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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

THOMAS K. KOMA, Deceased.

________________________________________ 

ALICE KOMA, Petitioner/Appellant,

v.

ARTHUR PETER WALTER, Counter-Petitioner/Appellee.

No. 1 CA-CV 14-0447 

Appeal from the Superior Court in Yavapai County 

No. P1300PB201100209 

The Honorable Michael R. Bluff, Judge 

AFFIRMED 

COUNSEL 

Prescott Law Group, PLC, Prescott 

By J. Andrew Jolley, Taylor R. Nelson 

Counsel for Appellant 
2

J. Jeffrey Coughlin, PLLC, Prescott 

By J. Jeffrey Coughlin 

Co-Counsel for Appellee 

Eric S. Chester, Prescott 

Co-Counsel for Appellee 

MEMORANDUM DECISION 

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

Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined. 

T H U M M A, Judge: 

¶1 Alice Koma (Alice) appeals from a judgment, entered after a 

bench trial, rejecting her challenges to a will for Thomas K. Koma (Thomas) 

and to an amendment to Thomas’ trust, both signed in 2011. Because Alice 

has shown no error, the judgment is affirmed. 

FACTS1 AND PROCEDURAL HISTORY 

¶2 In January 2000, Thomas created the Thomas K. Koma Trust, 

naming himself trustee. In February 2001, Thomas named Alice successor 

trustee. In April 2001, at a time when Alice was still married to another man, 

Alice and Thomas held a marriage ceremony and thereafter often lived 

together as a couple until Thomas died in September 2011. 

¶3 After 2001, Thomas amended his trust several times using 

documents prepared by California attorneys. In September 2004, Thomas 

amended his trust (as amended, referred here as the 2004 Trust) to name 

Alice the primary trust beneficiary. At the same time, Thomas executed a 

will (the 2004 Will) naming Alice his personal representative and directing 

that all of his property be transferred to the 2004 Trust upon his death.

Although each trust amendment after the 2001 marriage ceremony referred 

to Alice as Thomas’ wife, Thomas did not tell Alice of the amendments 

 

1 This court reviews the evidence in a light most favorable to sustaining the 

judgment. In re Estate of Newman, 219 Ariz. 260, 263 ¶ 3 (App. 2008). 
KOMA v. WALTER 

Decision of the Court 

3

when he made them, nor did he consult Alice or keep her informed of his 

estate plans. 

¶4 In 2006, Alice moved from the home she shared with Thomas 

in Lake Havasu to a home in Prescott; she lived there separately until 

Thomas joined her in December 2009. After Thomas began living with Alice 

again in late 2009, he spent “most of his time alone in his room,” reading 

and watching television. After moving to Prescott, Thomas began attending 

Christian Fellowship Church, commonly known as Potter’s House. Thomas 

attended Potter’s House almost every Sunday from March 2010 until his 

health made attendance impossible in April 2011. In March 2010, Thomas 

met Arthur Peter Walter and Charles Foster at Potter’s House, and became 

friends with both men. Walter had acted as a pastor for two different 

congregations between 1983 and 1995. He was not, however, an employee 

or in any position of authority at Potter’s House during the time he knew 

Thomas. 

¶5 Other than Alice and a few friends at Potter’s House, Thomas 

generally kept to himself, rarely receiving visitors or visiting others.

Thomas did, however, frequently speak with Foster. During those 

conversations, Thomas often mentioned his discontent with his marriage to 

Alice. Thomas also told Foster of his desire to leave a portion of his estate 

to Potter’s House, which would decrease what he left to Alice, first 

mentioning this desire in the summer of 2010 and discussing it with Foster 

several times thereafter. Thomas also stated that he relied on Alice for 

transportation and feared that asking Alice to drive him to see an attorney 

would cause problems. 

