Williams v. Cole

NOTICE: NOT FOR PUBLICATION.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 Estate of:

SHIRLEY B. COLE, Deceased.
________________________________

CATHY COLE WILLIAMS, Plaintiff/Appellant,

v.

LORI A. COLE, as Personal Representative and Successor Trustee, and
Individually, Defendant/Appellee.

No. 1 CA-CV 12-0810
FILED 4-17-2014

Appeal from the Superior Court in Maricopa County
No. PB2010-000279
The Honorable Robert D. Myers, Retired Judge

AFFIRMED

COUNSEL

Fennemore Craig, P.C., Phoenix
By Roger T. Hargrove, Alexander Arpad

The Valorem Law Group, Chicago
By Stuart J. Chanen, pro hac vice
Co-Counsel for Plaintiff/Appellant
Snell & Wilmer, L.L.P., Phoenix
By Kevin J. Parker

Steinberg, Burtker & Grossman, Ltd., Chicago
By Richard J. Grossman, pro hac vice
Co-Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.

P O R T L E Y, Judge:

¶1 Cathy Cole Williams (“Cathy”) appeals the judgment
entered after a bench trial in favor of Lori Cole (“Lori”). 1 Cathy challenges
the determination that Lori did not violate Arizona Revised Statutes
(“A.R.S.”) section 46-456(A) (West 2010), 2 the Vulnerable Adult statute,
and did not exert an undue influence over their mother, Shirley Bell Cole
(“Mother”). For the foregoing reasons, we affirm.

FACTUAL3 AND PROCEDURAL BACKGROUND

¶2 Mother, the radio voice of “Little Orphan Annie” from 1930-
1940, wrote and published her autobiography in 2004, with Susan Cox,
entitled “Acting Her Age: My 10 Years as a 10-Year Old.” The same year,
she divided her estate equally between her two adult daughters, Lori and
Cathy, after separately providing for her adult special needs daughter.

¶3 The mother-daughter relationship with Cathy deteriorated,
and Mother told Cathy to stop trying to contact her. Cathy then filed a

1 We refer to individuals by their first names to avoid confusion because
they share a common surname.
2 We cite to the current version of the statute unless there has been a

material revision.
3 We review the facts in the light most favorable to sustaining the

judgment. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11, 213 P.3d 197,
200 (App. 2009).

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petition for appointment of guardianship, but the Illinois probate court
dismissed her petition. Mother then executed a new will in 2007 that left
her entire estate to Lori and expressly left nothing to Cathy. A year later,
Mother quietly moved to Arizona. She passed away in 2010.

¶4 Lori filed a petition for formal probate of the will. Cathy
challenged the 2007 will, claiming it was invalid because Lori had exerted
undue influence to disinherit Cathy. She also claimed that Lori violated
§ 46-456, the Vulnerable Adult statute.

¶5 Following a ten-day bench trial, the superior court found
that: (1) Mother’s will was valid and enforceable; (2) Lori did not exert
any influence that resulted in Mother disinheriting Cathy; and (3) Lori did
not exploit Mother or otherwise violate the Vulnerable Adult statute.
Following the entry of judgment, Cathy filed this appeal.

DISCUSSION

¶6 Cathy raises three issues on appeal. First, she argues that the
superior court erred by failing to apply the correct legal standard to both
the undue influence and Vulnerable Adult claims. Second, because of the
asserted legal error, she contends the court used the wrong standard to
make its findings of fact and conclusions of law. Finally, she argues that a
new trial is warranted because the court erred by admitting evidence over
her objections that led to the erroneous findings of facts and conclusions
of law.

