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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID BERG, et al., Plaintiffs/Appellants/Cross Appellees,

v.

WEISS & MOY PC, et al., Defendants/Appellees/Cross Appellants.

No. 1 CA-CV 18-0692

Appeal from the Superior Court in Maricopa County

No. CV2013-015419

The Honorable Daniel J. Kiley, Judge

AFFIRMED

COUNSEL

Sherrets Bruno & Vogt LLC, Scottsdale

By Jason M. Bruno, Jared C. Olson

Counsel for Plaintiffs/Appellants/Cross Appellees

Broening Oberg Woods & Wilson, P.C., Phoenix

By Alicyn M. Freeman, Robert T. Sullivan, Tyler M. Abrahams, Alice Jones

Counsel for Defendants/Appellees/Cross Appellants

FILED 4-30-2020
BERG, et al. v. WEISS & MOY, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 David Berg and Vintner Group, L.L.C. (“Vintner”) 

(collectively, “Plaintiffs”) and their counsel, Jason Bruno, appeal the 

superior court’s monetary sanctions and dismissal with prejudice of 

Plaintiffs’ lawsuit for professional negligence against attorney Mark Weiss 

and Weiss & Moy, P.C. (collectively, “Defendants”). The superior court 

imposed monetary sanctions and dismissed the case because of Plaintiffs’ 

repeated flouting of their discovery obligations and deliberate spoliation of 

evidence, and the court’s conclusion that lesser sanctions would be 

inadequate to remedy the prejudice caused by Plaintiffs’ misconduct. The 

court also concluded Bruno had personally engaged in misconduct and 

breached his ethical duties, warranting the imposition of a monetary 

sanction against him. Because the superior court’s decisions are fully 

supported by the record and the forensic investigation conducted in this 

case, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This litigation arises out of the failure of Tstix, L.L.C. (“Tstix”), 

a company created to market a new product called Tstix, a perforated stick 

package for producing beverages such as tea and coffee without the need 

of a bag, string, or spoon. In 2011, Weiss prepared a draft of Tstix’ operating 

agreement. At inception, Vintner, a company majority-owned by Berg’s 

family trust, owned fifty percent of the company; MAAD Hunter Venture 

Capital Group, Inc., which was owned by Tstix’ sole investor, Michael 

Erinakes, owned thirty percent; and Geoffrey Stuart, the product’s inventor, 

owned twenty percent. Berg was named Tstix’ manager.

¶3 In November 2011, Berg decided to transfer Vintner’s fifty 

percent interest in Tstix to Vintner’s individual members. At Berg’s 

request, Weiss prepared a draft email on Berg’s behalf to the Vintner 

members explaining the transfer. Before sending the email to Vintner’s 

members, however, Berg deleted language from the draft regarding the 

need to obtain consent for the transfer from Tstix’ other members, Erinakes
BERG, et al. v. WEISS & MOY, et al.

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3

and Stuart. Berg then completed the transfer without obtaining Erinakes’

and Stuart’s consent.1

¶4 By May 2012, Erinakes and Stuart were dissatisfied with 

Berg’s management of Tstix. Tstix had no revenue, no salable inventory, 

no proven manufacturing capacity, and no source of capital besides 

Erinakes. Further, Erinakes and Stuart suspected Berg had 

misappropriated company funds.

¶5 In consolidated cases, Erinakes and Stuart each sued Berg and 

Vintner in Nevada (“the Nevada Litigation”). At the time, neither Erinakes 

nor Stuart knew of the previous unconsented-to transfer.

¶6 In August 2012, Berg and Vintner filed a counterclaim that,

for the first time, disclosed the transfer to Erinakes and Stuart. Erinakes 

and Stuart brought the transfer and the operating agreement’s consent 

requirement to the Nevada court’s attention. Erinakes and Stuart also voted 

to remove Berg as manager and brought a preliminary injunction to enforce 

their vote and force Berg to return company funds he had withdrawn.