¶6 In April 2011, Thomas suffered serious injuries from a fall that 

resulted in his hospitalization and continuous care in medical facilities until 

his death on September 24, 2011. During that time, Alice visited Thomas 

twice each day. During an early visit, Thomas asked Alice to have Walter 

come to visit him. At Thomas’ request, Walter thereafter acted as co-power 

of attorney with Alice for Thomas’ medical decisions. Pastors from Potter’s 

House and other church members also visited Thomas, including Foster, 

who visited a few times per week. 

¶7 During his visits with Foster, Thomas again discussed his 

estate planning, telling Foster and Toni McMillan (another person he knew 

from Potter’s House) that he wanted to disinherit Alice. Foster’s response 

was that Thomas should consult an attorney. In approximately August 

2011, Thomas asked Alice to bring him all of his trust documents, then 

asked Walter to make and keep a copy of them. Because Thomas was 
KOMA v. WALTER 

Decision of the Court 

4

confined to medical facilities, he asked Walter and Foster to help find an 

attorney to amend the 2004 Trust; neither, however, immediately acted on 

that request. Thomas mentioned having doubts about the validity of his 

marriage and gave Walter money to hire an investigator to look into 

whether Alice was still married at the time of their April 2001 marriage 

ceremony. 

¶8 About a week after he first asked Walter to contact an 

attorney, Thomas became upset when Walter had not yet done so. Walter 

then began looking for an attorney in earnest. Rather than contacting the 

attorney who drafted the trust and amendments, Walter contacted 

attorneys in Prescott. On September 21, 2011, Walter contacted attorney Eric 

Chester. Walter told Chester that Thomas was concerned about his 

marriage, wanted an annulment and wanted to disinherit Alice. Chester 

agreed to contact Thomas. That same day, Thomas received word from the 

investigator that Alice was still married to another man when she and 

Thomas performed their marriage ceremony in April 2001. 

¶9 During September 2011, Thomas’ health deteriorated. On the 

morning of September 22, 2011, Thomas participated in an interdisciplinary 

meeting with his caregivers and holders of his medical powers of attorney. 

By that time, Thomas was in the hospital. Walter, Alice and Thomas met 

with five or six of Thomas’ medical providers and decided to end Thomas’ 

treatment and provide only comfort care going forward. Immediately after 

that meeting, Walter told Jill Logan, the ethics director of the facility, that 

Thomas wanted to consult with an attorney. Logan consulted with the 

facility’s director of risk and quality, met with Thomas to verify his desire 

as well as evaluate his capacity to receive visitors based on his 

understanding of his circumstances, and found no reason to question his 

capacity. 

¶10 Walter arranged a meeting between Thomas and Chester, for 

2:00 p.m. on September 22, 2011. Thomas agreed to have Chester prepare a 

new will and trust amendment and requested the meeting to be at that time 

because he did not want Alice to be there. The next day, Chester called 

Walter and asked Walter to arrange for a person who knew Thomas to go 

to the hospital to identify Thomas, stating Thomas did not have any 

identification with him in the hospital. Although Walter drove Foster to the 

hospital to allow Foster to identify Thomas, Walter did not go inside. 

¶11 Foster, who met with Thomas that day, indicated Thomas was 

alert and recognized him when he arrived. On September 23, 2011, Foster 

signed a document for Chester that identified Thomas as Tom Koma. Foster 
KOMA v. WALTER 

Decision of the Court 

5

stayed while Thomas and two witnesses signed a sixth amendment to the 

trust (the 2011 Amendment) as well as a last will and testament (the 2011 

Will). Collectively, the 2011 Will and the 2011 Amendment revoked all of 

Thomas’ prior wills, left Thomas’ estate to Potter’s House, disinherited 

Alice and named Walter as Thomas’ personal representative. 

¶12 Thomas died the next day, September 24, 2011, at 

approximately 8:35 a.m. Alice first learned of the 2011 Amendment and the 

2011 Will two days later at the funeral home, and she immediately sought 

legal counsel. 

