Keenan v. Buell
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
IN THE MATTER OF THE ESTATE OF:
)
)
SARAH H. JOHNSTON,
)
)
Deceased. )
__________________________________)
VIRGINIA E. KEENAN, Personal
)
Representative of the Estate of
)
Sarah H. Johnston,
)
)
Petitioner/Appellee, )
)
v.
)
)
JOAN ANN BUELL and CHARLES H.
)
BUELL, III, wife and husband,
)
)
Respondents/Appellants. )
__________________________________)
DIVISION ONE
FILED: 07-27-2010
PHILIP G. URRY,CLERK
BY: DN
1 CA-CV 09-0447
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. PB 2007-001018
The Honorable Harriett E. Chavez, Judge
AFFIRMED
The Nathanson Law Firm, P.L.L.C.
By Philip J. Nathanson
Attorneys for Respondents/Appellants
Asimou & Roddy, P.L.C.
By Thomas G. Asimou
And Michelle J. Roddy
Attorney for Petitioner/Appellee
T H O M P S O N, Judge
Scottsdale
Phoenix
¶1
This
appeal
arises
from
a
jury
verdict
finding
respondent/appellant, Joan Ann Buell (Buell), liable for conversion
and a
trial
court
order
awarding
damages
against
Buell
upon
finding, inter alia, that Buell committed financial exploitation of
a vulnerable adult.
I.
¶2
For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sarah H. Johnston (decedent) passed away at the age of 92
years in December 2006.
She had three daughters: Buell, Virginia
Keenan (Keenan), and Barbara Congello (Congello).
personal representative of decedent’s estate.
complaint
against
Buell
and
Keenan is the
Keenan filed a
her husband, Charles Buell, 1 for
conversion, undue influence, lack of testamentary capacity, abuse
of power of attorney, and elder abuse.
¶3
In 1994, decedent was diagnosed with congestive heart
failure and began living with family members.
She lived on-and-off
between Buell in Arizona and Keenan in Nevada for the last eleven
years of her life.
Decedent executed a Will and revocable trust
agreement in 1996, leaving 40% of her assets to Buell, 40% to
Keenan, and 20% to Congello’s two sons. 2
Decedent, Keenan, and
Buell were co-trustees of the trust and were co-signatories on a
Bank of America trust account.
funds
from
the
trust
account
Keenan and Buell routinely withdrew
to
pay
for
decedent’s
various
1
Charles Buell agreed to return $110,559.20 to the estate and was
dismissed as a party to the lawsuit.
2
The trust intentionally omitted Congello as a beneficiary.
2
obligations,
such
as
rent,
doctor
visits,
healthcare
costs,
prescriptions, and other items.
¶4
In 1999 or 2000, decedent began distributing her estate
by making gifts to family members in accord with the 40/40/20
split.
In 2001, decedent was diagnosed with significant dementia
by her primary care physician.
Her physician noted she was unable
to understand and act on ordinary affairs in life or manage or
direct the management of funds.
By fall 2003, she was becoming
difficult to handle, was incontinent, confused, and often refused
to shower.
¶5
In 2004, decedent went to live with Keenan in Nevada,
where Keenan was granted a temporary guardianship of decedent.
She
spent nine days in June 2004 in an in-patient geriatric psychiatric
facility to treat her hallucinations and agitation.
psychiatrist
diagnosed
decedent
with
progressive
A geriatric
degenerative
dementia with psychiatric complications, which included anger,
depression, hallucinations and delusions.
Her psychiatric symptoms
were treated, but nothing could improve her cognitive function.
Buell and Keenan stipulated that effective June 2004, decedent was
a vulnerable adult as defined by Arizona Revised Statutes (A.R.S.)
§ 46-451 (10) and that Buell was in a position of trust with
decedent as defined by A.R.S. § 46-456 (G) (3).
¶6
After
her
discharge
from
the
psychiatric
facility,
decedent went to reside with Buell and Buell’s husband in Arizona.
Approximately three months later, decedent received a letter, which
3
she reviewed with Buell, from an attorney in New York informing
decedent that she was going to inherit $100,000 from her sister,
with more to come.
Within days of receiving the letter, Buell
contacted an estate planning attorney, Dorothy Brogan (Brogan).
The testimony at trial was that Brogan visited Buell’s residence,
at Buell’s request, and discussed a new Will, power of attorney,
and healthcare power of attorney with decedent.
