Alan v. Lober

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THE GOLDBERG REVOCABLE FAMILY LIVING TRUST
_______________________________

JASON ALAN, Petitioner/Appellant,

v.

LINDA LOBER, et al., Respondents/Appellees.

No. 1 CA-CV 24-0189 PB
FILED 03-18-2025

Appeal from the Superior Court in Maricopa County
No. PB 2022-002541
The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED

COUNSEL

Jason Alan, Hauula, HI
Petitioner/Appellant

Gabriel Law Group, PC, Encino, CA
By Jonathan G. Gabriel, David S. Mayes
Co-Counsel for Respondents/Appellees

Law Office of Nathaniel P. Nickele, PLLC, Peoria
By Nat Nickele
Co-Counsel for Respondents/Appellees
 ALAN v. LOBER, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 Jason Alan appeals from the superior court’s order denying
his motion for a new trial and affirming an entry of summary judgment in
favor of David Alan and Linda Lober on his claim against his grandparents’
trust. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Donald (“Grandfather”) and Ruth (“Grandmother”)
Goldberg (collectively, “Grandparents”) formed the Goldberg Family
Revocable Living Trust in 2005. The trust, as amended and restated in 2014,
made their grandson Jason Alan a beneficiary entitled to five percent of the
residue of the trust’s assets. The trust also provided that Linda Lober—their
daughter and Jason’s aunt (“Aunt”)—would serve as successor trustee if
both of them became incapacitated or died. If Aunt could not serve, then
David Alan—their son and Jason’s father (“Father”)—would serve as
successor trustee.

¶3 The trust contains a no-contest provision which provides that
anyone who contests the trust’s validity “shall be deemed to have
predeceased” the trustors.

¶4 Grandfather amended the trust in 2017. At the time,
Grandmother was suffering from Alzheimer’s, thus triggering the Trust’s
incapacity clause. The 2017 amendment removed Grandmother as trustee
and designated Aunt and Father to serve as successor co-trustees upon
Grandfather’s death or disability. The amendment also removed Jason from
the list of beneficiaries.

¶5 Grandfather amended the trust again in 2018 to dispose of a
piece of real property, remove Father as successor co-trustee, and designate
Aunt as sole trustee upon Grandfather’s death or disability.

¶6 Grandparents died in 2021. When Jason discovered he was no
longer a beneficiary, he petitioned for a declaration of his rights under the

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trust. He alleged the 2017 amendment removing him as a beneficiary was
invalid because Grandfather (1) lacked capacity to amend, (2) signed the
amendment under undue influence, and (3) lacked authority to unilaterally
amend the trust’s disposition of community property. He also alleged
Father and Aunt committed various breaches of their fiduciary and trustee
duties.

¶7 After a discovery dispute and motion practice not relevant
here, Aunt and Father moved for summary judgment. They argued that
Jason lacked probable cause to support his claims and thus triggered the
trust’s no-contest provision. Jason did not file a response until ten days after
the deadline to do so. The superior court summarily granted the motion,
noting that “[n]o timely Response was filed . . . The Court, therefore, will
grant the Motion for Summary Judgment.”

¶8 Jason then moved for a new trial under Arizona Rule of Civil
Procedure 59, arguing that (1) Aunt and Father engaged in misconduct, (2)
his untimely response was the product of accident or surprise, and (3) the
superior court’s grant of summary judgment was not supported by the
evidence. The superior court denied Jason’s Rule 59 motion finding that he
“failed to present any [g]rounds upon which the Court can reconsider its
prior ruling.”

¶9 Jason timely appealed and we have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶10 Jason argues the superior court abused its discretion in
rejecting his untimely response to Aunt’s motion for summary judgment,
and that the resulting grant of summary judgment was improper. Jason also
argues the superior court erred in denying his motion for new trial.

I. Summary Judgment

¶11 We review summary adjudications for a clear abuse of
discretion, but review the underlying grant of summary judgment de novo.
Schwab v. Ames Const., 207 Ariz. 56, 60, ¶ 17 (App. 2004).

¶12 Arizona Rule of Civil Procedure 56(c)(2) requires a party
opposing a motion for summary judgment to file his response within 30
days after he is served with the motion. Ariz. R. Civ. P. 56(c)(2). If a party
opposing a motion for summary judgment fails to respond with specific
facts showing a genuine issue for trial, “summary judgment, if appropriate,

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shall be entered against that party.” Ariz. R. Civ. P. 56(e). “A failure to
respond to a motion for summary judgment . . . cannot, by itself, entitle the
moving party to summary judgment.” Schwab, 207 Ariz. at 59, ¶ 15. But a
nonmoving party who fails to respond to a motion for summary judgment
“does so at his peril” because the superior court may presume that any
uncontroverted evidence favoring the moving party is true. Id. at 60, ¶ 16.
If the uncontroverted evidence would entitle the moving party to summary
judgment, the superior court must grant the motion. Id.