¶13 On October 14, 2011, Alice filed a petition for formal probate 

of the 2004 Will and the 2004 Trust. The petition alleged that the 2011 Will

and the 2011 Amendment were presumptively invalid because they were 

the result of undue influence by Potter’s House. Chester, who had drafted 

the 2011 Will and the 2011 Amendment, appeared as attorney of record for 

Walter, Thomas’ personal representative, in December 2011. Walter 

objected to Alice’s petition, arguing that her purported marriage to Thomas 

was void because she was married when the April 2001 marriage ceremony 

was held, and he filed a cross-petition for formal probate of the 2011 Will. 

¶14 In early April 2012, Alice deposed Chester to obtain testimony 

regarding the creation of the 2011 Will and the 2011 Amendment, but 

Chester refused to answer various questions, invoking the attorney-client 

privilege based on his provision of legal services to Thomas. Alice moved 

to disqualify Chester from serving as counsel for Walter, Thomas’ personal 

representative, arguing Chester was a material witness and the attorneyclient privilege should not apply. In May 2012, the superior court denied 

the motion to disqualify without prejudice, allowing the parties to 

undertake discovery. In April 2013, the court denied a renewed motion to 

disqualify Chester, finding “his testimony is not needed to complete the 

story;” that “Chester is not in a position to fill in the [factual] pieces that 

Alice . . . claims are missing” and that Alice had not established that the 

testimony sought could only be obtained from Chester. 

¶15 Alice filed a timely written jury trial demand on the issues of 

undue influence and lack of testamentary capacity. When no objection was 

filed, the superior court originally set the matter for a jury trial. After a 

change of judge overseeing the case, however, the court set the matter for a 

bench trial. Alice then filed another written jury trial demand, which Walter 

opposed. After hearing argument, the court found Alice had no right to a 

jury trial. 
KOMA v. WALTER 

Decision of the Court 

6

¶16 The court held a five-day bench trial in May 2014. Several 

witnesses testified regarding Thomas’ mental state and to whether he was 

susceptible to undue influence. Terese Sitiko, Chester’s employee who 

acted as witness for the 2011 Will and the 2011 Amendment, testified that 

when the documents were signed, Thomas’ eyes were clear; he was alert; 

he greeted his friends by name and he responded intelligently to questions. 

Dr. Timothy Missey, who provided medical care for Thomas, testified that 

in the days leading up to his death, Thomas was understandably scared but 

understood his condition and did not lack mental capacity. Jill Logan, the 

ethics director at the facility caring for Thomas, found no reason to question 

his capacity, testifying Thomas was alert and responsive and made helpful 

contributions to the conversation at the interdisciplinary meeting held the 

day before the documents were signed. 

¶17 After receiving evidence and hearing arguments, in a ruling 

from the bench issued May 13, 2014, the superior court found the 2011 Will 

and the 2011 Amendment were valid and appointed Walter as Thomas’ 

personal representative. Alice moved for a new trial, arguing Walter failed 

to make required disclosures under Arizona Rule of Civil Procedure 26.1 

(2016).2 The court denied the motion, finding Alice failed to show how the 

claimed disclosure failures had prejudiced her and, alternatively, the facts 

she claimed were not properly disclosed were not relevant to the court’s 

decision. 

¶18 Alice timely appealed the May 13, 2014 bench ruling. This 

court has jurisdiction pursuant to the Arizona Constitution, Article 6, 

Section 9, and Arizona Revised Statutes sections 12-2101(A)(1) and -

120.21(A)(1). 

DISCUSSION

¶19 Alice argues the superior court erred by: (1) holding a bench 

(rather than a jury) trial after the matter was reassigned to a different judge; 

(2) finding Thomas had testamentary capacity to execute the 2011 Will and 

the 2011 Amendment; (3) ruling the 2011 Will and the 2011 Amendment 

were not presumed to be the product of undue influence pursuant to A.R.S. 

§ 14-2712(E)(1); (4) permitting Chester to represent Walter as personal 

representative; and (5) denying her post-trial motions based on Walter’s 

alleged failure to properly disclose information. 

