Almada Negrete v. Simonson

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

RICHARD A. SIMONSON, Deceased.

XOCHIL ALMADA-NEGRETE, Plaintiff/Appellant

v.

MICHAEL SIMONSON, et al., Defendants/Appellees.

No. 1 CA-CV 22-0152
FILED 12-20-2022

Appeal from the Superior Court in Maricopa County
Nos. CV2020-054972
PB2018-003684
The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED

COUNSEL

Andersen PLLC, Scottsdale
By Mark W. Hawkins
Counsel for Plaintiff/Appellant
Tiffany & Bosco PA, Phoenix
By Tina M. Ezzell
Counsel for Defendants/Appellees, Simonsons and the Estate

Bryan Cave Leighton Paisner LLP, Phoenix
By Jacob A. Maskovich, Sara A. Boucher
Counsel for Defendants/Appellees, Merrill Lynch; Pierce, Femer & Smith Inc.;
Chins & Bank of America

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Xochil Almada-Negrete appeals the probate court’s dismissal
of her petitions to remove a personal representative and appoint herself as
either the personal representative or a special administrator of an estate.
She also appeals the probate court’s dismissal with prejudice of claims she
raised on behalf of the estate. For the following reasons, we affirm.

BACKGROUND

¶2 On September 13, 2018, Richard Simonson (the decedent)
succumbed to pancreatic cancer. Two weeks later, Michael Simonson
(Simonson), the decedent’s brother and sole intestate heir, applied for an
informal appointment as the personal representative to administer the
decedent’s estate (the probate matter). Upon his appointment, Simonson
published a notice to creditors, demanding the presentation of any claims
against the decedent’s estate within four months of the notice’s publication.

¶3 During those four months, Almada-Negrete submitted a
claim against the estate in the principal amount of $420,000. As outlined in
her notice of claim, Almada-Negrete asserted that the decedent issued her
a check for $420,000 less than a week before his death and that “someone
other than” the decedent placed a stop payment on it. To substantiate her
claim, Almada-Negrete attached copies of the signed, dated (September 7,
2018) check and a contemporaneous note written on the back of a Merrill
Lynch envelope by the decedent.

2
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

¶4 After submitting her claim, Almada-Negrete petitioned to set
aside Simonson’s appointment and requested the formal appointment of a
personal representative, asserting she “has priority.” In her petition,
Almada-Negrete explained that the decedent frequently gave her monetary
gifts (“checks in envelopes”) during their six-year romantic relationship
and recounted that upon giving her the $420,000 check a few days before
his death, the decedent instructed her to deposit it “that day.” Although she
attempted to follow this instruction, Almada-Negrete stated she could not
do so because Simonson allegedly instructed the decedent’s bank (Merrill
Lynch) to stop payment on the check. Contending that the decedent’s check
and handwritten note, together, “constitute a holographic will,” Almada-
Negrete asserted that she is a “devisee” entitled to priority of appointment
as the personal representative. Alternatively, Almada-Negrete argued that
the decedent issued her “a bad check,” entitling her to damages for twice
the amount of the check.

¶5 In his objection to the petition, Simonson acknowledged
Almada-Negrete’s relationship with the decedent and the legitimacy of
both the check and the handwritten note. But he denied placing a stop
payment on the check and again asserted that he was the decedent’s sole
heir.

¶6 After lodging his objection, Simonson moved for summary
judgment. First, arguing that the check and handwritten note, as a matter
of law, do not constitute a valid holographic will. Second, denying that the
decedent wrote a “bad check” as defined under the governing statute,
A.R.S. § 12-671.

¶7 In response to the motion for summary judgment, Almada-
Negrete withdrew her “bad check” claim but maintained that she is the
devisee of the decedent’s holographic will. After full briefing and oral
argument, the probate court granted summary judgment in Simonson’s
favor and dismissed Almada-Negrete’s petition without prejudice.
Thereafter, Simonson moved to amend the summary judgment order to a
dismissal with prejudice, and Almada-Negrete moved to amend her
petition to add claims of completed intervivos gift and wrongful dishonor
of a negotiable instrument. The probate court granted Simonson’s motion
to amend the order and denied Almada-Negrete’s motion for leave to
amend the petition, concluding “that the proposed amendments would be
futile.” Specifically, the probate court reasoned that the check was neither
deposited, as necessary to support a claim for a completed intervivos gift,
nor a contract, as required to support a claim for wrongful dishonor of a
negotiable instrument.

