Ader v. Estate of Felger

Decision Date27 May 2016
Docket NumberNo. 2 CA–CV 2015–0170,2 CA–CV 2015–0170
Citation240 Ariz. 32,375 P.3d 97
PartiesMichele Ader, an unmarried woman, Plaintiff/Appellant, v. The Estate of Dan Felger and Carolyn Felger, a widow, Defendants/Appellees.
CourtArizona Court of Appeals

Thompson Krone, P.L.C., Tucson, By Russell E. Krone and Evan L. Thompson, Counsel for Plaintiff/Appellant

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, By Corey

B. Larson and Ariel E. Henderson, Counsel for Defendants/Appellees

Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Howard concurred.


VÁSQUEZ, Presiding Judge:

¶ 1 Michele Ader appeals the trial court's entry of summary judgment in favor of the Estate of Dan Felger and his widow Carolyn Felger and its subsequent denial of her motion for a new trial. The primary issue presented in this appeal requires us to interpret A.R.S. § 14–3803

and A.R.S. § 14–3108 to determine whether Ader's claims against the Estate are time-barred because no probate proceeding was initiated in Arizona within two years following Dan Felger's death. For the reasons stated below, we affirm.

Factual and Procedural Background

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to Ader, the party against whom summary judgment was entered. See Delo v. GMAC Mortg., L.L.C. , 232 Ariz. 133, ¶ 2, 302 P.3d 658, 659 (App.2013)

. However, the relevant facts are undisputed. In 1974, Ader began investing in commercial properties with Dan Felger. Ader helped fund the purchase of the properties, and Dan Felger rehabilitated, managed, and eventually refinanced or sold them. Starting in the mid–1990s, Dan Felger created separate limited liability companies for each of the investment properties. The members of those companies were Ader and the Felger Family Trust, for which Dan Felger served as trustee. In 2007, Dan Felger was diagnosed with cancer and started training his son-in-law, Michael Rosberg, to take over the business. Dan Felger died in November 2010. Less than two years later, Ader stopped receiving her monthly interest payments for two properties in southern Arizona, Bella Vista Townhomes, L.L.C. and MV Apartments, L.L.C.

¶ 3 In January 2014, Ader filed a lawsuit against various defendants, including Bella Vista Townhomes, the Felger Family Trust, Rosberg, and, as relevant to this appeal, “the Estate of Dan Felger and Carolyn Felger, a widow.” Ader alleged numerous claims, such as breach of contract, breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, conversion, and racketeering. Six months later, Carolyn Felger and the Estate of Dan Felger (collectively hereinafter Felger) filed a motion for summary judgment, arguing that, because Ader's claims against the Estate were based on Dan Felger's actions before his death, they were time-barred. Felger similarly asserted that the claims against Carolyn Felger were time-barred because Ader alleged her liability “for community property reasons.” With her response, Ader requested that the trial court defer ruling on the motion for summary judgment and allow additional time to conduct discovery. After requesting supplemental briefing and hearing oral argument, the court granted the motion for summary judgment and entered a final judgment pursuant to Rule 54(b), Ariz. R. Civ. P

. Ader subsequently filed a motion for a new trial, which the court denied. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1), (5).

Additional Discovery

¶ 4 Ader first contends the trial court “should have deferred ruling on ... Felger's motion for summary judgment and should have granted additional time for discovery pursuant to Rule 56(f), Ariz. R. Civ. P

.1 We review a trial court's Rule 56(f) determination for an abuse of discretion. Lewis v. Oliver , 178 Ariz. 330, 338, 873 P.2d 668, 676 (App.1993).

¶ 5 Rule 56(f)(1)(A) provides:

If a party opposing summary judgment files a request for relief and expedited hearing under this Rule, along with a supporting affidavit showing that, for specified reasons, it cannot present evidence essential to justify its opposition, the [trial] court may, after holding a hearing[,] ... defer considering the motion for summary judgment and allow time to obtain affidavits or to take discovery before a response to the motion is required.

However, the court has no discretion and must “grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a)


¶ 6 As part of her Rule 56(f)

request, Ader sought additional information regarding Dan Felger's separate property, which she alleged passed to different trusts upon his death, as well as “the trust documents, the trust funding documents, trust and personal banking records and trust and personal tax returns.” She also wanted information concerning any loans made by Dan Felger or the Felger Family Trust to the limited liability companies. She argued this information was “essential to understanding the financial arrangements” between the various defendants.