¶7
made
Brogan drafted a new Will (2004 Will) for decedent which
Buell
agent
under
the
powers
of
attorney
and
heir
to
decedent’s estate, except for a grant of $1,000 each to Keenan and
Congello.
Brogan
returned
to
the
documents on September 27, 2004.
residence
to
execute
the
Brogan was not informed of
decedent’s psychiatric condition or of the temporary guardianship.
Brogan did not know the size of decedent’s estate nor did she
review
decedent’s
prior
estate-planning
documents.
Brogan
testified that if she had known of the temporary guardianship in
Nevada
and
decedent’s
inpatient
admission
and
diagnosis
of
Alzheimer’s disease, she probably would have walked away from doing
the estate plan.
¶8
In October 2004, Buell went alone to a Wells Fargo bank
and opened a joint checking account in her own and decedent’s
names, using the $100,000 inheritance check.
The court concluded
that Buell used the power of attorney to open the joint account,
although bank officials went to Buell’s residence and met privately
with decedent to obtain decedent’s signature.
4
The remaining
inheritance funds in the amount of $316,669.62 were deposited in
the joint account in 2005.
When the court asked Buell why she put
the inheritance in a separate account rather than the original
trust account, Buell testified, “it was just for my mother and
myself.
It didn’t have to be a trust type of situation or with
anyone else’s name on it.”
that
by
depositing
Buell further testified she believed
the
funds
into
the
joint
account,
she
immediately became an owner of the funds.
¶9
The court conducted a five day jury trial.
convened
to
decide
the
issue
of
conversion
and
The jury was
for
advisory
determinations on the remaining statutory issues regarding A.R.S. §
14-5506 (power of attorney), A.R.S. § 46-456 (vulnerable adult and
breach of fiduciary duty), and testamentary capacity and undue
influence.
The jury returned a verdict in favor of the estate on
the issue of conversion.
The jury further found by interrogatory
that the decedent did not have testamentary capacity at the time
she
executed
interrogatory
the
2004
that
Will.
Buell
The
exercised
jury
undue
further
found
by
influence
over
the
decedent, violated A.R.S. § 46-456 regarding the 2004 Will, power
of attorney, and Wells Fargo account, and violated A.R.S. § 14-5506
by improperly using decedent’s money, property, or other assets as
an agent for the decedent.
The court adopted the jury advisory
verdict finding that decedent lacked testamentary capacity and that
the 2004 Will was the product of undue influence.
Accordingly, the
court found the 2004 Will and power of attorney were invalid.
5
¶10
The court further found that Buell violated A.R.S. § 46-
456 and § 14-5506 and awarded damages in favor of Keenan and
against Buell in the amount of $416,669.62. 3
The court further
awarded compensatory damages to Keenan in the amount of $67,726.60
against Buell.
The court reduced the amount of the judgment by
$296,564.43, which was held in trust pending the proceedings and
returned to Keenan; and by $55,000.00, which represented credit for
legitimate expenses for Buell’s caretaking of decedent prior to her
demise.
Keenan was also awarded her attorney’s fees and costs.
Pursuant to A.R.S. § 46-456 (D), the court ordered Buell to forfeit
all
benefits
with
respect
to
decedent’s
probate
estate,
not
including the 1996 trust assets.
¶11
Buell filed a timely appeal.
We have jurisdiction
pursuant to A.R.S. § 12-2101(B) (2003).
II.
¶12
DISCUSSION
Buell raises a myriad of issues, which we address in
turn.
1.
¶13
Evidence of Prior Settlement
Buell claims reversible error occurred when the jury
learned about Charles Buell’s settlement and dismissal from the
lawsuit.
We review the trial court’s ruling allowing the use of
settlement evidence for purposes of impeachment for abuse of
3
This award includes the jury verdict on the issue of conversion
in favor of Keenan in the amount of $253,693.20.
6
discretion.
Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d
281, 283 (App. 2000).
¶14
The
following
exchange
took
place
during
direct
examination of Charles Buell:
Q. Initially, when this matter started, you
were named as a defendant, correct?
A.
That’s correct.
Q.
And you actually received some of the
money that was in the Wells Fargo account set
up by your lawyer, correct?
A.
That’s correct.
Q.
How much did you receive?
A.
110,000 and change.
[Buell’s attorney]: Relevance, your Honor.
Court: Okay.