 

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

refer to the current version unless otherwise indicated. 
KOMA v. WALTER 

Decision of the Court 

7

I. The Superior Court Did Not Err By Denying A Jury Trial.

¶20 Alice argues her “right to a jury trial was secured” when, after 

Walter failed to object to her original jury demand, the court set the matter 

for a jury trial. She argues that because of that decision, the subsequent 

decision by a different judge to hold a bench trial constitutes an improper 

horizontal appeal, and the new judge lacked the authority to reconsider the 

issue absent the presentation of new facts and circumstances. 

¶21 “A party seeks a ‘horizontal appeal’ when it requests a second 

trial judge to reconsider the decision of the first trial judge in the same 

matter, even though no new circumstances have arisen in the interim and 

no other reason justifies reconsideration.” Powell–Cerkoney v. TCR–Mont. 

Ranch Joint Venture, II, 176 Ariz. 275, 278-79 (App. 1993) (citation omitted). 

Although horizontal appeals have been criticized on various grounds, in 

this context, the court’s first ruling did not create a jurisdictional or 

substantive limitation on the court’s power to revisit the ruling to get to the 

correct result. See id. (noting superior court has substantial discretion to 

reconsider an earlier decision and “must not afford this procedural doctrine 

undue emphasis.”). Alice has not argued on appeal that she has a 

constitutional or statutory right to a jury trial, and therefore has not shown 

the superior court reached the incorrect legal decision. Nor has she shown 

how the superior court lacked the authority to reconsider the jury trial issue 

or abused its discretion in doing so. Accordingly, her argument fails. 

II. The Superior Court Did Not Err By Finding Thomas Had Capacity.

¶22 Alice argues the superior court erred by finding, at the end of 

trial, that Thomas had capacity to sign the 2011 Will and the 2011 

Amendment. “It is a rebuttable presumption that a person who executes a 

governing instrument is presumed to have capacity to execute the 

governing instrument and to have done so free from undue influence and 

duress.” A.R.S. § 14-2712(B); see also A.R.S. § 14-1201(22) (defining 

“governing instrument” as including a will or trust). At oral argument, 

Alice argued the superior court erred by placing on her the burden to show 

lack of testamentary capacity, citing In re Vermeersch’s Estate, 109 Ariz. 125 

(1973). As the party contesting the validity of the 2011 Will and the 2011 

Amendment, however, Alice had the burden to rebut this presumption. See 

id. at 128. 

¶23 “To successfully challenge the validity of the will for lack of 

testamentary capacity, the burden was on the contestant to prove a lack of 

one of the following elements: (a) the ability to know the nature and extent 
KOMA v. WALTER 

Decision of the Court 

8

of one’s property, (b) the ability to know the natural objects of one’s bounty, 

and (c) the ability to understand the nature of the testamentary act.” Id.

(citations omitted); accord Matter of Estate of Killen, 188 Ariz. 562, 565 (App. 

1996) (similar).3 Testamentary capacity is determined at the time the 

documents are signed. See In re O’Connor’s Estate, 74 Ariz. 248, 257-58 (1952). 

Factual findings regarding testamentary capacity will be reversed only if 

clearly erroneous. See In re Thomas’ Estate, 105 Ariz. 186, 189 (1969); see also

In re Estate of Pouser, 193 Ariz. 574, 579 (1999) (noting superior court’s 

decision regarding testamentary capacity will be affirmed if supported by 

substantial evidence). 

¶24 Alice argues the superior court abused its discretion in 

rejecting, after considering the evidence, her challenges to the 2011 Will and

the 2011 Amendment. More specifically, Alice argues the court should have 

concluded that Thomas failed to understand his marital status when he 

executed those documents. This argument relies on the fact that the 

documents refer to Thomas as a married man and refer to Alice as his wife, 

even though he had learned that his marriage to her was not valid. But the 

superior court noted that fact, and still rejected Alice’s challenges, noting it 

had “placed little weight” on the fact that Alice was referred to as Thomas’ 

wife in the documents. Moreover, the same documents that list Alice as 

Thomas’ wife completely disinherited her. Accordingly, the documents 

themselves did not compel the superior court to conclude that Thomas was 

incapable of knowing the natural objects of his bounty. 