¶13 Jason does not dispute that his response to the motion for
summary judgment was untimely. The superior court thus had discretion
to disregard his response, but we must determine whether summary
judgment was appropriate on the record before the court at the time of the
motion.

¶14 Jason’s petition alleged that the amendment removing him as
beneficiary to Grandparents’ trust was invalid and that Father and Aunt
breached their duties as trustees. The trust at issue here contains a no-
contest provision. “[W]hen a single petition alleges multiple challenges to
a will or trust, and the challenges are brought in contravention of a no-
contest provision, probable cause must exist as to each challenge.” In re
Shaheen Trust, 236 Ariz. 498, 501, ¶ 8 (App. 2015). Probable cause in this
context is “the existence, at the time of the initiation of the proceeding, of
evidence which would lead a reasonable person, properly informed and
advised, to conclude that there is a substantial likelihood that the contest or
attack will be successful.” In re Estate of Shumway, 198 Ariz. 323, 327, ¶ 12
(2000) (quoting and adopting Restatement (Second) of Property: Donative
Transfers § 9.1 cmt. j (1983)). For purposes of determining whether a no-
contest provision applies, a claim against a trustee is a “contest” or
“challenge.” See Shaheen, 236 Ariz. at 501, ¶ 9. Thus, if Jason lacked probable
cause for any of the multiple claims raised in his petition, the superior court
was correct in applying the no-contest provision and granting summary
judgment. See id., ¶ 12. Whether probable cause existed “is ultimately a
question of law, which we review de novo.” Id. at 500, ¶ 7.

¶15 Jason lacked probable cause for his claims against Father. The
petition alleges that Father committed several breaches of fiduciary duties
of care and loyalty. Those allegations presume that Father was a trustee
subject to those duties in the first place, but Father never became a trustee
under the terms of the trust or its amendments. The original trust stated
that Aunt would become trustee when Grandparents both died or were
unable to serve; Father would not become a trustee unless Aunt was unable
to serve. The 2017 amendment designated Father and Aunt as successor co-

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trustees upon the death or incapacity of both Grandparents. The 2018
amendment rescinded that designation and made Aunt the sole successor
trustee. Because Grandfather lived and was capable until 2021, Father never
became trustee.

¶16 Jason acknowledged in his petition that he had a copy of the
trust, and the record confirms he possessed copies of the 2017 and 2018
amendments when he filed his petition. Jason does not assert he did not
read the documents he had in his possession. And a reasonable petitioner
seeking to properly inform himself of the bases for his claims would
examine the terms of the trust he seeks to challenge. Jason thus should have
been aware that Father was never a trustee.

¶17 Jason testified in a deposition that he subjectively believed
Father was a trustee because Father once told him Father was going to use
Jason’s trust funds to pay off Father’s debts, and because Father told him
“at various times over the years” that Father was a trustee. Jason also
conceded that he had no other facts to support his contention that Father
owed trustee duties. A petitioner’s subjective beliefs alone are insufficient
for probable cause; “the petitioner’s subjective belief must be objectively
reasonable.” Shaheen, 236 Ariz. at 501, ¶ 12. Even if we assume Jason
testified truthfully, Father’s representations did not and could not alter the
unambiguous terms of the trust. See In re Estate of Zilles, 219 Ariz. 527, 530,
¶ 9 (App. 2008) (extrinsic evidence is not admissible to contradict the plain
language of a trust). The record contains no other evidence upon which
Jason could have based a reasonable belief that Father was subject to claims
for breaches of a trustee’s duties.

¶18 On appeal, Jason does not assert that he had probable cause
for his claims against Father. He instead argues that summary judgment
was improper because the motion for summary judgment “failed to point
to any evidence in the record demonstrating that there were no genuine
issues of material fact.” This argument is circular. At summary judgment,
the movant’s burden is not to disprove a claim, but “merely [to] point out
by specific reference to the relevant discovery that no evidence existed to
support an essential element of the claim.” Orme Sch. v. Reeves, 166 Ariz.
301, 310 (1990). One cannot point to evidence that does not exist.

