Krivulka v. Lerner/krivulka

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGELA L. KRIVULKA, Plaintiff/Appellant,

v.

MICHAEL J. LERNER, et al., Defendants/Appellees.
__________________________________

HANNAH KRIVULKA, et al., Intervenors/Appellees.

No. 1 CA-CV 22-0566
FILED 4-11-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-008668
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Snell & Wilmer, LLP, Phoenix
By Patricia Lee Refo, Matt Jarvey
Counsel for Plaintiff/Appellant

Burch & Cracchiolo, PA, Phoenix
By Daryl Manhart, Bryan F. Murphy, Ralph D. Harris
Co-Counsel for Defendants/Appellees Lerner
 KRIVULKA v. LERNER et al./KRIVULKA
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Osborn Maledon, PA, Phoenix
By David B. Rosenbaum, Joseph N. Roth, Joshua J. Messer
Co-Counsel for Defendants/Appellees Lerner

Perkins Coie, LLP, Phoenix
By Howard Ross Cabot, John H. Gray, Margo R. Casselman
Counsel for Intervenors/Appellees Krivulka

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

B A I L E Y, Judge:

¶1 Plaintiff/Appellant Angela Krivulka (“Angela”) appeals the
dismissal of her First Amended Complaint against Defendants/Appellees
Michael J. Lerner (“Lerner”) and Harriot Derman (“Derman”) (collectively,
“the Executors”), who are administrators of the Estate of Joseph J. Krivulka
(“Joseph”), based on issue preclusion and forum non conveniens. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This appeal concerns one of three lawsuits filed by Angela
related to the disposition of Joseph’s estate (“the Estate”), all of which have
significant overlap. The first two matters were filed in New Jersey, one in
state and one in federal court. The suit at issue here was filed in Arizona
state court.

¶3 Angela alleges she and Joseph married while residents of
New Jersey in March 2005, and the couple developed ties to Arizona in
about 2008 or 2009. According to Angela, they eventually established
domicile in Arizona, although substantial contrary evidence indicates
Joseph intended to remain domiciled in New Jersey. In February 2018,
Joseph died in Arizona.

¶4 Soon after, Angela initiated probate proceedings in New
Jersey state court, filing as co-executor of the Estate and identifying Joseph
as a New Jersey resident. Lerner and (later) Derman were named co-
executors of the Estate. In April 2021, Lerner and Derman sought to remove

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Angela as a co-executor because she was asserting personal claims and
taking actions inconsistent with her obligations to the Estate, a motion that
the New Jersey probate court granted in September 2021. See In re Estate of
Krivulka, Docket Nos. A-0863-20, A-0803-21, 2022 WL 3693103, at *1, *7, *11–
16 (N.J. Super. Ct. App. Div. Aug. 26, 2022) (unpublished opinion affirming
Angela’s removal and reversing the denial of Angela’s motion to disqualify
Lerner’s law firm as representative of the co-executors of Joseph’s Estate).
The New Jersey state court continues to handle the probate and
administration of Joseph’s Estate. See id. at *16.

¶5 Meanwhile, in July 2020, Angela filed a legal malpractice
lawsuit against Lerner and his law firm in the federal district court of New
Jersey, alleging they had not disclosed certain conflicts of interest during
the administration of the Estate and the probate proceedings. See Krivulka
v. Lerner, Civil Action No.: 2:20-cv-09724, 2021 WL 3260851, at *1 (D.N.J. July
30, 2021) (slip opinion not for publication). The filing in federal district
court was premised on diversity jurisdiction, with Angela arguing that
Joseph was domiciled in Arizona continuously from at least August 2009
through the date of his death. Id. The defendants argued Joseph was
domiciled in New Jersey and the federal court therefore lacked subject
matter jurisdiction over the complaint. Id. The district court found that
both Joseph and the defendants were domiciled in New Jersey and
dismissed Angela’s federal lawsuit for lack of diversity jurisdiction. Id. at
*6–7.

¶6 Also in July 2020, Angela filed the lawsuit at issue here
against Lerner in Arizona superior court. Angela asserted Lerner was
wrongly treating the Estate as Joseph’s separate property, when in fact she
held a community or joint interest in the marital property, and she generally
requested a declaration that assets related to Joseph were held by the
marital community. After the superior court denied an initial motion to
dismiss or, alternatively, to stay the litigation, filed by Lerner, the parties
stipulated to add Derman as a defendant.