[Buell’s attorney]: Mr. Buell[]--Court: What’s the relevance?
[Keenan’s attorney]: That was he was a party
defendant and he had to settle this lawsuit.
He gave back $110,000.
I think it goes to
bias, with this witness.
[Buell’s attorney]: Goes to what?
Court: Bias. Well, I’m going to overrule the
objection, but I will instruct the jury that
he was dismissed as a party. So his case is
over. So we’re not going to retry that case
here today.
[Keenan’s attorney]: That’s fine, your Honor.
¶15
Keenan’s attorney then asked Charles Buell questions
regarding a declaration he signed in order to be dismissed from the
7
lawsuit.
Specifically, he asked, “in that declaration, you said,
other than rent and the amounts paid to you from the joint Wells
Fargo Bank account . . . you received no other funds, benefit, coownership or other consideration from the decedent since January,
2004,
correct?”
objection,
Buell
stating,
objected
“I’m
going
and
to
the
ask
court
the
jury
sustained
to
the
disregard
[counsel’s questions] regarding the declaration, what it meant, and
what its role was in a prior lawsuit.”
¶16
Although Arizona Rule of Evidence 408 prohibits evidence
of settlement to prove liability, the rule “permits admission of
the fact of settlement in certain circumstances . . . ‘such as
proving bias or prejudice of a witness.’”
Henry ex rel. Estate of
Wilson v. HealthPartners of S. Ariz., 203 Ariz. 393, 397-98, ¶ 14,
55 P.3d 87, 91-92 (App. 2002); Ariz. R. Evid. 408.
Evidence
admitted to impeach the credibility of a party, such as evidence
proving
bias
or
prejudice,
invalidity of a claim.”
“does
not
prove
liability
for
or
Hernandez v. State, 203 Ariz. 196, 198, ¶
9, 52 P.3d 765, 767 (2002).
¶17
The court’s evidentiary rulings were proper.
In the
first instance, the court overruled the objection because Keenan
was trying to prove Charles Buell’s bias, based on the fact that he
had received $110,000 of decedent’s money.
Charles Buell later
testified that decedent had testamentary capacity, and his receipt
of money from her might tend to explain his view that decedent was
“sharp as a tack.”
In the second instance, the court sustained
8
Buell’s objection when the witness was asked about his declaration
as
it
relates
inadmissible.
questions
to
settlement
ruled
the
declaration
was
The court told the jury to disregard counsel’s
regarding
settlement.
and
the
declaration
as
improper
evidence
of
We conclude no abuse of discretion occurred in the
court permitting Charles Buell’s testimony regarding the amount of
money he received while properly ruling the declaration and its
role pertaining to settlement inadmissible.
2.
Conversion Claim
¶18
Buell alleges Keenan failed to prove the elements of a
claim for conversion of money.
“If substantial evidence exists
permitting reasonable persons to reach such a result, we will
affirm the judgment.”
Hutcherson v. City of Phoenix, 192 Ariz. 51,
53, ¶ 13, 961 P.2d 449, 451 (1998).
¶19
Buell relies on Universal Marketing and Entertainment,
Inc. v. Bank One of Arizona, 203 Ariz. 266, 53 P.3d 191 (App.
2002).
In that case, Universal made a $50,000 deposit by wire into
an unrestricted Bank of America account belonging to Wensel.
203
Ariz. at 268, ¶ 3, 53 P.3d at 193.
The funds were intended by
Universal
as
a
that
Universal
in
acquiring.
loan
to
a
company
Id.
Wensel
However,
segregated in Wensel’s account.
Id.
the
was
funds
assisting
were
not
Before Wensel could release
the funds to the company, his Bank of America account was garnished
by Bank One, his judgment creditor.
Id. at 268, ¶ 4, 53 P.3d at
193.
the
Universal
sued
Bank
One
9
on
theory
of
conversion,
contending that Bank One converted Universal’s $50,000 by taking
control of the funds and refusing to return them.
Id.
We held
that Universal had no conversion action against Bank One for
garnishment of Wensel’s account because Universal relinquished its
right
to
immediate
possession
of
its
funds
when
the
funds,
unsegregated and undifferentiated, were deposited into Wensel’s
unrestricted bank account.
Id. at 270-71, 53 P.3d at 195-96.
We
further held that the money in that case did not constitute “a
chattel in which Universal had an immediate right to possession at
the time of the conversion.”
