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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SILVERDOVE ENTERPRISES, INC. DEFINED BENEFIT PENSION 

PLAN, Plaintiff/Appellant/Cross-Appellee,

v.

JOHN GREENBANK and CAROL A. GREENBANK, 

Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 21-0215

Appeal from the Superior Court in Maricopa County

No. CV2018-003140

The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Tiffany & Bosco, P.A., Phoenix

By Robert A. Royal, Todd Thomas Lenczycki

Counsel for Plaintiff/Appellant/Cross-Appellee

Timothy H. Barnes, P.C., Phoenix

By Timothy H. Barnes

Counsel for Defendants/Appellees/Cross-Appellants

FILED 12-30-2021
SILVERDOVE v. GREENBANK

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.

C R U Z, Judge:

¶1 Silverdove Enterprises, Inc. Defined Benefit Pension Plan 

(“Silverdove”) appeals the superior court’s judgment in favor of John 

Greenbank and Carol A. Greenbank and related rulings. For the following 

reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Bonnie Vanzant, trustee of Silverdove, was married to John 

Greenbank until they divorced in 1984. Vanzant was the sole owner of 

Silverdove Enterprises, Inc. and Silverdove was the defined benefit plan of 

that company.

¶3 Greenbank was the sole owner of Energetics, Inc. Energetics, 

Inc. created a profit-sharing plan in 1986, and amended and restated the 

plan in 2016. The restated plan was entitled Energetics, Inc. Restated Profit

Sharing Plan (“ERPSP”). Greenbank was the sole beneficiary of, and only 

participant in ERPSP. Energetics, Inc. was ERPSP’s owner and 

administrator. Section 12.3 of ERPSP, entitled “No Title to Assets,” 

provided that beneficiaries of ERPSP would have no “right to, or interest 

in, any assets of the Trust except otherwise provided by the terms of the 

Plan.”

¶4 Silverdove Properties, LLC (“Silverdove Properties”) was a 

real estate investment company organized and owned by ERPSP and 

Silverdove for the purpose of making joint real estate investments.

¶5 From 2013 to 2017, the asset value of ERPSP ranged from

$1,228,842 to $1,106,500. Greenbank began taking disbursements from 

ERPSP in 2013.

¶6 In 2012, Silverdove filed a complaint against Greenbank in 

superior court alleging he misappropriated Silverdove’s investment funds. 

Thereafter, Silverdove and Greenbank entered into a settlement agreement. 

Under the 2013 settlement agreement, which Silverdove’s counsel drafted, 
SILVERDOVE v. GREENBANK

Decision of the Court

3

Greenbank had to pay Silverdove $424,626.30 plus interest from half of the 

proceeds of his investments. The settlement agreement’s key provisions

(set forth in paragraphs 8 and 9) provided that Greenbank was to list “all of 

Greenbank’s investments (the “Investments”) and other assets” in a 

verified affidavit and to pay Silverdove “one half of any payments that 

Greenbank receive[d] on any of the Investments” until the funds and 

interest were repaid. Greenbank’s financial affidavit did not list ERPSP as 

an investment subject to the settlement agreement.

¶7 In 2015, Silverdove filed a second complaint against 

Greenbank in superior court alleging violations of the settlement 

agreement. This lawsuit resulted in a stipulated judgment, wherein the 

court found that Greenbank had violated the 2013 settlement agreement 

and ordered him to “specifically perform his obligations under the 

Settlement Agreement, including his obligation to produce sworn verified 

affidavits detailing a full and complete list of his investments and other 

assets to VanZant on a quarterly basis for at least one year beginning on 

June 30, 2015 and on a timely basis thereafter.” The stipulated judgment 

specifically stated it did not resolve whether ERPSP was an investment 

subject to the settlement agreement.

¶8 In 2018, Silverdove filed a third complaint in superior court 

against Greenbank for breach of contract and for an accounting relating to 

the 2013 settlement agreement. The parties submitted a joint report asking 

the court to rule on several issues, and it agreed to do so. Silverdove filed 

a motion entitled “Motion For Court to Determine Applicability [of] 

Greenbank’s Investments” which did not comply with Arizona Rule of 

Civil Procedure (“Rule”) 56. In his response, Greenbank argued, among 

other things, that if the court accepted Silverdove’s interpretation of the 

settlement agreement, the court must evaluate whether the settlement 

agreement was reasonably susceptible to more than one interpretation, and 

if it was, “the question of the parties’ intent becomes a fact question which 

must be left to the trier of fact.” The court ruled that distributions from 

ERPSP were subject to the 2013 settlement agreement’s payment terms.

