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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID GOODWIN PERKINS, Deceased.

_________________________________

PATRICIA KIMBALL and BENJAMIN KIMBALL, husband and wife;

7 BAR, LLC, an Arizona limited liability company; BANJO, LLC, an 

Arizona limited liability company; and SEVILLE EAST, an Arizona 

general partnership, Appellants/Cross-Appellees,

v.

MEMI PERKINS; SILKIE PERKINS; AMANDA CALVERT; DAVID ALEX

PERKINS, DULCY MOORE PERKINS; SHIRLEY A. SEITZ; SMITH

PERKINS, and DINAH PERKINS, Appellees/Cross-Appellants.

No. 1 CA-CV 14-0657

Appeal from the Superior Court in Yavapai County

Nos. P1300CV20090963 and P1300PB17174

(Consolidated)

The Honorable David L. Mackey, Judge

AFFIRMED AS MODIFIED
KIMBALL et al. v. PERKINS et al.

Decision of the Court

2

COUNSEL

Cavanagh Law Firm, Phoenix

By Jeffrey B. Smith, William F. Begley, David A. Selden, 

Justin V. Niedzialek

Counsel for Appellants/Cross-Appellees Kimball

Dickinson Wright, PLLC, Phoenix

By Michael R. Scheurich, Michael J. Plati

Lynn Tillotson Pinker & Cox, LLP, Dallas, TX

By David S. Coale

Co-Counsel for Appellant/Cross-Appellee 7 Bar LLC, Banjo LLC, Seville East

Gallagher & Kennedy, PA, Phoenix

By Mark C. Dangerfield

Counsel for Appellees/Cross-Appellants Perkins

Amanda Calvert, Culver City, CA

Appellee/Cross-Appellant

David Alex Perkins, Prescott

Appellee/Cross-Appellant

Dulcy Moore Perkins, Scotts, MI

Appellee/Cross-Appellant

Shirley A. Seitz, Cottonwood

Appellee/Cross-Appellant

Dinah Perkins, Clarkdale

Appellee/Cross-Appellant

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
KIMBALL et al. v. PERKINS et al.

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3

C A T T A N I, Judge:

¶1 7 Bar LLC, Banjo LLC (collectively, the “LLCs”), and Seville 

East (a general partnership closely associated with the LLCs), along with 

Patricia (“Patti”) and Benjamin (“Ben”) Kimball, appeal from the superior 

court’s judgment imposing a constructive trust in favor of the Estate of 

David Goodwin Perkins (the “Estate”) over certain real property owned by 

the LLCs. The Estate and several heirs of the Estate cross-appeal from the 

judgment, contesting the scope of the constructive trust and the court’s 

failure to award attorney’s fees and certain taxable costs. For reasons that 

follow, we affirm the judgment as modified to include a total taxable cost 

award of $15,656.30 to the Estate.

FACTS AND PROCEDURAL BACKGROUND

¶2 This appeal addresses the disposition of several hundred 

acres of undeveloped real property that were originally part of David 

Perkins’s estate. Perkins died intestate in mid-1991, leaving 12 heirs, 

including Patti, Silkie Perkins, and Memi Perkins.

1 Patti, Silkie, and one 

non-heir were appointed as the Estate’s co-personal representatives. The 

Estate has not been closed, and all three co-personal representatives 

remained in that position during the litigation in this case.

¶3 One of the Estate’s assets when Perkins died was 

approximately 550 acres of undeveloped land in Chino Valley (the 

“Property”). The Property was subject to a deed of trust securing a $275,000 

promissory note in favor of a group of creditors (the “Russo Group”); over 

$220,000 in principal remained outstanding at the time of Perkins’s death. 

When the Estate was unable to make monthly payments, the Russo Group

provided notice that a trustee’s sale of the Property would be held in April 

1992.

¶4 With the assistance of the Estate’s counsel, the heirs 

undertook a strategy to delay or avoid the trustee’s sale (and thus save the 

Property for the heirs) by transferring the Property into a newly-formed 

 

1 The heirs were Perkins’s children: Dorothy Diane Halter, Patti 

Kimball, Shirley Seitz, David Alex Perkins, Nicholas Charles Perkins, Silkie 

Perkins, Austin Goodwin Perkins (now deceased, with Dinah Perkins his 

heir), Smith Perkins, Memi Calvert Perkins, Dulcy Perkins, Verd Benjamin 

Calvert, and Amanda R. Calvert. Memi, Amanda, Dinah, David, Dulcy, 

Shirley, and Silkie (individually and on behalf of the Estate) are the 

appellees/cross-appellants in this case.
KIMBALL et al. v. PERKINS et al.

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4

corporation owned by the heirs—East Chino Development Company—

then causing the corporation to immediately file for bankruptcy. East 

Chino was formed (albeit without any accompanying corporate 

formalities), and the Estate conveyed the Property to the company at the 

end of March 1992, apparently without receiving any payment or other 

consideration for the transfer. East Chino then filed for bankruptcy on 

April 1, 1992, and the automatic stay delayed the scheduled trustee’s sale.

¶5 In early 1993, while the stay remained in effect, Patti came up 

with a plan to keep the Property with the help of family friend Harry 

Robertson. Robertson would arrange to purchase the Property from the 

Russo Group immediately following the trustee’s sale, then grant the 

Perkins family a non-assignable, two-year option to recover the Property at 

cost. The Russo Group accepted Robertson’s offer to purchase the Property 

for $265,000 immediately following the trustee’s sale.

