructions approving the settlement agreement following the supreme court's opinion was "harmful to the Estate" and suggest the petition was a breach of Barkley's fiduciary duties. They also claim the probate court did not "properly consider and weigh the evidence," "erred in failing to make sufficient findings and conclusions" under Miller v. Board of Supervisors of Pinal County, 175 Ariz. 296 (1993), and the findings and conclusions the court did make are "clearly erroneous" for "ignor[ing] undisputed evidence" supporting Barkley's removal.
¶9 "A person interested in the estate may petition for removal of a personal representative for cause at any time," and cause includes "[i]f removal would be in the best interests of the estate" and "[i]f it is shown that the personal representative has disregarded an order of the court, . . . has mismanaged the estate or has failed to perform any duty pertaining to that office." A.R.S. § 14-3611(A), (B)(1), (3). We will affirm the probate court's removal decision "so long as there is evidence to support the trial judge's findings." In re Estate of Newman, 219 Ariz. 260, ¶¶ 38-40 (App. 2008). "Even if [the petitioners] did present substantial evidence in [their] favor on every material dispute, . . . [we will not] reweigh the facts or . . . second-guess the credibility determinations of the judge who had the opportunity to evaluate the witnesses' demeanor and make informed credibility determinations." Id. ¶ 40 (internal quotation marks omitted).
¶10 During the two-day trial on the cross-petition for removal of Barkley and disqualification of his counsel, the probate court heard testimony from several witnesses, including an expert who testified that Barkley and Barker were advancing the settlement agreement only to "shield" themselves and were not acting in the best interests of the estate. He also testified the Objectors had a "hostile" relationship with Barkley and his continuation as personal representative was not in the best interests of the estate. Although the expert maintained it was "inappropriate" for Barkley to seek court approval of the settlement through the petition for instructions, he agreed it was not a breach of his fiduciary duty to seek approval of the findings of fact and conclusions of law the probate court made prior to the supreme court's issuance of its opinion. He also acknowledged that the court's opinion suggested the settlement bound its signatories and Barkley could enter it without court approval, but he continued to assert that this suggested the only reason Barkley was seeking approval was "the liability shield."
¶11 The probate court, however, also heard testimony from another expert, who opined that Barkley had not breached any fiduciary duties and did not have a conflict of interest. That expert disagreed with the first expert's conclusions regarding the supreme court's opinion, explaining, "I disagree that [filing the petition for instructions] was unreasonable. In fact, it seems like that was [a directive] of the Supreme Court." He further testified that "hostility would not be a cause for removal alone," hostility by some of the beneficiaries is "fairly common" in family dispute cases, and in any event, he was "not aware of any hostility on the part of the Personal Representative or his counsel." Moreover, bringing in a new personal representative "would be very time consuming and costly" to the estate because a new representative "has to be brought up to speed to continue matters." He also opined that although he agreed Barkley had a duty to do a cost-benefit analysis regarding the settlement, Barkley did not have a new duty to investigate Joseph Riley after the case was returned to the probate court from the supreme court.
¶12 In its under-advisement ruling on the cross-petition, the probate court identified several duties of personal representatives but concluded it "[could not] find . . . the actions of the Personal Representative in attempting to settle the estate and obtain court approval of that settlement to be a breach of any duty to the estate." On appeal, the Objectors argue the court "erred in failing to consider or find that Barkley's actions did not benefit the Estate and were meant only to benefit Barkley." However, although the Objectors' expert witness opined that Barkley sought court approval of the settlement as a "liability shield," even he did not say it was a breach of Barkley's fiduciary duty, only stating he considered it "inappropriate." Furthermore, Barker testified that, in his opinion, there was no "factual basis to allege a breach of fiduciary duty on the part of Mr. Barkley." Similarly, Barkley's expert witness testified unequivocally that Barkley did not breach any fiduciary duties owed to the estate or its beneficiaries and did not have a conflict of interest with either.
