Estate of Page v. Litzenburg

• Decision Date: 28 September 1993
• Docket Number: CA-CV,No. 1,1
• Citation: Estate of Page v. Litzenburg, 177 Ariz. 84, 865 P.2d 128 (Ariz. App. 1993)
• Parties: In re the ESTATE OF Lloyd Francis PAGE, deceased, M.P. O'Dea, Personal Representative, Appellant, v. Joyce LITZENBURG, Appellee. 91-0351.
• Court: Arizona Court of Appeals

Page 128

865 P.2d 128

177 Ariz. 84

In re the ESTATE OF Lloyd Francis PAGE, deceased, M.P. O'Dea, Personal Representative, Appellant, v.Joyce LITZENBURG, Appellee.

No. 1 CA-CV 91-0351.

Court of Appeals of Arizona Division 1, Department E.

Sept. 28, 1993.

Review Denied Jan. 19, 1994.

[177 Ariz. 86] Bernard Arkules, Paradise Valley, A. Paul Blunt, Scottsdale, for appellant.

Lewis and Roca by Janet A. Napolitano and Neil Taylor, Phoenix, for appellee.

OPINION

LANKFORD, Judge.

M.P. O'Dea, personal representative of the estate of Lloyd Francis Page, appeals from orders awarding appelleeJoyce Litzenburg $35,670.00 and denying O'Dea's motions for new trial and to vacate judgment.The appeal presents the following issues for our consideration:

(1) Whether the quantum meruit claim Litzenburg presented to the estate conferred jurisdiction on the trial court to award her recovery on an alleged oral contract with the decedent;

(2) Whether Litzenburg's claim was barred in whole or in part by the three year limitations period of Ariz.Rev.Stat.Ann.("A.R.S.")section 12-543;

(3) Whether the trial court abused its discretion in denying O'Dea's motion in limine to exclude Litzenburg's testimony pursuant to A.R.S. section 12-2251("the Dead Man's Statute");

(4) Whether Litzenburg's testimony amounted to "clear and convincing" evidence on which a claim against the estate could be based; and

(5) Whether the trial court abused its discretion in denying O'Dea's motion for new trial or his motion to vacate judgment.

Lloyd Francis Page died in July 1988.On October 7, 1988, through her former counsel, Litzenburg filed an application for informal appointment as personal representative and for unsupervised administration of the estate.Litzenburg alleged that Page left no known heirs or devisees and that she had standing to be appointed personal representative as a creditor.SeeA.R.S. §§ 14-32-3,14-3301.The court formally appointed Litzenburg personal representative.Immediately thereafter, through the same counsel, Litzenburg filed a creditor's claim alleging:

That from November 1977 until March 1988, the decedent lived with her in her home paying neither rent nor utilities but on occasion buying food for himself and his wife.The fair value of such tenancy would be $10,000 per year.

Through current counsel, Litzenburg later filed an amended creditor's claim that stated in part:

Claimant is informed and believes and upon such information and belief alleges that the fair value of such services would more accurately and properly be in the sum of $35,000 and herewith makes a claim against the estate for reimbursement in that amount.

On May 24, 1989, as personal representative, Litzenburg filed a final account and petition for a decree of distribution.This document asked the court to approve payment of $30,000.00 to Litzenburg individually based on her claim.

On June 1, 1989, appellantM.P. O'Dea made his first appearance in this litigation, filing a petition for adjudication of intestacy, determination of heirs and appointment of personal representative.The petition alleged that O'Dea was the nominee of Cecil King, the decedent's first cousin and heir, and asked that O'Dea be appointed as successor personal representative.On O'Dea's motion for summary judgment, the trial court transferred the estate to the formal probate calendar and adjudicated Cecil King as heir.

Litzenburg resigned as personal representative and O'Dea was appointed successor personal representative.The court's order stated in part:

The resignation of Joyce Litzenburg shall not terminate the obligation of Joyce Litzenburg and her attorney, Harry Finks, to produce documents and respond to Cecil King's first request for production of documents by Joyce Litzenburg, personal representative and her attorney, Harry Finks.

