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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES R. BAUM AND MYRA W. BAUM TRUST

JAMES R. BAUM IRREVOCABLE TRUST

JAMES R. BAUM AND MYRA W. BAUM IRREVOCABLE TRUST

JAMES R. BAUM 2003 IRREVOCABLE TRUST

JAMES R. BAUM

___________________________________________________________

DEBRA HOLT, Petitioner/Appellee-Cross Appellant,

v.

MYRA BAUM, et al., Defendants/Appellants-Cross Appellees.

No. 1 CA-CV 18-0744 

Appeal from the Superior Court in Maricopa County

No. PB2012-002237

The Honorable Amy Michelle Kalman, Judge Pro Tempore

The Honorable Margaret B. LaBianca, Judge

JURISDICTION ACCEPTED IN PART; RELIEF GRANTED IN PART

__________________________________________________________________

FILED 3-19-2020
2

COUNSEL

Andersen PLLC, Scottsdale

By Mark E. Andersen, Samantha Garber Stirling

Counsel for Defendants/Appellants/Cross-Appellees Jordan Lotsoff, Maureen 

Hardy, Rebecca Lotsoff and Phillip Lotsoff

Alexander R. Arpad, Phoenix

Counsel for Defendant/Appellant/Cross-Appellee Myra Baum

Asimou & Associates, PLC, Phoenix

By Thomas G. Asimou, Meagan M. Pollnow

Co-Counsel for Petitioner/Appellee/Cross-Appellant Debra L. Holt

Nearhood Law Offices, PLC, Scottsdale

By Laura M. Stover

Co-Counsel for Petitioner/Appellee/Cross-Appellant Debra L. Holt

MEMORANDUM DECISION

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

which Judge Randall M. Howe and Judge Diane M. Johnsen joined.1

T H U M M A, Judge:

¶1 In 2016, a co-trustee issued a subpoena duces tecum seeking 

documents from the trust’s accountant. The other co-trustee objected on 

various grounds, including claiming compliance could be an undue burden 

costing as much as $6,000. That modest start spawned hundreds of pages 

of motion practice leading to the denial of a motion to compel, a second 

subpoena following a petition for final distribution and termination of the 

1Judge Johnsen was a sitting member of this court when the matter was 

assigned to this panel of the court. She retired effective February 28, 2020. 

In accordance with the authority granted by Article 6, Section 3, of the 

Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice of 

the Arizona Supreme Court has designated Judge Johnsen as a judge pro 

tempore in the Court of Appeals, Division One, for the purpose of 

participating in the resolution of cases assigned to this panel during her 

term in office.
HOLT v. BAUM, et al.

Decision of the Court

3

trust, more motion practice leading to the grant of a motion to quash and 

awards of about $100,000 in attorneys’ fees.

¶2 In late 2018, this court was invited to review the superior 

court’s orders on the two subpoenas and to award more fees. Because the 

final judgments appealed from were improperly issued, this court treats the 

appeals and cross-appeals as seeking special action relief, accepts

jurisdiction in part as discussed below and grants relief in part. 

FACTS AND PROCEDURAL HISTORY

¶3 Myra and James Baum were married for 28 years before James

died in July 2012. They had no children together, but each had children 

from prior marriages. Debra Holt, Valerie Hanna and Jeffrey Baum are 

James’ children. Rebecca, Jordan and Phillip Lotsoff and Maureen Hardy 

are Myra’s children. Myra and James amassed significant wealth during 

their lives, resulting in estate-planning efforts that include multiple trusts 

and a limited partnership. Myra and James were co-trustees of the James R. 

Baum and Myra W. Baum Trust u/a/d January 11, 1984 (1984 Joint Trust)

until James died. Debra then became co-trustee, along with Myra, of the 

1984 Joint Trust. Debra also became trustee of other trusts and managing 

general partner of the partnership. 

¶4 The relationship between Myra and Debra appears strained.