3
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

¶8 Meanwhile, under a separate cause number (the civil case),
Almada-Negrete filed a complaint against Merrill Lynch, Pierce, Fenner &
Smith (Merrill Wealth Management) and a Merrill Lynch employee (and
his wife) (collectively, the Merrill Lynch Defendants), and Simonson (and
his wife), alleging that the Merrill Lynch Defendants and Simonson, “acting
in concert,” withheld the monies the decedent had bestowed to her. Based
on these allegations, Almada-Negrete raised claims of completed gift,
wrongful dishonor of a negotiable instrument, fraud, conversion,
conspiracy to commit fraud, and breach of fiduciary duty. The Merrill
Lynch Defendants moved to dismiss. After full briefing and oral argument,
the superior court dismissed Almada-Negrete’s claims for completed gift,
wrongful dishonor of a negotiable instrument, conversion, and breach of
fiduciary duty against the Merrill Lynch Defendants without prejudice. The
superior court denied the Merrill Lynch Defendants’ motion in part,
however, ordering Almada-Negrete to plead with particularity the
surviving claims of fraud and conspiracy to commit fraud.

¶9 Following the superior court’s rulings in the civil case,
Almada-Negrete moved for a new trial, relief from judgment, and leave to
file an amended complaint in the probate case. Pointing to her “new” claims
against the Merrill Lynch Defendants, the probate court granted Almada-
Negrete both relief from judgment (vacating its order dismissing her
petition with prejudice) and leave to amend. After Almada-Negrete filed an
amended petition, the probate court granted her request to consolidate the
probate and civil cases.

¶10 After consolidation, the Merrill Lynch Defendants and
Simonson separately moved to dismiss the amended complaint. Almada-
Negrete, in turn, petitioned for formal appointment as a special
administrator of the decedent’s estate. After full briefing and oral
argument, the probate court entered final judgment, granting both motions
to dismiss. Concerning the Merrill Lynch Defendants, the probate court
found that Almada-Negrete lacked standing to bring claims on behalf of the
decedent’s estate because she was not the appointed personal
representative. Turning to her claims against Simonson, the probate court
referenced its prior rulings - that the check and handwritten note do not
constitute a holographic will and that an undeposited check is not a
completed gift - and determined that Almada-Negrete “has no standing to
pursue appointment as personal representative.” The probate court
likewise found that “the appointment of a special administrator would
provide no benefit to the estate.” Therefore, Almada-Negrete lacked the
authority to pursue her claims against Simonson. Almada-Negrete timely
appealed.

4
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

DISCUSSION

¶11 As a preliminary matter, we consider the scope of this appeal.
Rather than challenge the probate court’s dismissal of her completed gift,
wrongful dishonor, conversion, fraud, and breach of fiduciary duty claims,
Almada-Negrete contests only its dismissal of those claims with prejudice.
That is, she contends the probate court erred by failing to hold an
evidentiary hearing on her petitions to remove Simonson as the personal
representative and appoint her as either the personal representative or a
special administrator. Absent an evidentiary hearing, she argues the
dismissal of her claims with prejudice, based primarily on her purported lack
of standing to pursue claims on behalf of the decedent’s estate, was
premature. Contrary to the probate court’s findings, Almada-Negrete
asserts that she has the authority to pursue claims on the estate’s behalf as
a devisee, beneficiary, creditor, and interested person.

¶12 We review de novo an order granting a motion to dismiss. In
re Estate of Olsen, 251 Ariz. 209, 210, ¶ 8 (App. 2021). On review, we accept
as true all well-pled factual allegations and reasonable inferences
therefrom, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008), and
will affirm only if, as a matter of law, the petitioner “would not be entitled
to relief under any interpretation of the facts,” Coleman v. City of Mesa, 230
Ariz. 352, 356, ¶ 8 (2012) (quotation and citation omitted). We will uphold
the probate court’s ruling if it is correct for any reason. See Forszt v.
Rodriguez, 212 Ariz. 263, 265, ¶ 9 (App. 2006).