¶25 The superior court received other evidence of Thomas’ 

capacity. Thomas was alert and coherent on September 21, 2011 –- two days 

before he signed the 2011 Will and the 2011 Amendment -- when he 

received a report from a private investigator confirming Alice was still 

married when she purported to marry Thomas. On September 22, 2011 –- 

the day before Thomas signed the documents -- Dr. Missey and Jill Logan 

determined that Thomas was alert, responsive and capable of meeting with 

an attorney. Then, on September 23, 2011, Thomas greeted Foster by name 

just before signing the documents, further indicating he understood his 

personal relationships. On this record, Alice has not shown an abuse of 

discretion. 

¶26 Alice argues the superior court erred by giving more weight 

to the testimony of Dr. Missey and Jill Logan than to that of Foster and 

 

3 The parties do not argue that the capacity analysis applicable to the 2011 

Will and the 2011 Amendment should differ and, accordingly, the court 

uses the same analysis for both documents. 
KOMA v. WALTER 

Decision of the Court 

9

Sitiko, who were present when the documents were executed. Weighing 

and assessing evidence, however, is for the finder of fact at trial, not this 

court on appeal. See Pouser, 193 Ariz. at 579. And although Dr. Missey and 

Jill Logan were not present at the signing, their testimony is relevant to 

Thomas’ mental state at the time the documents were signed. See In re 

O’Connor’s Estate, 74 Ariz. at 257-58. Because there was substantial evidence 

to support a finding that Thomas had capacity on September 23, 2011, and 

because Alice did not present evidence sufficient to overcome the 

presumption of validity, the superior court did not abuse its discretion in 

concluding that Thomas had testamentary capacity when signing the 2011 

Will and the 2011 Amendment. 

III. The Superior Court Did Not Err By Finding Walter Was Not A 

Principal Beneficiary, And Consequently, A Statutory 

Presumption of Undue Influence Did Not Apply.

¶27 Alice claims the superior court erred by finding, as a matter 

of law, that a statutory presumption of undue influence by Walter did not 

apply to the facts presented. By statute, a will or trust “is presumed to be 

the product of undue influence if . . . [a] person who had a confidential 

relationship to the creator of the governing instrument was active in 

procuring its creation and execution and is a principal beneficiary of the 

governing instrument.” A.R.S. § 14-2712(E)(1). Unless the facts are 

undisputed and one party is entitled to judgment as a matter of law, 

whether a person is a primary beneficiary is a question of fact “to be 

determined by the totality of the circumstances.” A.R.S. § 14-2712(G). This 

court will uphold the superior court’s findings of fact if “substantial 

evidence exists to support the trial court’s action.” Pouser, 193 Ariz. at 579. 

¶28 Walter was not named a beneficiary in the 2011 Will or the 

2011 Amendment. Alice, however, argues that Walter was acting as an 

agent of Potter’s House, which was a named beneficiary. Any such agency 

relationship, even if supported factually, would not make Walter (as 

opposed to Potter’s House) a principal beneficiary under A.R.S. § 14-

2712(E)(1). It remains the case, as noted by the superior court, that Alice has 

not provided any authority construing A.R.S. § 14-2712(E)(1) that 

“suggest[s] that a church member, employee or representative is a principal 

beneficiary when a church is named as the beneficiary in a will or trust.” 

Alice has not shown that the superior court erred in finding that Walter was 

not a principal beneficiary under the 2011 Will or the 2011 Amendment. 