¶9 Greenbank moved for a new trial. The superior court granted 

the motion, overturning the court’s ruling on the ERPSP issue. The court 

found that its previous ruling had been based on briefing that did not 

“articulate the appropriate standard . . . to be applied,” and that the court 

had incorrectly made “a determination as a matter of law or determination 

that there were undisputed facts or no genuine issue of material fact.”
SILVERDOVE v. GREENBANK

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¶10 Silverdove moved for summary judgment on the ERPSP 

issue. After briefing, the court denied the motion. It concluded there were 

genuine issues of material fact as to whether ERPSP was an investment for 

purposes of the 2013 agreement, the language of the 2013 settlement 

agreement was reasonably susceptible to more than one interpretation, and 

the interpretation was a determination for the trier of fact.

¶11 The matter proceeded to a bench trial. The parties submitted 

a joint pretrial statement. The parties stipulated that (1) “[t]he issue of 

whether the parties intended ERPSP’s investments to come within the 

scope of the Settlement Agreement is a question of fact for the trier of fact 

to resolve”; and (2) “[c]ontested issues of law and fact the parties agree are 

material” include . . . “[w]hether Silverdove and [Greenbank] intended 

ERPSP’s investments to come within the scope of the 10/11/13 Settlement 

Agreement.”

¶12 After a bench trial, the superior court ruled that (1) ERPSP 

was not an investment subject to the settlement agreement; (2) Greenbank 

did not breach the settlement agreement by failing to remit fifty percent of 

the disbursements he received from ERPSP to Silverdove; and (3) 

Greenbank did not breach the 2013 settlement agreement or the 2015 

stipulated judgment with respect to providing Silverdove with financial 

affidavits. The court found that the settlement agreement’s language in 

paragraph 8 was “reasonably susceptible to more than one interpretation 

and therefore the final determination of the parties’ intention is for the trier 

of fact.” The court then found:

Based on the evidence presented at the trial—namely during 

the negotiations of the Settlement Agreement the parties had 

not discussed whether [Silverdove] intended that ERPSP was 

to be included as an “Investment” under ¶ 8 (although 

[Silverdove’s] principal had been aware of the existence of 

ERPSP since 1994 through mutual business dealings in 

Silverdove Properties), John Greenbank did not intend to 

include ERPSP as an “Investment” and ERPSP was not 

included on the list of investments in John Greenbank’s 

October 29, 2013 Financial Affidavit—ERPSP was not 

intended by the parties to be an “Investment” within the 

meaning of Paragraphs 8 or 9 of the Settlement Agreement.

The court awarded Greenbank attorneys’ fees.
SILVERDOVE v. GREENBANK

Decision of the Court

5

¶13 Silverdove moved for a new trial, the superior court denied 

the motion, and Silverdove timely appealed. We have jurisdiction pursuant 

to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1), (3), and (5)(a).

DISCUSSION1

I. Parol Evidence

¶14 We review issues of contract interpretation de novo. Sw. NonProfit Hous. Corp. v. Nowak, 234 Ariz. 387, 393, ¶ 19 (App. 2014). Whether a 

contract is reasonably susceptible to more than one interpretation is a 

question of law which we review de novo. In re Est. of Lamparella, 210 Ariz. 

246, 250, ¶ 21 (App. 2005) (citations omitted).

¶15 The primary function of a court when interpreting a contract 

is “to enforce the meaning intended by the contracting parties.” Taylor v. 

State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 154 (1993). “It is axiomatic that 

a contract must be construed as a whole, and each and every part must be 

read in the light of the other parts.” Goodman v. Newzona Inv. Co., 101 Ariz. 

470, 473 (1966) (citation omitted).