By November 2012, Debra filed a petition to remove Myra as co-trustee of 

the 1984 Joint Trust. During settlement conferences in 2014, various 

agreements may have been reached, although the parties dispute aspects of 

those purported agreements, both here and in a declaratory judgment

petition pending in superior court. This decision need not (and expressly 

does not) address or resolve any of those disputes. For now, it is sufficient 

to acknowledge that the settlement conferences occurred where certain 

representations were made, the superior court denied Debra’s 2012 petition 

to remove Myra as co-trustee without prejudice and, after the settlement 

conferences, the superior court retained jurisdiction to resolve resulting 

disputes. 

¶5 In June 2016, Myra issued a subpoena duces tecum to the 1984 

Joint Trust’s accountant that, as later clarified and narrowed, sought 

documents regarding four life insurance policies alleged to benefit the 1984

Joint Trust. Debra objected, the accountant did not respond, and Myra 

moved to compel a response to the 2016 subpoena. Debra cross-moved to 

quash, filed a supplemental petition to remove Myra as co-trustee and 

sought attorneys’ fees and costs. Debra claimed the documents sought by 
HOLT v. BAUM, et al.

Decision of the Court

4

the 2016 subpoena were irrelevant given the 2014 settlement conferences

and that compliance would be “unreasonable, burdensome and 

duplicative,” noting it might cost as much as $6,000 to comply. In denying 

Myra’s motion to compel, the superior court found Myra either was or 

should have been aware of the insurance policies before the 2014 settlement

conferences, meaning the documents sought were not relevant to the thenpending proceedings. The court denied as moot Debra’s cross-motion to 

quash.

¶6 Finding it unreasonable for Myra to pursue discovery of the 

insurance policies, the court imposed as a sanction $48,000 in attorneys’ fees 

and costs against Myra and in favor of Debra, citing Arizona Revised 

Statutes (A.R.S.) sections 12-349(A)(3), 12-341.01, 14-1105(A) and 14-10805

(2020).

2

¶7 In March 2017, the court granted Debra’s petition to remove

Myra as co-trustee of the 1984 Joint Trust. Starting in May 2017, Myra’s son 

Jordan attempted to succeed Myra as co-trustee, an attempt the court 

apparently rejected in August 2019. The merits of that endeavor are the 

subject of a separate appeal.

¶8 In July 2017, Debra filed a petition for final distribution and 

termination of the 1984 Joint Trust. Debra listed more than $5,000,000 to be 

distributed and, as trustee, sought a release and discharge from all 

potentially interested parties, including Myra and her children Maureen, 

Rebecca, Jordan and Phillip (the Children). Myra, the Children and Jordan 

as putative co-trustee filed objections to Debra’s petition. 

¶9 A few weeks later, the Children served a subpoena duces 

tecum on the 1984 Joint Trust’s accountant. This 2017 subpoena sought “any 

and all records” of the 1984 Joint Trust, the other trusts, and the partnership, 

from 2009 forward. Debra moved to quash, arguing the 2017 subpoena 

sought “the same and/or substantially similar discovery that Myra” sought 

in the 2016 subpoena and that such discovery was barred by agreements 

reached at the 2014 settlement conferences, issue/claim preclusion and law 

of the case. Debra’s motion also asked that the settlement judge “Interpret 

and/or Enforce the” 2014 settlement conferences to find the Children “are 

not ‘Interested Persons,’” and sought an award of attorneys’ fees and costs. 

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

refer to the current version unless otherwise indicated.
HOLT v. BAUM, et al.

Decision of the Court

5

¶10 Jordan as putative co-trustee, joined by Myra and the 

Children, opposed the motion to quash, arguing Debra’s petition for final 

distribution and termination, and the resulting objections, “effectively 

commenc[ed] a contested proceeding” authorizing discovery. Debra 

moved to strike Myra’s joinder, arguing the 2017 subpoena was barred “for 

the same reasons” as set forth in the order denying Myra’s motion to 

compel enforcement of the 2016 subpoena.

¶11 After briefing and oral argument, the court granted Debra’s 

motion and struck Myra’s joinder. The court found the interests of Myra 

and the Children do “not materially conflict,” and that they all were bound 

by the 2014 settlement conferences. The court also concluded that Debra’s 

petition for final distribution and termination, and the objections, did not 

re-open discovery foreclosed by the ruling denying Myra’s motion to 

compel enforcement of the 2016 subpoena. “That [Debra] has petitioned 

regarding distribution and termination does not re-awaken claims or 

disputes already resolved.” Citing its ruling on the 2016 subpoena, the court 

also granted Debra’s motion to strike Myra’s joinder and awarded Debra 

attorneys’ fees and cost against the Children under A.R.S. § 14-1105(A).