¶13 First, relying on several statutes and a probate rule, Almada-
Negrete contends that the probate court erred by dismissing with prejudice
her petition to remove Simonson as personal representative and appoint
her in his stead or as a special administrator without holding an evidentiary
hearing.1 We consider the requirements outlined in the cited authorities.

¶14 Under A.R.S. § 14-3611(A), “[a] person interested in [an]
estate may petition for removal of a personal representative for cause at any
time.” Upon the filing of such a petition, “the court shall fix a time and place
for a hearing,” and “[n]otice shall be given by the petitioner to the personal
representative.” Id. (emphasis added).

1 We find no merit to Simonson’s contention that Almada-Negrete
waived any right to an evidentiary hearing by failing to request one. The
record reflects that Almada-Negrete sought an evidentiary hearing before
the probate court ruled on the motions to dismiss.

5
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

¶15 Section 14-3203(A) establishes the priority of appointment for
a personal representative “in the following order”: (1) “[t]he person with
priority as determined by a probated will”; (2) the decedent’s surviving
spouse who is a devisee; (3) the decedent’s other devisees; (4) the decedent’s
surviving spouse; (5) other heirs; (6) the department of veterans’ services, if
the decedent was a veteran (or spouse or child of a veteran); (7) any creditor;
or (8) a public fiduciary. A.R.S. § 14-3203(A). Notwithstanding statutory
priority, “[a] person is not qualified to serve as a personal representative”
if found “unsuitable” by a court “in formal proceedings.” A.R.S. § 14-
3203(F)(2) (emphasis added).

¶16 Similar to A.R.S. § 14-3611(A), the statute governing special
administrators authorizes a court to appoint a special administrator “on the
petition of any interested person . . . , after notice and hearing,” if such
“appointment is necessary to preserve the estate or to secure its proper
administration.” A.R.S. § 14-3614(2) (emphasis added). And, under the
Arizona Rules of Probate Procedure (Probate Rule) 15(a), any written
request for substantive relief “usually requir[es] advance notice to
interested persons and a hearing.” (Emphasis added.)

¶17 Although the cited statutes and rule mandate, or at least
contemplate, notice and a hearing, none require an evidentiary hearing. In
this case, the probate court held multiple hearings on Almada-Negrete’s
petitions before dismissing them.

¶18 Notably, Almada-Negrete fails to identify any prejudice she
suffered from the lack of an evidentiary hearing, nor could she. At that stage
of the proceedings, the probate court was required to accept each of the
petitions’ well-pled allegations as true – meaning Almada-Negrete carried
no evidentiary burden. To be clear, for purposes of considering the motions
to dismiss, the probate court had to presume as true Almada-Negrete’s
allegations that: (1) the decedent issued her the $420,000 check, (2) the
decedent handwrote the note on the envelope, (3) the decedent told her to
deposit the check “that day,” (4) she attempted to deposit the check, (5) she
was unable to deposit the check because a Merrill Lynch employee
contacted Simonson and he provided false information, leading the
employee to stop payment on the check, (6) Simonson blocked the transfer
of the monies the decedent had attempted to gift her to preserve the monies
for himself as the decedent’s sole intestate heir, and (7) Merrill Lynch
stopped payment on the check because Simonson had a large loan with its
parent company, Bank of America, and would “direct[ly] benefit [from
Simonson receiving the money] in the form of increased collateral.” Because
the superior court was required to accept these allegations as true for

6
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

purposes of resolving the motions to dismiss, it is difficult to see how an
evidentiary hearing would be useful, let alone necessary. Given the
procedural posture and the absence of any legal authority requiring an
evidentiary hearing, we reject Almada-Negrete’s contention that the probate
court was procedurally barred from dismissing her petitions.

¶19 Next, Almada-Negrete challenges the probate court’s
determination that she lacked standing to petition for Simonson’s removal
as personal representative and request her appointment as the personal
representative or a special administrator. Sections 14-3611(A) and -3614(2)
limit the persons who may challenge the appointment of a personal
representative or seek appointment as a special administrator to
“interested” persons. And, as relevant here, A.R.S. § 14-3203 limits the
priority of appointment to devisees.