¶16 “Antecedent understandings and negotiations may be 

admissible . . . for purposes other than varying or contradicting a final 

agreement. . . . Interpretation is one such purpose.” Taylor, 175 Ariz. at 152 

(citing Corbin on Contracts §§ 576, 579, at 384, 412-13 (1960); Restatement 

(Second) of Contracts § 214(c)). When a party offers extrinsic evidence to 

aid in the interpretation of a contract, the court “first considers the offered 

evidence and, if [the court] finds that the contract language is ‘reasonably 

susceptible’ to the interpretation asserted by its proponent, the evidence is 

admissible to determine the meaning intended by the parties.” Taylor, 175 

Ariz. at 154 (citations omitted). “The court must decide what evidence, 

other than the writing, is admissible in the interpretation process, bearing 

in mind that the parol evidence rule prohibits extrinsic evidence to vary or 

contradict, but not to interpret, the agreement.” Id. at 152. “The meaning 

that appears plain and unambiguous on the first reading of a document 

may not appear nearly so plain once the judge considers the evidence.” Id.

at 154. The court may properly decide not to consider extrinsic evidence 

when the “asserted meaning of the contract language is so unreasonable or 

extraordinary that it is improbable that the parties actually subscribed to 

1 Greenbank filed a cross appeal in this matter but did not raise any 

argument or file a brief in support of the cross appeal. Accordingly, we 

dismiss the cross appeal. See ARCAP 15(a)(4).
SILVERDOVE v. GREENBANK

Decision of the Court

6

the interpretation asserted by the proponent of the extrinsic evidence.” Id.

at 153.

¶17 Silverdove argues the settlement agreement was not 

reasonably susceptible to more than one interpretation because the 

agreement required Greenbank to pay Silverdove one-half of any payments 

from all of his investments, and ERPSP was “admittedly an investment by 

Greenbank.” It argues the superior court ignored the parties’ objective 

intent and wrongly relied on Greenbank’s parol evidence of his “secretive 

intent” to exclude ERPSP. Silverdove claims paragraph 8’s language

unambiguously reflects the parties’ intention to include ERPSP’s 

investments within the scope of the settlement agreement. The agreement 

provides:

8. Financial Affidavit. Contemporaneously with execution 

of this Agreement, John shall execute a sworn and verified 

affidavit detailing a full and complete list of all of 

Greenbank’s investments (“the Investments”) and other 

assets. Greenbank shall timely supplement this sworn and

verified affidavit as the Investments and other assets change. 

A copy of the Financial Affidavit is attached as Exhibit B.

9. Dollar-for-Dollar on Investment Payments. Greenbank 

shall pay to [Silverdove] one half of any payments that 

Greenbank receives on any of the Investments and 

Greenbank will be entitled to the other half of any payments 

on the Investments until he has repaid in full the Missing 

Funds plus all applicable interest.

(Emphasis added.) In addition, the settlement agreement defines 

“Greenbank” as “John A. Greenbank.”

¶18 ERPSP was not listed as an investment or asset on 

Greenbank’s financial affidavit incorporated into the agreement. And 

paragraph 8 referred to “Greenbank’s investments,” with no mention of 

ERPSP. Further, Greenbank did not “admit” that ERPSP was an investment 

by Greenbank subject to the settlement agreement as Silverdove suggests. 

Silverdove cites to Greenbank’s testimony to support its contention that 

“ERPSP . . . is admittedly an investment by Greenbank.” The cited 

testimony, however, was that ERPSP owns investments, ERPSP is owned 

by Energetics, Inc., and Greenbank, as president of Energetics, Inc. controls 

ERPSP. Greenbank consistently maintained that ERPSP was a pension plan 

owned by Energetics, Inc. and that he did not personally own ERPSP’s 
SILVERDOVE v. GREENBANK

Decision of the Court

7

investments. The language of the settlement agreement was reasonably 

susceptible to Greenbank’s interpretation—that ERPSP was not an 

investment subject to the settlement agreement.

¶19 Greenbank’s extrinsic evidence included the following: 

Greenbank was the sole owner and president of Energetics, Inc., an Arizona 

corporation. Energetics, Inc. created a profit-sharing retirement plan, 

ERPSP, in 1986. Greenbank was the sole beneficiary of, and only participant 

in ERPSP. Energetics, Inc. was ERPSP’s owner and administrator, not 

Greenbank. Section 12.3 of ERPSP, entitled “No Title to Assets,” provided 

that beneficiaries of ERPSP would have no “right to, or interest in, any 

assets of the Trust except otherwise provided by the terms of the Plan.” 

Greenbank never intended for ERPSP to be included as an investment 

subject to the settlement agreement because it was his retirement plan and 

“separate” from his personal investments. Greenbank never spoke with 

Vanzant or Silverdove’s attorney about what investments to include in the 

financial affidavit. He did not discuss ERPSP with the attorney before 

signing the settlement agreement and never would have agreed to the 

settlement if he had been required to include ERPSP on the financial 

affidavit.