¶13 The Objectors nevertheless maintain the probate court "ignore[d] undisputed evidence" and did not make sufficient findings of fact and conclusions of law under Miller. But those arguments appear to be based on a misconception of the burden of proof in an action seeking a personal representative's removal. Section 14-3611(A)-(B) allows a probate court to order removal of a personal representative if cause "is shown," which indicates the one petitioning for removal bears that burden. On appeal, the Objectors argue the probate court "concluded that removing Barkley would be imprudent with no supporting factual basis for this conclusion" while "overwhelming evidence" showed Barkley's actions to be harmful to the estate and his removal to be beneficial to the estate.
¶14 The Objectors are correct that the probate court did not make any findings that Barkley's removal would be detrimental to the estate. But they have cited no authority for the proposition that the court was required to make such findings, nor does it appear to be the court's basis for denying their cross-petition. On the contrary, the court merely concluded the Objectors had not shown either that Barkley's removal would be in the best interests of the estate or that he had breached any duty. The record supports both conclusions. There was no evidence that Barkley had breached any duty to the estate, the Objectors' own expert testifying only that he found it "inappropriate" for Barkley to seek approval of the settlement through his petition for instructions, and Barkley's expert testifying to the contrary.
¶15 Nor can we conclude the probate court erred in not finding removal of Barkley was in the best interests of the estate. The Objectors' sole premise for their argument was that he continued attempting to obtain court approval of the settlement agreement despite their distaste for it. But Barkley's petition relied on statutes cited in the supreme court's opinion. In addition, other jurisdictions have concluded "[t]he mere fact that a certain hostility has arisen between a beneficiary and the executor absent some showing of wrongdoing . . . or other factors which will prejudice the administration does not warrant such drastic action as removal," In re Murphy's Estate, 336 So. 2d 697, 699 (Fla. Dist. Ct. App. 1976); see also In re Beichner's Estate, 247 A.2d 779, 782 (Pa. 1968) ("Animosity Per se, absent any showing of any adverse effect on the estate or the rights of any beneficiary by reason of such animosity, does not constitute a ground for removal of an executor."); In re Hartt's Estate, 295 P.2d 985, 1006 (Wyo. 1956) ("Counsel contend the executors herein should be removed because of the hostility existing between them and the respondents. . . . Mere friction is not grounds for removing trustees."). Accordingly, the Objectors have identified no compelling reason for us to interfere with the probate court's refusal to remove Barkley as personal representative of the estate.
Disqualification of Counsel
¶16 The Objectors additionally argue the probate court erred by not disqualifying Barker under Ethical Rule 1.9, which pertains to the duties lawyers owe to former clients. See Ariz. R. Sup. Ct. 42, ER 1.9. "This Court reviews a trial court's ruling on a motion to disqualify counsel for an abuse of discretion." Simms v. Rayes, 234 Ariz. 47, ¶ 8 (App. 2014). "Because disqualification interferes with a party's attorney-client relationship, disqualification motions . . . are 'view[ed] with suspicion.'" Id., quoting Gomez v. Superior Court, 149 Ariz. 223, 226 (1986) (alteration in Simms). Such motions "should be granted '[o]nly in extreme circumstances,' and the party seeking disqualification has the burden of proof." Id., quoting Alexander v. Superior Court, 141 Ariz. 157, 161 (1984) (alteration in Simms).
¶17 The parties agreed in their joint pretrial statement filed prior to the 2014 trial, that Barker had represented R.J. Riley in the case in 2006, and the probate court found that R.J. was Barker's former client, having sent notice in 2009 that "Jonathan Reich, Esquire, will represent my interest along with others with respect to the Estate of Mary A. Riley." Ethical Rule 1.9(a) states, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent."
