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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FURST FAMILY TRUST, dated July 1, 1988, as amended.

_____________________________________________________

ROBERT G. FURST; ZIA TRUST INC.,

Petitioners/Appellees,

v.

LINDA MAYNE, Respondent/Appellant.

No. 1 CA-CV 22-0646 

Appeal from the Superior Court in Maricopa County

No. PB2019-001318

The Honorable Melody G. Harmon, Judge

AFFIRMED

COUNSEL

Taylor Young Appeals PLLC, Phoenix

By Taylor Young

Counsel for Respondent/Appellant

Forrester & Worth, PLLC, Phoenix

By John H. Worth, Byron H. Forrester

Counsel for Petitioner/Appellee Zia Trust, Inc.

FILED 10-5-2023
FURST, ET AL. v. MAYNE

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 Linda Mayne appeals from the probate court’s order 

approving a $200,000 settlement between a family trust and Robert Furst, a 

co-beneficiary and Linda’s brother. Because Linda has shown no error, the 

order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 This appeal is the most recent chapter in a high-conflict 

probate dispute between siblings over a family trust that has included

several cases filed in Arizona and California. Furst v. Mayne, 1 CA-CV 21-

0668, 2022 WL 17258422 (Ariz. App. Nov. 29, 2022) (mem. dec.). The trust,

established in 1988, provided a mechanism to care for the parents of Linda 

and Robert. Robert and Linda were appointed co-trustees in 2018. By

September 2019, after their father died and the siblings could not agree on 

trust management, their mother sought and obtained a court order 

appointing Zia Trust as trustee. Substantial litigation followed.

¶3 In October 2020, Robert sought reimbursement for expenses 

he claimed he incurred while caring for their mother. The petition alleged 

that, after their father died but before Zia’s appointment, Linda “froze all 

of the assets of the” trust, forcing him to spend his own funds for their 

mother’s care. The petition included an exhibit reflecting more than 

$200,000 in expenses. Zia and Linda first objected to the petition, but Linda

later withdrew her objection, stating that “the responsibility to litigate the 

issue rests squarely with the trustee, Zia Trust.” 
FURST, ET AL. v. MAYNE

Decision of the Court

3

¶4 After substantial additional litigation, in May 2022, the court

set a five-day evidentiary hearing to start on September 12, 2022. On June 

16, 2022, Zia petitioned the court to approve a settlement agreement with 

Robert, seeking an accelerated hearing on the petition. Noting Robert 

sought $433,000 in reimbursement and estimating the Trust’s potential 

liability at more than $190,000 before the expenses involved in the five-day 

hearing, the proposed settlement agreement would pay Robert $200,000 in 

exchange for the release of claims against the trust, Zia and others and 

resolution of three separate cases. Zia asserted the settlement was in the 

best interest of the trust: “Given the long and contentious history of these 

proceedings, the mounting costs of the Litigation, and the uncertain nature 

of all litigation in general, Zia believes this Settlement represents a fair and 

reasonable outcome and should be approved by the Court.” 

¶5 Within a week, the court issued an order “setting an 

accelerated hearing on Zia’s petition to approve settlement agreement for July 

18, 2022.” The court also issued a minute entry granting the motion for 

accelerated hearing and “setting an initial virtual hearing” for July 18, 2022, 

“(allotted time: 1 hour), in accordance with the formal written order.” 

¶6 On July 1, 2022, Linda moved to continue the July 18, 2022 

hearing. Linda’s motion acknowledged receipt of Zia’s petition and the 

proposed settlement agreement, identifying concerns about specific 

settlement agreement terms. Noting she would “be in Europe on a longscheduled vacation” on July 18, 2022, and that she “must be represented by 

counsel to advise me regarding the Settlement Agreement,” which she “will 

be opposing,” she requested a continuance to allow her “30 days to obtain 

counsel.”

¶7 The court granted Linda’s motion to continue, resetting “the 

initial hearing on the Petition to Approve Settlement Agreement” to 

“August 16, 2022 at 1:30 p.m. (1 hour).” That same order required Linda “to 

file any objection” to the petition “in writing no later than August 5, 2022.”

Linda’s August 5, 2022 objection argued the settlement was unreasonable 

and not in the trust’s best interests. In a filing that, with attachments, had 

more than 100 pages, Linda argued in some detail that Robert owed the 

trust money; he should not be paid the proposed amount; his expenses were 

smaller than claimed; Robert would not prevail in the litigation (including 

that “the case is almost completely ready for trial”); Zia was trying to avoid 

liability for claims Robert filed against it and payment under the proposed 

settlement would consume much of what was left in the trust. Linda’s 

objection concluded by asking the court to “deny Zia’s petition to approve 

the Settlement Agreement.” 
FURST, ET AL. v. MAYNE

Decision of the Court

4

¶8 After taking appearances at the August 16, 2022 hearing, the 

court started by explaining: “we were originally set for an initial hearing on 

a petition to approve, which was continued until today because we knew 

there was a -- likely a forthcoming objection.” Noting Linda’s August 5, 

2022 objection, the court asked how the parties wanted to proceed. Counsel 

for Zia responded that he was prepared to offer testimony from a former 

Zia employee; “I’m also prepared to make an offer of proof . . . the 

evidentiary part of any hearing would be very brief.” Noting Linda’s 

objection to the petition, the court asked if she was “prepared to argue or 

present on your objection today?” Linda responded: “I’m sorry. I’m not a 

lawyer, and I didn’t realize that I should have been prepared. . . . But you 

tell me, what -- what do I need to do, if you can help me out.” The court 

responded:

well, you did do a very thorough job in your 

filing. So you can also rest on your pleading. 

You know, you have a written objection there, 

and I can hear testimony. I don’t know if you --

if you were planning to present any testimony 

to support your objection, I could set on another 

day for an evidentiary hearing. But if you want 

to rest on the arguments in your [objection], I 

can consider the testimony presented by --

through [Zia’s counsel] and make a ruling that 

way.

Linda responded that her “preference would be to have an evidentiary 

hearing, because I would need more time to prepare. I did as much as I 

could. I don’t think I did as thorough of a job as I could have done. . . . So I 

would appreciate an evidentiary hearing.” Zia’s counsel expressed concern, 

given a five-day trial in less than a month before a different judge, 

concluding that “our position is the briefing’s closed. We have our motion, 

we have [Linda’s] objection, and we’re ready to go forward.” After Linda 

then responded, noting the settlement agreement “leaves me wide open to 

Robert filing something against me and Zia Trust,” the court noted Linda 

had “put together a very clear statement, you know, outlining your 

position,” adding the court would “go ahead and allow” Zia’s counsel “to 

call his brief witness today,” and that Linda “will also have the right to ask 

any questions of his witnesses that you may wish.” Linda did not object to 

that proposed course, instead responding, “Okay. Thank you.” 
FURST, ET AL. v. MAYNE

Decision of the Court

5

¶9 Zia’s witness then testified that this settlement would allow 

the trust to avoid the cost and risk of trial, adding that even if the trust 

prevailed at trial, Robert would likely appeal. The witness added that, at a 

mediation in 2021, Zia had made a settlement offer to Robert significantly 

higher than the $200,000 settlement agreement amount. After direct 

examination, the court asked Linda if she had “questions for this witness?” 

Linda responded, “Yes, I do.” Without objecting to proceeding, Linda then 

cross-examined the witness about claims Zia had made for reimbursement 

for litigation costs against Robert, the status of pending litigation, and 

whether the settlement was in the best interest of the trust and its 

beneficiaries. Toward the end of Linda’s cross-examination of Zia’s witness, 

Linda noted she had “a short list of unfinished business that I believe the 

trust needs to address, but we can address that later on.” The court

responded “those are things that you [Linda] should cover” when she

testified.

¶10 After redirect, Linda was sworn and testified. The court asked 

her to testify “in a narrative fashion what you want to testify to,” and Linda 

then did so, including testifying about the extensive litigation the trust was 

involved in and her belief that the settlement agreement improperly 

depleted the trust’s funds. Zia’s counsel elected to respond to Linda’s 

testimony in closing argument, not cross-examination. The court then asked 

if Linda was comfortable going to closing arguments rather than crossexamination, and she agreed, noting she wanted to “just hear what [Zia’s 

counsel] has to say, and then I might have a comment or two?” with the 

court responding “Well, yes. And then you can make a closing argument, 

certainly.” Robert testified, and when the court asked Linda whether she 

would prefer to cross-examine him or address issues in closing arguments, 

“for the sake of time and not really knowing how to cross examine him,” 

Linda elected to defer to closing arguments. The court then “move[d] to 

closing arguments,” first hearing from Zia and, without objection, Linda 

providing a closing argument. As the hearing ended, the court told the 

participants, “I’m going to take this under advisement,” adding that it 

would “issue a ruling shortly,” given the upcoming trial. Linda did not 

object to proceeding in that fashion. The evidentiary hearing started at 1:54 

p.m., and including testimony and argument, ended at 3:30 p.m.

¶11 About ten days after the hearing, Linda filed a “Request for 

Evidentiary Hearing; Notice of Intention to File a Supplement” to her 

August 5, 2022 objections. In the filing, Linda stated she “requested an 

Evidentiary Hearing” at the August 16, 2022 evidentiary hearing “and 

understood” the court “to offer the opportunity for an Evidentiary Hearing 

if requested. Linda hereby renews her request for an Evidentiary Hearing.” 
FURST, ET AL. v. MAYNE

Decision of the Court

6

Linda again argued that settlement was a “total capitulation” and not 

warranted, adding “[a] hearing is required to address these and other 

important issues to be considered in determining the reasonableness, or 

lack thereof, of Zia’s proposed settlement.” Zia promptly moved to strike, 

noting Linda’s request “is untimely, unauthorized, and cumulative, and it 

represents an impermissible surreply or unauthorized supplemental brief 

to a matter that is now under advisement.” Zia noted Linda had “already 

received additional time to brief and argue this matter, and the Request 

raises issues that were in fact already briefed and argued.” Zia added that 

the court “heard oral argument and testimony at the August 16, 2022 

hearing and took the matter under advisement. No further briefing or

evidence has been requested, and no legal authority for providing it has 

been given.”