¶20 As defined by statute, an “[i]nterested person” includes a
devisee, beneficiary, creditor, or any “other person who has a property right
in or claim against . . . the estate of a decedent.” A.R.S. § 14-1201(33). A
“devisee” is “a person designated in a will to receive” real or personal
property. A.R.S. § 14-1201(14), (15). As relevant to this case, a beneficiary is
a devisee or donee “designated in a governing instrument” – “a deed, will,
trust, insurance or annuity policy, account with pay on death designation,
security registered in beneficiary form, pension, profit sharing, retirement
or similar benefit plan, instrument creating or exercising a power of
appointment or a power of attorney or a dispositive, appointive or
nominative instrument of any similar type.” A.R.S. § 14-1201(4), (27). While
A.R.S. § 14-1201 does not define creditor, it defines claims as “liabilities of
the decedent . . . whether arising in contract, in tort or otherwise, and
liabilities of the estate that arise at or after the death of the decedent.” A.R.S.
§ 14-1201(8).

¶21 First, we consider Almada-Negrete’s claim that she is a
devisee, challenging the superior court’s finding that the check and
handwritten note, together, do not constitute a holographic will.2 A will is
“valid as a holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.” A.R.S. § 14-

2 Simonson asserts that this court lacks jurisdiction to consider the
probate court’s holographic-will ruling because Almada-Negrete did not
specifically reference that ruling in her notice of appeal; instead, citing only
the final judgment. Because the probate court incorporated its holographic-
will ruling as a legal predicate for its final judgment, we find no merit to
Simonson’s jurisdiction claim.

7
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

2503. “It is . . . well established that a holographic instrument, to serve as a
will, must demonstrate that the testator had testamentary intent.” Blake’s
Estate v. Benza, 120 Ariz. 552, 553 (App. 1978); In re Johnson’s Estate, 129 Ariz.
307, 309 (App. 1981) (“The statutory requirement that the material
provisions be drawn in the testator’s own handwriting requires that the
handwritten portion clearly express a testamentary intent.”).
“Testamentary intent requires that the writing, together with such extrinsic
evidence as may be admissible, establish that the decedent intended such
writing to dispose of his property upon his death.” Blake’s Estate, 120 Ariz. at
553 (emphasis added).

¶22 It is uncontested that the decedent issued the $420,000 check
to Almada-Negrete, placed it in a Merrill Lynch envelope, and handwrote
the following note on the back of the envelope before giving it to her:

Hello to the most beautiful love in the whole world. So sad
my amor Xochilita this may be “last” envelope. Ricardo has
plenty more babe but me can’t figure out your rico paydates.
Ha ha ha. I think its easier this way anyway instead of wasting
all those envelopes just uno grande one is perfecto. When I
wrote perfecto English you couldn’t read this [expletive] so I
guess its even worse now. Asta luego mi amor. I will always
love you todo mi corazon. Yes mucho [illegible].

The question is whether the decedent had the requisite testamentary intent.
On its face, nothing in the handwritten note demonstrates an intent to
dispose of the decedent’s property upon his death. Nor does the check, dated
the day it was issued, manifest an intent to delay a transfer of monies until
the decedent’s death. And, according to Almada-Negrete, the decedent
instructed her to deposit the check immediately – “that day” – belying any
assertion that the decedent wrote the check with the intent to dispose of the
property upon his death. Given these undisputed facts, the probate court did
not err by determining that the check and handwritten note do not
constitute a valid holographic will. Because Almada-Negrete is not “a
person designated in a will” or other “governing instrument” to receive real
or personal property, she is neither a devisee nor a beneficiary for standing
purposes. A.R.S. § 14-1201(4), (14), (15), (27).

¶23 The remaining issue is whether Almada-Negrete qualifies as
a creditor or, more generally, someone “who has a property right in or claim
against . . . the estate of a decedent.” A.R.S. § 14-1201(33). While “creditor”
is commonly defined as “any person to whom a debt is owed,” Snyder v.
Tucson Police Pub. Safety Pers. Ret. Sys. Bd., 201 Ariz. 137, 141, ¶ 12 (App.