¶7 The Nevada court granted the preliminary injunction to 

remove Berg as manager and ordered Berg to turn over to Erinakes 

everything related to Tstix, including Berg’s company laptop (“the Erinakes 

laptop”). On September 5, 2012, Berg turned over the laptop to Erinakes.

¶8 On September 7, 2012, Weiss signed a declaration on behalf of 

Berg, stating that in Weiss’ opinion, Berg did not need to obtain the 

approval of Erinakes and Stuart before making the transfer.

¶9 A few weeks later, the parties settled the Nevada Litigation. 

All Vintner members except Berg maintained their pro rata share of Tstix; 

1 According to Tstix’ operating agreement, an interest transferred 

without unanimous consent from Tstix members becomes an economic 

interest only. When Berg failed to obtain consent to the transfer, he caused 

Vintner members to have an interest in Tstix with no management or voting 

authority. Approximately three weeks before the transfer, another attorney 

informed Berg that the operating agreement “requires unanimous 

[m]ember consent to any transfers of LLC interests.” The parties dispute 

whether Weiss properly and adequately advised Plaintiffs of the need for 

consent from Erinakes and Stuart. Plaintiffs allege Weiss’ failure to provide 

proper advice coupled with his active participation in the transfer 

documents breached his fiduciary duties to Berg and Vintner.
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much of Berg’s family trust’s interest in Tstix was transferred to Erinakes 

and Stuart, reducing that interest from 42.6 percent to 7 percent.

¶10 In November 2013, Berg and Vintner (Plaintiffs) sued

Defendants, alleging Weiss failed to adequately advise Berg about 

obtaining consent for the transfer from Erinakes and Stuart. Berg sought 

damages for lost salary as manager of Tstix, and Vintner sought damages 

for the value of the loss of membership interests.

¶11 During the litigation, Defendants began to suspect Plaintiffs 

had not disclosed all relevant and discoverable emails in Berg’s possession, 

especially when Defendants, through other discovery methods, obtained

hundreds of emails from third parties that had been sent or received by 

Berg that Plaintiffs had never disclosed. Defendants confronted Plaintiffs 

about the apparent lack of disclosure, but Plaintiffs denied having anything 

more to disclose.

¶12 In October 2015, the superior court granted Defendants’ 

request for a forensic expert, Karl Epps, to investigate Berg’s email accounts 

and current computer. Per the court’s order, Epps’ investigation would 

search only for the word “Tstix” across six web-based email accounts 

possessed by Berg and his wife, who had been the bookkeeper for Tstix,

and would search Berg’s current computer hard drive for “Tstix” and other 

relevant names. Epps would give the search results only to Plaintiffs, who 

would disclose the results to Defendants after reviewing the results and 

preparing a privilege log.

¶13 The parties continuously disagreed about the scope and

parameters of the Epps investigation, and Plaintiffs tried to stop or limit it 

several times. When Bruno received the final results from the Epps 

investigation, Plaintiffs refused to disclose those results until Defendants 

moved to compel production. Plaintiffs provided further disclosure, but 

even then, Defendants argued Plaintiffs’ disclosure was incomplete.

¶14 Meanwhile, in January 2016, the court appointed a discovery 

master, who later held a two-day evidentiary hearing regarding the forensic 

investigation. Over the course of that hearing, Defendants asked Berg to 

explain the numerous relevant emails he failed to disclose, but he could not 

offer any supportable explanation for that failure.

¶15 The Epps investigation revealed that Plaintiffs had concealed 

significant material evidence. Epps found 2,011 non-privileged emails on 

Berg’s and his wife’s email accounts containing the word “Tstix,” but

Plaintiffs had only disclosed 133 emails from those accounts. Many of the 
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emails were relevant to issues such as causation and Plaintiffs’ claims for 

damages. Epps also found relevant undisclosed documents on Berg’s 

current computer hard drive.