¶20 The superior court did not err by considering extrinsic 

evidence to determine the parties’ intent as to the investments that would 

be subject to the repayment schedule in the agreement. The evidence was 

not offered to “vary or contradict” the agreement, and Greenbank’s 

asserted meaning of the contract language was not “so unreasonable or 

extraordinary that it is improbable that the parties actually subscribed to 

the interpretation asserted by [Greenbank].” Taylor, 175 Ariz. at 152-53.

II. Financial Affidavits

¶21 Silverdove next argues Greenbank breached the settlement 

agreement and the 2015 stipulated judgment by failing to provide accurate 

and timely supplemental financial affidavits.

¶22 “The trial judge makes factual determinations in the first 

instance, and we will sustain these findings unless they are clearly 

erroneous or unsupported by any credible evidence.” Federoff v. Pioneer 

Title & Tr. Co. of Ariz., 166 Ariz. 383, 388 (1990). The superior court found 

that Greenbank had not materially breached the settlement agreement or 

stipulated judgment by failing to provide Silverdove with financial 

affidavits. The court specifically found that Greenbank complied with the 
SILVERDOVE v. GREENBANK

Decision of the Court

8

stipulated judgment by providing affidavits for one year beginning in June 

2015.

¶23 Paragraph A of the stipulated judgment required Greenbank 

to provide financial affidavits to Silverdove on a “quarterly basis for at least 

one year beginning on June 30, 2015 and on a timely basis thereafter.” 

Paragraph 8 of the settlement agreement provided that “Greenbank shall 

timely supplement this sworn and verified affidavit as the Investments and 

other assets change.”

¶24 Vanzant testified that Greenbank provided her quarterly 

affidavits for one year as required by the stipulated judgment. The last 

affidavit was dated March 29, 2016. Greenbank testified that he did not 

send additional updated financial affidavits thereafter because his 

investment assets had not changed significantly. According to Silverdove, 

Greenbank’s “biggest mistake” was his failure to list Mortgages Limited on 

his financial affidavits. When questioned about why he did not include 

Mortgages Limited, Greenbank testified that the company had been in 

bankruptcy proceedings since 2012, and he “didn’t expect anything from 

them.” Greenbank and Vanzant were both creditors in the bankruptcy. 

And when Greenbank did receive payments from Mortgages Limited in 

2014, 2016, and 2018, he remitted half to Silverdove.

¶25 The superior court’s finding that Greenbank had not 

materially breached the settlement agreement or stipulated judgment was 

not clearly erroneous or unsupported by credible evidence. See id. at 388. 

“It is not our prerogative to weigh the evidence and determine the 

credibility of witnesses; that role belongs to the trial court.” Premier Fin. 

Servs. v. Citibank, 185 Ariz. 80, 85 (App. 1995).

III. Greenbank’s Motion for New Trial

¶26 Silverdove next argues that the superior court erred by 

granting Greenbank’s motion for new trial and reversing its decision that 

distributions from ERPSP were subject to the 2013 settlement agreement’s 

payment terms. “We review an order granting a new trial under a more 

liberal standard than an order denying one, and we will not overturn the 

order absent a clear abuse of discretion.” State Farm Fire & Cas. Co. v. Brown, 

183 Ariz. 518, 521 (App. 1995).

¶27 The superior court’s ruling granting Greenbank’s motion for 

new trial stated:
SILVERDOVE v. GREENBANK

Decision of the Court

9

THE COURT FINDS Commissioner French’s ruling was 

based upon the briefing presented to her at that time which 

did not articulate the appropriate standard needed to be 

applied.

Furthermore, based upon the briefing presented to this Court 

in the Motion for New Trial,

THE COURT FINDS that there was a determination as a 

matter of law or determination that there were undisputed 

facts or no genuine issue of material fact. For those reasons, 

the Court believes it is appropriate to grant the motion.

