Ader v. Estate of Felger, __Ariz. Adv. Rep. ___ No. 2 CA-CV 2015-0170 (App. Div. II, May 27, 2016) (J. Vasquez)

CLAIMS AGAINST ESTATE BASED UPON PRE-DEATH TORTS ARE GOVERNED BY “NONCLAIMS” STATUTE NOT SOL AND ACCRUE UPON DEATH AND NOT DATE OF DISCOVERY OF CLAIM

Plaintiff invested in numerous commercial real estate ventures with Dan Felger. Felger died. Plaintiff sued his estate more than two years after Felger's death alleging numerous claims, such as breach of contract, breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, conversion, and racketeering. All were based upon acts of Felger before his death and brought more than two years after his death. Defendant sought summary judgment based on ARS §14-3803(A). Plaintiff asked for more time to do discovery before the court ruled on the motion under Arizona Rule of Civil Procedure Rule 56(f)(1)(A). Plaintiff claimed the deadline to file her claims should accrue on the date she discovered the claim not the date of death and that any deadline should be tolled until a personal representative is appointed for the estate which had yet to occur. The trial court denied the motion for more time and granted summary judgment. The Arizona Court of Appeals affirmed.

Plaintiff was not entitled to more time to do discovery before responding to the motion for summary judgment because the issue raised in the motion was purely a question of law. No amount of discovery would change that or the basis for applying the statute.  It was uncontroverted that all the acts forming the basis for plaintiff's claims occurred more than two years before this action was brought.

ARS §14-3803(A) places a two year from the date of death on claims existing before death and the statute accrues upon death regardless of the date plaintiff discovered the claims.  The court held:

However,§14-3803 is a nonclaim statute. A nonclaim statute is “‘[a] law that sets a time limit for creditors to bring claims against a decedent's estate. Unlike a statute of limitations, a nonclaim   statute is usu[ally] not subject to tolling and is not waivable. . . . Claims against an estate that arose before the decedent's death must be presented within the time limits of §14-3803(A). Because such claims    cannot be presented until a personal representative has been appointed for the estate, § 14-3104, the onus is on creditors to initiate  probate   proceedings   when   none   are forthcoming, see §14-3203(A)(7).  Otherwise, if a personal representative is not appointed within two years of the decedent's death,  most  claims  cannot  be  presented  against  the  estate. §14-3108(4).  And, despite the fact that a personal representative has not been  appointed,§14-3803(A) bars most claims when  brought  more than two years after the decedent's death. See §14-3108(4).