Keland v. Moore

NOTICE: NOT FOR PUBLICATION.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:

ANDREA KRISTINE KELAND aka ANDREA KRISTINE KELAND
MOORE, Deceased.
_________________________________

KAREN HENRIETTA KELAND, Appellant,

v.

ALBERT LEE MOORE III, as Personal Representative of the ESTATE OF
ANDREA KRISTINE KELAND, Appellee.

No. 1 CA-CV 13-0605
FILED 10-14-2014

Appeal from the Superior Court in Yavapai County
No. P1300PB20080041
The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

Levin Schreder & Carey, Ltd., Chicago
By David E. Lieberman

Kottke Law Firm, PLC, Prescott
By Christopher L. Kottke
Tiffany & Bosco, PA, Phoenix
By James A. Fassold, Natalya Ter-Grigoryan
Co-counsel for Appellant

Prescott Law Group, PLC, Prescott
By J. Andrew Jolley, Lindsay H. F. Odell
Counsel for Appellee

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.

H O W E, Judge:

¶1 Karen Henrietta Keland (“Henni”) appeals the superior
court’s decision to close the estate of her deceased sister, Andrea Kristine
Keland (“Kristi”). Henni claims that Kristi bequeathed to her certain Native
American baskets and artwork that had been in the Arizona ranch that
Kristi shared with her husband, Albert Lee Moore III (“Tres”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Kristi and Tres lived on an Arizona ranch owned by Indian
Rock Land & Cattle, LLC (“Indian Rock”), which the couple controlled.
When Kristi died in December 2007, she left a $54 million estate, and Tres
was appointed personal representative. Kristi’s will bequeathed her
personal property to her sisters:

All my jewelry, pictures, books, house furniture and
furnishings, clothing, automobiles and articles of household
or personal use or ornament of all kinds not effectively
disposed of by the above provisions to . . . my sisters,

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Katherine Nikolina Keland and [Henni] . . . to be divided
equally as they decide.[1]

¶3 Attorney Tom Abendroth represented Kristi during her life,
represented Tres after Kristi’s death, and represented Johnson Bank—
trustee of the Andrea Kristine Keland Trust (“the trust”). In early 2008,
Abendroth met with Tres and Henni to discuss the distribution of Kristi’s
personal property. According to Abendroth, Tres and Henni agreed to
work together to distribute Kristi’s personal property.

¶4 In summer 2008, Henni and Tres visited the ranch so that
Henni could select personal property that she wanted. Abendroth sent a
letter to Tres, stating that Henni would disclaim all of Kristi’s personal
property except certain artwork, jewelry, and a few collectibles, and that
the remainder would pass to the trust.

¶5 In July and August 2008, Abendroth requested that Henni
provide descriptions of the personal property taken from the estate and
disclaim her interest in the remaining items. Abendroth wrote to Tres’s
attorney in September 2008, expressing his understanding that Henni had
not fully disclaimed Kristi’s personal property and that Henni wanted
additional items. He asserted that they needed to identify jointly owned
property and property Tres owned. In January 2009, Tres wrote to Johnson
Bank, explaining how he viewed—and would treat—the personal property,
unless someone objected. The letter stated:

The furniture and other personal belongings that Kristi
purchased for our home (including the woven baskets and
other Native American art) were purchased for both of us,
and are joint property. Kristi sometimes referred to the
baskets as a back-up retirement fund: if other income dried
up, we could sell the baskets, or I could sell the baskets if I
survived her, to pay for living expenses.

In February 2009, Abendroth again sent Henni a letter asking that she
disclaim her interest in Kristi’s personal property.

1 The original bequest included Kristi’s brother. Kristi subsequently
removed her brother as a beneficiary under the will. Kristi’s sister,
Katherine N. Keland, disclaimed her interest in the bequest.

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¶6 On October 28, 2009, Henni wrote to Abendroth, Johnson
Bank, and Johnson Keland Management, Inc. (“the family office”)2, stating
that she had retained counsel to help administer Kristi’s estate. She
requested estate-related information, including the estate documents,
appraisals, certificates of insurance, tax returns, inventories, and
accountings.

¶7 In January 2010, Henni’s attorney wrote to Abendroth that
Kristi’s tangible personal property should be distributed solely to Henni
pursuant to Kristi’s estate documents and her premarital agreement with
Tres.3 Henni’s attorney also demanded delivery of all of the Native
American baskets to Henni’s Chicago residence. In July 2010, Abendroth
sent Henni’s attorney a document showing that Indian Rock maintained an
insurance policy for household personal property in the Arizona ranch.

¶8 On May 10, 2011, Tres petitioned to approve the first and final
accounting for Kristi’s estate. Henni objected, arguing that pursuant to
Kristi’s will, she was entitled to all of Kristi’s personal property located at
the Arizona ranch. Henni contended that Kristi had purchased the
household property with her individual funds and, pursuant to a
premarital agreement, the property therefore remained her individual
property. Henni asserted that Tres had misappropriated to himself the
household items and the collection of Native American baskets and
artwork.