¶28 Silverdove’s “Motion For Court to Determine Applicability 

[of] Greenbank’s Investments” cited to and relied upon various facts but 

did not comply with Rule 56 by including a separate Rule 56(c)(3)(A) 

statement of facts with “the specific part of the record where support for 

each fact may be found.” Nor was the motion supported by affidavits or 

other testimony. See Rule 56(c)(5), (6). As noted supra paragraph 10, after 

the superior court granted Greenbank’s motion for new trial, Silverdove 

filed a motion for summary judgment on the determination of the ERPSP 

as an investment in compliance with Rule 56. And thereafter, the court 

concluded there were genuine issues of material fact as to whether ERPSP 

was an investment for purposes of the 2013 agreement. It was within the 

sound discretion of the superior court to grant the motion for new trial.

IV. Silverdove’s Motion for New Trial

¶29 Finally, Silverdove argues the superior court abused its 

discretion by denying its motion for new trial. We review the denial of a 

motion for new trial for an abuse of discretion. First Fin. Bank, N.A. v. 

Claassen, 238 Ariz. 160, 162, ¶ 8 (App. 2015). “To find an abuse of discretion, 

there must either be no evidence to support the superior court’s conclusion 

or the reasons given by the court must be clearly untenable, legally 

incorrect, or amount to a denial of justice.” Charles I. Friedman, P.C. v. 

Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006) (citation and internal 

quotation marks omitted).

¶30 Silverdove requested a new trial on several grounds, 

including that there was new evidence that the promissory note 

collateralizing the settlement agreement was worthless. See Rule 

59(a)(1)(D). The superior court summarily denied the motion.
SILVERDOVE v. GREENBANK

Decision of the Court

10

¶31 The superior court “may” grant a new trial on certain grounds 

materially affecting the moving party’s rights, including “newly discovered 

material evidence that could not have been discovered and produced at 

trial with reasonable diligence.” Rule 59(a)(1)(D). “[T]o grant a motion for 

a new trial on the grounds of newly discovered evidence, it must appear to 

the trial court that such evidence would probably change the result upon 

rehearing.” Roberts v. Morgensen Motors, 135 Ariz. 162, 165 (App. 1982).

¶32 Silverdove argues the superior court abused its discretion by 

denying the motion for new trial because it provided the court with 

evidence that “before trial MRC Refining was extinct and its promissory 

notes had no value,” which contradicted Greenbank’s trial testimony that 

MRC Refining was a viable company. According to Silverdove, the new 

evidence would have changed the superior court’s judgment because it 

showed Greenbank breached the settlement agreement by inaccurately 

valuing MRC Refining on his financial affidavits.

¶33 Silverdove’s new evidence consisted of an affidavit from 

Vanzant; undated screenshots of a text message to Vanzant from Rock 

Ballstaedt, the manager of MRC Refining; and a December 28, 2020 letter 

from Ballstaedt to investors announcing the closing of MRC Refining. 

Vanzant’s affidavit stated that after the superior court entered its findings 

on October 16, 2020, Ballstaedt sent her a text message informing her that 

MRC Refining would be closing down. The affidavit does not say when 

Ballstaedt sent the text message other than after October 16, 2020, and, as 

noted above, the screenshots were undated. Vanzant’s affidavit stated that 

Ballstaedt’s “text message said the closing had been ongoing for months 

which would mean it was known earlier in 2020 and before trial.”

¶34 We have reviewed the screenshots of the text message 

attached to and cited in Vanzant’s affidavit and see no language in them 

indicating that MRC Refining’s closing “had been ongoing for months.” 

Although the December 28, 2020 letter stated that “[f]or some time it has 

been increasingly clear that there are no viable financing options for the 

project,” the phrase “for some time” is vague and Silverdove cited no 

additional evidence establishing when MRC Refining and Greenbank knew 

the project would have to be shut down. Silverdove’s new evidence did not 

adequately support its argument that Greenbank, as MRC Refining’s 

president, knew that the company was “worthless” at the time of trial in 

early October 2020. The superior court did not abuse its discretion by 

failing to grant Silverdove a new trial on the basis of newly discovered 

evidence. It was within the court’s discretion to conclude the evidence 

would probably not have changed the result at trial. See id. at 165.
SILVERDOVE v. GREENBANK

Decision of the Court

11

V. Attorneys’ Fees

¶35 Silverdove and Greenbank both request attorneys’ fees and 

costs pursuant to A.R.S. §§ 12-341, -341.01 and the settlement agreement. 

As the prevailing party, Greenbank is entitled to costs and in our discretion 

we award him reasonable attorneys’ fees upon compliance with ARCAP 21.

CONCLUSION

¶36 For the foregoing reasons, we affirm.