¶7 In May 2021, Angela filed a First Amended Complaint in the
Arizona superior court, that retained the previously pled “Arizona
domicile theory” and related allegations regarding Joseph and added a
“prenuptial theory” based on allegations that the Krivulkas had signed a
Spanish-language prenuptial agreement when they held a wedding
ceremony in Mexico in 2005. Angela claimed that under the agreement’s
terms, the couple had adopted a Mexican law-based community property
marital partnership. After Angela filed her amended complaint, Joseph’s
three children from an earlier relationship (“the Intervenors”)—all of whom

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live in New Jersey or a neighboring state—intervened in the Arizona
lawsuit.

¶8 In August 2021, after the federal district court’s ruling in the
New Jersey litigation, the Executors (joined by the Intervenors) filed a
“Motion for Partial Judgment on the Pleadings and to Dismiss or Stay
Remainder of Case,” effectively seeking to dismiss the First Amended
Complaint in the Arizona lawsuit. The Executors argued that issue
preclusion applied because the Arizona domicile theory had already been
litigated and resolved in their favor in the New Jersey federal district court,
and under the doctrine of forum non conveniens, the prenuptial theory
should continue to be litigated in the ongoing New Jersey probate
proceeding. After responsive briefing and oral argument, the superior
court took the motion under advisement.

¶9 In July 2022, the superior court issued a minute entry
pursuant to Rule 54(c), Ariz. R. Civ. P., granting the Executors’ motion and
dismissing Angela’s First Amended Complaint on the grounds of issue
preclusion and forum non conveniens.

¶10 We have jurisdiction over Angela’s timely appeal under
Arizona Revised Statutes section 12-2101(A)(1).

DISCUSSION

¶11 In reviewing the superior court’s grant of a motion for
judgment on the pleadings, we accept the complaint’s factual allegations as
true but review the court’s conclusions of law de novo. Mobile Cmty. Council
for Progress, Inc. v. Brock, 211 Ariz. 196, 198, ¶ 5 (App. 2005) (citations
omitted).

I. The Arizona Domicile Theory and Issue Preclusion

¶12 Angela contends the superior court erred in applying issue
preclusion to her Arizona domicile theory.

¶13 “Application of issue preclusion is an issue of law, which we
review de novo.” Hancock v. O’Neil, 253 Ariz. 509, 512, ¶ 9 (2022) (quoting
Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 180, ¶ 6 (2007)); accord
Crosby-Garbotz v. Fell ex rel. Pima Cnty., 246 Ariz. 54, 56–57, ¶ 9 (2019);
Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 8 (App. 2003).

¶14 “Issue preclusion, also known as collateral estoppel,
precludes relitigating an issue of fact in a later case when, in a previous case,

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the same issue was ‘actually litigated, a final judgment was entered, and the
party against whom the doctrine is to be invoked had a full and fair
opportunity to litigate.’” Crosby-Garbotz, 246 Ariz. at 55, ¶ 1 (quoting
Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986)). “Issue
preclusion serves to ‘protect litigants from the burden of relitigating an
identical issue’ and to ‘promote judicial economy by preventing needless
litigation.’” Id. at 57, ¶ 10 (quoting Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 (1979)).

¶15 To determine whether a federal judgment has issue
preclusive effect, Arizona courts “look to the controlling federal law in the
circuit in which the federal judgment was entered.” Howell v. Hodap, 221
Ariz. 543, 547, ¶ 18 (App. 2009) (citations omitted). Here, New Jersey
preclusion law applies. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 508 (2001) (applying “the law that would be applied by state courts in
the State in which the federal diversity court sits”).1

¶16 In New Jersey, issue preclusion applies to prohibit relitigating
an issue when these elements are met:

(1) the issue to be precluded is identical to the issue decided
in the prior proceeding; (2) the issue was actually litigated in
the prior proceeding; (3) the court in the prior proceeding
issued a final judgment on the merits; (4) the determination of
the issue was essential to the prior judgment; and (5) the party
against whom the doctrine is asserted was a party to or in
privity with a party to the earlier proceeding.