I. Undue Influence

¶7 Cathy challenges the judgment that Lori did not use undue
influence on their Mother to change her will in 2007. We review the legal
standard the court used de novo because it is a question of law. Mobilisa,
Inc. v. Doe, 217 Ariz. 103, 107-08, ¶¶ 9-10, 170 P.3d 712, 716-17 (App. 2007).
We will not, however, disturb the court’s findings of fact unless they are
clearly erroneous. In re Estate of Newman, 219 Ariz. 260, 265, ¶ 13, 196 P.3d
863, 868 (App. 2008). A finding of fact is not clearly erroneous if it is
supported by substantial evidence, even if substantial conflicting evidence
exists. Castro, 222 Ariz. at 51-52, ¶ 11, 213 P.3d at 200-01 (quoting Kocher v.
Dep’t of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9, 80 P.3d 287, 289 (App.
2003)). Evidence is substantial if it allows “a reasonable person to reach
the trial court’s result.” Davis v. Zlatos, 211 Ariz. 519, 524, ¶ 18, 123 P.3d
1156, 1161 (App. 2005). “We will not reweigh the evidence or substitute
our evaluation of the facts.” Castro, 222 Ariz. at 52, ¶ 11, 213 P.3d at 201.

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¶8 Undue influence occurs if “a person unduly influences a
testator or testatrix in executing a will when that person through his
power over the mind of the testator or testatrix makes the latter’s desires
conform to his own, thereby overmastering the volition of testator or
testatrix.” In re Estate of McCauley, 101 Ariz. 8, 10, 415 P.2d 431, 433 (1966).
Undue influence is determined at the time the testatrix executes her will
and must be shown by a “clear preponderance of the evidence.” In re
Estate of Sherer, 10 Ariz. App. 31, 35, 455 P.2d 480, 484 (1969) (citation
omitted) (internal quotation marks omitted). In Estate of McCauley, our
supreme court outlined eight “significant indicia of the presence or
absence of [undue] influence.” 101 Ariz. at 10-11, 415 P.2d at 433-34. The
factors are:

[1] Whether the alleged influencer has made
fraudulent representations to the testatrix;

[2] whether the execution of the will was the
product of hasty action;

[3] whether the execution of the will was
concealed from others;

[4] whether the person benefited by the will
was active in securing its drafting and
execution;

[5] whether the will as drawn was consistent or
inconsistent with prior declarations and
plannings of the testatrix;

[6] whether the will was reasonable rather than
unnatural in view of the testatrix'
circumstances, attitudes, and family;

[7] whether the testatrix was a person
susceptible to undue influence; and

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[8] whether the testatrix and the beneficiary
have been in a confidential relationship.

Id.

¶9 Cathy argues that the superior court improperly limited its
analysis to the specific time period during which Mother’s last will was
created and executed, a so-called “point-in-time” analysis. 4 She contends
that the proper analysis requires “historical and circumstantial evidence
. . . be considered to determine what influences were operating at the time
of execution [of the will],” which should include focusing on Mother’s
previous estate plans, “when the greatest [undue] influence was exerted.”
We conclude otherwise.

¶10 Our supreme court has discussed the time period relevant to
determining whether a will was created by the exertion of undue
influence. In Estate of Harber, after noting that it was necessary “to
introduce sufficient evidence to show that the testatrix’ will was

4 Cathy claims that our supreme court expressly rejected a “point-in-time”
analysis, citing In re Estate of Harber, 102 Ariz. 285, 292, 428 P.2d 662, 669
(1967), and quotes the following in her opening brief:

To require that there be direct evidence of
undue influence operating on the testatrix’s
mind at the time she executes her will is
contrary to both the law and common sense;
influence that has been exerted over a period of
time so as to become pervasive will not
necessarily manifest itself at the time of
execution.

Our supreme court, however, did not write the passage quoted in
Cathy’s brief. Instead, our search reveals that the quotation is only
found in the dissenting opinion by Justice Hines in Bohlen v. Spears,
509 S.E.2d 628, 630-31 (Ga. 1998) (Hines, J., dissenting). And, in
that case, the majority opinion of the Georgia Supreme Court stated
that “a will can be invalidated only by such undue influence as
operates on the testatrix’s mind at the time she executes the
document.” Id. at 630 (majority opinion) (citing Boland v. Aycock, 12
S.E.2d 319, 321 (Ga. 1940)).