¶16 Throughout the forensic investigation, Berg and Bruno 

maintained that Berg no longer had access to his email account, 

dberg@Tstix.com, the primary email account for Tstix business, or any 

other Tstix documents because he had turned over his Tstix laptop (the 

Erinakes laptop) to Erinakes on September 5, 2012. However, Epps found 

thirty-five hard drive or .msg (Microsoft Outlook) files from 

dberg@Tstix.com on Berg’s current laptop. Further, Berg had inexplicably 

supplied Bruno’s assistant with several dberg@Tstix.com emails in 

electronic format, and had sent an email dated October 4, 2012, from the 

dberg@Tstix.com email account, indicating Berg had access to that account 

after September 5, 2012.

¶17 Additionally, Plaintiffs had previously disclosed emails from 

dberg@bigideagroup.com and bigideaman@gmail.com, including emails 

that contained the word “Tstix.” When Epps searched those two email 

accounts, however, he found no results for the word “Tstix,” indicating 

Berg had deleted relevant evidence from those email accounts during the 

litigation with Defendants.

¶18 In February 2016, Defendants obtained the laptop that Berg 

had previously turned over to Erinakes (the Erinakes laptop) during the 

Nevada Litigation on September 5, 2012. Berg initially testified he had 

made a single hard drive copy of the emails from the Erinakes laptop, but 

the hard drive crashed, and he threw it away. He also testified he gave the 

laptop to Erinakes one hundred percent as-is and did nothing to it before 

turning it over. Because Plaintiffs objected to Epps examining the Erinakes 

laptop, Defendants hired another forensic computer expert, Kelly Kuchta, 

to examine it.

¶19 The Erinakes laptop revealed further evidence of concealment 

and spoliation of evidence. Kuchta examined what had been done to the 

Erinakes laptop between August 31 and September 5, 2012, the period when 

Berg said he had sole access to it. Kuchta determined that, during that time, 

Berg had “hand-select[ed]” which emails to leave on the laptop before 

turning it over to Erinakes, while deleting others.

¶20 Kuchta also determined that, on August 31, 2012, Berg deleted 

the hard drive on the Erinakes laptop, which is a MacBook, then partitioned 

it into two equal segments, putting a Windows PC operating system 
BERG, et al. v. WEISS & MOY, et al.

Decision of the Court

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(licensed by a company owned by Berg) on the newly created partition. On 

September 1, 2012, Berg created an Outlook .pst (personal storage table) file 

to store emails on the newly created partition. Berg then used at least three 

separate external hard drives to download or upload data onto the Erinakes 

laptop. Kuchta concluded Berg’s actions were “very calculated,” designed 

“to try and hide data,” and went well beyond what was necessary to copy 

the data for his own records.

¶21 After Kuchta testified at the evidentiary hearing before the 

discovery master, Berg changed his testimony and said he had an 

undisclosed “IT guy” put a Windows partition on the Erinakes laptop

before he turned it over to Erinakes because “Erinakes wasn’t a Mac guy.”

¶22 Epps concluded Berg had used various means to back up data 

from the Erinakes laptop, including approximately ten likely external hard 

drives, and at least six web-based systems for data backup. Further, the 

same three external hard drives Berg had connected to the Erinakes laptop 

days before turning it over were likely connected to the laptop Berg was 

currently using (i.e., Berg moved original Tstix data off the Erinakes laptop 

and onto his current computer laptop). But Epps and Kuchta could not 

confirm if this was true because “the OSX files which would contain serial 

numbers and dates of usage of the USB devices are missing” from Berg’s 

current computer laptop, and “the only reasonable conclusion for the 

absence of these files was purposeful human intervention, manually or via 

software, to physically remove the files or disable the files from being 

created in the first place.” Epps described this type of deletion of files as a 

“common hacking technique.”