Adelman v. BSI Fin. Servs., Inc., 179 A.3d 431, 436 (N.J. Super. Ct. App. Div.
2018) (citations omitted).

¶17 Here, the superior court found that all the elements had been
met. In support of her contention that the superior court erred in applying

1 Both New Jersey and Arizona follow the Restatement (Second) of
Judgments. See Habick v. Liberty Mut. Fire Ins. Co., 727 A.2d 51, 57 (N.J.
Super. Ct. App. Div. 1999) (“New Jersey follows the Restatement (Second) of
Judgments respecting collateral estoppel.” (citations omitted)); Elia v. Pifer, 194 Ariz. 74, 81, ¶¶ 33–34 (App. 1998) (noting that, in applying issue
preclusion, “this court generally follows the Restatement whenever
applicable” (citation omitted)).
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issue preclusion to her Arizona domicile theory, Angela raises four issues.2
We address each in turn.

A. Scope of the Federal Court’s Dismissal

¶18 First, Angela argues the federal court’s jurisdictional
dismissal cannot trigger issue preclusion for her Arizona state court claims.
She contends that because the district court issued only a jurisdictional
ruling, that ruling is preclusive only as to the federal diversity jurisdiction
issue, not the substantive factual issues in her Arizona claims. We disagree.

¶19 Angela’s argument conflates issue preclusion (collateral
estoppel) with claim preclusion (res judicata). Although, when applied,
claim preclusion applies to all claims arising out of the same facts that could
have been brought, issue preclusion applies only to issues actually litigated
and decided. Watkins v. Resorts Int’l Hotel & Casino, Inc., 591 A.2d 592, 604
(N.J. 1991). Under issue preclusion, “when an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive
in a subsequent action between the parties, whether on the same or a
different claim.” Id. Thus, issue preclusion bars relitigating the same
previously litigated issue even when it arises in a different context, which
is the situation presented here. See Okoro v. Bohman, 164 F.3d 1059, 1063 (7th
Cir. 1999) (recognizing that a jurisdictional dismissal precludes relitigating
the ground of that dismissal, and thus has collateral estoppel (issue
preclusive) effect rather than res judicata (claim preclusive) effect). For the
district court to determine that diversity jurisdiction did not exist, it
necessarily had to find that both Joseph and the defendants (Lerner and his
law firm) were domiciled in New Jersey, such that the court could not
maintain subject matter jurisdiction over Angela’s complaint. See Krivulka
v. Lerner, Civil Action No.: 2:20-cv-09724, 2021 WL 3260851, at *4, *6; 28
U.S.C. § 1332(a)(1) (conferring federal courts with subject matter
jurisdiction when the amount in controversy exceeds $75,000 and there is

2 In her opening brief, Angela does not challenge the superior court’s
findings that the district court issued a final judgment, that the district
court’s determination of the domicile issue was essential to the prior
judgment, and that she was a party to or in privity with a party to both
proceedings. See Adelman, 179 A.3d at 436. Thus, she has waived any
argument that those factors are not satisfied. See Ritchie v. Krasner, 221 Ariz.
288, 305, ¶ 62 (App. 2009). She also does not directly dispute that the issue
of Joseph’s domicile was actually litigated in the district court, see Adelman,
179 A.3d at 436, though she challenges the litigation’s fullness and fairness.
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complete diversity of citizenship between the parties). That domicile
finding was binding in the Arizona action, see Watkins, 591 A.2d at 604, and
the superior court did not err in precluding Angela from relitigating the
issue of Joseph’s domicile on this basis.

B. Full and Fair Opportunity to Litigate

¶20 Second, Angela argues issue preclusion should not apply
because the district court issued its ruling without discovery or an
evidentiary hearing. She contends that she was therefore denied the
opportunity to litigate the domicile issue fully and fairly in that proceeding.

¶21 Issue preclusion applies to issues actually litigated and
determined in the prior action. Allesandra v. Gross, 453 A.2d 904, 909 (N.J.
Super. Ct. App. Div. 1982). An issue is “actually litigated” if the “issue is
properly raised, by the pleadings or otherwise, and is submitted for
determination, and is determined.” Id. (quoting Restatement (Second) of
Judgments § 27 cmt. d (1982)).