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overpowered and the will of another substituted in its stead,” our
supreme court found that “there [was] no indication [that Mrs. Harber]
was in a physical or mental condition which rendered her susceptible to
the exertion of undue influence upon her at the time of the execution of her
will.” 102 Ariz. at 291-92, 428 P.2d at 668-69 (emphasis added); accord In re
Estate of Sherer, 10 Ariz. App. at 35, 455 P.2d at 484 (stating that undue
influence must be shown at the time the testator executes his will).

¶11 Here, the superior court stated the proper legal standard.
The court noted that the question was whether a person “through his
power over the mind of the testator or testatrix makes the latter’s desires
conform to his own, thereby overmastering the free will of the testator or
testatrix.” Then, in reaching its judgment, the court focused on all the
evidence that was presented at trial, including events dating back to
December 2005, as well as the facts related to the creation and execution of
the October 2007 will.

¶12 In determining whether Mother was subject to undue
influence when she created and executed her final will, the court
specifically addressed the first seven McCauley factors, and Lori does not
dispute the existence of the eighth – that she had a confidential
relationship with Mother. Substantial evidence exists in the record to
support the court’s factual findings. As a result, we find that the superior
court properly considered the correct law of undue influence, applied the
facts to the law, and determined that there was no undue influence.

¶13 Cathy next claims that the superior court erred because it
failed to shift the burden of proof onto Lori. She argues that the court’s
findings were improper because the court failed to consider circumstantial
evidence and evidence regarding the participation of attorney Richard
Grossman in drafting Mother’s will. Had the court properly considered
the evidence, Cathy argues, it would have concluded that the
requirements necessary to create a presumption of undue influence were
met.

¶14 The party claiming that a will is the product of undue
influence has the burden of proof. In re Estate of McCauley, 101 Ariz. at 10,
415 P.2d at 433. A presumption of undue influence arises, however, if
there is evidence of each of the following four requirements: (1) the
individual had a confidential relationship with the testatrix; (2) the
individual was the principal beneficiary of the will; (3) the individual was
active in procuring the will; and (4) the individual was active in executing

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the will. See A.R.S. § 14-2712(E)(1) (West 2010), 5 see also Mullin v. Brown, 210 Ariz. 545, 547, ¶ 4, 115 P.3d 139, 141 (App. 2005) (“A presumption of
undue influence arises when one occupies a confidential relationship with
the testator and is active in preparing or procuring the execution of a will
in which he or she is a principal beneficiary.”).

¶15 Here, the court found “[t]here was no direct evidence that
Lori Cole was active in securing the drafting or execution” of the will and
therefore, the court did not apply a presumption of undue influence. The
court made that finding after hearing testimony from Nora Marsh, the
attorney who drafted Mother’s final will. Marsh testified that attorney
Richard Grossman contacted her and arranged for her to meet Mother to
draft the final will. She also testified that she never had any contact with
Lori. Although Grossman provided some input regarding one portion of
the will, Marsh testified that Mother directed her to draft the language
that resulted in Cathy being disinherited.

¶16 Although Cathy claims that the court failed to consider
circumstantial evidence in making its finding, she does not cite any
specific circumstantial evidence that the court failed to examine or
consider. She also argues that Grossman was present during the creation
of the will and contends he was representing Lori. However, her
disagreement with the factual findings does not demonstrate that the
court failed to consider the evidence. The court heard the evidence and
had to decide the credibility of the witnesses and what evidence to believe
or disbelieve. See In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5, 12 P.3d
1203, 1205 (App. 2000) (stating that we give “due regard to the
opportunity of the court to judge the credibility of witnesses”); see also
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002) (stating that the trier of fact “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and

5 Although § 14-2712(E)(1) did not go into effect until after Cathy filed
her counter-petition, 2010 Ariz. Sess. Laws, ch. 133, § 2 (2d Reg. Sess.), the
statute, entitled “Burdens relating to validity of governing instruments,”
codified the burdens of proof in probate matters and could be applied to
the subsequent trial. Allen v. Fisher, 118 Ariz. 95, 96, 574 P.2d 1314, 1315
(App. 1977) (stating that “a statute relating solely to procedural law such
as burden of proof and rules of evidence can be applied retroactively”).
Moreover, both parties cited to the provision and neither challenges its
use on appeal.