¶12 Debra lodged a proposed order and judgment reflecting these 

rulings, citing Ariz. R. Civ. P. (Rule) 54(b), which the court entered in June 

2018. Myra and the Children filed a timely motion for new trial, challenging

the Rule 54(b) certification. After briefing and oral argument, the court 

denied the motion for new trial and denied Debra’s request for an award of 

additional fees.

¶13 After more briefing, the court denied Debra’s request for an 

award of fees against Myra in connection with the 2017 subpoena (“as 

[Myra’s joinder was] not the subject of this Court’s order and attorney’s fees 

were not requested”), but awarded $51,882.59 in fees against the Children

and in favor of Debra. Debra lodged a proposed judgment reflecting these 

rulings, citing Rule 54(b), which the court entered in October 2018.

¶14 Myra and the Children filed timely notices of appeal from the 

Rule 54(b) judgments and the denial of their motion for new trial, and Debra 

filed a timely cross-appeal from the denial of her request for an award of 

additional fees.
HOLT v. BAUM, et al.

Decision of the Court

6

DISCUSSION

I. Jurisdiction.

¶15 The parties dispute whether the superior court properly 

certified the rulings at issue as partial final judgments under Rule 54(b).

This court has an independent obligation to determine whether it has 

appellate jurisdiction. Robinson v. Kay, 225 Ariz. 191, 192 ¶ 4 (App. 2010). If 

appellate jurisdiction is lacking, this court may in its discretion accept 

special action jurisdiction. Id. at 193 ¶ 7; see also A.R.S. § 12-120.21(A)(4); 

Ariz. R.P. Spec. Act. 1(a). 

If an action presents more than one claim for 

relief . . . or if multiple parties are involved, the 

court may direct entry of a final judgment as to 

one or more, but fewer than all, claims or parties 

only if the court expressly determines there is 

no just reason for delay and recites that the 

judgment is entered under Rule 54(b). 

Ariz. R. Civ. P. 54(b). Stated simply, entry of a Rule 54(b) judgment requires 

(1) final resolution of at least one claim against all parties or all claims 

against one party and (2) the need to appeal that resolution sooner rather 

than later. The orders leading to the judgments appealed from here failed 

both requirements.

¶16 The rulings did not resolve Debra’s petition for final 

distribution and termination of the 1984 Joint Trust, which remains pending 

in the superior court. The rulings did not resolve claims for relief regarding 

the outcome of the 2014 settlement conferences, the terms of which are still 

being litigated with superior court. Finally, the rulings on discovery 

disputes did not finally resolve any claim for relief as to any party. 

Accordingly, the judgments here do not satisfy this aspect of Rule 54(b).

¶17 Similarly, “[t]he phrase ‘no just reason for delay’ in Rule 54(b) 

means that ‘there must be some danger of hardship or injustice through 

delay which would be alleviated by immediate appeal.’” Pulaski v. Perkins, 

127 Ariz. 216, 218 (App. 1980) (citation omitted). Accordingly, Rule 54(b) 

judgments should be entered only where “hardship or injustice would 

result from a delay in entering a final judgment.” S. Cal. Edison Co. v. 

Peabody W. Coal Co., 194 Ariz. 47, 53 ¶ 19 (1999). Because the rulings here do 

not meet this requirement, the resulting judgments also fail to do so. 
HOLT v. BAUM, et al.

Decision of the Court

7

¶18 For these reasons, the Rule 54(b) certifications are vacated,3

meaning this court lacks appellate jurisdiction. See Brumett v. MGA Home 

Healthcare, LLC, 240 Ariz. 421, 429 ¶13 (App. 2016) (requiring compliance 

with Rule 54(b) or (c) to be appealable under A.R.S. § 12-2101(A)(9)).