¶12 Two days later, without ruling on Linda’s request, the court 

approved the settlement agreement and issued a final judgment reflecting 

that ruling. This court has jurisdiction over Linda’s timely appeal under

Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes (A.R.S.) §§ 12- 120.21(A)(1) and -2101(A)(1) (2023).

1

DISCUSSION

¶13 Linda argues “[b]y turning the initial hearing and status 

conference into an evidentiary hearing without notice, the superior court” 

denied her due process rights. Due process challenges are reviewed de 

novo. Backstrand v. Backstrand, 250 Ariz. 339, 346 ¶ 28 (App. 2020). “[D]ue 

process requires that litigants be heard ‘at a meaningful time and in a 

meaningful manner.’” Id. at 346 ¶ 29 (citation omitted). Due process must 

be balanced against the superior court’s discretion to control its docket. Id.

¶14 Citing Volk v. Brame, 235 Ariz. 462 (App. 2014), Linda argues 

that by receiving evidence at the August 16, 2022 hearing, the court 

“deprived [her] of a meaningful opportunity to present her evidence and 

test the veracity of Zia’s claims.” Volk, however, addressed the due process 

requirement that a court “afford the parties an opportunity to present 

sworn oral testimony.” 235 Ariz. at 463 ¶ 1. Linda was afforded that right, 

by cross-examining Zia’s witness, testifying herself and being allowed to

cross-examine Robert. She also presented closing argument. Moreover, she 

does not, and could not, claim the duration of the hearing violated her due 

process rights. Cf. Volk, 235 Ariz. at 465 ¶¶ 4, 9 (finding due process 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
FURST, ET AL. v. MAYNE

Decision of the Court

7

violation when 15 minute hearing did not allow time for sworn oral 

testimony). 

¶15 Nor did Linda object to how the hearing proceeded. She did 

not object to the court receiving testimony, did not object to Zia’s witness 

or Robert testifying and did not object to any specific questions asked. She 

also testified without objection and provided closing argument without 

objection. Nor did she object to the court taking the petition to approve the 

settlement under advisement at the end of the hearing. Thus, this case is 

unlike Volk, where the appellant objected to the form of the hearing 

throughout. Id. at 469 ¶22 n.6. Instead, given she did not promptly object or 

otherwise seek relief from the superior court for the arguments she seeks to 

press on appeal, she has waived those arguments. See Odom v. Farmers Ins. 

Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007) (“[A]rguments raised for the 

first time on appeal are untimely and deemed waived.”). 

¶16 Linda also argues, citing Carlson v. Ariz. State Pers. Bd., 214 

Ariz. 426 (App. 2007), that she was not given an adequate opportunity to 

prepare because she did not have notice the court would hear evidence at 

the August 16, 2022 hearing. Carlson addresses what due process requires 

before a public employee is “finally deprived of his constitutionally 

protected property interest in his continued employment.” Id. at 431 ¶ 17. 

That issue is not presented here. Moreover, even if Carlson applied, Linda 

had notice of the settlement agreement and the arguments supporting its 

approval. Linda was granted a 30-day continuance to obtain counsel and 

adequately prepare. Id. at 433 ¶ 22. She had notice of Zia’s arguments for 

the settlement agreement well before the hearing and, without objection,

provided contrary testimony and argument at the hearing. Carlson does not 

show her due process rights were violated. 

¶17 Finally, Linda argues the court deprived her of an

opportunity to develop her case that Zia failed to adhere to its fiduciary 

duties. But, as explained above, without objection, she cross-examined Zia’s 

witness, testified and presented argument at the August 16, 2022 hearing. 

Nor does the record support Linda’s assertion that she was deprived of the 

opportunity to press this argument in superior court. Her pre-hearing 

written objection argued the settlement was an “abdication of [Zia’s]

fiduciary responsibility.” At the hearing, Linda questioned Zia’s witness

about the potential harm the settlement may cause her as a beneficiary and

the California litigation she argued causes a conflict of interest. Linda has 

shown no error in the court’s order approving the settlement. 
FURST, ET AL. v. MAYNE

Decision of the Court

8

¶18 Zia requests an award of its attorneys’ fees incurred in this 

appeal under A.R.S. § 14-11004(A), (B). In the court’s discretion, Zia is 

awarded a portion of its reasonable attorneys’ fees and costs, contingent 

upon compliance with ARCAP 21.

CONCLUSION

¶19 The judgment is affirmed.