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make appropriate findings”). Because it is clear that the court considered
the evidence, and substantial evidence exists to support its findings, the
findings are not clearly erroneous.

II. Vulnerable Adult

¶17 Cathy also argues that the superior court failed to apply the
proper standard to her Vulnerable Adult claim, improperly focused on
Mother’s testamentary capacity, and ignored whether Mother was
impaired. We disagree.

¶18 Generally, a Vulnerable Adult claim requires proof by a
preponderance of the evidence that “[a] person who is in a position of
trust and confidence to a vulnerable adult [has breached his/her duty to]
use the vulnerable adult's assets solely for the benefit of the vulnerable
adult and not for the benefit of the person . . . or the person's relatives.”
A.R.S. § 46-456(A); accord Davis, 211 Ariz. at 524, ¶ 20, 123 P.3d at 1161.
The claim’s two threshold elements are whether (1) the person is in “a
position of trust and confidence” with the purported victim and (2) the
purported victim is a “vulnerable adult.” Davis, 211 Ariz. at 524, ¶ 20, 123
P.3d at 1161. Because it is undisputed that Lori was in a position of trust
and confidence with respect to Mother, we turn to whether Mother was a
vulnerable adult.

¶19 An adult is vulnerable if the court finds that the individual
suffered from a physical or mental impairment that prevented the
individual from protecting herself from “abuse, neglect or exploitation by
others.” A.R.S. § 46-451(A)(9); Davis, 211 Ariz. at 524-25, ¶ 21, 123 P.3d at
1161-62. Here, Mother’s two primary care physicians, Dr. Cathie Dunal
and Dr. Matthew Hummel, testified as to Mother’s physical health and
opined that, although Mother suffered from chronic physical issues, her
conditions were manageable. Although Cathy claims that the court failed
to consider evidence of Mother’s physical limitations, the final judgment
undermines the argument because it reflects that the court considered
Mother’s “vision deficits.”

¶20 The court also heard testimony regarding Mother’s mental
abilities from Dr. Dunal, Dr. Hummel, and Dr. Kreiner, a psychiatrist.
Each doctor testified that Mother was in control of her mental faculties
and capable of making her own decisions. Based on the evidence, and
guided by § 46-456, the court determined that Mother was not a
vulnerable adult because “[a]t no material time was [Mother] unable to
protect herself from abuse, neglect, or exploitation by others because of a

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physical or mental impairment.” See Davis, 211 Ariz. at 527, ¶ 31, 123 P.3d
at 1164 (stating that a finding that one is a vulnerable adult requires that
the individual’s impairment be “to such an extent that [the individual]
was unable to protect herself if targeted for abuse, neglect, or
exploitation”).

¶21 The court also considered whether Mother had testamentary
capacity at the time her final will was created and executed. The final
judgment, however, clearly demonstrates that the court separately
considered whether § 46-456 was violated. Consequently, we find that the
court applied the proper legal standard and there was substantial
evidence that supported the court’s finding that Mother was not a
vulnerable adult within the meaning of the statute.

¶22 Cathy also argues that the superior court: (1) improperly
limited the Vulnerable Adult claim to the time period that Mother was a
resident of Arizona; (2) erred by incorrectly interpreting the Vulnerable
Adult statute to find that she lacked standing to bring the claim; (3) failed
to make necessary factual findings regarding whether Lori held a position
of trust and confidence; and (4) erred by making additional factual
findings that were contrary to the Vulnerable Adult statute. Because we
find that the court properly applied the Vulnerable Adult statute, we do
not address Cathy’s additional arguments. See Glaze v. Marcus, 151 Ariz.
538, 540, 729 P.2d 342, 344 (App. 1986) (stating that this court will uphold
the trial court’s decision if correct for any reason). Accordingly, we find
no error.

