Mulcaire v. mongini/wallace ( 2014 )


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  •                           NOTICE: NOT FOR PUBLICATION.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
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    ¶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 4
                       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
    6
    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
    8
    

Document Info

Docket Number: 1 CA-CV 13-0612

Filed Date: 12/11/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021