Estate of Kopely, Matter of, 2

• Court: Arizona Court of Appeals
• Writing for the Court: LACAGNINA; ROLL, P.J., and FERNANDEZ
• Citation: Estate of Kopely, Matter of, 767 P.2d 1181, 159 Ariz. 391 (Ariz. App. 1988)
• Decision Date: 10 November 1988
• Docket Number: CA-CV,No. 2,2
• Parties: In the Matter of the ESTATE OF Lillian J. KOPELY, Deceased. Mazen FAHOUM, Appellant, v. Paula WINTERS, as Personal Representative of the Estate of Lillian J. Kopely, deceased, Appellee. 88-0141.

Page 1181

767 P.2d 1181

159 Ariz. 391

In the Matter of the ESTATE OF Lillian J. KOPELY, Deceased Mazen FAHOUM, Appellant, v. Paula WINTERS, as Personal Representative of the Estate of Lillian J. Kopely, deceased, Appellee.

No. 2 CA-CV 88-0141.

Court of Appeals of Arizona Division 2, Department B.

Nov. 10, 1988.

Review Denied Feb. 22, 1989.

Motion to Set Aside Dismissal Denied Feb. 22, 1989.

[159 Ariz. 392] Stompoly & Stroud, P.C. by Susan Ferrell and James L. Stroud, Tucson, for appellant.

Curtis & Cunningham by Marjorie Fisher Cunningham, Tucson, for appellee.

OPINION

LACAGNINA, Chief Judge.

Mazen Fahoum appeals the probate court's order finding that his claim for personal injuries made against the estate of Lillian J. Kopely was not timely filed and is forever barred. He argues that the issue of timeliness was previously resolved in the underlying tort case and that A.R.S. §§ 14-3801 and 3803 are unconstitutional. Because we agree that the provisions are unconstitutional, we vacate the order and remand with directions.

FACTS AND PROCEDURAL HISTORY

On January 1, 1986, Lillian J. Kopely was driving her vehicle and turned left in front of Fahoum's vehicle. Fahoum struck Kopely's vehicle broadside at a speed estimated between 40 and 50 miles per hour. Kopely and two passengers in her vehicle died as a result of the collision. A third passenger in Kopely's vehicle also sustained injuries. Fahoum suffered serious injuries to his face and jaw. In February 1986, the representatives of Kopely's passengers filed actions against the estate. On June 4, 1986, Fahoum filed his lawsuit against the estate, and all of the plaintiffs' cases were consolidated for trial. The other plaintiffs settled their claims on the eve of trial, exhausting Kopely's liability insurance coverage. The jury found that Fahoum had sustained total damages of $77,335 reduced by its determination that Fahoum was 10% responsible for the accident. Judgment was entered against the estate in the amount of $69,601.50.

In the underlying tort action, Winters' answer to Fahoum's complaint raised the defense that Fahoum had not filed a timely notice of claim as required by A.R.S. § 14-3803. Winters made and renewed motions to dismiss, objected to the form of judgment, and filed a motion for new trial, each time arguing that Fahoum's claim was untimely and therefore invalid. All of Winters' motions were denied. In its minute entry overruling Winters' objections to the form of judgment on grounds of timeliness, the trial court stated: "The court believes that those matters set forth in the objection to form of judgment are more appropriately presented to the Probate Court for resolution, if and when Mr. Fahoum attempts collection on the judgment." In denying a motion to dismiss, the court said: "I'll deny the motion to dismiss because I think it goes to collection almost rather than the remedy. I think he's entitled to his lawsuit."

Kopely's personal representative, Paula Winters, appealed the judgment. We affirmed it by memorandum decision in Fahoum v. Winters, 2 CA-CV 87-0185 (filed December 31, 1987). In that appeal, Winters' counsel had requested an extension of the briefing schedule, stating that "the appeal hinges upon a determination of whether [Fahoum] had a valid claim against the decedent's estate." Although Winters stated in her motion that the probate division was in the process of reviewing the court file to determine whether a hearing on the validity of Fahoum's claim should be held, no further information was provided to this court and, eventually, the parties filed briefs, and this court's opinion was filed. The timeliness of Fahoum's claim was not raised or argued in the briefs.

PRESENTATION OF TIMELINESS ISSUE IN TORT CASE

Fahoum argues that because Winters unsuccessfully questioned the timeliness of Fahoum's claim in the underlying tort case the doctrine of res judicata precluded Winters from raising that issue in the probate court. The res judicata doctrine binds the same parties standing in the same capacity in subsequent litigation as to every issue decided and as to every issue raised by the record which could have been decided in the prior action. Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 408 P.2d 849 (1965). Therefore, a judgment in favor of a plaintiff is res judicata as against the defendant on every defense raised or which he could have raised as a defense against the complaint. Pacific Greyhound Lines v. Brooks, 70 Ariz. 339, 342, 220 P.2d 477 (1950). The doctrine is based on the presumption that all such issues and defenses have been decided in support of the judgment rendered in the first action. Taylor v. Betts, 59 Ariz. 172, 177, 124 P.2d 764, 766 (1942).

Applying the general rule to this case would require us to preclude Winters from raising an issue which the trial court in the tort case specifically refused to decide. To avoid this result, the courts have carved out an exception to the strict doctrine of res judicata. If a trial court or an appellate court expressly states that it is not deciding an issue which was raised and could have been decided, the presumption cannot prevail, and the judgment is not res judicata as to the undecided issue. See Taylor v. Betts, 59 Ariz. at 177-178, 124 P.2d at 766, and cases cited therein. See also Miles v. Teague, 251 Ark. 1059, 476 S.W.2d 245, 247 (1972). The Restatement (Second) of Judgments § 26 also provides for exceptions to the general rule prohibiting a litigant from splitting his claim. The Restatement (Second) of Judgments § 26, comments b and d, specifically refer to situations where the court has either expressly reserved the opportunity to litigate in a second action or has erroneously determined that a plaintiff must bring a part of the claim in another action. Although Winters vigorously contended in the tort action that the case should be dismissed due to Fahoum's failure to comply with the probate code claim requirements, there is nothing to suggest that the court's denial of Winters' motions and objections amounted to a ruling on the merits of the timeliness of Fahoum's claim. In fact, the statements by the court clearly showed its intention not to rule on the issue of timeliness but to reserve that determination to the probate division of the superior court. ¹ Therefore, we will not apply the doctrine of res judicata here.

Fahoum also contends that by appealing the tort judgment to this court, the timeliness issue was before this court because "all matters connected with a case are removed from the jurisdiction of the lower court once an appeal has been perfected." Again, we disagree with Fahoum's characterization of the case. Although Winters did request an extension of time for filing her brief on appeal from the tort judgment, she did not present the timeliness issue, that question was not before us, and we did not decide that issue on appeal as it was pending in the probate division. See Taylor v. Betts, supra.

PUBLICATION OF NOTICE TO CREDITORS/DUE PROCESS

Kopely's will was admitted to probate on January 20, 1986. An affidavit filed in the probate division of superior court on ...