SMITH v. OLSEN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELISSA SMITH, Plaintiff/Appellant,

v.

MORGAN R. OLSEN, et al., Defendants/Appellees.

No. 1 CA-CV 25-0572
FILED 04-08-2026

Appeal from the Superior Court in Maricopa County
No. CV2022-052105
The Honorable Dewain D. Fox, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Michael P. Fiflis, Scottsdale
Counsel for Plaintiff/Appellant

Papetti Samuels Weiss McKirgan LLP, Scottsdale
By Robert McKirgan, Jennifer Lee-Cota, Heather Robles, Lawrence Kasten
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.
SMITH v. OLSEN, et al.
Decision of the Court

P E R K I N S, Judge:

¶1 Melissa Smith appeals from the superior court’s entry of
summary judgment and from an award of attorney fees in favor of Morgan
and Beth Olsen (collectively “Morgan”). For the following reasons, we
affirm the entry of summary judgment and vacate the attorney fee award.

FACTS AND PROCEDURAL BACKGROUND

¶2 The current case arises from Smith’s efforts to recover on a
judgment she obtained against Blair Olsen (“Blair”) in a separate case. Blair
is Morgan’s brother. In that case, Smith sued Blair in June 2017 for breach
of an easement and other claims. In 2022, Smith obtained a $3,000,000
judgment against Blair, which this Court reduced to $2,115,367 on appeal.
Smith v. Olsen, 257 Ariz. 518, 625, ¶ 61 (App. 2024). Smith then initiated a
fraudulent transfer suit against both Blair and Morgan, seeking to recover
assets that Blair inherited from their father (“Father”). The fraudulent
transfer claims are based on the following facts.

A. The Will

¶3 Father died in 2015. His estate contained properties in
Mohave County (“Mohave Property”), properties in Maricopa County
(“Maricopa Property”), two properties in North Dakota (“Bismarck House”
and “Judy Jo Ranch”), and other non-real estate assets. Father’s will (“the
Will”) appointed Morgan as personal representative, devised the Judy Jo
Ranch to Blair, and devised the remainder of the estate to Blair and Morgan
in equal shares.

B. The Family Settlement Agreement

¶4 In December 2018, before the estate had been distributed,
Morgan and Blair entered into the Family Settlement Agreement (“FSA”)
agreeing to rearrange how the estate would be distributed. They stipulated
to each estate asset’s value at the time of Father’s death as follows:

• Mohave Property: $29,712

• Maricopa Property: $353,360

• Judy Jo Ranch: $164,500

• Bismarck House: $198,200

2
SMITH v. OLSEN, et al.
Decision of the Court

• Non-real estate assets: $513,882

Based on those valuations, Blair’s inheritance was worth $712,077, and
Morgan’s was worth $547,577.

¶5 Blair agreed to “release any claim he ha[d]” to the Bismarck
House and the Judy Jo Ranch and transfer them to Morgan. In exchange,
Morgan agreed to “release any claim he ha[d]” to the Maricopa Property
and transfer it to Blair along with $86,920 of the non-real estate assets. In
terms of value, Morgan received Blair’s one-half interest in the Bismarck
House, worth $99,100, and Blair’s full interest in the Judy Jo Ranch, worth
$164,500. Blair received Morgan’s one-half interest in the Maricopa
Property worth $176,680 and $86,920 of non-real estate assets. So, based on
the FSA’s valuations, both parties transferred $263,600 in assets, meaning
Blair’s inheritance was still worth $712,077, and Morgan’s was still worth
$547,577 after the FSA.

C. The distribution of the estate

¶6 In January 2019, Blair emailed Morgan, requesting that the
Maricopa Property and his one-half interest in the Mohave Property be
transferred to Blair’s LLC—Snyder Solutions Animal Rescue &
Conservation Group (“Snyder”), instead of transferring it to him personally
as set out in the FSA. Blair was the sole incorporator of Snyder and served
as its president and director. Morgan, in his capacity as personal
representative, transferred the Maricopa Property and a one-half interest in
the Mohave Property to Snyder by deed. Then, consistent with the FSA,
Morgan transferred a one-half interest in the Mohave Property, the Judy Jo
Ranch, and the Bismarck House to himself by deed. Blair and Morgan each
personally received the agreed upon amount of non-real estate assets,
including the $86,920 that Morgan transferred to Blair under the FSA.

D. Smith’s fraudulent transfer lawsuit

¶7 Smith brought two claims under Arizona’s version of the
Uniform Fraudulent Transfer Act (“the Act”). See A.R.S. §§ 44-1001 to
44-1010. In Count I, she alleged that Blair had fraudulently transferred the
Maricopa Property and his interest in the Mohave Property to Snyder. She
requested a ruling avoiding the transfers to Snyder to the extent necessary
to satisfy her judgment against Blair. In Count II, Smith alleged that Blair
had fraudulently transferred the Judy Jo Ranch and one-half of the
Bismarck House to Morgan. She requested a judgment against Morgan
awarding her the value of that real estate.