¶22 The law requires “the minimum requirements of due
process” for an issue to be considered actually litigated and determined,
Witkowski v. Welch, 173 F.3d 192, 205 (3d Cir. 1999), and Angela must have
“procedural opportunities in the presentation and determination of the
issues,” Konieczny v. Micciche, 702 A.2d 831, 836 (N.J. Super. Ct. App. Div.
1997).

¶23 Here, the district court afforded Angela a full and fair
opportunity to present her domicile case. Angela submitted full briefing,
and the court considered substantial evidence, including evidence of
Joseph’s voter registration, tax returns, company locations, residential
properties, bank accounts, driver’s license, and motor vehicle registrations,
as well as his subjective motives in determining domicile. Krivulka v. Lerner,
Civil Action No.: 2:20-cv-09724, 2021 WL 3260851, at *5–6. The parties
properly raised the domicile issue by the pleadings and submitted it for
determination by the district court.

¶24 Additionally, during the federal litigation, in December 2020,
Angela advised the district court that the parties had “conferred as to the
need for jurisdictional discovery prior to the Court’s adjudicating
Defendants’ Motion to Dismiss . . . and have agreed that such discovery is
not necessary at this time.” Later, in June 2021, Angela requested that the
court hold its forthcoming ruling on the motion to dismiss “in abeyance so
the parties can conduct jurisdictional discovery.” In support of her request,
Angela presented portions of documents produced in the Arizona litigation
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that she argued showed that “over the course of the ten-year joint
representation,” Lerner’s law firm had concealed information from her,
“never alerted her to conflicts between her and her husband’s interests
under Arizona law,” and had known for years that she believed she and
Joseph were domiciled in Arizona. A magistrate judge denied the request
after finding the documents did not raise further factual questions about
Joseph‘s domicile at the time of his death. See id. at *1 n.2. About six weeks
after Angela’s request to re-open jurisdictional discovery, the district court
dismissed Angela’s federal lawsuit for lack of diversity jurisdiction. Id. at
*6–7. The court expressly noted (and apparently adopted the magistrate
judge’s ruling) that Angela’s discovery request had been denied, id. at *1
n.2, and it also noted that “after Joseph died, and while [Angela] was
represented by a counsel of her choosing . . . , she signed numerous tax
returns on behalf of Joseph indicating that he was domiciled in New
Jersey,” id. at *6 n.9.

¶25 Although Angela argues the district court did not consider
Lerner’s firm’s conflict of interest and alleged “scheme” to conceal Joseph’s
“true” domicile, that court clearly did so, as it considered the evidence she
presented, had the opportunity to review it, and did not find it or her
arguments persuasive before ruling on the motion to dismiss. In fact, in
rejecting Angela’s Arizona domicile claim, the district court noted that it
“would find that Joseph was domiciled in New Jersey when he died even
notwithstanding” Angela’s additional evidence and allegations about
Lerner and his law firm’s actions. Id. at *6. Consequently, Angela had a full
and fair opportunity to be heard and to litigate the domicile issue in the
district court. See Barker v. Brinegar, 788 A.2d 834, 839 (N.J. Super. Ct. App.
Div. 2002). On this record, we discern no compelling circumstances making
it appropriate to allow her to relitigate the issue here. See Konieczny, 702
A.2d at 836.

C. Identical Issues

¶26 Third, Angela argues that issue preclusion cannot apply
because the domicile claims and issues in the federal and state cases are not
identical. She notes that issue preclusion applies only when the issue to be
precluded is identical to the issue decided in the prior proceeding, see
Adelman, 179 A.3d at 436; Barker, 788 A.2d at 839, and she contends the issue
and evidence are not the same because the district court considered only
whether Joseph was domiciled in Arizona on the date of his death, and did
not consider whether Joseph may have been domiciled in Arizona for a
temporary period during the marriage.

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¶27 “In deciding the similarity of issues for issue preclusion
purposes, a court should consider whether there is substantial overlap of
evidence or argument in the second proceeding; whether the evidence
involves application of the same rule of law; whether discovery in the first
proceeding could have encompassed discovery in the second; and whether
the claims asserted in the two actions are closely related.” First Union Nat’l
Bank v. Penn Salem Marina, Inc., 921 A.2d 417, 424 (N.J. 2007) (citations
omitted). Where issues share a “high degree of similarity” and turn on the
“same evidence,” this factor is satisfied even if the relief sought is not
identical. Id.