III. Evidentiary Issues

¶23 Cathy also contends that various evidentiary mistakes
occurred during the course of trial. We review the “trial court’s ruling
regarding admission or exclusion of evidence . . . [for] a clear abuse of
discretion and resulting prejudice.” Gordon v. Liguori, 182 Ariz. 232, 235,
895 P.2d 523, 526 (App. 1995). “The improper admission of evidence is
not reversible error if the [fact-finder] would have reached the same
verdict without the evidence.” Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85,
88, ¶ 7, 977 P.2d 807, 810 (App. 1998). Put differently, the exclusion of
admissible evidence “is not reversible error if the verdict would have been
warranted even if the evidence had been admitted and its admission
probably would not have changed the result.” Schwartz v. Farmers Ins. Co.
of Ariz., 166 Ariz. 33, 36, 800 P.2d 20, 23 (App. 1990).

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a. Hearsay

¶24 Cathy argues that the superior court erred by admitting and
relying on hearsay accounts of statements Mother made to others. Cathy
claims that the court admitted an overwhelming amount of hearsay
evidence and points to eleven specific occasions, including the admission
of a tape recording, which all generally refer to Mother and Cathy’s
strained relationship.

¶25 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. Ariz. R. Evid. 801(c). Evidence offered to
demonstrate a party’s state of mind is non-hearsay, however, as it is not
offered to prove the truth of the matter asserted. State v. Ramirez, 116 Ariz.
259, 266, 569 P.2d 201, 208 (1977).

¶26 We first note that, in response to a hearsay objection by
Cathy, the court stated “[a]nd these statements, I take them not necessarily
offered to prove the underlying content or the truth of the matter
contained. And therefore they're not hearsay.” Furthermore, Arizona
Rule of Evidence (“Rule”) 803(3) provides a hearsay exception for a
“statement of memory or belief to prove the fact remembered or believed
[if] it relates to the validity or terms of the declarant’s will.” Accord In re
Estate of Pouser, 193 Ariz. 574, 580, ¶ 15, 975 P.2d 704, 710 (1999). Because
we presume that the “court considered only competent evidence in
arriving at its decision,” Kirby v. Rosell, 133 Ariz. 42, 46, 648 P.2d 1048,
1052 (App. 1982), we therefore will not assume that it considered evidence
for improper hearsay purposes. Accordingly, we find that the admission
of the statements was not an abuse of discretion.

¶27 Even if some of the challenged statements constituted
hearsay, we find no prejudice, and therefore no reversible error. Non-
hearsay evidence detailing Mother’s difficult relationship with Cathy was
abundant. Cathy admitted in an email to the family attorney in April
2006, that “I am at a place in my life where I am putting my welfare first”
and in regards to her relationship with Mother that she “expect[ed] to be
blamed and disparaged, and most likely disinherited.” Later, in June
2006, Mother’s attorney sent a letter to Cathy stating that Mother wished
to sever their financial and personal relationship. The letter provided for
various personal property matters and requested that Cathy have no
further contact with Mother. In response, Cathy, through her counsel,
delivered a written “counter-settlement proposal . . . to settle the familial
divorce instigated by [Mother].” Cathy proposed that Mother: (1)

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immediately deed a home and the personal property contained therein to
Cathy; (2) distribute, “in a form and manner acceptable to Cathy,”
$375,000 to each of Cathy’s two sons; and (3) distribute, “in a form and
manner acceptable to Cathy,” $250,000 to Cathy. In exchange, Cathy
would “agree not to raise any issues as to [Mother’s] abilities to handle her
affairs and health care issues.” Cathy subsequently followed up this
proposal with the following message from her attorney, “[s]o that there is
no misunderstanding, in the event [Mother] refuses to agree to a
settlement acceptable to [Cathy], [Cathy] is considering currently raising
formally [sic] questions about [Mother’s] abilities to handle her affairs and
health care issues.” After Mother refused to agree to Cathy’s demands,
Cathy filed a petition for appointment of guardianship over Mother in
July 2007. In her affidavit attached to the petition, Cathy admitted that in
May 2006 she was concerned that Mother may be suffering from
dementia. The admission that Cathy tried in May 2006 to negotiate
property matters with Mother even though she suspected Mother's mental
health was impaired, undermines Cathy’s stated concern for Mother.
After the petition for guardianship was dismissed, Cathy filed another
suit against Mother. Shortly after a failed attempt to serve Mother,
Mother moved from Illinois to Arizona under an assumed name. Given
the wealth of plainly admissible evidence that the relationship between
Cathy and Mother was strained, the court’s admission of the other
evidence claimed to be hearsay did not result in any prejudice.