¶23 In April 2017, Defendants moved for sanctions, including 

dismissal of the case, under Arizona Rule of Civil Procedure (“Rule”) 37

and Arizona Revised Statutes (“A.R.S.”) section 12-349. Defendants argued 

the forensic investigation revealed Plaintiffs had withheld vast amounts of 

discoverable evidence, and Berg had committed perjury and spoliation of 

evidence. In June 2017, Plaintiffs moved for sanctions against Defendants 

pursuant to Rules 37 and 11, alleging Defendants had failed to timely 

disclose information from the Erinakes laptop and for making “reckless and 

baseless public accusations in their Motion for Sanctions.”

¶24 After further briefing, the superior court held an evidentiary 

hearing in February 2018, permitting each side three hours to present 

relevant arguments and evidence. Epps and Kuchta testified consistently 

with what they had previously reported regarding their findings during the 

investigation. Berg also testified, but he could not explain multitudes of
BERG, et al. v. WEISS & MOY, et al.

Decision of the Court

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inconsistencies between his testimony and the evidence presented by 

Defendants. When asked by the court what discovery would have to be redone in light of the new evidence, defense counsel answered that essentially

“everything” would have to be re-done, including obtaining new value 

opinions from the valuation experts and re-deposing them; re-deposing 

causation experts; preparing new summary judgment motions in light of 

new evidence; preparing and addressing new Daubert2 motions; and redeposing the Vintner members (although at least one could not be redeposed because he had died).

¶25 After taking the matter under advisement, the court denied 

Plaintiffs’ motion for sanctions and granted Defendants’ motion for 

sanctions, including dismissing Plaintiffs’ complaint with prejudice and 

ordering Plaintiffs to pay attorneys’ fees, costs, and other expenses incurred 

in connection with the forensic investigation. The court found Berg’s 

testimony not credible and detailed Plaintiffs’ failure to disclose material, 

relevant documents they had a duty to disclose, highlighting several 

specific undisclosed emails and documents, before concluding that “many 

of the undisclosed documents, taken together, could have had a significant 

impact on the outcome of this case.” The court also noted that although 

Plaintiffs were able to locate and disclose all emails that supported their 

position, they had not disclosed emails contrary to their position. Further, 

the court accepted Epps’ testimony that Berg could have easily found the 

web-based emails found by Epps. The court also found that Berg 

deliberately engaged in the spoliation of relevant evidence by tampering 

with the Erinakes laptop and deleting emails in at least two of his webbased email accounts. The court also detailed numerous other discovery 

violations committed by Plaintiffs and concluded Bruno had engaged in 

misconduct based on his actions involving an expert witness.

¶26 Based on its findings, the court determined Plaintiffs’ 

misconduct warranted “severe sanctions.” The court determined lesser 

sanctions would be inadequate given that re-opening discovery would add 

tremendous cost and additional delay to an already five-year-old case; 

preclusion of evidence would only benefit Plaintiffs; and an adverse jury 

instruction would permit the jury to speculate about the contents of the 

destroyed evidence. Accordingly, the court dismissed the case with 

prejudice. The court also ordered Plaintiffs to pay Defendants’ reasonable 

attorneys’ and expert fees and other costs and expenses incurred in 

2 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

(setting forth a reliability-assessment framework for evaluating the 

admissibility of expert testimony); see also Ariz. R. Evid. 702.
BERG, et al. v. WEISS & MOY, et al.

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connection with the Epps investigation and imposed a monetary sanction 

against Bruno for his documented role in the misconduct, including 

violating Ethical Rule 3.3, Ariz. R. Sup. Ct. 42.

3

¶27 Plaintiffs moved for a new trial and reconsideration of the 

ruling, primarily raising the issues now raised on appeal. After responsive 

briefing on the motion for new trial, the superior court denied both motions.

¶28 Plaintiffs also moved to disqualify the trial judge for allegedly 

engaging in ex parte communications with Defendants based on entries in 

Defendants’ fee application. The civil presiding judge held oral argument 

on the motion, took the matter under advisement, and later denied the 

motion.

¶29 Plaintiffs timely appealed the superior court’s judgment, and 

Defendants timely cross-appealed, challenging a previous ruling by the 

superior court. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

ANALYSIS

¶30 Plaintiffs raise eighteen issues in their opening brief

challenging the superior court’s orders.