3
SMITH v. OLSEN, et al.
Decision of the Court

¶8 Morgan moved to dismiss. The court denied the motion, but
found that Count I did not apply to Morgan, because Snyder, not Morgan,
received the Arizona properties. The case was then reassigned to a different
superior court judge.

¶9 Morgan moved for summary judgment on Count II. Smith
filed a response and cross-motion for partial summary judgment. The court
granted summary judgment in favor of Morgan on Count II because the Act
only applies to transfers of the debtor’s property. The court found that here,
the North Dakota properties were never the property of Blair, the debtor,
because he released any interest in the Bismarck House and the Judy Jo
Ranch before the estate transferred those properties to Morgan. Because
Blair could not transfer property he never had, the court found the Act did
not apply. Alternatively, the court found that Count II failed as a matter of
law because Blair received equivalent value in exchange for the North
Dakota properties. Finally, the court noted that by seeking to set aside both
the transfer of the North Dakota properties to Morgan (in Count II) and the
transfer of the Arizona properties to Snyder (in Count I), Smith sought to
recover more than Blair’s share of the estate, which would constitute a
windfall. In a later ruling, the court awarded Morgan $83,282.50 in attorney
fees under Arizona Revised Statutes Section 12-349(A)(1) and (3).

¶10 Smith timely appealed, and we have jurisdiction under
Section 12-2101(A)(1).

¶11 While this appeal was pending, Count I proceeded to a bench
trial. The superior court found that Blair fraudulently transferred the
Maricopa Property and his interest in the Mohave Property to Snyder under
Section 44-1004. And that Smith may avoid the transfer to the extent
necessary to satisfy her judgment or may levy execution on the assets
transferred or their proceeds. We take judicial notice of the court’s ruling
on Count I. See In re Dependency as to G.K., 258 Ariz. 323, 325, ¶ 11 (App.
2024) (appellate courts may take judicial notice of superior court records).

DISCUSSION

¶12 On appeal, Smith argues the superior court erred by granting
summary judgment for Morgan, denying summary judgment for Smith,
and awarding Morgan attorney fees.

I. Summary judgment

¶13 Summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact and the

4
SMITH v. OLSEN, et al.
Decision of the Court

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). “We review a grant of summary judgment de novo, viewing the facts
in the light most favorable to the non-moving party.” Dabrowski v. Bartlett,
246 Ariz. 504, 512, ¶ 17 (App. 2019).

¶14 Under Section 44-1004(A), “a transfer made . . . by a debtor is
fraudulent . . . if the debtor made the transfer” either “with actual intent to
hinder, delay or defraud any creditor of the debtor” or “without receiving
a reasonably equivalent value in exchange for the transfer or obligation.”
(cleaned up). Under Section 44-1005, a transfer made by a debtor is
fraudulent if the debtor made the transfer “without receiving a reasonably
equivalent value in exchange” and the debtor was insolvent.

A. Blair transferred the North Dakota properties to Morgan.

¶15 Smith argues the superior court erred by finding that Blair did
not transfer the North Dakota properties to Morgan under Section
44-1004(A). We agree.

¶16 To bring a claim under Sections 44-1004(A) and -1005, “the
transfer must be made by the debtor.” SPQR Venture, Inc. v. Robertson, 237
Ariz. 270, 273, ¶ 14 (App. 2015). The Act defines “transfer” to include “every
mode, direct or indirect, absolute or conditional, voluntary or involuntary,
of disposing of or parting with an asset or an interest in an asset and
includes payment of money, release, lease and creation of a lien or other
encumbrance.” A.R.S. § 44-1001(9). The Act also instructs that “[a] transfer
is not made until the debtor has acquired rights in the asset transferred.”
A.R.S. § 44-1006(4).

¶17 The court found that the Bismarck House and the Judy Jo
Ranch were never Blair’s property to transfer, because, by signing the FSA,
Blair “released any claim or interest he had” in those properties before the
estate transferred them to Morgan. But the definition of “transfer” under
the Act explicitly includes the “release” of “an interest in an asset.” A.R.S.
§ 44-1001(9). Thus, under the plain language of the Act, Blair’s release of his
interest in the North Dakota properties was a transfer.

¶18 Morgan argues no transfer occurred because Blair and
Morgan only exchanged expectant interests in properties, not actual
ownership. But the Act’s language is not so narrow. The Act applies to the
transfer of “an asset or an interest in an asset.” Id. (emphasis added). And a
debtor need not have acquired the asset to transfer it, only “rights in the
asset.” A.R.S. § 44-1006(4) (emphasis added). In the FSA, Blair transferred

5
SMITH v. OLSEN, et al.
Decision of the Court

to Morgan his right to inherit the North Dakota properties. The court erred
by finding that the exchange was not a transfer under Section 44-1004(A).