¶29 Similarly, Alice has not shown the superior court erred by

rejecting her claim that Walter should be treated as a principal beneficiary 
KOMA v. WALTER 

Decision of the Court 

10

based on agency concepts. “Agency is the fiduciary relationship that arises 

when one person (a ‘principal’) manifests assent to another person (an 

‘agent’) that the agent shall act on the principal's behalf and subject to the 

principal's control, and the agent manifests assent or otherwise consents so 

to act.” Restatement (Third) of Agency § 1.01 (2006). The evidence offered 

at trial supports the superior court’s conclusion that Walter was not acting 

as an agent of Potter’s House during the relevant time period leading up to 

Thomas signing the 2011 Will and the 2011 Amendment. 

¶30 Although Walter had been a pastor and employee at Potter’s 

House in the past, he was not serving in either capacity during the time he 

knew Thomas. Alice argues that, for a principal-agent relationship to exist, 

it is “sufficient that the Potter’s House encouraged [Walter] to pursue” the 

2011 Will and the 2011 Amendment. Alice does not cite any legal authority 

for that proposition, however, and she does not cite to any record evidence 

that Potter’s House encouraged Walter to pursue the 2011 Will and the 2011 

Amendment. Although Alice points to various pastors accompanying 

Walter to visit Thomas leading up to September 24, 2011, there is no 

evidence that Thomas discussed his estate plans during those visits or that 

Potter’s House encouraged Walter to assist in procuring the 2011 Will or 

the 2011 Amendment. Indeed, there is no evidence that any Potter’s House 

official knew of Walter’s actions regarding Thomas’ estate plans, much less 

that Potter’s House was controlling or directing Walter’s actions. Given this 

evidentiary void, Alice has not shown the superior court, as finder of fact, 

erred by failing to find that Walter was an agent for Potter’s House at any 

relevant time leading up to the execution of the 2011 Will and the 2011 

Amendment. For this additional reason, the superior court did not err by

concluding the presumption set forth in A.R.S. § 14-2712(E)(1) did not 

apply. 

IV. The Superior Court Did Not Abuse Its Discretion By Finding Alice 

Had Not Shown Undue Influence. 

¶31 Absent the presumption of undue influence under A.R.S. § 

14-2712(E), a will or trust is presumed to be created free of undue influence 

or duress. See A.R.S. § 14-2712(B). As applicable here, to successfully 

challenge the validity of the 2011 Will and the 2011 Amendment, Alice bore 

the burden to show the invalidity of the documents by a preponderance of 

the evidence, A.R.S. § 14-2712(D), based on the following factors: 

[w]hether the alleged influencer has made 

fraudulent representations to the [testator]; 

whether the execution of the will was the 
KOMA v. WALTER 

Decision of the Court 

11

product of hasty action; whether the execution 

of the will was concealed from others; whether 

the person benefited by the will was active in 

securing its drafting and execution; whether the 

will as drawn was consistent or inconsistent 

with prior declarations and plannings of the 

[testator]; whether the will was reasonable 

rather than unnatural in view of the [testator’s] 

circumstances, attitudes, and family; whether 

the [testator] was a person susceptible to undue 

influence; and whether the [testator] and the 

beneficiary have been in a confidential 

relationship. 

In re McCauley's Estate, 101 Ariz. 8, 10-11 (1966) (citations omitted). 

“Whether undue influence has been exerted to bring about the making of a 

particular will is a question of fact.” Id. at 10. On appeal, the evidence is not 

reweighed but, instead, reviewed to determine whether there is substantial 

evidence to support the superior court’s decision. See Pouser, 193 Ariz. at 

579.

¶32 Alice argues the superior court “abused its discretion when it 

dismissed several of the McCauley factors from its balancing test.” She 

argues that because the court found several McCauley factors weighed in 

favor of undue influence, yet ultimately rejected her undue influence claim, 

the court “erred in its weighing of the McCauley factors.” On this record, 

however, Alice has not shown the superior court abused its discretion by

weighing the McCauley factors, as the finder of fact, in ultimately rejecting 

her challenge to the 2011 Will and the 2011 Amendment. 