b. Character Evidence

¶28 Cathy argues that the court erred by excluding evidence
regarding Lori’s character for untruthfulness. She cites ten instances
where the court excluded evidence regarding Lori’s purported character
for untruthfulness, related to representations concerning her business
dealings and also testimony by an expert forensic psychiatrist.

¶29 A witness’s character for untruthfulness may be established
by reputation or opinion evidence. Ariz. R. Evid. 608(a). Specific acts
regarding a witness’s character for untruthfulness may be presented on
cross-examination after a court determines the probative value of the
evidence. Ariz. R. Evid. 608(b). As relevant here, however, “extrinsic
evidence is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for
truthfulness.” Id. Further, the court may not admit irrelevant evidence
and may exclude relevant evidence if its probative value is substantially
outweighed by the danger of such factors as unfair prejudice, undue

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delay, wasting time, or needless presentation of cumulative evidence.
Ariz. R. Evid. 402, 403.

¶30 At trial, when Cathy attempted to introduce evidence
regarding Lori’s business dealings, the court found the evidence was not
probative, stating it was “so far off the subject” and also that Cathy did
not have the time to present the evidence. 6 Cathy also failed to
demonstrate that Lori’s past business dealings were relevant and related
to Lori’s interaction with her family. Therefore, and after considering
Rules 401, 403, and 608, we find that the ruling was not an abuse of
discretion.

c. Admissibility of Recording

¶31 Cathy argues that a recording made by Mother should not
have been admitted because it (1) lacked the proper foundation and
authentication and (2) would have been barred by the Illinois
Eavesdropping Act.

¶32 Rule 901 “governs the sufficiency of an evidentiary
foundation” and requires that “authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent
claims.” State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991) (citing
Ariz. R. Evid. 901(a)). The requirement for foundation may be satisfied
based on an opinion identifying a person’s voice. Ariz. R. Evid. 901(b)(5).

¶33 Here, Mother secretly tape-recorded a meeting between
herself and Sherry Fox, the guardian ad litem assigned to her during the
Illinois guardianship proceeding. Cathy contends that the recording
lacked foundation because no party to the recording was able to lay
foundation. However, at trial, Fox identified both her voice and Mother’s
voice on the recording. Because Fox identified the voices, the superior
court did not abuse its discretion in admitting the recording over an

6 The superior court had set time limits on witness testimony in a pretrial
order. Neither party objected to the time limits. Because Cathy did not
request additional time to question the witness, she waived the issue on
appeal. See Rand v. Porsche Fin. Servs., 216 Ariz. 424, 434 n.8, ¶ 39, 167 P.3d
111, 121 n.8 (App. 2007) (noting that arguments not raised at the trial court
are waived on appeal).

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objection as to foundation. Fox also testified there was a possibility that
the recording was altered. The possibility of alteration, however, only
goes to the weight to be given to the evidence. See Lavers, 168 Ariz. at 386,
814 P.2d at 343 (stating that Rule 901 only requires evidence on which a
fact-finder could reasonably determine authenticity); see also State v. King, 213 Ariz. 632, 640, 146 P.3d 1274, 1282 (App. 2006) (stating that
“discrepancies in the evidence affect the weight of the evidence, not its
admissibility”). Based on the record, we find no abuse of discretion.

¶34 Cathy also contends that the recording is barred because it
violates the Illinois Eavesdropping Act, [720] ILCS § 5/14-1 [to 5/14-9]. 7
Cathy argues that the superior court was obligated to extend full faith and
credit to the statute and because it prohibits the use of a recording in a
civil proceeding without the consent of all the parties to the recording, it
may not be admitted.