8
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

2001) (internal quotation and citation omitted), “claim” is defined more
broadly as a liability of the decedent, A.R.S. § 14-1201(8), which may
encompass a legal obligation apart from a debt. Here, the decedent neither
owed Almada-Negrete a debt nor a legal duty. Stated differently, accepting
Almada-Negrete’s allegations as true, as we must, the decedent attempted
to transfer monies to her voluntarily, but in so doing, he neither incurred a
debt nor assumed a liability. Put simply, had the decedent issued the stop
payment on the $420,000 check, Almada-Negrete would have had no legal
recourse against him. Thus, Almada-Negrete qualifies as neither a creditor
nor a claim-holder against the decedent’s estate.

¶24 Having failed to qualify as an “interested” person in any of its
definitional forms, Almada-Negrete lacked standing to petition to remove
Simonson as a personal representative and seek an appointment as a special
administrator. Likewise, she lacked priority for an appointment as a
personal representative. Lacking standing and priority for the
appointment, Almada-Negrete had no authority to pursue claims against
Simonson and the Merrill Lynch Defendants on the estate’s behalf. 3
Accordingly, the probate court did not err by dismissing her motions with
prejudice.4

3 To the extent Almada-Negrete cites In re Estate of Stewart, 230 Ariz.
480 (App. 2012), for the proposition that she has standing independent of
the statutory “interested” person requirement, her reliance is misplaced. In
that case, a disinherited child sought to invalidate in terrorem clauses that
arguably compelled his siblings to withhold discovery in his action to
contest their father’s will. Id. at 482–83, ¶¶ 3–10. This court determined that
the disinherited child had “adequately alleged injury from enforcement of
the clauses . . . [and] therefore had standing to contest” them. Id. at 483,
¶ 10. Consistent with the probate court’s reasoning, we find Stewart readily
distinguishable from the circumstances here. Most notably, Stewart did not
involve a petition to remove or appoint a personal representative or special
administrator. Moreover, in that case, the disinherited child would become
a beneficiary or devisee – an interested party – if able to successfully
challenge his father’s will. Here, there are no circumstances under which
Almada-Negrete may become an “interested” person in the decedent’s
estate, as that term is statutorily defined.
4 In her reply briefs, Almada-Negrete alternatively argues that the
probate court, having been notified of her allegations, had an obligation to
appoint a public fiduciary. Because Almada-Negrete failed to raise this
claim in her opening brief, we do not address it. In re Marriage of Pownall,

9
 ALMADA-NEGRETE v. SIMONSON, et al.
Decision of the Court

CONCLUSION

¶25 For the foregoing reasons, we affirm. Almada-Negrete has
requested her attorney’s fees and costs under A.R.S. § 14-11004 (stating a
trustee “is entitled to reimbursement from the trust” for attorney’s fees and
costs arising out of “the good faith defense or prosecution of a judicial . . .
proceeding involving the administration of the trust”), and In re Estate of
Brown, 137 Ariz. 309, 314 (App. 1983) (holding that a probate court may,
“upon a consideration of all of the facts and equities,” award attorney’s fees
“from the assets of the estate in the event that it feels, in the proper exercise
of its discretion, that such fees are appropriate and justified”). We deny her
request. Simonson requests an award of his attorney’s fees under A.R.S.
§ 14-1105(A) (authorizing a court to order a person who has engaged in
“unreasonable conduct” that caused a decedent’s estate to incur expenses
to pay for some or all of the expenses) and A.R.S. § 12-349(A)(1), (3)
(requiring a court to assess reasonable attorney’s fees against a party who
brings a claim without substantial justification or unreasonably expands or
delays the proceeding). We do not find Almada-Negrete’s arguments
manifestly unreasonable, groundless, or brought in bad faith and deny
Simonson’s request. As the prevailing parties, however, we award
Simonson and the Merrill Lynch Defendants their costs under A.R.S. § 12-
342 upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

197 Ariz. 577, 583, ¶ 25 n.5 (App. 2000) (holding arguments raised for the
first time in a reply brief are waived).

10