¶9 The court conducted a two-day evidentiary hearing to
determine whether Indian Rock or Kristi owned the baskets. Henni testified
that Kristi had told her that she was leaving her personal belongings to
Henni and that Abendroth confirmed that she had inherited the personal
property. Henni acknowledged that she did not know who owned the
personal possessions in the Arizona ranch and that she knew nothing about
Indian Rock.

2 Johnson Keland Management, Inc. provides financial and other
services to members of the Johnson and Keland families, who own the
company.

3 The premarital agreement provided that joint property with right of
survivorship would become the property of the survivor in the event one
of the spouses died, but that “[t]he interest of the decedent in all other Joint
Property will be administered, descend and be distributed as if the survivor
predeceased the decedent.”

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¶10 Abendroth testified that Indian Rock owned the baskets
because the casualty insurance policies covered household items.
Abendroth testified that Tres produced the insurance policy in response to
his questions regarding ownership and that upon receiving the policy he
verified that the policy was in effect when Kristi died. He also noted that
nothing else existed to establish ownership.

¶11 Tres testified that he believed the personal property belonged
to him because the items were in the home that he shared with Kristi, Indian
Rock owned the ranch, and Indian Rock became his when Kristi died. Tres
also testified that the insurance policy resulted from discussions with his
insurance agent. Finally, he testified that he and Kristi had collected the
baskets both together and separately, and that Indian Rock may have
purchased some through its own checking account.

¶12 Without entering findings of fact and conclusions of law, the
superior court entered judgment in favor of the estate and the personal
representative, denied Henni’s objections, approved the final accounting,
and closed the estate. The court denied Tres’s request for attorneys’ fees
under Arizona Revised Statutes (“A.R.S.”) section 12-349 and section 14-
1105.

DISCUSSION

¶13 Henni argues that the superior court erred in approving
Tres’s distribution of the estate because evidence indicating that Indian
Rock insured the baskets was insufficient to support the court’s finding that
Indian Rock owned the items. We view the evidence in the light most
favorable to upholding the superior court’s judgment, In re Estate of Pouser,
193 Ariz. 574, 576 ¶ 2, 975 P.2d 704, 706 (1999), and will affirm if any
evidence supports the judgment, Inch v. McPherson, 176 Ariz. 132, 136, 859
P.2d 755, 759 (App. 1992). We do not reweigh the evidence, but determine
only if the record contains evidence from which a reasonable person could
reach the same result as the superior court. Pouser, 193 Ariz. at 579 ¶ 13, 975
P.2d at 709.

¶14 The insurance document and Tres’s testimony provide
sufficient evidence to support the superior court’s finding that Indian Rock
owned the baskets. Tres presented an insurance document from Farm
Bureau Financial Services as evidence that Indian Rock owned the personal

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property at the Arizona ranch.4 The insurance document contained a cover
letter, which referenced “policy number 7618783 Indian Rock And Cattle
LLC,” identified the policy as being for home, auto, and ranch, and noted
that the policy was effective April 20, 2007, expired April 20, 2010, and had
experienced no lapses. For each dwelling on the ranch, the policy listed
coverage for “Household Personal Property” in amounts ranging from
$56,850 to $235,850. Tres testified that he had told the insurance agent to
insure the Indian baskets. He also testified that, except for the baskets, no
personal property on the premises was worth the amount of policy
coverage. In addition, Tres testified that he and Kristi collected the baskets
together, that they each purchased some of the baskets, and that Indian
Rock may have purchased some of the baskets.

¶15 Henni argues that the insurance document is not evidence
that Indian Rock owned the baskets because the insurance document is
merely an application form pertaining to a policy effective April 20, 2009,
sixteen months after Kristi died. Henni bases this argument on a stated
effective date of April 20, 2009, that appears under “General Policy
Information” within the insurance document. The attached cover letter,
however, explains that the policy became effective on April 20, 2007—
before Kristi’s death—and that no lapse in coverage had occurred. In
addition, Tres testified that he and Kristi had switched insurance
companies in 2007, that he had met with the agent, and that the document
reflected what he told the agent he wanted in the policy. He further testified

4 Henni complains in passing, without argument or authority, that the
superior court erred in admitting the document because it had not
authenticated the document under Arizona Rule of Evidence 901. Henni’s
failure to present any substantive argument or authority on the issue has
waived any argument on the document’s admissibility. See Sulpher Springs
Valley Elec. Coop., Inc. v. Verdugo, 14 Ariz. App. 141, 145, 481 P.2d 511, 515
(1971) (finding that issue deemed abandoned where presented for review
but not supported by arguments or authorities). In any event, Rule 901
permits authentication by testimony from a witness with knowledge that
an item is what is claimed. Ariz. R. Evid. 901(b)(1). Tres testified that when
he established the policy, he had met with the insurance agent and
explained to the agent why he wanted the policy and that the admitted
exhibit was the resulting policy. Abendroth testified that the document was
what the insurer had provided in response to their request for information
on the policy when Kristi died. The court did not clearly abuse its discretion
in admitting the document. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493,
506, 917 P.2d 222, 235 (1996) (holding that court’s ruling on admissibility of
evidence reviewed for clear abuse of discretion).