¶35 In general, rules of evidence are governed by the law of the
forum state. See Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206, 841
P.2d 198, 201 (1992) (citing Restatement (Second) of Conflict of Laws § 122
(1971) (“Procedural matters are generally governed by the law of the
forum state.”)); see also State v. Superior Court, 154 Ariz. 574, 576, 744 P.2d
675, 677 (1987) (“[R]ules of evidence are procedural in nature.”).
Furthermore, the “Full Faith and Credit Clause does not compel ‘a state to
substitute the statutes of other states for its own statutes dealing with a
subject matter concerning which it is competent to legislate.’” Sun Oil Co.
v. Wortman, 486 U.S. 717, 722 (1988) (quoting Pac. Emp’rs Ins. Co. v. Indus.
Accident Comm'n, 306 U.S. 493 (1939)).

¶36 Rule 402 governs the admissibility of relevant evidence in an
Arizona judicial proceeding. Rule 402 states that all relevant evidence is
admissible unless otherwise provided by “the United States or Arizona
Constitution; an applicable statute; these rules; or other rules prescribed
by the Supreme Court.” Ariz. R. Evid. 402. Cathy did not provide the
superior court or this court with any Arizona statute, rule or case law that
would exclude the recording. As a result, we find that the superior court
properly admitted the recording.

7 Cathy cites to 735 ILCS § 5/14-1 et seq. That citation, however, does not
correspond with the Illinois Eavesdropping statute. We therefore
understand her argument to reference 720 ILCS 5/14-1 to 5/14-9.

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d. Expert Witness Testimony

¶37 Cathy argues that the superior court improperly excluded
her expert witness, a neuropsychologist, from hearing trial testimony and
admitted unqualified expert opinion testimony from Dr. Hummel. We
disagree.

¶38 Rule 615 requires the court, upon request, to exclude
witnesses from hearing other witnesses’ testimony. Rule 615, however,
does not authorize excluding:
(a) a party who is a natural person;

(b) an officer or employee of a party that is not
a natural person, after being designated as the
party's representative by its attorney;

(c) a person whose presence a party shows to
be essential to presenting the party's claim or
defense;

(d) a person authorized by statute to be
present; or

(e) a victim of crime, as defined by applicable
law, who wishes to be present during
proceedings against the defendant.

Ariz. R. Evid. 615.

¶39 The superior court excluded all non-party witnesses from
the trial. The court, however, noted that it would entertain motions
requesting an exception to the ruling. During the proceeding, Cathy
unsuccessfully sought permission to tell her expert, before taking the
stand, about testimony by Dr. Hummel concerning vulnerability that she
believed was undisclosed expert testimony. She was not precluded,
however, from disclosing Dr. Hummel's testimony to her expert witness
during her examination of the expert and asking for her reaction to Dr.
Hummel's testimony.

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¶40 Moreover, Cathy has not demonstrated that her expert falls
within any of the five exceptions to the exclusionary rule. She cites
McGuire v. Caterpillar Tractor Co., 151 Ariz. 420, 425, 728 P.2d 290, 295
(App. 1986), for the proposition that an expert witness may consider the
testimony of other fact witnesses, even if Rule 615 had been invoked. In
McGuire, this court cited Arizona Law of Evidence § 64, which states that
“one party’s expert might be allowed to hear the other party’s expert
testify.” Morris K. Udall & Joseph M. Livermore, Arizona Law of
Evidence § 64 (2d ed. 1982). Although a superior court has the discretion
to allow one expert to listen to another testify, we find no abuse of
discretion given the fact that Cathy was free to tell Dr. Wilson, during Dr.
Wilson's time on the stand, about Dr. Hummel’s testimony and get her
opinion given all the other evidence.

¶41 Cathy next argues that the court erred by questioning Dr.
Hummel. We find Cathy has waived the argument.