B. Morgan was entitled to summary judgment even though Blair
transferred the North Dakota properties to Morgan.

¶19 Although Morgan was not entitled to summary judgment on
the basis that Blair did not transfer the properties, “[w]e will affirm a grant
of summary judgment if the [superior] court was correct for any reason.”
Federico v. Maric, 224 Ariz. 34, 36, ¶ 7 (App. 2010). Morgan was entitled to
summary judgment if there was no genuine dispute that Blair (1) received
reasonably equivalent value in exchange for the North Dakota properties,
see A.R.S. §§ 44-1004(A)(2), -1005, and (2) did not have actual intent to
hinder, delay, or defraud Smith in making the transfer. See A.R.S. §
44-1004(A)(1).

¶20 Smith argues that Blair did not receive equivalent value in
exchange for transferring to Morgan his right to inherit the Judy Jo Ranch
and one-half of the Bismarck House. See A.R.S. §§ 44-1004(A)(2), -1005. In
return, Blair received one-half of the Maricopa Property and $86,920 in
non-real estate assets. The FSA valued the assets on either side of that
exchange at $263,600. Smith does not dispute those valuations. Instead, she
argues that Blair did not actually receive the Maricopa Property in the
exchange because it was ultimately transferred to Snyder, not Blair. And
thus the $86,920 of non-real estate assets Blair received was not reasonably
equivalent to the value of the North Dakota properties he transferred to
Morgan.

¶21 The superior court correctly rejected that argument in
granting summary judgment for Morgan on Count II, finding that the
exchange “did not reduce the value [Blair] was entitled to receive from the
Estate.” After signing the FSA, Blair had the right to inherit the Maricopa
Property, and Morgan had the right to inherit the North Dakota properties.
What Blair did with his interest in the Maricopa Property from then on had
no bearing on Morgan’s interest in the North Dakota properties. The
transaction was already complete. Thus, there is no genuine dispute that
Blair received equivalent value in return for the North Dakota properties.
Smith’s Section 44-1004(A)(2) and -1005 claims fail as a matter of law.

¶22 Smith next argues that Blair made “the transfers” with “actual
intent” to hinder, delay, or defraud Smith. See A.R.S. § 44-1004(A)(1). She
argues that Blair’s intent to defraud is evidenced by his transfer of assets to
Snyder without receiving reasonably equivalent value. But again, Count II

6
SMITH v. OLSEN, et al.
Decision of the Court

alleged that Blair fraudulently transferred the North Dakota properties to
Morgan. Whether Blair’s subsequent transfer of different assets to Snyder
was done with the intent to defraud has no bearing on the prior exchange
with Morgan.

¶23 Smith argues, for the first time on appeal, that we should
follow precedents from other Uniform Fraudulent Transfer Act
jurisdictions, and consider Blair and Morgan’s exchange under the FSA and
the subsequent transfer to Snyder as components of a single transaction—
the collapsed transaction doctrine. Under that doctrine, in “appropriate
circumstances,” courts may treat multilateral transactions “as phases of a
single transaction.” HBE Leasing Corp. v. Frank, 48 F.3d 623, 635 (2d Cir.
1995); see also In re Syntax-Brillian Corp., 573 Fed.Appx. 154, 159–60 (3d Cir.
Aug. 11, 2014) (“The collapsing doctrine [is] an equitable tool by which a
court may collapse multiple apparently innocuous transactions for
purposes of a fraudulent transfer analysis and consider the economic reality
of the integrated whole.” (cleaned up)); Mills v. Everest Reinsurance Co., 410
F. Supp. 2d 243, 254–55 (S.D.N.Y. 2006) (“Courts have collapsed a series of
transfers to assess the existence of fair consideration.” (cleaned up)).
Because Smith did not raise this legal theory in superior court, it is waived
on appeal. BMO Harris Bank, N.A. v. Espiau, 251 Ariz. 588, 593–94, ¶ 25 (App.
2021) (“[L]egal theories must be presented timely to the trial court so that
the court may have an opportunity to address all issues on their merits.”).

¶24 We will not disturb the superior court’s grant of summary
judgment in favor of Morgan and denial of Smith’s cross-motion for
summary judgment.

II. Attorney fee award

¶25 We review an award of attorney fees under Section 12-349 for
an abuse of discretion. Phoenix Mot. Co., Inc, v. Rajabian, __ Ariz. __, __, ¶ 32,
579 P.3d 1269, 1276 (App. 2025). We defer to the superior court’s findings
of fact unless clearly erroneous, but we review the court’s interpretation
and application of Section 12-349 de novo. Ariz. Republican Party v. Richer,
257 Ariz. 237, 242, ¶ 10 (2024).