¶19 Given the evidence as it existed when Jason filed his petition,
we cannot say it was reasonable for Jason to believe he could successfully
claim that Father breached trustee duties when (1) he had no evidence that
Father assumed any trustee duties, and (2) the unambiguous terms of the
trust stated that Father was not a trustee. Jason thus lacked probable cause

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for his claims against Father. Absent probable cause for those claims, the
petition as a whole fails because the no-contest provision divests Jason of
his interest under the trust. See Shaheen, 236 Ariz. at 501, ¶ 12. Summary
judgment was appropriate on that ground and we need not address the
merits of Jason’s remaining claims.

II. Motion for New Trial

¶20 Jason argues the superior court abused its discretion in
denying his motion for new trial under Rule 59. His opening brief asserts
his argument that the superior court erred in denying his Rule 59 motion
“is substantially identical” to his argument that summary judgment was
improper. Jason also argues the superior court should have granted a new
trial because his Rule 59 motion (1) explained why his response to Aunt and
Father’s motion for summary judgment was untimely, and (2) pointed out
their motion “had not followed the rules regarding motions for summary
judgment.” He says nothing more on the subject.

¶21 An appellant must explain his “contentions concerning each
issue presented for review, with supporting reasons for each contention,
and with citations to legal authorities and appropriate reference to the
portions of the record on which the appellant relies.” ARCAP 13(a)(7)(A).
“An appellant who fails to make a bona fide and reasonably intelligent
effort to comply with the rules will waive issues and arguments not
supported by adequate explanation, citations to the record, or authority.”
Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022) (cleaned up). We hold
unrepresented litigants to the same standards as attorneys and do not give
them special leniency. Id.

¶22 Jason’s appellate briefing does not explain why his motion for
new trial entitled him to the relief he sought. It also contains no citations to
the record or legal authority on this issue and thus does not comply with
ARCAP 13(a)(7). We are not obligated to “assume the duties of an
advocate” and search the record for support for Jason’s claim. Adams v.
Valley Nat. Bank of Ariz., 139 Ariz. 340, 343 (App. 1984). Nor are we required
to allow an appellant to “simply throw [an issue] into our laps on the theory
that somewhere therein is something, which made the final result in some
way erroneous.” Id. at 342 (cleaned up). We consider this issue waived.

¶23 Nevertheless, even if we exercised our discretion to overlook
these deficiencies “in the interest of resolving appeals on the merits,”
Ramos, 252 Ariz. at 523, ¶ 10, Jason is not entitled to relief.

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¶24 Jason moved for new trial under Rule 59 on three grounds: (1)
the grant of summary judgment was contrary to law; (2) the prevailing
party engaged in misconduct; and (3) accident or surprise that could not
reasonably have been prevented. We review a denial of a motion for new
trial for an abuse of discretion. Delbridge v. Salt River Project Agric.
Improvement & Power Dist., 182 Ariz. 46, 53 (App. 1994).

¶25 First, as we have already concluded, summary judgment was
appropriate. Supra ¶¶ 11–19.

¶26 Second, Jason’s motion did not allege the type of misconduct
contemplated by Rule 59. Jason contended Aunt and Father engaged in
misconduct because their motion for summary judgment argued for
application of the no-contest provision without actually quoting the
provision. He argued that omission misled the court because the no-contest
provision in Shaheen was broader in scope, and thus Shaheen is
distinguishable. That is a counterargument to the motion for summary
judgment wearing the clothes of a Rule 59 motion. It is not an allegation of
misconduct. See Englert v. Carondelet Health Network, 199 Ariz. 21, 25–29, ¶¶
5–22 (App. 2000) (wrongfully withholding disclosure was misconduct
justifying grant of a new trial); Varco, Inc. v. UNS Elec., Inc., 242 Ariz. 166,
171, ¶¶ 14–19 (App. 2017) (counsel engaged in misconduct by repeatedly
violating court’s orders on motions in limine); Leavy v. Parsell, 188 Ariz. 69,
72 (1997) (misconduct includes counsel improperly vouching for witness’s
credibility).

¶27 Third, Jason’s explanation of his untimely response to the
motion for summary judgment does not demonstrate accident or surprise.
Jason argued his response to the motion for summary judgment was late
because on the eve of the response deadline he was surprised to discover
that “pro se litigants are not permitted to e-file in probate matters.” But
Jason timely filed multiple motions and responses without incident in the
62 record items preceding his untimely response to the motion for summary
judgment. Whatever technical difficulties he may have experienced, “a
party’s mere . . . neglect, inadvertence, or mistake do not justify the granting
of a new trial in civil cases.” King v. Sup. Ct., 138 Ariz. 147, 151 (1983).

¶28 The superior court did not err in finding that Jason’s motion
failed to present grounds upon which it could grant relief.

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CONCLUSION

¶29 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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