¶33 The superior court properly applied McCauley, prefacing its 

analysis by stating that the undue influence issue was “a very much closer 

call” than the question of Thomas’ capacity, and adding “I do believe that 

the Potter’s House and . . . Walter did influence his decision on what –

where to leave his property, but I don’t find that it was undue influence.” 

The superior court then discussed each McCauley factor, noting that some 

of the factors supported Alice’s claim and some did not, and concluded: 

“[b]ased on the totality of all of those factors, I do not find that there was 

undue influence concerning the execution of the 2011 estate documents.” 

Although Alice argues the superior court should have applied the McCauley

factors to reach a different conclusion, the record supports the findings, and 

her argument is an invitation to reweigh the evidence, which this court will 

not do. See Pouser, 193 Ariz. at 579. 
KOMA v. WALTER 

Decision of the Court 

12

¶34 Alice did not cite to any fraudulent statements that induced 

the creation of the 2011 documents, and the superior court thus found that 

any alleged fraudulent statements were immaterial. Although noting the 

signing of the documents “was the product of hasty action,” the superior 

court noted “that was the result of necessity, and it’s really not disputed too 

much by” Alice. Although the superior court noted the documents were 

concealed from Alice and that Walter and Thomas had a confidential 

relationship, Potter’s House did not directly procure the creation of the 

documents. And as discussed above, the record does not support the 

finding that Walter acted as an agent for Potter’s House. 

¶35 Although the changes reflected in the 2011 Will and the 2011 

Amendment were inconsistent with the 2004 Will and prior trust 

amendments, the superior court found that the changes were “reasonable 

rather than unnatural . . . based on my view of the evidence.” More 

specifically, the changes were reasonable in light of Thomas’ attitude and 

family situation, particularly given Thomas’ statements to friends over 

several months that he wanted to leave money to Potter’s House. Moreover, 

the evidence indicated Thomas was unhappy in his relationship with Alice 

and had recently learned his marriage was likely invalid. Finally, witnesses 

testified Thomas was willful and headstrong, not the type of person to be 

easily swayed, causing the superior court to conclude “that he was a strongwilled individual and . . . did things the way he wanted them done, so I 

don’t find that he was susceptible to undue influence.” Because there was 

substantial evidence supporting this analysis by the superior court, Alice 

has not established an abuse of discretion. See Pouser, 193 Ariz. at 579. 

V. The Superior Court Did Not Err By Allowing Chester to Represent 

Walter As Personal Representative. 

¶36 Alice argues the superior court erred by denying her motion 

to disqualify Chester and by allowing him to represent Walter as personal 

representative because the “Arizona Rules of Professional Conduct 

prohibit[] an attorney who is ‘a necessary witness’ from being an advocate 

in the same matter.” See Ariz. R. Sup. Ct. 42, ER 3.7(a). Alice contends 

Chester was a necessary witness because he was the only person who could 

testify as to whether he met with Thomas individually, and to Thomas’ 

mental state and other circumstances if such a meeting took place. 

¶37 As noted by the superior court, particularly given that a party 

has a right to counsel of his or her choice, a motion to disqualify opposing 

counsel should not be granted for mere strategic or tactical reasons. See 

Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 335 (1986); accord 
KOMA v. WALTER 

Decision of the Court 

13

Amparano v. ASARCO, Inc., 208 Ariz. 370, 376 ¶ 22 (App. 2004) (noting 

Ethical Rules “are not designed to be used as a means to disqualify 

counsel”). Moreover, there is no dispute that any testimony sought from 

Chester would be subject to the attorney-client privilege, which did not 

terminate upon Thomas’ death, as well as Chester’s duty of confidentiality. 

See A.R.S. 12-2234(A); State v. Macumber, 112 Ariz. 569, 571 (1976) (noting 

attorney-client privilege does not terminate upon death of client); Ariz. R. 