Nevertheless, for the rulings refusing to enforce the 2016 and 2017 

subpoenas, and the corresponding fee awards, “the parties have fully 

briefed and argued the issues, the superior court has ruled on the claims, 

and the non-final issues would likely be raised on appeal after a final 

judgment.” Dabrowski v. Bartlett, 246 Ariz. 504, 512 ¶ 15 (App. 2019).

Accordingly, under these comparatively unique circumstances, this court 

will sua sponte exercise its discretion to accept special action jurisdiction

over those rulings. See, e.g., Danielson v. Evans, 201 Ariz. 401, 411 ¶ 35 (App.

2001).4

II. The Court Erred in Denying Myra’s Motion to Compel 

Compliance With the 2016 Subpoena.

¶19 The superior court’s rulings on discovery matters will not be 

disturbed absent an abuse of discretion. Braillard v. Maricopa Cty., 224 Ariz. 

481, 497 ¶ 52 (App. 2010). This court, however, reviews de novo issues of 

law implicated in discovery rulings. See Catrone v. Miles, 215 Ariz. 446, 454 

¶ 23 (App. 2007).

¶20 The 2016 subpoena was directed to the 1984 Joint Trust’s 

accountant and sought documents related to that trust. Myra served the 

2016 subpoena as co-trustee of the 1984 Joint Trust. As a co-trustee, she had 

various rights and duties, including to “take reasonable steps to take control 

of and protect the trust property,” A.R.S. § 14-10809, and to “keep adequate 

records of the administration of the trust,” A.R.S. § 14-108010(A). As cotrustee, Myra also was a client of the trust’s accountant. For that reason, it 

would appear that Myra would have had a right to ask for and obtain 

3 The judgments, which were entered as submitted by Debra’s counsel, also 

contain pages of factual and procedural recitations, contrary to the 

admonition in a different subpart of Rule 54. See Ariz. R. Civ. P. 54(a).

4 This discretionary exercise of special action jurisdiction does not extend to 

the superior court’s order that the Children are bound by the agreements 

reached at the 2014 settlement conferences. Because this court does not 

accept special action jurisdiction over that ruling, it remains an 

interlocutory superior court decision not yet subject to appeal.
HOLT v. BAUM, et al.

Decision of the Court

8

documents from the trust’s accountant without the need for a subpoena. 

The trust’s accountant, however, did not respond to the 2016 subpoena.

¶21 Debra objected to the 2016 subpoena, claiming the 2014 

settlement conferences precluded Myra from obtaining the documents 

sought and that the subpoena was duplicative, unreasonable and 

burdensome. The 2014 settlement conferences, however, did not cause the 

removal of Myra as co-trustee, and Debra has not shown how they

precluded Myra as co-trustee from securing trust documents from the 

trust’s accountant.

¶22 Similarly, Debra’s objections and the resulting order denying 

Myra’s motion to compel use a litigation standard, citing procedural rules, 

not a trust administration standard directed by statute. Compare Ariz. R. 

Civ. P. 26(b) (permitting discovery of any nonprivileged matter that is 

relevant), with A.R.S. § 14-10813(A) (mandating a trustee keep qualified 

beneficiaries reasonably informed unless trustee determines it is 

unreasonable). Nowhere does the order address the necessity of Myra’s 

obtaining such information as co-trustee from a trust administration

perspective. That omission occurred even though the order noted the 

subpoena was issued at the direction of Myra as co-trustee and that she 

claimed “she does not have all the information regarding policies and other 

important matters related to the assets of the 1984” Joint Trust.

¶23 On this record, as co-trustee of the 1984 Joint Trust, Myra had 

a right to seek information from the trust’s accountant, including 

information sought in the 2016 subpoena, particularly as that subpoena was 

later clarified and narrowed. Accordingly, the denial of her motion to 

compel compliance with the 2016 subpoena was error and is vacated. For 

these same reasons, it was not “unreasonable” for Myra to seek this 

information, meaning the sanction of $48,000 in attorneys’ fees and costs 

against Myra and in favor of Debra is vacated. 