¶28 Contrary to Angela’s premise, rather than considering only
the objective physical evidence of Joseph’s domicile and evidence of
Joseph’s subjective intention at the time of his death, the district court stated
that it considered evidence throughout his marriage “up until his death.”
See Krivulka v. Lerner, Civil Action No.: 2:20-cv-09724, 2021 WL 3260851, at
*4–6.3 The court’s opinion, when read in full, makes clear the court found
that Joseph never intended to, and never did, change his domicile from
New Jersey to Arizona. See id. at *2, *4–6. And Angela conceded as much
when, in connection with her duties as a co-executor of the Estate, she
signed an “affidavit of domicile” stating that Joseph “resided in the State of
New Jersey for 12 years immediately preceding [his] death and was not a
resident of any other state.” Id. at *2. She also signed tax returns for
Joseph’s estate covering multiple years preceding his death, and on each of
these “resident” tax returns, she identified New Jersey as Joseph’s “legal
residence” or “domicile.” Id. Moreover, despite considering Angela’s best
evidence of Arizona domicile—which was Joseph’s last year of life when he
lived in Arizona for cancer treatment at the Mayo Clinic—and her “conflict
of interest” arguments about Lerner and his firm, the district court rejected
Angela’s Arizona domicile claim. Id. at *5–6.

¶29 Angela has not shown that the domicile evidence and issue
presented in the superior court differ in any substantive way from the
evidence and issue presented in the district court. The issues presented in
each court share a high degree of similarity, their resolution requires the
same evidence, and the superior court did not err in rejecting this issue as
lacking merit. See First Union Nat’l Bank, 921 A.2d at 424. The issue of
whether Joseph was ever domiciled in Arizona satisfies the “identical
issue” requirement. See Adelman, 179 A.3d at 436; Barker, 788 A.2d at 839.

3 At oral argument on appeal, Angela’s counsel conceded the district court

considered evidence “leading up to” the date of Joseph’s death.
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D. Equity of Issue Preclusion

¶30 Fourth, Angela argues that, even if the issue preclusion
elements are otherwise met, preclusion should not apply because equitable
factors, including the specter of unfairness, weigh against its application
here. See Barker, 788 A.2d at 839 (“Because collateral estoppel is an equitable
doctrine, it will not be applied if it is not fair to do so.” (citation omitted)).4

¶31 When the elements of issue preclusion are satisfied, New
Jersey law requires courts to examine whether equity favors its application.
See Pivnick v. Beck, 741 A.2d 655, 661–62 (N.J. Super. Ct. App. Div. 1999).
“Some of the factors favoring application of issue preclusion are:
conservation of judicial resources; avoidance of repetitious litigation; and
prevention of waste, harassment, uncertainty and inconsistency.” Id. at 662
(citation omitted). “[F]actors disfavoring application of collateral estoppel
include: the party against whom preclusion was sought could not have
obtained review of the judgment in the initial action; the quality or
extensiveness of the procedures in the two actions were different; it was not
foreseeable at the time of the initial action that the issue would arise in
subsequent litigation; and the party sought to be precluded did not have an
adequate opportunity to obtain a full and fair adjudication in the first
action.” Id. (citation omitted).

¶32 A court applying equitable considerations “must not regard
those considerations to be a license to substitute generalized concerns about
the imposition of collateral estoppel when the clearly established elements

4 Citing Irby Construction Co. v. Arizona Department of Revenue, 184 Ariz. 105

(App. 1995), the Executors argue we should review the superior court’s
ruling as to the equitable element of the issue preclusion question for an
abuse of discretion. But Irby did not discuss the standard of review, and
instead concluded without analysis that “the tax court did not abuse its
discretion in its application of collateral estoppel.” Id. at 109. Moreover,
the case the Executors relied on at oral argument as support for the abuse
of discretion standard, SEC v. Stein, 906 F.3d 823 (9th Cir. 2018), involved
“‘offensive nonmutual issue preclusion,’ which prevents ‘a defendant from
relitigating the issues which a defendant previously litigated and lost
against another plaintiff.’” Id. at 828 (citations omitted). That is not the case
we face here. Thus, our review, as with the application of issue preclusion
in general, is de novo. See Jean Alexander Cosms., Inc. v. L’Oreal USA, Inc.,
458 F.3d 244, 247–48 (3d Cir. 2006), cited in Beeman v. Anthem Prescription
Mgmt., Inc., 780 F. App’x 486, 491 (9th Cir. 2019) (Bea, J., concurring).
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have been met.” Gannon v. Am. Home Prods., Inc., 48 A.3d 1094, 1109 (N.J.
2012).