¶6 Robertson then drafted a real estate option agreement (the 

“Option Agreement”) giving Patti a two-year right to acquire the Property 

by paying Robertson’s purchase costs plus interest, in addition to repaying

a prior $10,000 loan (which had been used to hire East Chino’s bankruptcy 

attorney). The Option Agreement referred to Patti as “a married woman 

dealing with her sole and separate property,” but the acknowledged 

purpose of the Option was to protect the Perkins family. Robertson 

clarified that the Option was in Patti’s name to avoid “hassling back and 

forth among the kids,” and because Patti was “the executor of the estate.” 

After Patti received the Option Agreement, she on multiple occasions 

reassured the other heirs that she was “acting on your behalf” and that she 

was representing the heirs.

¶7 In late 1995, Patti arranged a double escrow conveyance 

through which she would exercise the Option and concurrently sell the 

Property to Northland Development. Northland’s down payment would 

pay for Patti to exercise the Option, cover closing costs in both transactions, 

and leave Patti with over $20,000 cash. Northland received 130 acres at the 

time of the down payment, and financed the balance of the transaction with 

an approximately $774,000 promissory note secured by a deed of trust on 

the remaining 400 acres.

¶8 Northland failed to make any payments on the note and, in 

April 1996, returned the 400 acres to Patti (plus additional acreage that Patti 

purchased) by deed in lieu of foreclosure. At that point, Patti held 

approximately 440 acres of the Property free and clear of encumbrances. 

Patti then immediately sold a portion of the Property for over $122,000 cash, 
KIMBALL et al. v. PERKINS et al.

Decision of the Court

5

leaving approximately 402 acres of the Property remaining at the time of 

trial in this case.

¶9 In March 1997, Patti and Ben Kimball borrowed $400,000 (the 

“Slabine Loan”) secured by a deed of trust on the remainder of the Property, 

and failed to make payments less than a year later. The creditor initiated 

foreclosure proceedings, and the Kimballs sought help from John Tucker, 

an experienced real estate investor and Ben’s long-time friend.

¶10 Tucker and the Kimballs then entered into a joint venture 

agreement in which they agreed to form an LLC funded by Tucker’s 

contribution of $500,000 (to pay off the Slabine Loan) and the Kimballs’ 

contribution of the Property. Although the agreement contemplated that 

the LLC would be created promptly, Tucker and the Kimballs operated as 

joint venturers for two years until the creation of 7 Bar in mid-2000.

¶11 During those two years, Tucker paid over $55,000 to reinstate 

the Slabine Loan (avoiding foreclosure) and over $400,000 to pay off the 

balance of the Slabine Loan. Tucker recorded a deed of trust against the 

Property two weeks after paying the Slabine Loan in full. Tucker also 

arranged payment of $80,000 to Northland to settle its pending lawsuit 

against Patti (for non-payment for the extra 30 acres), and thus secure the

release of a lis pendens encumbering the Property.

¶12 In June 2000, Tucker and the Kimballs formed 7 Bar LLC, with 

Patti and Ben each owning a 25% interest and Chinoco LLC (owned by 

Tucker and his brothers, and managed entirely by Tucker) owning 50%.

The articles of organization of 7 Bar designated Chinoco as the manager

with “the exclusive right to control and manage” the company. The 

Kimballs then conveyed the Property to 7 Bar in November 2000 as “a deed 

of gift.” And in 2001, Tucker released his deed of trust encumbering the 

Property.

¶13 Between 2001 and 2007, 7 Bar conveyed several lots to related 

individuals (Patti, Ben, Tucker, Tucker’s wife, and Tucker’s brothers) to 

divide into smaller parcels. These lots were later conveyed into Banjo LLC, 

which was also owned 50% by Tucker and his brothers and 25% each by 

Patti and Ben, equivalent to their respective interests in 7 Bar.

¶14 Through 2008, Tucker gave the Kimballs substantial amounts 

of money (totaling approximately $1,400,000) to defer selling the Property. 

Tucker’s stated desire was to hold the Property so it would appreciate in 

value, something that could be accomplished with minimal expense (less 

than $1,000 per year) in property taxes and liability insurance. 
KIMBALL et al. v. PERKINS et al.

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6

Nevertheless, Tucker spent, through his various entities, around $426,000 

in projects related to the Property, although only approximately $70,000 

benefitted the property.

¶15 In late 2007, Memi noticed a “7 Bar” sign on the Property, 

which led to this litigation after Patti told Memi in March 2008 that she was 

not holding the Property on behalf of the Estate or the heirs. Memi’s 

petition sought, among other relief, removal of Patti as personal 

representative and a constructive trust on the Property for the benefit of the 

Estate and an order quieting title in the Estate. The court consolidated a 

quiet title action brought by the Kimballs and the LLCs into the probate 

case, and joined other heirs as parties.

¶16 As relevant here, the superior court granted partial summary 

judgment against the LLCs, ruling that 7 Bar was not a bona fide purchaser 

for value. After a nine-day bench trial, the court found that Patti had 

breached her fiduciary duty as personal representative of the Estate and 

granted a constructive trust in favor of the Estate over an undivided onehalf interest in the Property. Although the court denied the LLCs’ requests 

for equitable subrogation or an equitable lien, the court determined that the 

LLCs should retain the undivided one-half interest not reached by the 

constructive trust. The court initially granted Memi an award of attorney’s 

fees, but later reversed that decision.