¶31 We review for an abuse of discretion the superior court’s 

imposition of sanctions, including dismissal of a case based on discovery 

violations, and its ruling on a motion for new trial. Cal X–Tra v. W.V.S.V. 

Holdings, L.L.C., 229 Ariz. 377, 396-97, 410, ¶¶ 66, 113 (App. 2012); Rivers v. 

Solley, 217 Ariz. 528, 530, ¶ 11 (App. 2008). The same standard applies to 

the superior court’s determination of the admissibility of expert testimony,

Felipe v. Theme Tech Corp., 235 Ariz. 520, 524, ¶ 10 (App. 2014), and the denial 

of a motion for change of judge for cause. Stagecoach Trails MHC, L.L.C. v. 

City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013). As for the superior 

court’s interpretation and application of statutes and rules, we apply a de 

novo review. See Felipe, 235 Ariz. at 524, ¶ 10; City of Casa Grande v. Ariz. 

Water Co., 199 Ariz. 547, 555, ¶ 27 (App. 2001) (stating that, with respect to 

A.R.S. § 12-349(A), we will uphold the superior court’s findings of fact 

unless clearly erroneous, but review de novo its application of the statute).

¶32 In our review, we defer to the superior court’s explicit and 

implicit factual findings and will affirm them if supported by reasonable 

evidence. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10 (2003); 

3 As an additional sanction, the superior court referred Bruno to the 

State Bar of Arizona “for appropriate disciplinary action.”
BERG, et al. v. WEISS & MOY, et al.

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Lund v. Donahoe, 227 Ariz. 572, 579, ¶ 19 (App. 2011); see also Hurd v. Hurd, 

223 Ariz. 48, 52, ¶ 16 (App. 2009) (deferring to the superior court’s 

credibility determinations). We will not substitute our discretion for that of 

the superior court; instead, we review “whether a judicial mind, in view of 

the law and circumstances, could have made the ruling without exceeding 

the bounds of reason.” Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 

2013) (quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985)).

¶33 “The sanction of dismissal is warranted only when the court 

makes an express finding that a party . . . has obstructed discovery, and that 

the court has considered and rejected lesser sanctions as a penalty.” Wayne 

Cook Enters. v. Fain Props. Ltd. P’ship, 196 Ariz. 146, 149, ¶ 12 (App. 1999) 

(internal citation omitted); see also Souza v. Fred Carries Contracts, Inc., 191 

Ariz. 247, 250 (App. 1997) (recognizing that no “bright line” rule exists for 

when dismissal is warranted in cases of spoliation of evidence, and 

“sanctions therefor should be decided on a case-by-case basis, considering 

all relevant factors” (citation omitted)). Although the superior court’s 

discretion is more limited when it dismisses a case for discovery violations 

than when it employs lesser sanctions, Wayne Cook Enters., 196 Ariz. at 147, 

¶ 5 (citation omitted), we may uphold a dismissal when, among other 

things, a party shows “flagrant bad faith” and “a knowing and callous 

disregard” of discovery obligations or court orders, Gulf Homes, Inc. v. 

Beron, 141 Ariz. 624, 629 (1984).

¶34 In ruling in favor of Defendants, the superior court issued an 

exhaustive thirty-six-page minute entry that considered in detail Plaintiffs’ 

failure to disclose relevant documents they had a duty to disclose, Plaintiffs’ 

deliberate spoliation of evidence, Plaintiffs’ other discovery violations, 

Plaintiffs’ claims against Defendants, and the court’s rationale for imposing

the severe sanction of dismissal upon Plaintiffs and monetary sanctions 

upon Plaintiffs and their counsel, Bruno, for his complicity. Further, the 

court fully addressed the arguments Plaintiffs made in their motions for 

reconsideration and for a new trial, issuing a clear minute entry addressing 

issues raised in the motion for reconsideration and another thorough 

thirteen-page minute entry addressing issues raised in the motion for new 

trial. Additionally, the civil presiding judge, after briefing, oral argument, 

and taking the matter under advisement, issued a clear and concise minute 

entry correctly addressing and denying Plaintiffs’ motion to disqualify the 

trial judge for allegedly engaging in ex parte communications with 

Defendants.