¶20
Id. at 269, ¶ 13, 53 P.3d at 194.
As Keenan correctly observes, Bank One was an outside
third party that had no knowledge that the money in Wensel’s
account did not belong to Wensel.
In affirming the trial court’s
dismissal of Universal’s complaint, we held that under those
circumstances, Bank One did not commit the tort of conversion.
Id.
at 271, ¶ 19, 53 P.3d at 196.
¶21
scenario.
The circumstances presented here present a different
Buell stipulated she was in a position of trust and
confidence to decedent and occupied a fiduciary role as decedent’s
power of attorney.
In Autoville, Inc. v. Friedman, we acknowledged
the nature of a fiduciary relationship in the context of a claim
for conversion:
Where one intrusts his property to another for
a particular purpose, it is received in a
fiduciary capacity; and, when turned into
money, that is also received in the same
capacity.
It does not belong to the agent,
and he can lawfully exercise no power or
10
authority over it, except for the benefit of
his principal, and only as authorized by him.
If the agent uses it for his own purposes . .
. it is a conversion of that which does not
belong to him.
20 Ariz. App. 89, 93, 510 P.2d 400, 404 (1973) (citation omitted).
Furthermore, “money can be the subject of a conversion provided
that
it
can
be
described,
identified
or
segregated,
and
obligation to treat it in a specific manner is established.”
an
Id.
at 91, 510 P.2d at 404.
¶22
Here, the jury had substantial evidence to find Buell
liable
for
conversion.
Decedent’s
inheritance
was
easily
identifiable as a subject of conversion and Buell had an obligation
to use the funds for decedent’s benefit.
Instead, Buell put the
funds in a joint account which she believed gave her ownership and
withdrew the funds for personal use.
Accordingly, we affirm the
judgment against Buell on the issue of conversion.
3.
¶23
Power of Attorney (A.R.S. § 14-5506) Findings
Buell contends that there is no factual basis in the
record to support the jury’s interrogatory finding and the court’s
finding that she violated A.R.S. § 14-5506, the power of attorney
statute.
Essentially, Buell argues no evidence was presented to
show that she took any action pursuant to the power of attorney.
We accept the trial court’s factual findings on appeal unless they
are clearly erroneous and review legal conclusions de novo.
In re
Estate of Newman, 219 Ariz. 260, 265, 196 P.3d 863, 868 (App.
2008).
11
¶24
A.R.S. § 14-5506 requires an agent to use a principal’s
money or assets “only in the principal’s best interest and the
agent shall not use the principal’s money . . . for the agent’s
benefit.”
§ 14-5506 (A) (2008).
The trial court found that Buell
used the power of attorney to assist in the opening of the Wells
Fargo account.
Buell also admitted in her deposition that she used
the power of attorney to assist in opening the joint account.
The
court further found that subsequent to opening the account, Buell
used decedent’s money to write numerous checks totaling $77,726.60
“without authority and in violation of A.R.S. § 14-5506.”
We find
no error in the court’s reasoning or judgment and affirm the
finding that Buell’s conduct violated A.R.S. § 14-5506.
4.
¶25
Financial Exploitation (A.R.S. § 46-456) Findings
At the time of trial, A.R.S. § 46-456 stated, “A person
who is in a position of trust and confidence to an incapacitated or
vulnerable adult shall act for the benefit of that person to the
same extent as a trustee pursuant to title 14, chapter 7.”
§ 46-456 (A) (2008).
A.R.S.
Buell stipulated she was in a position of
trust and confidence to a vulnerable adult.
¶26
On appeal, Buell complains she did not commit financial
exploitation of decedent, citing Davis v. Zlatos, 211 Ariz. 519,
123 P.3d 1156 (App. 2005), and Newman v. Newman, 219 Ariz. 260, 196
P.3d 863 (App. 2008), our recent decisions addressing the standard
of conduct required of a family member dealing with a vulnerable
adult.
In Davis, we noted that at the very least, a prudent
12
trustee should advise the vulnerable adult to seek the help of a
family member or a lawyer in making a transfer.
Davis, 211 Ariz.
at 527, ¶ 34, 123 P.3d at 1164.
¶27
Buell asserts she complied with this duty by arranging
for attorney Brogan to assist decedent with preparation of the 2004
Will.
Buell further points to the fact that decedent signed the
Wells Fargo application outside Buell’s presence.
