NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In the Matter of the:

LINDA J. BERKLEY TRUST.

______________________________

TROY BERKLEY, Individually, and as Trustee of the ESTATE OF LINDA 

J. BERKLEY TRUST; SHERRI CORTEZ, Petitioners/Appellees,

v.

RICK G. KOENIG, Respondent/Appellant.

No. 1 CA-CV 13-0659

Appeal from the Superior Court in Maricopa County

No. PB2011-001479

The Honorable Brian S. Rees, Judge Pro Tempore

The Honorable Richard L. Nothwehr, Judge Pro Tempore

AFFIRMED IN PART; REVERSED IN PART; REMANDED

COUNSEL

Troy Berkley, Phoenix

Petitioner/Appellee

Jayne M. Sassano, Attorney at Law, Phoenix

By Jayne M. Sassano

Counsel for Respondent/Appellant
BERKLEY et al. v. KOENIG

Decision of the Court

2

MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma

joined.

G O U L D, Judge:

¶1 Appellant Rick Koenig, former trustee of the Linda J. Berkley 

Living Trust dated March 13, 2010 (“Trust”), appeals from the denial of 

his motion for new trial. He argues the court improperly denied his 

request for reimbursement from the Trust for expenses he incurred as 

trustee and challenges the finding that loans made by, and liens held by,

the Trust had been satisfied. Finding that the court did not decide the 

propriety of Rick’s reimbursement requests, we remand on that issue and 

otherwise affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Linda Berkley is survived by four adult children, including 

Troy Berkley, Jr. and Rick Koenig. Linda had set up a Trust. The Trust

provided that, after satisfying specific bequests, the trustee was to 

distribute Trust assets in four equal shares to Linda’s four children. Rick 

was the original trustee; he was removed on Troy’s petition, and Troy was 

then named successor trustee. 

¶3 Troy claimed Rick mismanaged the Trust by wrongly 

repossessing and then selling Troy’s 2000 BMW on which Rick claimed 

the Trust had a lien. Troy also claimed Rick failed to distribute $56,188.39 

received from the sale of a house owned by the Trust to the beneficiaries. 

On the other hand, Rick sought reimbursement from the Trust for 

expenses he claimed were properly made while he was trustee. 

¶4 The court held three evidentiary hearings on these issues, 

the first two with one Commissioner and the third with a different

Commissioner. After the first evidentiary hearing, Rick deposited $30,000

with the court pursuant to the court’s order. This amount, Rick claimed,

was the net proceeds from the sale of the house owed to the Trust. 

¶5 During the second evidentiary hearing, the court questioned 

Rick in some detail about his reimbursement request; however, it did not 

rule on the appropriateness of his claimed Trust expenses. The court then 
BERKLEY et al. v. KOENIG

Decision of the Court

3

ordered a third evidentiary hearing to consider Troy’s claims for 

reimbursement to the Trust from certain unrelated credit union accounts. 

The first Commissioner also ordered Rick to deposit with the court an 

additional $26,188, representing its determination of the balance of the 

sale price received from the house. Rick did not comply with this order. 

¶6 After the second evidentiary hearing, the court also found 

the Trust had a lien on Troy’s BMW, but found no evidence the BMW was 

properly repossessed. Accordingly, because the repossession was 

improper, the court ordered the Trust to pay Troy the proceeds from the 

sale of the BMW in the amount of $3,600 less the value of the outstanding 

lien. 

¶7 The case was then transferred to the second Commissioner, 

who presided over the third evidentiary hearing. At the third hearing, 

Rick claimed he had not had the opportunity to present evidence 

supporting his reimbursement request for Trust expenses incurred while 

he was trustee, and wanted to do so as a setoff to the $26,188 deposit

required by the court. The court, however, understood the hearing was 

solely to resolve the credit union account issue and that Rick’s request for

reimbursement had already been resolved. Also, despite Rick’s argument 

to the contrary, the court deemed the issue of proceeds from the sale of the 

BMW resolved. The court directed that judgment be entered against Rick 

for the $26,188 that he had not yet deposited. 

¶8 Rick moved for a new trial. He challenged the rejection of 

his reimbursement request and the release of $3,600 from the Trust to Troy

for the BMW without any reduction for the lien. The court found that 

Rick had attempted to present evidence of Trust-related expenses as a 

setoff before the first Commissioner. The court also noted the first 

Commissioner ordered Rick to reimburse the full amount without any 

setoff. Accordingly, the court concluded the issue had been resolved on 

the merits and denied Rick’s request that it be reconsidered. The court 

similarly denied the motion for new trial regarding the amount of any lien 

on the BMW. 

¶9 Rick timely appealed, and we have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(5)(a), (A)(9) (West

2013). 

DISCUSSION

¶10 We review the denial of a motion for new trial for an abuse 

of discretion; “the burden is on the party seeking to overturn the trial 
BERKLEY et al. v. KOENIG

Decision of the Court

4

court’s judgment to show such an abuse.” Sandretto v. Payson Healthcare 

Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8, 322 P.3d 168, 172 (App. 2014). In doing 

so we do not reweigh the evidence. Adroit Supply Co. v. Elec. Mut. Liab. 

Ins. Co., 112 Ariz. 385, 390, 542 P.2d 810, 815 (1975). An abuse of discretion 

is discretion “manifestly unreasonable, or exercised on untenable 

grounds, or for untenable reasons.” Quigley v. City Court of Tucson, 132 

Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). We consider the evidence in 

the light most favorable to the prevailing party. Hibbitts v. Walter Jacoby & 

Sons, 9 Ariz. App. 486, 487, 453 P.2d 997, 998 (1969). 

I. Rick’s Request for Reimbursement for Expenses as Trustee.

¶11 A trustee is entitled to reimbursement from the Trust for 

expenses properly incurred in the administration of the Trust. A.R.S. 