¶24 Having vacated those rulings, from the record presented, 

there is no need for remand to further consider the 2016 subpoena. Myra is 

no longer a co-trustee. Moreover, albeit in a different capacity, Myra joined 

the 2017 subpoena seeking comparable information. As a result, the 2016 

subpoena is moot. Having vacated the order denying Myra’s motion to 

compel compliance with the 2016 subpoena and vacated the order imposing 

a sanction of $48,000 in attorneys’ fees and costs against Myra and in favor 

of Debra, once such sums paid are refunded by Debra to Myra, no further 

judicial action is necessary or appropriate regarding the 2016 subpoena.
HOLT v. BAUM, et al.

Decision of the Court

9

III. The Court Erred in Granting Debra’s Motion to Quash the 2017 

Subpoena.

¶25 Debra’s July 2017 petition sought an order approving final 

distribution and termination of the 1984 Joint Trust, as well as a release of 

liability from Myra, the Children and all other potentially interested parties. 

When Myra and the Children filed objections to that petition, the matter 

became a “contested probate proceeding.” Ariz. R. Probate P. 27 (2017).5 As 

parties to a contested probate proceeding, Myra and the Children had a 

right to obtain discovery on “disputed facts and issues raised in the petition 

and the objection thereto.” Id. The Children sought to do so by serving the 

2017 subpoena duces tecum on the 1984 Joint Trust’s accountant.

¶26 In moving to quash the 2017 subpoena, Debra argued it was 

substantially similar to the 2016 subpoena and that it sought discovery 

barred by the 2014 settlement conferences, issue/claim preclusion and law 

of the case. The order quashing the 2017 subpoena found the Children were 

revocable remainder beneficiaries bound by Myra’s involvement in “the 

April 8, 2014 Settlement Agreement.” Referring to its earlier refusal to 

compel the accountant to respond to the 2016 subpoena, the court noted it 

“has already ruled that claims that the 1984 [Joint] Trust did not receive all 

assets it should have were resolved by” the 2014 settlement conferences 

“and discovery to support such claims is irrelevant.”

¶27 Contrary to this ruling, however, the minute entry from the 

April 8, 2014 settlement conference expressly states that the court “shall 

retain jurisdiction to handle any disputes that may arise out of the 

settlement agreement.” Thus, the suggestion that the 2014 settlement 

conferences barred any party from ever challenging the administration of 

the trust is contrary to the minute entry from that settlement conference 

itself. Moreover, the reference to the April 8, 2014 settlement conference 

does not account for subsequent settlement conferences in June and July 

2014.

¶28 Debra has not shown that the 2014 settlement conferences 

collectively barred discovery on her petition for final distribution and 

termination of the trust. The order granting the motion to quash expressly 

notes the Children’s assertion that they needed the documents to ensure the 

5 The Arizona Rules of Probate Procedure were amended during these 

proceedings; this court cites the version of those rules in place at the time 

of the relevant motion practice.
HOLT v. BAUM, et al.

Decision of the Court

10

1984 Joint Trust received the assets to which it had a claim of right. In short, 

whatever the terms of any 2014 settlement conferences might have been, it

did not bar all discovery of any type once Debra’s 2017 petition became a 

contested proceeding.

¶29 Along with being parties to a contested proceeding and 

entitled to seek discovery relevant to Debra’s 2017 petition, the Children 

argue that they are “qualified beneficiaries” entitled to be informed about 

the contents of the trust. See A.R.S. § 14-10813; see also A.R.S. 14-10103(14) 

(defining “qualified beneficiary”). Debra disputes the Children’s 

contention, but this court need not resolve the issue because Debra’s 

petition avowed the Children are, at very least, potentially interested 

persons to whom she provided “notice of all pleadings filed in this 

proceeding from 2012” forward. See A.R.S. § 14-1201(33) (defining 

“interested person”); see also id. § 14-1201(26) (“‘Formal proceedings’ means 

proceedings that are conducted before a judge with notice to interested 

persons.”). More broadly, Debra’s petition seeks an order releasing and 

discharging her as trustee from all claims of potentially interested parties, 

including the Children. Given the relief that Debra sought as to the 

Children, the Children should be able to pursue relevant discovery on 

issues raised in her petition, particularly after having filed objections that 

make this a contested proceeding affording them a right to discovery. See 

Ariz. R. Prob. P. 27.