This conduct
does not amount to advising decedent to seek independent advice.
In fact, Brogan testified she never advised decedent regarding the
$416,000 inheritance or about the joint account.
Rather, we agree
with the trial court that Buell’s solicitation of Brogan to meet
with decedent in procuring an invalid Will and power of attorney
amounts to undue influence on decedent. 4
¶28
Buell also argues that because Keenan did not introduce
any evidence relating to the standard of care for a prudent
4
The court considered eight factors in determining whether the
Will and power of attorney were procured through undue influence:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Whether the alleged influencer made fraudulent
representations to the testator;
Whether the execution of the Will was the product of
hasty action;
Whether the Will was concealed from others;
Whether the person benefited from the Will was active
in securing its drafting and execution;
Whether the Will was consistent with prior declarations
and plannings of the testator;
Whether the Will was reasonable under the
circumstances, attitudes, and family;
Whether the testator was susceptible to undue
influence; and,
Whether the testator and the beneficiary were in a
confidential relationship.
13
trustee, Keenan’s statutory claim fails as a matter of law.
cites no authority for this argument.
Buell
In In re Estate of Newman,
we found that a family member was in a position of trust and
confidence with respect to the decedent.
196 P.3d at 873.
219 Ariz. at 270, ¶ 34,
We held the family member breached his duty under
A.R.S. § 46-456 (A) “by failing to keep clear and accurate records,
commingling funds, and engaging in transactions that benefitted him
without advising [the vulnerable adult] to seek the help of a
family member or lawyer.”
Buell
repeatedly
engaged
Id. at 270, ¶ 35, 196 P.3d at 873.
in
transactions
benefitting
without advising decedent to seek independent advice.
herself
We presume
the trial court knows and follows the law, including the standard
of care applicable to a prudent trustee.
Maher v. Urman, 211 Ariz.
543, 548, ¶ 13, 124 P.3d 770, 775 (App. 2005). Thus, substantial
evidence supports the finding that Buell breached her duty and
violated A.R.S. § 46-456.
A.
¶29
Unclean hands
As part of Buell’s argument that she did not violate
A.R.S. § 46-456, Buell alleges that Keenan had unclean hands and
that as a result, Keenan “should not be heard to complain about
[Buell’s] conduct.”
Buell alleges Keenan’s hands are unclean
because Keenan issued checks to her family members as “gifts” as a
co-trustee of decedent’s 1996 trust.
¶30
The doctrine of unclean hands states that one “who comes
into a court of equity seeking equitable relief must come with
14
clean hands.”
(1941).
McRae v. McRae, 57 Ariz. 157, 161, 112 P.2d 213, 215
The doctrine operates to bar a claim if the “dirt upon
[the claimant’s] hands [is the] bad conduct in the transaction
complained of.
If he is not guilty of inequitable conduct toward
the defendant in that transaction, his hands are as clean as the
court can require.”
Sines v. Holden, 89 Ariz. 207, 209-210, 360
P.2d 218, 220 (1961) (quoting 2 Pomeroy 91, Equity Jurisprudence,
5th Ed., § 397).
We review a trial court’s application of the
doctrine of unclean hands under an abuse of discretion standard.
Manning v. Reilly, 2 Ariz. App. 310, 314, 408 P.2d 414, 418 (1965).
The application of the doctrine “rests in the sound discretion of
the trial court.”
¶31
Id.
Here, the court implicitly decided the unclean hands
doctrine was inapplicable in denying Buell’s motion for judgment as
a matter of law.
At the time Keenan wrote the checks in 1999-2000,
Keenan was acting as a co-trustee with Buell, prior to decedent’s
diagnosis of dementia.
The gifts were made in accordance with the
40/40/20 split of decedent’s 1996 trust, and the power of attorney
signed by decedent in 1996 specified authorizations for gifts.
Finally, the court considered Keenan’s actions with respect to
making gifts in its judgment by noting, “the [c]ourt has considered
the
conduct
of
the
family
and
their
practice
of
spending
[d]ecedent’s money under the trust since its inception in a manner
similar to [Buell] and her actions regarding the Wells Fargo
Account.”
Thus, we hold no abuse of discretion occurred.
15
5.
¶32
Denial of Motion for New Trial and Election of Remedies
Buell
contends
that
because
Keenan
submitted
the
conversion claim to the jury and reduced that claim to judgment,
Keenan effectively made an election of remedies.