¶33 Here, a weighing of the equities favors applying issue
preclusion. Precluding relitigating the Arizona domicile issue here will
conserve both the court’s and the parties’ time and financial resources,
eliminate the risk of inconsistent rulings, and reduce the need for repeated
litigation, especially for the Executors and Intervenors. To the extent that
Angela argues that applying collateral estoppel would be unfair because
she is not satisfied with the quality or extent of the procedures available to
her in the federal district court, Angela filed both lawsuits—the New Jersey
federal district court malpractice suit and this Arizona suit—and
affirmatively put the question of Joseph’s domicile at issue in both cases
simultaneously. She thus had every incentive to vigorously litigate the
domicile issue in the district court, and it appears that she did. It would
make little sense, and would waste even more judicial and party resources,
to relitigate the issue of Joseph being domiciled in Arizona.

¶34 Equitable considerations favor preclusion here, and the
superior court did not err in applying issue preclusion to Angela’s Arizona
domicile theory.

II. The Prenuptial Theory and Forum Non Conveniens

¶35 Angela also argues the superior court erred in dismissing the
remainder of her case under the doctrine of forum non conveniens.

¶36 We review the superior court’s forum non conveniens ruling for
an abuse of discretion. Coonley & Coonley v. Turck, 173 Ariz. 527, 531 (App.
1993); accord BOC Grp., Inc. v. Chevron Chem. Co., 819 A.2d 431, 437 (N.J.
Super. Ct. App. Div. 2003). Under that doctrine, a defendant seeking
dismissal must show there is an available and adequate alternative forum
and, “on balance, the alternative forum is a more convenient place to litigate
the case.” Coonley, 173 Ariz. at 532 (citation omitted).

¶37 In determining a forum non conveniens motion, a court must
consider and balance both private and public interest factors. Id. If those
factors are closely balanced, the plaintiff is entitled to her choice of forum,
because unless the balance is strongly in the defendant’s favor, a plaintiff’s
choice of forum will rarely be disturbed. Parra v. Cont’l Tire N. Am., Inc.,
222 Ariz. 212, 215, ¶ 10 (App. 2009) (citations omitted). Absent a failure to
“consider[] all relevant public and private interest factors” and reasonably
balance those factors, the superior court’s decision “deserves substantial

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deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (citations
omitted).

A. Dismissal of Angela’s “Arizona-centric” Claims

¶38 Angela argues that the superior court’s dismissal of her
remaining prenuptial theory on forum non conveniens grounds was based on
the court’s alleged error in precluding her from litigating the issue of
Joseph’s domicile. She maintains that once we correct this alleged error, we
must then reverse the court’s dismissal of the remainder of the First
Amended Complaint. Because we disagree that the superior court erred in
applying issue preclusion to Angela’s Arizona domicile theory, we do not
further consider this argument.

B. Deference to Angela’s Choice of Forum

¶39 Angela also argues the superior court erred in failing to give
sufficient deference to her forum choice. She bases this argument on the
court’s statement that “[t]he plaintiff’s choice of forum is only one among
several considerations.”

¶40 To the extent that the superior court’s statement could be
interpreted as ignoring or lessening any deference paid to the plaintiff’s
choice of forum, as Angela argues, the statement would be error. However,
it has long been held that the reviewing court will not presume error, see
Federico v. Hancock, 1 Ariz. 511, 513–14 (1882), and, instead, we look to see if
the superior court’s analysis of the private and public interest factors shows
those factors are closely balanced or whether the balance strongly favors
the Executors and Intervenors, see Parra, 222 Ariz. at 215, ¶ 10.