¶17 After the superior court entered judgment, the parties timely 

appealed and cross-appealed. We have jurisdiction under Arizona Revised 

Statutes (“A.R.S.”) § 12-2101(A)(1).2

DISCUSSION

¶18 The claims of error presented on appeal and on cross-appeal 

relate to the superior court’s grant of partial summary judgment and its

ruling following a bench trial. We review the grant of summary judgment 

de novo, viewing the facts in the light most favorable to the non-moving 

party. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC, 236 Ariz. 363, 

365, ¶ 7 (2015). After a bench trial, we review the court’s legal conclusions 

de novo, but defer to its findings of fact unless clearly erroneous. Town of 

Marana v. Pima Cnty., 230 Ariz. 142, 152, ¶ 46 (App. 2012). We consider the 

evidence presented at trial in the light most favorable to upholding the 

 

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
KIMBALL et al. v. PERKINS et al.

Decision of the Court

7

court’s ruling. Id. Additional standards of review are presented, as 

applicable, in context below.

I. Asserted Procedural Bars.

A. Limitations Period.

¶19 The LLCs first contend that they are protected by the five-year 

statute of repose in A.R.S. § 14-1106. As relevant here, that statute allows 

any person injured by “fraud” in connection with probate proceedings to 

obtain relief from the perpetrator or restitution from the beneficiaries of the 

fraud, but provides that “no proceeding may be brought against one not a 

perpetrator of the fraud later than five years after the time of commission 

of the fraud.” In the LLCs’ view, Patti’s fraud occurred at the latest when 

she exercised the Option in 1995 (taking the Property in her individual 

capacity instead of on behalf of the Estate), and Memi’s 2008 lawsuit is thus 

time-barred.

¶20 But § 14-1106 applies to claims of fraud, and the claim for 

constructive trust in this case was based not on any fraudulent acts, but 

rather on Patti’s fiduciary duty to hold the Property in trust for the Estate

(and her breach of that duty). The LLCs contend that a breach of fiduciary 

duty necessarily constitutes constructive fraud. Although related, the two 

are distinct: constructive fraud requires a breach of fiduciary duty, but it 

further requires the additional element of justifiable, detrimental reliance. 

Dawson v. Withycombe, 216 Ariz. 84, 107–08, ¶ 72 (App. 2007); see also Lerner 

v. DMB Realty, LLC, 234 Ariz. 397, 402, ¶ 12 (App. 2014) (enumerating the 

elements of common law fraud). Because the basis for constructive trust 

was not a claim of fraud, § 14-1106 does not apply to preclude the claims 

against the LLCs.

B. Laches.

¶21 Both the Kimballs and the LLCs contend that the superior 

court erred by concluding that Memi’s claim was not barred by laches. We 

review the court’s ruling on laches for an abuse of discretion. McLaughlin 

v. Bennett, 225 Ariz. 351, 353, ¶ 5 (2010).

¶22 Laches—the “equitable counterpart to the statute of 

limitations”—operates to bar a claim if one party’s unreasonable delay in 

filing suit results in prejudice to the other party. Sotomayor v. Burns, 199

Ariz. 81, 83, ¶ 6 (2000); French v. French, 125 Ariz. 12, 15 (App. 1980)

(addressing laches in the context of a constructive trust claim). Delay alone 

is not sufficient; instead, the delay must be unreasonable under the 
KIMBALL et al. v. PERKINS et al.

Decision of the Court

8

circumstances, including whether or when the party gained knowledge of 

the basis for its claim. League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 

558, ¶ 6 (2009); see also Flynn v. Rogers, 172 Ariz. 62, 66 (1992).

¶23 The Kimballs argue that, contrary to the superior court’s 

findings, Patti unequivocally repudiated her role as fiduciary as regards the 

Property at least by 1995, thus giving the Estate and the heirs knowledge of 

the claim. They argue that Memi’s failure to file her petition until over a 

decade later constitutes laches as a matter of law. But the evidence 

regarding whether the Estate and heirs knew Patti claimed the Property as 

her own was disputed at trial, and the court reasonably found Patti did not 

clearly repudiate her fiduciary duty so as to give the heirs notice of their 

claim.

¶24 Although Patti testified that she had told Memi, Silkie, and 

other heirs on multiple occasions that she was keeping the Property for 

herself, the other heirs contradicted Patti’s testimony, stating that at each 

meeting Patti reassured them that she continued to act on their behalf. 

Memi testified that it was not until March 2008 that Patti clearly stated she 

was not holding the Property on behalf of the Estate or the heirs. The court 

weighed both accounts and found the heirs’ version to be more credible, 

and we defer to the court’s credibility assessments and weighing of 

conflicting evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 

1998).

¶25 The Kimballs also presented a handful of letters sent in late 

1995 from Silkie’s attorney to Patti and her counsel suggesting some dispute 

about whether Patti would divide the proceeds from exercising the Option 

and selling the Property to Northland. Although the letters provide some 

evidence regarding Silkie’s understanding of Patti’s position, they do not 

show that any other heir doubted or had reason to doubt Patti’s intentions. 

Nor do they reflect if or how the dispute was resolved, particularly in light 

of Northland’s immediate default, leaving little to no cash proceeds from 

the transaction. Accordingly, the superior court did not abuse its discretion 

by crediting the heirs’ belief that Patti held the Property for the Estate 

despite the 1995 attorney letters.