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that the policy never expired and was renewed annually and that he could
not recall if he ever changed the terms of the policy. Accordingly, the policy
outlined in the exhibit was effective when Kristi died.

¶16 Henni further asserts that the federal estate tax return that
Tres and Abendroth signed demonstrated that Indian Rock did not own the
baskets. The tax return listed the baskets as jointly owned property and
described Indian Rock as having a sole asset of land and improvements.
The tax return, however, was prepared in March 2009, before the nature of
the dispute over the baskets was known and before any need arose to
establish ownership of that property. Abendroth received the insurance
document in early 2010, so when the tax return was prepared, Abendroth
did not yet have the information that Indian Rock insured the baskets,
which led him to subsequently conclude that Indian Rock owned the
personal items. The tax return therefore does not disprove that Indian Rock
owned the baskets.

¶17 Henni also asserts that Tres and Abendroth made repeated
admissions that the baskets belonged to Kristi. Henni points to letters that
refer to “Kristi’s woven basket collection,” and “Kristi’s Native American
Western Art.” Even if these statements could be construed as admissions,
they, like the tax return, were made before autumn 2009 and therefore
before the inquiry regarding ownership that produced the information that
Indian Rock insured the baskets. Although Tres testified that he had
directed the insurance agent to include the baskets in the policy, which
would suggest he should have known that Indian Rock owned them, a non-
lawyer like Tres was unlikely to have distinguished between ownership by
himself and Kristi, and ownership by Indian Rock, which they owned
together.

¶18 Henni further argues that the Petition for Approval of
Accounting filed after receipt of the insurance documents constitutes an
admission that the baskets belonged to Kristi. That document includes in
its list of “assets of Deceased Person’s Estate,” “Furniture and Household
Items Located in residence held by [Indian Rock], Prescott, AZ - ½ interest,”
and “Collection of American Indian baskets and artwork Located in
residence held by [Indian Rock] - ½ interest.” Henni argues that the baskets
would not have been listed in that fashion if Indian Rock owned them.
Abendroth, however, testified that he and local counsel decided to include
the personal property in the itemization of assets even though Indian Rock
owned them because Henni had hired a lawyer to dispute the disposition
of those items and they wanted to put them before the court.

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¶19 Henni’s arguments do not invalidate the insurance
document’s evidentiary value. Moreover, Henni presented no evidence to
show that anyone other than Indian Rock owned the baskets. Once Tres
presented a prima facie case that his treatment of the estate was
appropriate, Henni had the burden to present contradictory evidence. See
Lefkowitz v. Arizona Trust Co., 10 Ariz. App. 415, 420, 459 P.2d 332, 337 (1969)
(holding that when an estate distribution is challenged, the estate’s
representative bears the burden of presenting a prima facie case that his
action was proper, after which the burden rests with the objector to present
contradictory evidence). That contrary evidence is lacking here.

¶20 Viewed in the light most favorable to supporting the superior
court’s verdict, the insurance document and Tres’s testimony constitute
sufficient evidence to prove that Indian Rock owned the baskets. The
inclusion of the household personal property on Indian Rock’s insurance
policy permits the inference that it owned the baskets and Tres’s testimony
corroborates that inference. Because the record contains evidence to
support the superior court’s judgment, we affirm.5

¶21 Both parties seek an award of costs and attorneys’ fees on
appeal pursuant to A.R.S. §§ 12-341, -349. As the prevailing party, Tres is
awarded costs upon compliance with ARCAP 21. Because neither party
presented any argument in support of attorney’s fees under A.R.S. § 12-349,
we deny both requests.

¶22 Henni also requests attorneys’ fees pursuant to A.R.S. § 14-
3712. Even assuming that A.R.S. § 14-3712 authorizes an award of attorneys’
fees, having found in favor of Tres, we deny Henni’s request. We also deny
Tres’s request for attorneys’ fees pursuant to A.R.S. § 14-1105.

5 Henni’s dispute was limited to the personal property in the Arizona
ranch. Because we affirm the superior court’s determination that Indian
Rock owned the property and therefore was not part of Kristi’s estate,
Henni’s arguments based on Tres’s alleged failure to properly inventory
and distribute that property are moot.

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CONCLUSION

¶23 For the foregoing reasons, we affirm.

:gsh

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