¶18 At the conclusion of the 2014 trial, the Objectors argued that ER 1.9 is "mandatory," citing Foulke v. Knuck, 162 Ariz. 517 (App. 1989), as they do on appeal. In that case, Foulke met with and paid an attorney to discuss issues related to his upcoming divorce, and his wife subsequently hired that attorney to represent her in the divorce proceeding. Id. at 519. Foulke immediately sought the attorney's disqualification, which the trial court denied, and on appeal we concluded the court had abused its discretion. Id. at 519, 524. Specifically, as the Objectors point out, we stated:
Because of the mandatory nature of ER 1.9(a), the presumption that confidences have been divulged, the nature of Foulke's consultation, and Foulke's vigorous opposition to [the attorney]'s representation of [his wife], we believe Foulke has sufficiently established that the denial of [the] disqualification is burdensome and harmful to Foulke and the integrity of the profession. We do not believe that any more harm than this need be shown.Id. at 523. Nevertheless, we went on to say that disqualification could be avoided because of hardship to the new client if it "far outweigh[ed] the injustice to the former client," and noted that Foulke was "not a situation where disqualification is sought after months or years of representation in a complicated litigation." Id.
¶19 This case is factually distinct from Foulke, as the probate court essentially found in its ruling. There may be a presumption that confidences were disclosed while R.J. Riley was Barker's client, see id., but the record supports the probate court's conclusion that "R.J. Riley presented no evidence of injustice to himself if [Barker] were to continue to serve, other than R.J. now disagrees with the position of the Successor Personal Representative." The Objectors claim the court "erred [in] considering an affirmative defense and by failing to consider the court record" given that it considered the passage of time before the Objectors sought to disqualify Barker even though it also found Barkley had waived all affirmative defenses. However, we noted in Foulke that the duration of the representation could support the conclusion that disqualification would be unduly burdensome to the client, see id., and that is precisely how the probate court viewed the evidence in this case, stating: "Although the defense of waiver is not available . . . , the potential result of R.J. Riley's delay in seeking the disqualification of Messrs. Barker and Barkley is evidence in favor of the comparative hardship to the new client, Mr. Barkley as opposed to R.J. Riley."
¶20 The Objectors further argue the probate court "erred by failing to make any finding of facts that disqualification would result in any hardship to the Estate[,] . . . failing to recognize that no such evidence was presented," and "fail[ing] to consider the Objector[s'] evidence that disqualification would not result in any undue hardship to the Estate." But the court's ruling implicitly considered Barker's representation of Barkley from 2006 through the Objectors' 2013 cross-petition, and Barkley testified he "rel[ied] extensively" on the attorney representing him as personal representative in estate cases involving litigation, like this one. R.J. Riley's testimony that the main issue left to resolve in the estate was the settlement with or a surcharge action against Joseph Riley and Mary Benge, and that the Objectors had consulted several other fiduciaries who would be willing to take over, has little bearing on the disqualification issue. Certainly, other fiduciaries willing to step in as personal representative would be irrelevant if Barkley were retained but his counsel disqualified. Moreover, the issues underlying the settlement agreement can hardly be regarded as simple when they have been the subject of several years of litigation.
¶21 The Objectors additionally argue the probate court "erred by failing to consider the serious nature of the harm to RJ Riley." In support, they cite his testimony regarding his "hostility" toward Barker and beliefs that Barker was making Barkley's decisions for him, Barker and Barkley were acting "to insulate themselves from liability," and "it was important for a neutral party to step in an[d] evaluate the remaining surcharge action and any mistakes that Barker and/or Barkley may have made." Notably, none of those facts or beliefs demonstrates any harm stemming from a violation of ER 1.9. Rather, they support the probate court's conclusion that R.J. Riley's only evidence of injustice to himself was his disagreement with Barkley's actions. For all of these reasons, we conclude the court did not abuse its discretion in denying the cross-petition to disqualify Barker.