Sup. Ct. 42, E.R. 1.6 (setting forth confidentiality obligation). Alice has not 

shown what testimony she believes that Chester could have provided 

consistent with his obligations of confidentiality. On this basis alone, Alice 

has not shown the superior court abused its discretion in refusing to 

disqualify Chester as a necessary witness. See Amparano, 208 Ariz. at 376 ¶ 

22.

¶38 Similarly, Alice has not shown the superior court erred by

analyzing whether any testimony that might be obtained from Chester was 

necessary and could only be obtained from him. The documents Chester 

prepared that Thomas signed were consistent with the intentions Thomas 

related to other witnesses. Because Alice has not alleged any conspiracy or 

malfeasance by Chester, there is no reason to believe any desires expressed 

in a hypothetical private meeting would differ from those related at other 

meetings. Moreover, to the extent that Alice sought testimony from Chester 

about Thomas’ capacity on September 23, 2011, several other witnesses 

testified to Thomas’ capacity both in the days leading up to, and at the 

execution of, the 2011 documents. Indeed, the superior court concluded that 

information Alice had provided “establishes that she has obtained the 

information from other sources and that there are other witnesses besides . 

. . Chester who can provide the other information she seeks.” For this reason

as well, Alice has not shown the superior court abused its discretion by

refusing to disqualify Chester as a necessary witness. See Amparano, 208 

Ariz. at 377 ¶ 22. 

VI. The Superior Court Did Not Err By Not Granting Alice A New 

Trial.

¶39 Claiming Walter failed to make proper required disclosures, 

Alice filed a timely post-trial motion, seeking to vacate the superior court’s 

decision and requesting a new trial based on “[m]isconduct of the . . . 

prevailing party.” Ariz. R. Civ. P. 59(a)(2).4 A new trial is proper, however, 

 

4 Alice also unsuccessfully sought relief under Rule 60(c)(3) for these same 

alleged disclosure failures. Alice did not, however, properly appeal from 
KOMA v. WALTER 

Decision of the Court 

14

only where it appears probable the misconduct actually affected the 

judgment. Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 215 (App. 1984) 

(discussing motion for new trial following jury verdict). The superior court 

is in the best position to determine if conduct influenced the judgment. Ring 

v. Taylor, 141 Ariz. 56, 61 (App. 1984). This court will reverse a ruling on a 

motion for new trial “only if it reflects a manifest abuse of discretion given 

the record and circumstances of the case.” Styles v. Ceranski, 185 Ariz. 448, 

450 (App. 1996). 

¶40 Alice’s arguments regarding her request for a new trial are 

unavailing. The superior court concluded she had “failed to prove that 

[Chester’s] disclosure violations substantially interfered with her ability to 

fully and fairly prepare for trial,” meaning the court found no basis for a 

new trial. With respect to disclosures suggesting a witness might have bias, 

the court noted it “initially found this late disclosure disturbing,” but added 

that it gave no weight to the witness’ testimony, relying instead on 

testimony from medical professionals. Although Alice alleged seven 

additional areas of non-disclosure, the superior court noted the information 

was eventually discovered by other means at or shortly before trial. The 

court further noted that Alice did not explain how that information was 

relevant, adding “[m]ore importantly though, the Court found [the 

information] did not affect the Court’s final decision in the case.” All of 

these findings are supported by the record, and Alice does not provide any 

arguments for how the failure to disclose these other items may have 

affected the judgment. Accordingly, and although this court does not 

condone any failure to make appropriate and timely disclosure as required 

by Rule 26.1, Alice has not shown the superior court abused its discretion 

by denying her motion for new trial. 

 

the superior court’s denial of relief under Rule 60(c)(3), as determined by

this court’s January 6, 2015 order and the time for her to do so has long since 

passed. As a result, the Rule 60(c)(3) ruling is now final and binding, and 

this court lacks jurisdiction to further consider that ruling. 
KOMA v. WALTER 

Decision of the Court 

15

CONCLUSION 

¶41 Because Alice has shown no error, the superior court’s 

decision is affirmed.