¶30 The Children properly could seek discovery on issues 

relevant to Debra’s 2017 petition and Debra did not show that all the 

documents sought by the 2017 subpoena were irrelevant to disputed issues 

related to her petition.6 Accordingly, the order granting Debra’s motion to 

quash the 2017 subpoena is vacated. For these same reasons, and, having 

vacated the court’s denial of Myra’s motion to compel compliance with the 

2016 subpoena, the order striking Myra’s joinder in the Children’s response 

to Debra’s motion to quash is vacated. As a result, the corresponding award 

6 The 2017 subpoena was broad, both temporally and in the scope of 

materials sought. In granting the motion to quash in its entirety, the 

superior court did not determine whether the subpoena should be 

narrowed in any way so that the Children could receive responsive nonprivilege documents relevant to issues raised by Debra’s 2017 petition. This 

court defers to the superior court to make that determination in the first 

instance following the issuance of this decision. See Jolly v. Superior Court, 

112 Ariz. 186, 191 (1975) (“[T]he courts have, on limited occasions, restricted 

discovery on grounds of irrelevancy.”).
HOLT v. BAUM, et al.

Decision of the Court

11

of attorneys’ fees and costs totaling $51,882.59 against the Children and in 

favor of Debra likewise is vacated. 

IV. Debra Has Failed to Show Any Error in the Denial of Her Request 

for Additional Fees. 

¶31 Debra’s cross-appeal argues the superior court erred in failing 

to award her additional fees in responding to the motion for new trial, an 

issue this court reviews for an abuse of discretion. Klesla v. Wittenberg, 240 

Ariz. 438, 441 ¶ 12 (App. 2016). Although Debra asserts the Children’s 

conduct in objecting to a Rule 54(b) judgment was “unreasonable” under

A.R.S. § 14-1105, she has failed to support that argument with authority or 

otherwise show that the court abused its discretion in declining to award 

her additional fees.

V. Attorneys’ Fees on Appeal. 

¶32 Myra, the Children and Debra each request attorneys’ fees 

and costs on appeal. Myra and the Children request fees and costs pursuant 

to A.R.S. §§ 12-341.01, 12-342 and 14-11004(B). Myra and the Children also 

request that Debra be denied reimbursement of her fees and costs incurred 

on appeal from the 1984 Joint Trust under A.R.S. §§ 14-10805 and -11004(A). 

Debra requests her fees and costs on appeal pursuant to A.R.S. §§ 12-349, 

12-341.01 and 14-1105. 

¶33 This court declines to award Debra her attorneys’ fees and 

costs on appeal, as she is not the successful party. The request by Myra and 

the Children to prevent Debra from reimbursing herself from the assets of 

the 1984 Joint Trust for her fees and costs incurred on appeal is denied,

without prejudice to the superior court’s final distribution orders. Myra and 

the Children are awarded their reasonable attorneys’ fees and taxable costs 

incurred here pursuant to A.R.S. §§ 12-341 and 14-11004(B), contingent 

upon their compliance with Arizona Rule of Civil Appellate Procedure 

21(b).
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Decision of the Court

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CONCLUSION

¶34 The putative Rule 54(b) judgments are vacated and, in its 

discretion, this court accepts special action jurisdiction over the challenges 

to the orders (1) denying Myra’s motion to compel compliance with the 

2016 subpoena, (2) granting Debra’s motion to quash the 2017 subpoena 

and her motion to strike Myra’s joinder, (3) the related orders awarding 

attorneys’ fees and costs and (4) the order denying Debra’s motion for an 

award of additional attorneys’ fees in responding to Myra’s motion for new 

trial. 

¶35 Having accepted special action jurisdiction over these 

matters, the court grants the following relief:

• The order denying Myra’s motion to compel 

compliance with the 2016 subpoena is vacated

and the order imposing as a sanction $48,000 in 

attorneys’ fees and costs against Myra and in 

favor of Debra is vacated.

• The order granting Debra’s motion to quash the 

2017 subpoena is vacated; the order striking 

Myra’s joinder in the Children’s response to 

Debra’s motion to quash the 2017 subpoena is 

vacated; and the order awarding $51,882.59 in 

attorneys’ fees and costs against the Children 

and in favor of Debra is vacated.