§§ 14-10709, -10801. On appeal, Rick contends the evidence presented at 

the first two evidentiary hearings did not support the first 

Commissioner’s order that Rick deposit the full $26,188 without setoff for 

expenses. He argues the court abused its discretion in refusing to 

reconsider that order.1 

¶12 The first Commissioner did not enter any ruling expressly 

approving or rejecting Rick’s reimbursement requests in whole or in part.

At the second evidentiary hearing, the court expressed concerns with at 

least certain aspects of Rick’s reimbursement request. The court noted 

that the explanatory annotations were insufficient and vague, contrary to 

Arizona Rule of Probate Procedure 33(B), and that certain entries 

appeared to reflect Rick’s personal expenses. Rick also conceded that 

some of the expenses were for services to Linda’s empty house that should 

have been discontinued, such as internet, DirecTV, and newspaper 

delivery. Following the hearing, the first Commissioner ordered Rick to 

deposit with the court the $26,188 balance from the sale of the home. But 

there is no statement in the record that, in doing so, the first 

Commissioner was denying Rick’s request for reimbursement in its 

entirety, or even addressing that request.

 

1 Rick also contends that the scope of the third evidentiary hearing 

was improperly constrained to not address his reimbursement request. 

The stated purpose of the third evidentiary hearing was to address the 

credit union accounts, not reimbursement. Accordingly, the court did not 

err in delineating the scope of the third evidentiary hearing. 
BERKLEY et al. v. KOENIG

Decision of the Court

5

¶13 Rick’s request for reimbursement sought payment for 

various expenses, including Linda’s funeral expenses and property taxes 

on the home. If factually supported, these expenses appear to be 

legitimate Trust expenses subject to reimbursement. See A.R.S. § 14-10709. 

The nature of these claimed expenses undercuts the second 

Commissioner’s conclusion that the first Commissioner’s order that Rick

deposit the $26,188 balance from the sale of the home was an implicit 

rejection of Rick’s request for reimbursement in its entirety. Such a 

conclusion is not supported by the record. See King v. Superior Ct., 138 

Ariz. 147, 152, 673 P.2d 787, 792 (1983) (“If a trial judge realizes that an 

erroneous ruling has been made, he must act to prevent a miscarriage of 

justice.”). Accordingly, the court’s decision not to consider Rick’s request 

for reimbursement is vacated. 

II. The BMW Lien.

¶14 Rick also argues that the second Commissioner wrongly 

permitted Troy to pay himself $3,600 from the Trust without any 

determination of the outstanding amount of the lien the court found 

existed on the BMW. The first Commissioner found that the Trust held a 

lien on the BMW, a finding not challenged in this appeal. Although Rick 

testified Linda told him the loan had not been repaid, no evidence was 

presented about the original amount of the loan or the amount, if any, still 

owing. 

¶15 Rick had ample opportunity to establish the amount of the 

lien during the evidentiary hearings, but admitted he had no 

documentation or knowledge as to the outstanding lien amount. Thus, 

the record does not reflect any proof the lien remained outstanding. Rick 

had more than one opportunity to prove any outstanding amount and has 

failed to do so; Rick is not now entitled to a new trial on the issue. See 

Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602, 694 P.2d 1213, 1216 

(App. 1984) (stating that a court will only grant a new trial if it appears the 

newly discovered evidence could not have been discovered earlier by 

exercise of due diligence). 

III. Other Loans. 

¶16 Finally, Rick argues Troy received loans from Linda for as 

much as $80,000 that should be repaid to the Trust and the proceeds 

distributed to the beneficiaries. He relies on a Loans List to support his 

claim. The Loans List is a copy of a handwritten list of dates, amounts, 

and check numbers or other annotations. Rick testified that the document 
BERKLEY et al. v. KOENIG

Decision of the Court

6

was prepared by Linda and that it represented the loans she made to Troy

and expected to be repaid. Copies of two checks corresponding to two 

items on the Loans List show that Troy received at least those amounts. 

However, the document on its face is not identifiable as a list of loans as 

opposed to a list of expenses or gifts, or as being concerned only with 

Troy. Furthermore, Troy offered testimony disputing Rick’s claims.

¶17 Having weighed and assessed the evidence, including 

credibility, the first Commissioner found that any advances “were more of 

a personal distribution, and not necessarily an advance of a Trust asset.” 

The evidence was equivocal and conflicting. This court will not reweigh 

the evidence, and defers to the trial court on matters of witness credibility.

In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999)

(reweighing evidence); Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 

972 P.2d 676, 680-81 (App. 1998) (witness credibility). Because the trial 

court’s ruling was not contrary to the weight of the evidence, there was no 

abuse of discretion in denying Rick’s motion for new trial on the issue of 

the alleged loans made to Troy. 

IV. Rick’s Request for Attorney Fees.

¶18 Rick requests an award of costs and attorney fees for 

proceedings in both this court and the superior court pursuant to A.R.S. 

§ 14-11004(B) (stating that a court “may order that a party’s reasonable 

fees . . . be paid by any other party or the trust”). On remand, we direct

the trial court to reconsider whether Rick may be awarded attorney fees 

incurred at the trial court and appellate level litigating the reimbursement 

issue. See Broemmer v. Abortion Serv. Of Phx., Ltd., 173 Ariz. 148, 153, 840 

P.2d 1013, 1018 (1992). We deny Rick’s request for costs; each party shall 

bear his own costs. 
BERKLEY et al. v. KOENIG

Decision of the Court

7

CONCLUSION

¶19 We vacate that portion of the order denying Rick’s motion 

for a new trial with respect to his reimbursement request and remand for 

further proceedings on that issue. In all other respects, the superior 

court’s order is affirmed.