¶35 The superior court’s rulings, with the exception of immaterial 

typographical or record citation errors discussed in part by the parties, 
BERG, et al. v. WEISS & MOY, et al.

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clearly identified, fully addressed, and correctly resolved the issues now 

raised by Plaintiffs on appeal. The court’s reliance on the two forensic 

examination experts, Epps and Kuchta, was neither legal error nor an abuse 

of discretion, and the experts’ affidavits/declarations, related exhibits, and 

testimony at the February 2018 evidentiary hearing fully support the 

superior court’s rulings. We agree with the superior court that Plaintiffs’ 

flouting of their discovery obligations and their concealment and spoliation 

of evidence not only required the costly and time-consuming forensic 

investigation conducted in this case, but also made it impossible to fully 

and fairly litigate the case on the merits. Under these circumstances, we 

need not repeat the superior court’s comprehensive analysis here; instead, 

we adopt it. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (holding 

that, when the superior court clearly identifies and correctly rules upon 

each issue raised “in a fashion that will allow any court in the future to 

understand the resolution[, n]o useful purpose would be served by this 

court rehashing the [superior] court’s correct ruling in [the] written 

decision”). The superior court did not abuse its discretion because its 

detailed findings that Plaintiffs intentionally committed discovery abuses 

and concealed and spoliated evidence are reasonably and overwhelmingly 

supported by the record, and the court considered and determined that a 

lesser sanction would not remedy the discovery violations. Moreover, the 

civil presiding judge did not abuse her discretion in denying Plaintiffs’ 

motion to disqualify the assigned judge based on an allegation that Weiss’ 

counsel inquired from the judge’s staff member as to whether the court 

required Weiss’ counsel to provide the transcript of a prior hearing. In that 

regard, Plaintiffs failed to show that the question to the judge’s staff

memberfollowed by that staff member’s answer in the negative created any

probability of unconstitutional bias on the part of the judge. See Caperton v. 

A.T. Massey Coal Co., 556 U.S. 868, 872 (2009). Accordingly, we affirm the 

superior court.4

4 Because we affirm the superior court’s dismissal of the case, we do 

not address the issue presented in the cross-appeal. Also, we note that on 

October 31, 2019, Defendants filed a supplemental citation of legal authority 

and accompanying documentation in this appeal. Plaintiffs then moved to 

strike the supplemental citation of legal authority. The record fully 

supports the superior court’s findings, rulings, and judgment without 

consideration of the supplementary materials, and we grant Plaintiffs’ 

motion to strike the supplemental citation of legal authority, but without 

prejudice to Defendants’ ability to revisit the issue upon further 

proceedings.
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¶36 Finally, upon compliance with Rule 21, ARCAP, we grant 

Defendants’ request for an award of attorneys’ fees and taxable costs for 

being forced to respond to this frivolous appeal and to discourage similar 

conduct by Plaintiffs and their counsel in the future. See ARCAP 25; A.R.S. 

§ 12-349(A)(1), (F). It was Plaintiffs’ intentional misconduct that prevented 

this case from being adjudicated on the merits; caused substantial delay, 

fees, and costs; and led the superior court to dismiss the case. That 

substantial delay and expense is now exacerbated by Plaintiffs presenting 

eighteen issues on appeal, issues that, on this record, any reasonable 

attorney would find are without merit.

CONCLUSION

¶37 We affirm the superior court’s dismissal of the case, awards 

of monetary sanctions against Plaintiffs and their counsel, and the resulting 

judgment. We also award attorneys’ fees and taxable costs to Defendants 

for responding to this frivolous appeal.