Motion for New Trial
¶22 The Objectors also appeal the probate court's denial of their motion for sanctions or a new trial on the cross-petition to disqualify Barker based on claimed disclosure violations. "The grant or denial of a motion for a new trial is within the sound discretion of the trial court and we will not upset its ruling absent a clear showing of an abuse of discretion." Wendling v. Sw. Sav. & Loan Ass'n, 143 Ariz. 599, 602 (App. 1984). Similarly, "a trial court has broad discretion in determining whether evidence has been properly disclosed" and its decision regarding the imposition of sanctions "will not be disturbed on appeal absent an abuse of discretion." Solimeno v. Yonan, 224 Ariz. 74, ¶ 9 (App. 2010).
¶23 The Objectors filed their motion for new trial pursuant to Rule 59(a)(1)(B), Ariz. R. Civ. P., which provides that "misconduct of the jury or prevailing party" can be a ground for a new trial. The "misconduct" was Barkley's alleged failure to disclose two documents relevant to the cross-petition to disqualify Barker, before the 2014 trial. On appeal, the Objectors also assert that a third document was first disclosed at the hearing on their motion for new trial. The documents at issue are: (1) a September 2006 letter from Joseph Riley's counsel to Barker asking him to withdraw due to the conflict of interest between Barkley and R.J. Riley; (2) a confidentiality agreement between the estate and Joseph Riley signed by Barkley in March 2008; and, (3) a September 2006 letter from Barker to Joseph Riley's counsel in answer to his letter.
Although the Objectors filed their motion pursuant to the version of Rule 59(a) in effect in 2016, we cite to the current version of the rule because, as regards this appeal, it is materially the same as its predecessor. See Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016).
¶24 In his response to the Objectors' motion for new trial, Barkley asserted the Objectors had notice of the documents well before the 2014 trial. Attached to that response was a December 2007 email from Barker to a number of recipients, including R.J. Riley, stating he had "approved the revised Confidentiality agreement" after Joseph Riley's counsel made revisions to it. Also attached was the transcript of the 2009 hearing on the settlement agreement establishing that the Objectors discussed the confidentiality agreement with the probate court. Finally, Barkley attached the Objectors' July 2016 request for production of documents, which identified the documents based on Barker's billing entries that had been filed with the court in October 2010 in support of Barkley's petition for approval of an interim account and various expenses, including legal and fiduciary fees. Notably, the third document, Barker's response to the letter from Joseph Riley's counsel, was identified in the billing entries but not in the Objectors' July 2016 request for production.
¶25 Although the Objectors alleged misconduct as the ground for a new trial, the probate court also considered the category of "newly discovered material evidence that could not have been discovered and produced at the trial with reasonable diligence," Ariz. R. Civ. P. 59(a)(1)(D). When a Rule 59 motion is based on misconduct, "[t]he remedy of a new trial may be applied not as a form of discipline for counsel, but rather 'to prevent a miscarriage of justice,' [Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 451 (1982)] . . . , 'when it appears probable that the misconduct actually influenced the verdict.'" Spring v. Bradford, 241 Ariz. 455, ¶ 27 (App. 2017), quoting Leavy v. Parsell, 188 Ariz. 69, 72 (1997), vacated in part on other grounds, Spring v. Bradford, 243 Ariz. 167 (2017). When the motion for a new trial is based on newly discovered evidence, relief is warranted only when it "appear[s] that the evidence could not have been discovered before trial by the exercise of due diligence and that the evidence would probably change the result upon retrial." Wendling, 143 Ariz. at 602.
¶26 Assuming Barkley had an obligation to disclose the documents, the probate court did not abuse its discretion in finding they had been sufficiently disclosed and denying the motion for new trial or sanctions. The record supports the court's determination that the Objectors could have discovered the existence of the documents by reviewing the billing entries "in the time period between their production and the date of the 2014 trial." Moreover, the court determined that the documents would not have had "a material effect on the outcome" of the 2014 trial, a finding the Objectors have not convincingly refuted. While they claim the documents show Barker breached his duty of loyalty to R.J. Riley under Ethical Rule 1.7, Ariz. R. Sup. Ct. 42, between 2006 and 2009, they have not cited any authority, nor are we aware of any, for the proposition that an attorney who breached his duty of loyalty should be disqualified on that basis years after the alleged breach and after the conclusion of the representation. Cf. Simms, 234 Ariz. 47, ¶ 10 ("The 'threshold question' [for a challenge under ER 1.7] is whether an attorney-client relationship exists between the lawyer and an adverse party."), quoting Gonzalez ex rel. Colonial Bank v. Chillura, 892 So. 2d 1075, 1077 (Fla. Dist. Ct. App. 2004). The Objectors have demonstrated no clear abuse of the probate court's discretion.