C. Private Interest Factors

¶41 Angela argues the superior court failed to properly weigh the
private interest factors governing dismissal for forum non conveniens and
instead relied on conclusions with no basis in the record.

¶42 Private interest factors include “the relative ease of access to
sources of proof; availability of compulsory process for attendance of
unwilling [witnesses], and the cost of obtaining attendance of willing
witnesses; and all other practical problems that make trial of a case easy,
expeditious and inexpensive.” Coonley, 173 Ariz. at 532–33 (citations
omitted).

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¶43 In finding that the private interest factors favored dismissing
the Arizona litigation, the superior court stated:

Private [interest] factors favor dismissing this action
and allowing the parties to litigate the impact of the
prenuptial agreement in the probate action. Most
importantly, New Jersey is already administering Joseph’s
estate and has exclusive jurisdiction to determine all issues
related to the estate, including the prenuptial agreement and
marriage validity issues. The probate proceeding has been
underway since 2018, while this case started two years later
and has lagged. The probate action is more likely to be
resolved sooner rather than later, either by settlement or trial,
as all parties have an interest in finalizing the administration
of the estate. A majority of witnesses and documents are in
New Jersey. To the extent witnesses and/or discovery
involve Mexico or other countries, Arizona offers no
advantage. Dismissal will avoid duplicative discovery. It
will prevent witnesses from having to appear in two trials
instead of one. It will save all parties the additional cost of
Arizona counsel.

¶44 Angela challenges several of the superior court’s findings,
including its use of the term “exclusive jurisdiction,” and argues the
findings either contain inaccuracies or lack full evidentiary support in the
record. She therefore concludes the court’s reasoning must be faulty, but
we find her arguments unavailing as to the court’s overall analysis and
conclusion. The record makes clear that the relative ease of access to
sources of proof and the expense of litigation factors support the superior
court’s decision to dismiss the entire Arizona case and allow the various
claims and issues to proceed in New Jersey rather than be decided
piecemeal in alternate forums. Litigating Angela’s prenuptial theory in
New Jersey will make a trial easier, more expeditious, and less expensive,
especially for the Executors and Intervenors—who are likely witnesses in
any case about Joseph’s intent—and should not disadvantage Angela, who
originally chose to file in New Jersey and will continue to participate in the
New Jersey litigation because it will proceed no matter how this case is
resolved.

¶45 On this record, the superior court did not err in determining
that the private factors clearly favor dismissal.

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Decision of the Court

D. Public Interest Factors

¶46 Angela also argues the superior court failed to properly
weigh the public interest factors governing dismissal for forum non
conveniens and again relied on conclusions with no basis in the record. We
disagree.

¶47 Public interest factors include “[a]dministrative difficulties
. . . when litigation is piled up in congested centers” and the goal of having
the trial “in a forum that is at home with the state law that must govern the
case, rather than having a court in some other forum untangle problems in
conflict of laws, and in law foreign to itself.” Id. at 533 (citations omitted).

¶48 In finding that the public interest factors favor dismissal, the
superior court found:

[N]o reasonable basis for parallel litigation “when litigation is
piled up in” Maricopa County Superior Court. In addition to
the facts cited above, the Court also considers that any
decision from an Arizona court regarding Angela’s interest in
estate assets will ultimately be implemented and interpreted
by the probate court and, therefore, should be decided by the
probate court.

¶49 We find no error. Although the court did not analyze and
compare the workload and burden of the two courts, as Angela argues it
should have, the superior court’s overall reasoning is sound and justifies
finding the public interest factors favor dismissal. And because the
superior court’s analysis of the private and public interest factors—and our
review—indicates the balance strongly favors the Executors and
Intervenors, see Parra, 222 Ariz. at 215, ¶ 10, we also find no error in the
superior court’s overall evaluation and weighing of the forum non conveniens
factors.

III. Attorneys’ Fees and Costs on Appeal

¶50 The parties agree that attorneys’ fees are not appropriate on
appeal. Accordingly, we do not award attorneys’ fees, but award taxable
costs to the Executors, Intervenors, and the Estate upon compliance with
Rule 21, ARCAP.

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Decision of the Court

CONCLUSION

¶51 The superior court’s dismissal of Angela’s First Amended
Complaint is affirmed.

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

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