¶26 The LLCs contend that Tucker’s substantial expenditures on 

the Property show prejudice stemming from the delay. But prejudice alone 

is not enough; laches also requires that the delay in bringing suit be 

unreasonable. See Martin, 219 Ariz. at 558, ¶ 6. As discussed above, the 

superior court found that the heirs did not know or have reason to know 

that Patti was not holding the Property for their benefit until 2008. The 
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9

LLCs’ argument that laches should nevertheless apply because only Patti 

(not the LLCs) was a fiduciary of the Estate misses the mark. Patti’s role is 

squarely relevant to the heirs’ knowledge of the existence of a claim; there 

would be no claim if Patti continued to act for their benefit, but a potential 

claim if she was not doing so. Based on the superior court’s findings that 

the heirs did not know or have reason to know Patti was no longer acting 

as the Estate’s fiduciary until 2008, the court did not abuse its discretion by 

concluding that the delay in filing the petition was not unreasonable.

C. Standing.

¶27 The LLCs argue that Memi—who was not a personal 

representative of the Estate and in fact filed her petition as an individual 

heir—lacked standing to assert claims on behalf of the Estate. The superior 

court concluded Memi had standing based on A.R.S. § 14-3709(B)–(D), 

which allows a “person interested in the estate” to bring to the court’s 

attention any issue of allegedly concealed estate assets. The LLCs contend 

that this statute provides a non-personal representative only a limited right 

of discovery, and any remedy remains in the hands of the personal 

representative. See A.R.S. § 14-3709(D).

¶28 Notwithstanding any limitations on the scope of an interested 

party’s role under § 14-3709, other provisions provide a basis for Memi’s 

standing and the court’s authority to craft the constructive trust remedy. 

Under A.R.S. § 14-3712, a personal representative is liable to “interested 

persons” for breach of her fiduciary duty “to the same extent as a trustee of 

an express trust.” The trust statutes authorize multiple potential remedies 

for breach of trust, including compelling the trustee to restore the property, 

suspending or removing the trustee, voiding a trustee’s acts, and imposing 

a constructive trust on trust property (including tracing and recovering 

trust property wrongfully transferred). A.R.S. § 14-11001(B)(3), (6)–(7), (9). 

Although the parties did not address these provisions in their appellate 

briefs, we are not limited to the arguments of counsel when construing a 

statutory scheme. Lyons v. State Bd. of Equalization, 209 Ariz. 497, 502 n.2, ¶ 

19 (App. 2005).

¶29 Among other things, Memi’s petition sought to void transfers 

of the Property, remove Patti as personal representative, and impose a 

constructive trust to return the Property. As an heir and thus an “interested 

person,” Memi was authorized under §§ 14-3712 and -11001 to assert these 

claims against Patti as personal representative. The LLCs (along with the 

Kimballs) then pressed a counterclaim to quiet title to the property and filed 

a separate complaint to quiet title, which was later consolidated with the 
KIMBALL et al. v. PERKINS et al.

Decision of the Court

10

probate case. See Gonzalez v. Superior Court, 117 Ariz. 64, 66 (1977) (noting 

that probate jurisdiction extends to quiet title actions affecting estates). This 

consolidation of claims brought the full scope of the dispute before the 

superior court. Although the court could have first addressed removal and 

replacement of Patti as personal representative, given that the basis for 

removal also related to the quiet title issue, the court reasonably considered 

the issues in a single proceeding. Accordingly, Memi had standing to assert 

her claims, and the superior court had authority to apply the constructive 

trust remedy to quiet title to the Property.

II. Constructive Trust.

¶30 The Kimballs and the LLCs contend the superior court erred 

by imposing a constructive trust in favor of the Estate over part of the 

Property. Memi argues the court erred by imposing the constructive trust 

over only an undivided one-half interest in the Property as opposed to 100% 

of the Property. We review de novo decisions regarding the availability of 

an equitable remedy like a constructive trust, but review for an abuse of 

discretion the remedy crafted by the superior court. Cal X-Tra v. W.V.S.V. 

Holdings, L.L.C., 229 Ariz. 377, 409, ¶ 106 (App. 2012). We defer to the 

court’s conclusion that clear and convincing evidence supports imposition 

of a constructive trust unless no reasonable person could find the evidence 

sufficient. Id. at ¶ 108.

¶31 A constructive trust is a flexible equitable remedy used to 

return property obtained through unconscionable conduct—including 

breach of fiduciary duty—to its rightful owner. Id. at ¶ 107; Murphy Farrell 

Dev., LLLP v. Sourant, 229 Ariz. 124, 130, ¶ 23 (App. 2012) (as amended); see 

also Pioneer Annuity Life Ins. Co. v. Nat’l Equity Life Ins. Co., 159 Ariz. 148, 153 

(App. 1988). A constructive trust is appropriately imposed if allowing a 

legal title holder to retain the property would result in unjust enrichment. 

Cal X-Tra, 229 Ariz. at 409, ¶ 107; Murphy Farrell, 229 Ariz. at 130, ¶ 23. Such 

a trust arises by operation of law “to compel one who unfairly holds a 

property interest to convey that interest to another to whom it justly 

belongs.” Cal X-Tra, 229 Ariz. at 409, ¶ 107 (citation omitted).

¶32 A constructive trust is not restricted to a specific formula, and 

instead may be shaped by and tailored to the particular circumstances

presented. Cal X-Tra, 229 Ariz. at 409, ¶¶ 107–08; Murphy Farrell, 229 Ariz. 

at 130, ¶ 23 (citing Turley v. Ethington, 213 Ariz. 640, 643, ¶ 9 (App. 2006)). 

The plaintiff must, however, retain at least an equitable interest in the 

property at issue in order to show an entitlement to receive the property

wrongfully held by the defendant. Murphy Farrell, 229 Ariz. at 131, ¶ 23.
KIMBALL et al. v. PERKINS et al.

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A. Propriety of Imposing Constructive Trust.