¶42 On appeal, an evidentiary issue is waived unless a party
makes a timely objection at trial. Ariz. R. Evid. 103(a)(1)(a) (“A party may
claim error in a ruling to admit or exclude evidence only if the error
affects a substantial right of the party and . . . [the party] timely objects . . .
and states the specific ground, unless it was apparent from the context.”);
Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286-87, ¶ 9,
9 P.3d 314, 317-18 (2000) (“An objection to proffered testimony must be
made either prior to or at the time it is given, and failure to do so
constitutes a waiver.”). Here, the following exchange occurred at trial:

THE COURT: During the period that you saw
Shirley Cole, do you believe she was
vulnerable; by that I mean unable to protect
herself from abuse, neglect, or exploitation by
others in connection with any physical or
mental impairment?

[DR. HUMMEL]: No.

THE COURT: Do you believe Shirley was
impaired by reason of mental illness, memory
deficit, mental disorder, physical illness, or
disability to the extent that she lacked
sufficient understanding or capacity to make or

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Decision of the Court

communicate responsible decisions concerning
her person or affairs?

THE WITNESS: No.

¶43 Cathy failed to object during the questioning or immediately
afterwards. 8 She contends, however, that she was unable to object to the

questions because the court prohibited her attorneys from consulting one
another and “lodg[ing] a proper objection.” After the court concluded its
questioning of the witness, however, the following exchange occurred
between the court and Cathy’s attorneys:

THE COURT: Do you have any questions you
want to ask in connection with the questions I
asked, Mr. Hargrove?

MR. HARGROVE: Yes.

MR. CHANEN: Could we have a moment,
Your Honor?

THE COURT: Think he can’t handle it alone?

MR. CHANEN: It caught us by surprise that
you asked [Dr. Hummel] that question.

THE COURT: I may ask a lot of questions. I
do that and I will do that.

MR. CHANEN: I wasn’t —

THE COURT: Go ahead. If you have any
questions, Mr. Hargrove, you just go right
ahead.

8 Rule 704(a) provides that an opinion by an expert witness “is not
objectionable just because it embraces an ultimate issue.” Ariz. R. Evid.
704(a).

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Decision of the Court

After the exchange, Cathy, by her lawyer, questioned Dr. Hummel
regarding his knowledge of the legal standard for determining a
vulnerable adult. Given that Cathy could have then objected to the court’s
questions, the record does not support her contention that the court
precluded any objection. As a result, the issue is waived on appeal.

¶44 Even if the issue was not waived, we find no error because
Rule 704 allows an expert to give an opinion on an ultimate issue if it will
assist the trier of fact. Webb v. Omni Block, Inc., 216 Ariz. 349, 353, ¶ 13, 166
P.3d 140, 144 (App. 2007). Because the judge asked the question, we
presume it was designed to help him decide one of the many issues
presented during the course of the trial.

¶45 Moreover, we find no prejudice by the questions or Dr.
Hummel’s testimony because the record otherwise supports the court’s
finding that Mother was not a vulnerable adult. In addition to Dr.
Hummel, two other treating physicians testified concerning Mother’s
mental and physical conditions. Dr. Dunal, Mother’s primary care
physician, testified that, although Mother suffered from various chronic
medical conditions, the conditions were controllable. She further testified
that Mother's mental status was “exceedingly high functioning.” In
addition, Mother’s psychiatrist, Dr. Kreiner, testified that, based on her
evaluations of Mother, she lacked any mental or cognitive impairment.
Therefore, we find no reversible error in the admission of Dr. Hummel’s
testimony.

ATTORNEYS’ FEES

¶46 Lori requests attorneys’ fees on appeal pursuant to A.R.S.
§ 14-1105(A) and (C). Subsection (A) allows a court to award a just
amount of fees and costs under the circumstances upon a finding of
unreasonable conduct. A.R.S. § 14-1105(A). Subsection (C) allows the
court to consider other remedies to mitigate any financial burden on the
decedent’s estate “as a result of unjustified court proceedings.” A.R.S.
§ 14-1105(C). Although Cathy’s opening brief misquoted Arizona law,
supra ¶ 9 n.4, this court caught the misattribution. As a result, and in the
exercise of our discretion, we decline Lori’s request for fees, but will
award her costs on appeal upon compliance with ARCAP 21.

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Decision of the Court

CONCLUSION

¶47 Based on the foregoing, we affirm the judgment.

:MJT

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