Flynn v. Olsen

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  CELESTE M. FLYNN, Plaintiff/Appellant,

                                        v.

                  BRYANNE OLSEN, Defendant/Appellee.

                             No. 1 CA-CV 20-0451
                               FILED 5-18-2021


             Appeal from the Superior Court in Yuma County
                        No. S1400CV201800886
                The Honorable Brandon S. Kinsey, Judge

                            APPEAL DISMISSED


                                   COUNSEL

Schneider & Onofry, P.C., Yuma
By Charles D. Onofry, James C. Golden
Counsel for Plaintiff/Appellant

Wong & Carter, P.C., Phoenix
By Rick K. Carter, Matthew A. Klopp, Shane Q. Parker
Counsel for Defendant/Appellee
                            FLYNN v. OLSEN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.


W I N T H R O P, Judge:

¶1           Appellant Celeste M. Flynn challenges the superior court’s
ruling granting summary judgment to Appellee Bryanne Olsen on two
counts of Celeste’s complaint alleging unjust enrichment and seeking to
impose a constructive trust. We dismiss the appeal for lack of jurisdiction.

                 FACTS AND PROCEDURAL HISTORY

¶2            Don and Nancy Olsen established the Donald S. Olsen &
Nancy J. Olsen Trust (“the Olsen Trust”) in 1987. Within the Olsen Trust
are two trusts identified as Trust A and Trust B. Celeste, Don’s oldest child,
is the successor trustee of Trust B.

¶3           The Olsen Trust agreement provided that Don and Nancy
would convey their community property and Nancy’s Southern Arizona
Bank common stock shares, which she held as sole and separate property,
to Trust B. After Nancy’s passing in 1996, Don conveyed an additional
property (“the 16th Street Property”) to Trust B.

¶4            Don married Bryanne in or about 2003. In October 2011, Don
executed a will disinheriting Celeste and his four other children. He and
Bryanne also executed a “Third Amendment and Restatement of the
Donald S. Olsen and Bryanne Olsen Living Trust” (“the Living Trust”) and
transferred all of their assets to the Living Trust.

¶5             Don passed away in November 2016. Celeste filed this case
in October 2018, alleging Don had liquidated the Southern Arizona Bank
shares and commingled the proceeds with other assets that were
subsequently placed in the Living Trust. She also alleged that Don sold the
16th Street Property in 2005 but did not remit the sale proceeds to Trust B;
instead, Don gave Trust B an unsecured promissory note. Based on the
foregoing actions, Celeste alleged Don breached his fiduciary duties as
trustee of Trust B, converted or fraudulently transferred Trust B assets, and
subsequently breached the promissory note. She further alleged Bryanne
aided and abetted Don’s conduct and that the Living Trust was unjustly


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                             FLYNN v. OLSEN
                            Decision of the Court

enriched. Accordingly, Celeste requested the court impose a constructive
trust over any missing Trust B assets including “the proceeds from selling
Nancy’s stock . . . as well as the proceeds from the sale of the 16th Street
[P]roperty.”

¶6            Bryanne unsuccessfully moved to dismiss the complaint,
contending it mirrored an earlier complaint Celeste filed in 2017 (“the First
Civil Case”). The superior court had dismissed the First Civil Case
complaint without prejudice, finding that “the Estate of Donald S. Olsen is
an indispensable party to the proceedings, both as to claims and as to
possible defenses.” Celeste then filed a probate petition seeking to have a
personal representative appointed for Don’s estate (“the Probate Case”).
That petition was dismissed with prejudice on February 15, 2019, as
untimely under the two-year limitations period of Arizona Revised Statutes
section 14-3108. Celeste appealed that judgment (“the Probate Appeal”).1

¶7              While the Probate Appeal was pending, the superior court in
this case granted summary judgment to Bryanne on two of the twelve
counts of Celeste’s complaint: unjust enrichment and constructive trust. It
did so based on its conclusion that Celeste would be “barred from bringing
this action against Defendants if [she] is unsuccessful in [the Probate
Appeal].” The court later entered an amended judgment finding that the
First Civil Case dismissal order “collaterally estop[ped] [Celeste] from
pursuing any and all claims against all defendants, including Bryanne[,]
 . . . because no personal representative has been appointed,” but the court
still only granted summary judgment on two counts. The probate court
certified both judgments under Arizona Rule of Civil Procedure (“Rule”)
54(b). Celeste timely appealed both judgments.