¶33 Here, the superior court concluded that Patti breached her 

fiduciary duty by receiving and exercising the Option Agreement in her 

individual capacity rather than doing so for the benefit of the Estate, and 

that the Estate and heirs were thus entitled to an interest in the Property, to 

be conveyed by constructive trust. The Kimballs counter that, because the 

Property had already been conveyed out of the Estate, Patti could not have 

breached her fiduciary duty as personal representative by taking the 

Property for herself. The LLCs similarly contend that the prior conveyance 

to East Chino and the trustee’s sale to the Russo Group extinguished any 

interest the Estate once held in the Property, rendering the constructive 

trust inappropriate.

¶34 In isolation, either of these conveyances might defeat a claim 

for constructive trust because they removed the Property from the Estate, 

and the personal representative’s power and obligation runs only to 

“property of the estate.” See A.R.S. § 14-3711; cf. A.R.S. § 14-3713 (noting 

that even personal representative’s self-dealing transaction is not voidable 

if interested party consented or if decedent’s contract authorized). In 

context, however, the superior court properly viewed these two

conveyances as a part of a plan to preserve the Property for the Estate.

¶35 Patti, acting as personal representative, crafted a design to 

recover the Property from the Russo Group through Robertson’s 

intervention, and the Russo Group formally accepted Robertson’s offer to 

purchase the Property just days after the trustee’s sale. In context, the 

trustee’s sale was a critical step in the effort to return the Property to the 

Estate.

¶36 Robertson’s purchase of the property was premised on his 

intent to help the Perkins heirs by allowing them an option to recover the 

Property. Although the Option Agreement references Patti as “a married 

woman dealing with her sole and separate property,” evidence from 

Robertson and the other heirs supports the court’s conclusion that the 

Option was not directed to Patti personally, but rather to her in her 

fiduciary capacity as personal representative of the Estate. Although the 

Kimballs claim the Option is clearly and unambiguously directed to her 

alone, the language of the agreement does not specify whether it is directed 

to her in her individual or representative capacity. Thus the court did not 

err by considering extrinsic evidence to discern the parties’ intended 

meaning. See Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 154
KIMBALL et al. v. PERKINS et al.

Decision of the Court

12

(1993). And although Patti disputed the extrinsic evidence, the superior 

court found her position not to be credible.3

¶37 The LLCs argue that Memi’s claim must fail because it is 

based on oral promises by Patti in contravention of the statute of frauds. 

Arizona’s statute of frauds prohibits an action on an agreement for the sale 

of real property unless based on an agreement “in writing and signed by 

the party to be charged.” A.R.S. § 44-101(6). “But the statute of frauds does 

not bar constructive trusts, even in real property interests.” Turley, 213 

Ariz. at 643, ¶ 8. Moreover, Patti’s “promises” were not agreements for the 

sale of real property, but rather restatements of her pre-existing obligations 

as personal representative of the Estate.

¶38 In the context of this multifaceted scheme designed by Patti, 

in her role as personal representative, to preserve the Property for the 

Estate, she was required to exercise the Option in her capacity as personal 

representative for the benefit of the Estate. Accordingly, despite the prior 

conveyances, the court did not err by concluding that Patti breached her 

fiduciary duty by exercising the Option in her own name and refusing to 

hold the Property for the benefit of the Estate.

B. Bona Fide Purchaser Protection.

¶39 The LLCs assert that the superior court erred by ruling at 

summary judgment that 7 Bar was not a bona fide purchaser for value.4 The 

LLCs argue that 7 Bar paid valuable consideration for the Property and did 

so without knowledge of the Estate’s claim, and thus was entitled to 

protection as a bona fide purchaser.

¶40 Summary judgment is proper if there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of 

 

3 The LLCs further assert that quitclaim deeds from three of the heirs 

in 2008 and 2009 undermined the relief Memi sought. But each of these 

quitclaim deeds purported to convey the respective heirs’ interests in the 

Property to Patti and to the LLCs (entities in which Patti held a substantial 

interest) while Patti remained personal representative of the Estate. As 

such, the court had authority under A.R.S. § 14-3713 to void the 

conveyances due to Patti’s conflict of interest.

4 Banjo asserted at trial that it should receive bona fide purchaser 

protection, but the superior court concluded otherwise, and the LLCs do 

not challenge that ruling on appeal.
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law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). We 

review the grant of summary judgment de novo, and will affirm summary 

judgment if it is correct on any basis supported by the record, even if not 

relied upon by the superior court. See Wells Fargo Bank, N.A. v. Allen, 231 

Ariz. 209, 213, ¶ 14 (App. 2012); Mutschler v. City of Phx., 212 Ariz. 160, 162, 

¶ 8 (App. 2006).

¶41 Arizona law provides bona fide purchasers protection against 

prior unrecorded interests in land. Under A.R.S. § 33-412, unrecorded 

interests in land are void as to “subsequent purchasers for valuable 

consideration without notice”; subsequent purchasers with notice of the 

unrecorded interest, however, take the property subject to the prior interest.

¶42 For these purposes, notice to an agent (and the agent’s 

relevant knowledge) is imputed to the principal. See In re Milliman’s Estate, 

101 Ariz. 54, 65 (1966); see also Restatement (Second) of Agency § 272 (1958) 

(“[T]he liability of a principal is affected by the knowledge of an agent 

concerning a matter as to which he acts within his power to bind the 

principal or upon which it is his duty to give the principal information.”). 