Attorney Fees
¶27 The Objectors lastly contend the probate court erred when it awarded them $250 in attorney fees upon granting their motion to dismiss Barkley's petition for instructions, complaining the court should have given them "the opportunity to present an affidavit of the fees they incurred," and it did not specify against whom the fees were to be assessed. We review the court's attorney fees award for an abuse of discretion. See In re Conservatorship for Mallet, 233 Ariz. 29, ¶ 7 (App. 2013).
¶28 In their motion, the Objectors had asserted that Barkley's failure to take action on the petition for instructions was "a violation of A.R.S. § 12-349." Although that statute provides for an award of attorney fees, the Objectors did not expressly request fees in their motion and, at the hearing, they did not request fees pursuant to § 12-349 but rather stated that, "in [their] response to the original petition [for instructions], [they had] asked for fees for defending against it." That request also did not cite § 12-349; instead, they had sought "their fees and costs as . . . de facto agents on behalf of the Estate and/or under a common fund doctrine/substantial benefit theory."
Although the Objectors' basis for seeking fees appears questionable, Barkley does not challenge the $250 fee award on appeal and we therefore do not address its propriety. --------
¶29 Accordingly, we reject the Objectors' contention that, "[b]ecause the probate court assessed fees, it must have found that there was a violation of A.R.S. § 12-349." And because we conclude the probate court did not award fees under § 12-349, we need not address the Objectors' argument that the $250 awarded was not "reasonable" under that statute's provisions. See § 12-349(A). Additionally, because they have not argued the fees were insufficient on the grounds asserted in their response to the petition for instructions, we do not address that issue. See Dawson v. Withycombe, 216 Ariz. 84, ¶ 40 & n.11 (App. 2007) (concluding appellants preserved one ground for challenging instruction on appeal but waived another by not raising it in their opening briefs).
¶30 With respect to the Objectors' complaint that the probate court did not specify whether the fees were assessed against the estate or Barkley and his counsel, they did not ask the court for clarification or otherwise raise the issue at the hearing or afterward. In any event, their request for attorney fees "as de facto agents on behalf of the Estate and/or under a common fund doctrine/substantial benefit theory" amounts to a claim for payment from the estate. See A.R.S. § 14-3720 (personal representative's attorney fees paid from estate); In re Estate of Brown, 137 Ariz. 309, 312 (App. 1983) (common fund theory may lead to payment of attorney fees from estate). Because the Objectors referred to their original request at the hearing and did not ask for fees against Barkley or his counsel, we assume the attorney fees awarded were to be paid by the estate. Cf. Horton v. Mitchell, 200 Ariz. 523, ¶ 13 (App. 2001) ("When there is no request for findings and the trial court does not make specific findings of fact, 'we must assume that the trial court found every fact necessary to support its [ruling] and must affirm if any reasonable construction of the evidence justifies the decision.'"), quoting In re Estate of Shumway, 197 Ariz. 57, ¶ 9 (App. 1999) (modification in Horton).
Attorney Fees on Appeal
¶31 Barkley has requested his attorney fees on appeal pursuant to Rules 21 and 25, Ariz. R. Civ. App. P., and A.R.S. §§ 14-3720 and 12-349(A)(1)-(3). We decline to award attorney fees under Rule 25 and § 12-349, but he is entitled to reimbursement of expenses, including attorney fees, under § 14-3720.
Disposition
¶32 For all of the foregoing reasons, the probate court's rulings are affirmed.