Buell argues that
as a consequence, Keenan should be precluded from any equitable or
forfeiture relief under A.R.S. § 46-456.
¶33
Election of remedies is an affirmative defense that is
waived unless timely asserted.
Estate of Wesolowski v. Indus.
Comm’n of Ariz., 192 Ariz. 326, 329, 965 P.2d 60, 63 (App. 1998).
Buell did not raise election of remedies as an affirmative defense,
but rather raised the issue for the first time in her motion for
new trial.
Buell also failed to move the court for election of
remedies prior to submission of all claims to the jury or argue the
issue during the jury instructions discussion with the court.
See
Kelman v. Bohi, 27 Ariz. App. 24, 33, 550 P.2d 671, 680 (1976)
(holding the issue of election of remedies waived on appeal because
the appellant’s transcript citation did not reveal the existence of
a motion requiring an election to be made).
¶34
The trial court denied Buell’s motion for new trial,
reasoning that “[o]n the issue of election of remedies, the issue
was not raised, and therefore waived.”
Buell has not preserved
this issue for appeal, and it is therefore waived.
16
See id.
6.
¶35
Double Damages
Buell claims the evidence does not support an award of
double damages. 5
At the time of trial, A.R.S. § 46-456(C) (2008)
provided that “[a] person who violates subsection A or B of this
section is subject to damages in a civil action brought by or on
behalf of an incapacitated or vulnerable adult that equal up to
three times the amount of the monetary damages.”
In determining
the amount of damages in this case, the court reasoned:
Although the complaint prays for treble
damages, the Court has considered the conduct
of the family and their practice of spending
decedent’s money . . . Further, the court has
considered the personal sacrifice of [Buell]
in caring for her mother over the years. The
court concludes that an award of double
damages is appropriate in that [Buell]
concealed the inheritance of $416,669.62 from
the family and converted it to her own name
and disbursed monies in breach of the
fiduciary duty to her mother.
¶36
The
We conclude the trial court did not abuse its discretion.
award
of
double
compensatory
damages
in
the
amount
of
$67,726.60 was reasonable in light of the evidence presented at
trial.
5
Buell argues that double damages were inappropriate because “there
was no evidence that [decedent] lacked testamentary capacity.” We
agree with Keenan that testamentary capacity has nothing to do with
A.R.S. § 46-456, as A.R.S. § 46-456 simply addresses whether the
decedent was a “vulnerable adult.” Buell stipulated that decedent
was a vulnerable adult.
Thus, we do not consider Buell’s
testamentary capacity argument with respect to damages.
17
7.
¶37
Forfeiture of Interest in the Trust
Buell argues she is entitled to receive benefits as a
beneficiary of the trust and that the court erred by ruling that
the forfeiture includes any trust assets.
Although the court
initially ordered Buell to forfeit all trust assets, it later ruled
that “[o]n the issue of forfeiture of assets under the trust, IT IS
ORDERED granting [Buell’s] motion for judgment as a matter of law.”
Accordingly, this claim is moot.
¶38
We also find no merit to Buell’s argument that the
January 16, 2009 judgment should have been modified with respect to
double compensatory damages in the amount of $135,453.20 and the
$55,000 credit to Buell.
The court modified its January 16, 2009
judgment on May 15, 2009 as follows:
It is ordered amending the judgment to reflect
damages to be $416,669.62, plus double damage
award of $67,726.60, plus double expert fees
of $26,242.64, plus interest, less a credit
for $55,000 for caretaking expenses, and less
a credit of money transferred previously held
in trust of $296,564.43.” (emphasis added).
¶39
Finally, Buell proposes she “is legally entitled any and
all credits for interest earned by the monies in the trust account
pending the outcome of these proceedings.”
We find no support for
this claim and therefore reject it.
III.
¶40
CONCLUSION
For the foregoing reasons, we affirm.
Keenan requests an
award of attorneys’ fees and costs on appeal based on A.R.S. §§ 46-
18
456(E) (2008), -455(H)(4) (2008), and 14-3720.
We award Keenan her
reasonable attorneys’ fees and costs, contingent upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
/s/
_____________________________
JON W. THOMPSON, Judge
CONCURRING:
/s/
___________________________________
MICHAEL J. BROWN, Presiding Judge
/s/
___________________________________
MARGARET H. DOWNIE, Judge
19
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