¶26 The superior court awarded fees against Smith as a sanction
under Section 12-349(A)(1) and (3), which provides that “the court shall
assess reasonable attorney fees [and] expenses . . . against an attorney or
party . . . if the attorney or party . . . brings or defends a claim without
substantial justification . . . [or] unreasonably expands or delays the

7
SMITH v. OLSEN, et al.
Decision of the Court

proceeding.”(cleaned up). The court must “set forth the specific reasons for
the award.” A.R.S. § 12-350.

¶27 Section 12-349(A)(1) requires a showing that the claim was
both “groundless” and “not made in good faith.” A.R.S. § 12-349(F); Richer,
257 Ariz. at 243, ¶ 14. A claim is groundless if there is “no rational argument
based upon the evidence or law in support of that claim.” Richer, 257 Ariz.
at 243, ¶ 15.

¶28 The court ruled that Smith’s claim was groundless because
the record showed that Blair, the debtor, did not make a transfer, as is
required to bring claims under Sections 44-1004(A) and -1005. As explained
above, Blair did make a transfer within the meaning of the Act. Thus, the
court abused its discretion by imposing sanctions under Section
12-349(A)(1).

¶29 Turning to Section 12-349(A)(3), the relevant inquiry is
whether a party’s or attorney’s actions caused an unreasonable delay or
expansion of the proceedings. Solimeno v. Yonan, 224 Ariz. 74, 81, ¶ 32 (App.
2010). The court found: “[W]hen the discovery turned up no admissible
evidence to support her fraudulent transfer claim against Morgan . . . Smith
unreasonably expanded and delayed the proceeding by opposing the
Motion for Summary Judgment.” In other words, the court found that
Smith unreasonably delayed the proceeding merely by opposing summary
judgment. That is inherently a finding that Smith’s claim is groundless.
Such a finding was an abuse of discretion for the reasons we have
explained. Thus, imposing sanctions under Section 12-349(A)(3) was also
an abuse of the court’s discretion. See generally Richer, 257 Ariz. at 251, ¶ 49
(“By sanctioning parties and their lawyers for bringing debatable, long-shot
complaints, courts risk chilling legal advocacy and citizens raising
questions under the guise of defending the rule of law.” (cleaned up)).

¶30 The court erred in sanctioning Smith under Section
12-349(A)(3) for another reason. The superior court judge previously
assigned to this case denied Morgan’s motion to dismiss Count II, thereby
allowing Smith to litigate that claim and advance the argument that Blair
made the necessary transfer under the Act. In its attorney fee ruling, the
court then sanctioned Smith for continuing to litigate her claim against
Morgan. In essence, the court faulted Smith for failing to voluntarily
dismiss her claim because—in the court’s view—Blair had not made the
necessary transfer. In other words, the court accepted Smith’s argument at
the motion to dismiss stage but then sanctioned her for making the same
argument at the summary judgment stage. Although there may be

8
SMITH v. OLSEN, et al.
Decision of the Court

circumstances when sanctions under Section 12-349(A)(3) are appropriate
even after a party’s claim survives a motion to dismiss, based on the record
here, the court erred by sanctioning a party for making an argument we
have concluded was correct.

III. Attorney fees and costs on appeal

¶31 Morgan requests an award of attorney fees on appeal under
Section 12-349 and ARCAP 25, arguing that Smith’s appeal lacks substantial
justification. Though we affirm the entry of summary judgment, Smith’s
appeal identified a flaw in the superior court’s summary judgment analysis,
and the court abused its discretion in awarding attorney fees. We decline to
award Morgan attorney fees on appeal.

¶32 Both parties request their taxable costs on appeal under
Section 12-341. Because we affirm the summary judgment ruling but vacate
the attorney fee award, neither party was “successful” under Section
12-341. We thus decline to award costs to either party under Section 12-341.
See Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 163, ¶ 22 (App. 2016).

¶33 Smith also requests costs under Section 12-342, which permits
a party to recover costs on appeal from a judgment against her, if the
“judgment of the appellate court is against [her], but for a lesser amount.”
A.R.S. § 12-342(A). Here, there was a judgment against Smith in superior
court entering summary judgment against her and ordering her to pay
$83,282.50 in attorney fees. We now affirm the superior court’s judgment
entering summary judgment against Smith but reduce her attorney fee
obligation from $83,282.50 to $0. Accordingly, there is still a judgment
“against [Smith], but for a lesser amount.” See A.R.S. § 12-342(A). We thus
award Smith her taxable costs on appeal under Section 12-342.

CONCLUSION

¶34 We affirm the entry of summary judgment in favor of
Morgan. We vacate the court’s award of attorney fees.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

9