In the case of a manager-managed LLC, the manager acts as agent for the 

company; a member is not the company’s agent simply by virtue of 

membership. A.R.S. § 29-654(B)(1)–(2). In the case of a joint venture, each 

party is an agent of the other parties (as well as a principal of the others). 

Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 540 (1982).

¶43 The LLCs argue that the superior court erred in imputing 

Patti’s knowledge of the Estate’s interest in the Property to 7 Bar because, 

under the articles of organization, Patti was only a member, not a manager 

of 7 Bar. See A.R.S. § 29-654(B)(1). 7 Bar’s articles of organization specified 

Chinoco as its manager; thus Tucker, as manager of Chinoco, acted in effect 

as 7 Bar’s manager as well. The articles listed Patti only as a member.

¶44 But 7 Bar developed out of a prior joint venture between 

Tucker and the Kimballs. In mid-1998, they agreed to create an LLC funded 

by Tucker’s $500,000 contribution and the Kimballs’ contribution of the 

Property. For the next two years until the creation of 7 Bar in mid-2000, 

Patti, Ben, and Tucker operated as joint venturers. As such, Patti’s 

knowledge relevant to the Property (a subject of the joint venture), 

including the Estate’s interest, was imputed to Tucker as a co-joint venturer. 

See Sparks, 132 Ariz. at 540. After 7 Bar was formed with Tucker (through 

Chinoco) as manager, Tucker’s knowledge (imputed from Patti) was 

imputed to 7 Bar. See A.R.S. § 29-654(B)(2); In re Milliman’s Estate, 101 Ariz. 
KIMBALL et al. v. PERKINS et al.

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at 65. Accordingly, the superior court did not err by ruling that 7 Bar was 

not a bona fide purchaser based on imputed knowledge.

5

C. Scope of Constructive Trust.

1. Equitable Subrogation.

¶45 The LLCs argue that, because Tucker paid off the $400,000 

Slabine Loan encumbering the Property, the superior court erred by 

denying 7 Bar’s request for a lien equitably subrogated to the Slabine Loan. 

We review de novo the court’s assessment of whether equitable relief is 

available and appropriate. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). 

We defer, however, to the court’s factual findings and its balancing of the 

equities involved. See Cal X-Tra, 229 Ariz. at 409, ¶¶ 106, 108.

¶46 Equitable subrogation serves to prevent unjust enrichment by 

allowing a party who pays off an encumbrance to be substituted in place of 

the creditor, so that the payor succeeds to the rights and priority of the 

creditor. Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270, 272, ¶ 5 (2012) (as 

amended). More specifically, “[o]ne who fully performs an obligation of 

another, secured by a mortgage, becomes by subrogation the owner of the 

obligation and the mortgage to the extent necessary to prevent unjust 

enrichment.” Id. at 275, ¶ 26 (quoting Restatement (Third) of Property: 

Mortgages § 7.6(a) (1997)). The subrogee acquires the same position as if 

the superior lien had been expressly assigned. Weitz Co. L.L.C. v. Heth, 235 

Ariz. 405, 410, ¶ 15 (2014). The court may appropriately consider any 

inequities that would result when determining whether or to what extent 

equitable subrogation is required to prevent unjust enrichment to other 

parties. See id. at 411, ¶ 21. The availability of equitable subrogation 

depends on the specific facts and circumstances presented. Sourcecorp, 229 

Ariz. at 272, ¶ 7.

¶47 Here, Tucker prevented a pending trustee’s sale by bringing 

the Slabine Loan current and then paying off the Loan in its entirety in midto late 1998. Weeks after doing so, Tucker recorded a $500,000 deed of trust 

against the Property (which, absent any other lienholder, held equivalent 

 

5 We further note that, after trial, the superior court found that, despite 

the language of 7 Bar’s articles of organization, Patti in fact acted as an agent 

for the LLC regarding, among other things, replatting and recording 

CC&Rs for the Property. That finding supports imputation of Patti’s 

knowledge of the Estate’s interest in the Property directly from Patti to 7 

Bar.
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priority as the Slabine encumbrance had before), but later voluntarily 

released the deed of trust in 2001.

¶48 Whether Tucker (or 7 Bar) is subrogated to the priority of the 

Slabine encumbrance is not dispositive in this case because the Estate 

already held a superior, preceding interest. When Patti exercised the 

Option and acquired title to the Property, by operation of law she did so for 

the benefit of and as trustee of the Estate. At that time, and particularly 

after Northland’s default and deed in lieu of foreclosure, the Estate’s 

interest reached the entire, unencumbered Property. Slabine’s 

subsequently acquired interest to which 7 Bar wishes to be subrogated is 

thus junior to that of the Estate. As such, the Estate is not unjustly enriched 

by simply retaining the interest it held from the beginning. And as 

equitable subrogation is designed to prevent unjust enrichment, see 

Sourcecorp, 229 Ariz. at 275, ¶ 26 (citation omitted), the court reasonably 

denied it under these circumstances.

2. Award of Undivided One-Half Interest.

¶49 Memi argues the superior court erred by granting the Estate 

a constructive trust in only an undivided one-half interest in the Property 

rather than over the entire Property. We review the scope of the equitable 

remedy crafted by the superior court for an abuse of discretion. See Cal XTra, 229 Ariz. at 409, ¶ 106.

¶50 Memi asserts that Patti was holding the Property in 

constructive trust for the Estate from at least 1996 (after the Northland deed 

in lieu of foreclosure), so the LLCs’ subsequent actions had no legal or 

equitable basis to alter the Estate’s interest. Memi relies on authority that a 

constructive trust declares “the rights and interests at the time of the 

questioned transaction, and it reverts back to the time of the transaction 

which gave rise to the constructive trust.” King v. Uhlmann, 103 Ariz. 136, 

149 (1968); Pioneer Annuity, 159 Ariz. at 154.