                               JURISDICTION

¶8             Bryanne contends we lack jurisdiction over this appeal
because the court improperly certified both judgments under Rule 54(b).
See Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass’n,
Inc., 

229 Ariz. 525

, 530, ¶ 14 (App. 2012). “[W]e must dismiss an appeal


1      Another panel of this court recently issued its opinion in the Probate
Appeal. See Flynn v. Olsen (In re Estate of Olsen), 1 CA-CV 20-0343, 

2021 WL
1421651

(Ariz. App. Apr. 15, 2021). The court reversed the dismissal of
Celeste’s petition and remanded for further proceedings, holding that she
was not time-barred from seeking the appointment of a personal
representative for Don’s estate.

Id. at *3, ¶¶ 15-16.

3

                             FLYNN v. OLSEN
                            Decision of the Court

over which we lack jurisdiction.” Dabrowski v. Bartlett, 

246 Ariz. 504

, 511,
¶ 13 (App. 2019).

¶9             Generally, our jurisdiction is limited to final judgments that
dispose of all claims and all parties. Kim v. Mansoori, 

214 Ariz. 457

, 459, ¶ 6
(App. 2007). Rule 54(b) creates an exception under which the trial court
may “direct entry of a final judgment as to one or more, but fewer than all,
claims or parties” upon an express determination that “there is no just
reason for delay.” Ariz. R. Civ. P. 54(b). But a Rule 54(b) certification does
not confer appellate jurisdiction if the judgment is not actually final, in
other words, if the judgment “did not dispose of at least one separate claim
of a multi-claim action.” 

Dabrowski, 246 Ariz. at 512

, ¶ 14 (quoting Grand v.
Nacchio, 

214 Ariz. 9

, 16, ¶ 17 (App. 2006)).

¶10           Multiple claims exist for purposes of Rule 54(b) “if the factual
basis for recovery states a number of different claims that could have been
enforced separately.” GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 

165 Ariz. 1

,
9 (App. 1990) (quoting Cont’l Cas. v. Superior Court, 

130 Ariz. 189

, 191
(1981)). Generally, Rule 54(b) certification is proper if “no appellate court
would have to decide the same issues more than once even if there are
subsequent appeals.”

Id. We review de

novo whether the superior court
properly certified the judgment as final. 

Dabrowski, 246 Ariz. at 511

, ¶ 13.

¶11            Bryanne contends Celeste’s unjust enrichment and
constructive trust claims cannot be separated from the remaining
unadjudicated claims. “[T]wo distinct claims are but one for purposes of
Rule 54(b) if they have a ‘significant factual overlap.’ . . . Subsumed within
the significant factual overlap theory is the rule that a claimant who has set
forth a number of legal theories in support of only one possible recovery
has stated only one claim for relief.” Davis v. Cessna Aircraft Corp., 

168 Ariz.
301

, 305 (App. 1991) (quoting Ind. Harbor Belt R.R. Co. v. Am. Cyanamid Co.,

860 F.2d 1441

, 1445 (7th Cir. 1988)).

¶12            Here, the unjust enrichment claim hinges on Don’s sale of the
16th Street Property, as Celeste alleges Don used the sale proceeds to benefit
other business interests that now are part of the Living Trust. Likewise, she
alleges a constructive trust is warranted because the Living Trust “was the
beneficiary of and holds property that rightfully belongs to Trust B,”
including “the proceeds from selling Nancy’s stock” and “the proceeds
from the sale of the 16th Street [P]roperty.” These same allegations also
permeate each of the unadjudicated claims. Moreover, Celeste seeks the
same relief as to each claim, namely, the recovery of proceeds “from any
Defendant [that] has received” them. See Musa v. Adrian, 

130 Ariz. 311

, 313


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                            FLYNN v. OLSEN
                           Decision of the Court

(1981) (“Where, as here, the judgment disposed of three of the legal theories
supporting appellants’ claim for relief, Rule 54(b) language does not make
the judgment final and appealable.”).

¶13           In addition, “the judge should certify the order or judgment
pursuant to Rule 54(b) only in those cases in which some 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). No such
prejudice is evident from the record, and Celeste does not contend she
would have suffered any had the court not certified the amended judgment.
We, therefore, conclude the court erred in certifying the judgment under
Rule 54(b).

                              CONCLUSION

¶14            For the foregoing reasons, we dismiss Celeste’s appeal for
lack of jurisdiction.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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