¶ 7 However, the issue presented in the motion for summary judgment—whether Ader's claims were time-barred—was a pure question of law. Cf. Montano v. Browning , 202 Ariz. 544, ¶ 4, 48 P.3d 494, 496 (App.2002)

(describing statute of limitations and accrual of action as question of law). The additional discovery Ader sought had no bearing on that issue and would have only delayed the inevitable result. See

Josue v. Isuzu Motors Am., Inc. , 958 P.2d 535, 540 (Haw.1998) (“Because this is solely a question of law, the discovery requested was not only irrelevant, but would have subjected the parties to unnecessary cost and expense.”); United Sav. Bank v. State , 360 N.J.Super. 520, 823 A.2d 873, 876 (2003) (if summary judgment turns on question of law, additional discovery unnecessary and summary judgment need not be delayed). We therefore cannot say the trial court abused its discretion. See

Lewis , 178 Ariz. at 338, 873 P.2d at 676.

Summary Judgment

¶ 8 Ader next contends the trial court erred in granting summary judgment in favor of the Estate.2 Specifically, she maintains the court erroneously interpreted § 14–3803

and § 14–3108 to bar her claims against the Estate when no personal representative had been appointed and her claims “did not arise and had been concealed for more than two years after [Dan Felger's] death.” We review de novo a grant of summary judgment. Cohen v. Lovitt & Touche, Inc. , 233 Ariz. 45, ¶ 6, 308 P.3d 1196, 1198 (App.2013).

¶ 9 The issue here turns on the interpretation and application of § 14–3803

and § 14–3108, which are questions of law that we review de novo. See

Moore v. Browning , 203 Ariz. 102, ¶ 21, 50 P.3d 852, 858 (App.2002). We construe statutes to fulfill the intent of our legislature. First Credit Union v. Courtney , 233 Ariz. 105, ¶ 9, 309 P.3d 929, 931 (App.2013). “When interpreting a statute, we look first to the plain language because that is ‘the best and most reliable index of a statute's meaning.’ City of Tucson v. Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App.2008), quoting

N. Valley Emergency Specialists, L.L.C. v. Santana , 208 Ariz. 301, ¶ 9, 93 P.3d 501, 503 (2004). In doing so, we “give words their ordinary meaning and may look to dictionary definitions.” DBT Yuma, L.L.C. v. Yuma Cty. Airport Auth. , 238 Ariz. 394, ¶ 9, 361 P.3d 379, 381 (2015) (internal citation omitted). And we construe statutes “in conjunction with other statutes that relate to the same subject or purpose.” Johnson v. Mohave County , 206 Ariz. 330, ¶ 11, 78 P.3d 1051, 1054 (App.2003)


¶ 10 Section 14–3803 provides the time limits for creditors to present their claims against an estate. Subsection (A) applies to claims that “arose before” the decedent's death, while subsection (C) applies to claims that “arise at or after” the decedent's death. The first issue here is whether subsection (A) or (C) applies to Ader's claims against the Estate. For the reasons discussed below, we conclude that subsection (A) applies. The second issue is how to calculate the time limits in § 14–3803(A)

when no personal representative was ever appointed for the estate and, consequently, the creditors received no notice to present their claims. For this answer, we turn to § 14–3108, which generally requires a personal representative to be appointed within two years of a decedent's death. For the reasons discussed below, we conclude that § 14–3803(A) bars Ader's claims against the Estate because no personal representative was appointed within two years.

¶ 11 At the outset, we note that both § 14–3803

and § 14–3108 are part of Arizona's probate code, which was modeled after the Uniform Probate Code. In re Estate of Winn , 214 Ariz. 149, n. 4, 150 P.3d 236, 240 n. 4 (2007). Consistent with the Uniform Probate Code, our probate code “was designed to ‘promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors.’ Id. ¶ 20, quoting A.R.S. § 14–1102(B)(3) ; see also Unif. Prob. Code § 1–102(b)(3).

A.R.S. § 14–3803

¶ 12 In relevant part, § 14–3803


A. All claims against a decedent's estate that arose before the death of the decedent, including claims of the state and any of its political subdivisions, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort or other legal basis, if not barred earlier by any other statute of limitations or nonclaim statute, are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented within the earlier of either:
1. Two years after the decedent's death plus the time remaining in the period commenced by an actual or published notice pursuant to [A.R.S.] § 14–3801, subsection A

or B.


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