¶51 But the time at which a constructive trust is deemed to exist 

does not necessarily dictate the scope of the trust in light of all equitable 

considerations. As an equitable remedy, a constructive trust is tailored to 

the particular circumstances presented. Cal X-Tra, 229 Ariz. at 409, ¶¶ 107–

08. “The equity of the transaction must shape the measure of relief.” Markel 

v. Phx. Title & Tr. Co., 100 Ariz. 53, 58 (1966) (citation omitted).

¶52 Here, the superior court appropriately addressed the equities 

to tailor the remedy ordered. The court considered how the significant 

passage of time (although insufficient to establish laches) nevertheless 
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affected the LLCs’ position. It expressly found that Tucker (manager of 7 

Bar through his role as manager of Chinoco) did not have actual knowledge

of the Estate’s claim to the Property. And in light of that lack of knowledge, 

the court noted Tucker’s substantial expenditures that, absent some 

retained interest in the Property, would be wholly lost—and at least $70,000 

of which directly benefitted the Property. Under the circumstances, the 

superior court did not abuse its discretion in shaping the scope to the 

Estate’s remedy in consideration of the broader equities presented.

III. Patti’s Share as Heir.

¶53 Memi argues that the superior court erred by allowing Patti 

to retain her one-twelfth heir’s interest in the Estate’s share of the Property. 

In Memi’s view, this omission allows Patti to unjustly retain a significant 

benefit despite her breach of fiduciary duty.

¶54 The superior court reasoned that Patti took extraordinary 

actions to retain the Property—without which, the Property would be “long 

gone”—and that, despite her other misconduct, Patti should therefore 

retain her interest as an heir. Memi minimizes Patti’s role, describing it as 

simply part of Patti’s duty as personal representative to “take all steps 

reasonably necessary for the management, protection and preservation of, 

the estate.” A.R.S. § 14-3709(A).

¶55 But the superior court could reasonably conclude that Patti’s 

early actions on behalf of the Estate went beyond the duties of a personal 

representative. By securing Robertson’s participation, Patti crafted a 

scheme through which she successfully recovered the Property despite the 

trustee’s sale to Russo Group. Although Patti later converted the Property 

to her own purposes, the Property would have been lost after the initial 

trustee’s sale absent her efforts. The court could properly have determined 

that Patti had already received excess benefit from the Property. But the 

court did not abuse its substantial discretion by considering Patti’s early 

actions that secured the availability of the Property for the Estate to 

recover.

6 See Loiselle v. Cosas Mgmt. Group, LLC, 224 Ariz. 207, 210, ¶ 8 (App. 

2010) (“Fashioning an equitable remedy is within the trial court’s discretion, 

and it will not be disturbed on appeal absent an abuse thereof.”).

 

6 The ruling also left in place Patti’s 25% membership interest (and 

Ben’s 25% interest) in each of the LLCs. Any claims to those interests as

between Tucker and the Kimballs are beyond the scope of this litigation.
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IV. Fees and Costs in Superior Court.

A. Denial of Memi’s Attorney’s Fees.

¶56 Memi argues the superior court erred by denying her request 

for an award of attorney’s fees under A.R.S. § 12-1103(B) (quiet title) and 

A.R.S. § 14-3709(D) (probate).7 We generally review the court’s denial of a 

discretionary award of attorney’s fees for an abuse of that discretion, 

although we review de novo the applicability of a particular attorney’s fees 

statute. See Vicari v. Lake Havasu City, 222 Ariz. 218, 224, ¶ 23 (App. 2009); 

Scottsdale Mem’l Health Sys., Inc. v. Clark, 164 Ariz. 211, 215 (App. 1990).

1. Fees Under § 12-1103(B).

¶57 A.R.S. § 12-1103(B) authorizes a discretionary award of 

attorney’s fees in a quiet title action against a person who wrongfully 

refuses to execute a quitclaim deed presented 20 days prior to the action. 

Here, the court reasoned that § 12-1103(B) did not support an award of fees 

under the circumstances both because the court imposed a constructive 

trust on an undivided percentage of the Property (not a discrete portion that 

could have been quitclaimed) and because neither side was the prevailing 

party.

¶58 Memi asserts that the court erred because, under Jones v. Burk, 

the fact that she requested the LLCs quitclaim more of the Property than 

she eventually recovered is not dispositive; instead, she claims that the 

LLCs should have quitclaimed “the lesser amount, the amount to which the 

other party is entitled.” 164 Ariz. 595, 597–98 (App. 1990). But because the 

court did not abuse its discretion by determining neither party had 

prevailed for these purposes, we need not address whether—in the context 

of a quiet title action based on the equitable remedy of constructive trust—

Jones would require the LLCs to divine the court’s eventual balancing of the 

equities and quitclaim an undivided one-half interest in the Property.

¶59 Although Memi asserts that, having recovered half of the 

Property, she was necessarily the successful party, neither party obtained 

the full measure of relief it sought. Both sides claimed a right to the entire 

Property, and the court awarded each side half. Although failure to recover 

the full measure of relief requested does not necessarily preclude a finding 

 

7 Memi also sought fees under the common fund doctrine. The court 

denied that request without prejudice to asserting that claim as an 

administrative expense of the Estate, and Memi does not challenge that 

ruling.
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of success, see Ocean W. Contractors, Inc. v. Halec Const. Co., 123 Ariz. 470, 

473 (1979), the court retains discretion to measure the relative success of the 

opposing parties. See Berry v. 352 E. Virginia, L.L.C., 228 Ariz. 9, 13–14, ¶¶

21–22 (App. 2011). Accordingly, the court did not err by declining to award 

Memi her attorney’s fees under § 12-1103(B). See Clark, 164 Ariz. at 215.

2. Fees Under § 14-3709(D).

¶60 Memi next argues the superior court erred by denying her 

request for attorney’s fees under A.R.S. § 14-3709. This court has noted that 

the statute creates:

a process whereby a personal representative may commence 

an “action to recover possession of property,” authorized by 

subsection (A). Before the trial on that action, subsection (D) 

authorizes a process by which the personal representative 

may obtain an order of disclosure against an individual 

believed to have wrongfully “concealed, embezzled, 

conveyed or disposed of” property. § 14–3709(D). That order, 

if obtained, may be used in the subsection (A) trial to recover 

the property. At trial, the personal representative may obtain 

a judgment for double the value of the property in the event 

it succeeds on the action to recover, including proof of the 

wrongful conduct which formed the basis of the order of 

disclosure.

In re Estate of Newman, 219 Ariz. 260, 266–67, ¶ 19 (App. 2008) (as amended). 

Subsection (D), in addition to authorizing an order of disclosure and double 

damages in the following action to recover possession, permits the court to 

award reasonable attorney’s fees. A.R.S. § 14-3709(D).8

 

8 In its entirety, § 14-3709(D) provides:

If on examination or from other evidence adduced at the 

hearing it appears that a person has concealed, embezzled, 

conveyed or disposed of any property of a decedent, or 

possesses or has knowledge of deeds, bonds, contracts or 

other writings tending to disclose the right, interest or claim 

of a decedent to any property, or the will of a decedent, the 

court may order that person to turn over the documents or 

disclose knowledge to the personal representative and may 

commit the person cited to jail until the order is complied with 
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¶61 This court has held that Subsection (D) only authorizes an 

award of double damages after issuance of an order of disclosure, Estate of 

Newman, 219 Ariz. at 269, ¶ 26, and the superior court here reasoned that 

an award of fees under Subsection (D) should similarly be conditioned on 

prior issuance of an order of disclosure. Memi argues that the statute 

contains no such restriction.

¶62 We need not decide whether an order of disclosure is a 

necessary prerequisite to an award of attorney’s fees under § 14-3709(D), 

however, because at the very least that statute’s authorization of a fee 

award applies only to a proceeding under that statute. Here, although 

Memi’s petition requested a § 14-3709 proceeding, the court did not engage 

in the § 14-3709 process and did not rule based on that procedure. 

Accordingly, the court did not err by concluding that an award of fees 

under § 14-3709 was not appropriate in this case.

B. Denial of Mediation Fees as Taxable Costs.

¶63 Memi argues the superior court erred by excluding $4,058.75 

in mediation fees from the award of taxable costs. When the LLCs objected 

to including mediation fees as taxable costs, Memi “acknowledge[d] that 

the $4,058.75 in mediation fees would also more correctly be classified as a 

component of her compensable legal fees.” The court’s calculation of 

taxable costs thus excluded mediation fees based on the agreement of the 

parties.

¶64 On appeal, Memi relies on Reyes v. Frank’s Service & Trucking, 

LLC—which was decided several months after the superior court rendered 

judgment in this case—for the proposition that mediation fees may 

constitute taxable costs if “the parties agreed to incur the costs.” 235 Ariz. 

605, 612, ¶ 29 (App. 2014); see also A.R.S. § 12-332(A)(6) (stating that taxable 

 

or the person is discharged according to law. The 

examination shall be reduced to writing and filed in court. 

The order for the disclosure made on this examination is 

prima facie evidence of the right of the personal 

representative to the property in an action brought for 

recovery of that property, and a judgment shall be for double 

the value of the property, or for return of the property and 

damages in addition to the property equal to the value of the 

property. The court may also award reasonable attorney fees 

and costs.
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Decision of the Court

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costs include “[o]ther disbursements that are made or incurred pursuant to 

an order or agreement of the parties”). Neither the LLCs nor the Kimballs 

respond to this argument, conceding the point.

¶65 Because mediation fees may be taxed as disbursements 

pursuant to an agreement of the parties, A.R.S. § 12-332(A)(6), and absent 

any dispute that the parties voluntarily agreed to private mediation, Memi 

was entitled to recoup the $4,058.75 in mediation fees as taxable costs, and 

we modify the judgment accordingly to reflect a total cost award of 

$15,656.30.

V. Attorney’s Fees and Costs on Appeal.

¶66 The LLCs request an award of attorney’s fees and costs on 

appeal under A.R.S. § 12-1103. Memi seeks an award of attorney’s fees and 

costs on appeal under A.R.S. §§ 12-1103 and 14-3709(D); in the alternative, 

Memi and Silkie seek an award of fees from the Estate under the common 

fund doctrine and A.R.S. § 14-3720, respectively. As described above, § 14-

3709 is inapplicable. In an exercise of our discretion, we decline to award 

either side fees under § 12-1103. We grant Memi and Silkie’s request to 

recover fees from the Estate, subject to compliance with ARCAP 21. As the 

overall prevailing party, Memi is entitled to her costs on appeal under 

A.R.S. § 12-342 upon compliance with ARCAP 21.

CONCLUSION

¶67 The judgment is affirmed as modified to include a total 

taxable cost award of $15,656.30.