O'Dea sent interrogatories and requests for admissions to Litzenburg.O'Dea asked Litzenburg to admit there was no evidence to support her various claims against the estate.His interrogatories asked that she state the source of each fact on which she based any denial or refusal to admit, and identify each witness and each supporting or contradicting document.

Litzenburg's responses denied a request for an admission that her claim was baseless; stated that the persons who knew the underlying facts were the decedent, his deceased wife, and Litzenburg; and stated that no documents either supported or contradicted the facts on which she based her refusal to admit.

Before trial, O'Dea filed a motion in limine to exclude Litzenburg's testimony pursuant to the Deadman Statute, A.R.S. section 12-2251.The parties' joint pretrial statement reflected that only Litzenburg would testify as a witness, and identified the following contested issues of fact:

(A) Whether Lloyd Francis Page and his wife resided in Joyce Litzenburg's home without paying her for food, utilities, shelter, etc.

(B) Whether Lloyd Francis Page ever agreed to pay Joyce Litzenburg for such food, utilities, shelter, etc. either unconditionally or when out of debt.

The trial court denied the motion in limine.

At trial Litzenburg testified that she moved from Maryland to Sun City in 1976 or 1977.Decedent, who was her mother's second husband, drove her to Arizona in her own car and returned to Maryland.A month later decedent and Litzenburg's mother surprised her by appearing on her doorstep and asking to stay with her, saying they were broke and in debt and had nowhere to go.According to Litzenburg, she agreed to allow them to stay provided they pay $290 per month for rent and other living expenses.The rent was to accumulate monthly until decedent worked his way out of debt and could start paying her back.

Litzenburg testified that while decedent lived in her house he had no source of income to her knowledge other than from Social Security and from collecting and selling soft drink cans and old newspapers.He dressed cleanly but wore old, out-of-style clothes and sneakers with holes in them.She also testified she saw decedent write checks on occasion, including one for $1,500.00 for his wife's nursing home expenses.

Litzenburg testified that decedent and Litzenburg's mother lived with her for ten years.Litzenburg provided all utilities and cooked most of the basic meals herself.Her mother died in 1987, and decedent left when Litzenburg asked him to do so in January of 1988.Litzenburg was not aware that decedent had any relatives.

In October of 1988, Litzenburg learned from a representative of the Valley National Bank that decedent had died.Litzenburg consulted an attorney, Mr. Finks.Concerning the first claim she made against the estate, she testified, "Mr. Finks named a figure of $10,000.I didn't know whether he was saying $10,000 for the whole thing or $10,000 per year.I just went along with him.I'm inclined to go along with attorney's advice.It was a mistake."

The court ultimately allowed Litzenburg's claim against the estate in the amount of $35,670.00.The court's minute entry ruling stated:

The court finds that the decedent, Lloyd Francis Page, lived in Joyce Litzenburg's home from November 1977 until January 1988.He agreed to pay to Joyce Litzenburg rent in the amount of $290 per month.In consideration, Joyce Litzenburg was to provide shelter, utilities, and basic meals.

The decedent appeared to have no money and was in debt.The decedent and Joyce Litzenburg agreed that the rent would continue to accrue until he"got on his feet," was out of debt, and could pay past due rent.

Joyce Litzenburg's testimony regarding the agreement and her distant relationship to the decedent has overcome any presumption of gratuity arising from her furnishing food and housing to a relative.

O'Dea filed a motion to vacate and for a new trial, and later an amended motion for a new trial.O'Dea's amended motion requested a new trial based on newly discovered material evidence.

The amended motion was supported by the affidavit of Frank Redman and Joni Redman, which stated that Frank Redman was the stepson of the decedent Lloyd Francis Page and the brother of Joyce Litzenburg.The Redmans had lived with Joyce Litzenburg and the decedent in Arizona from March 1987 to January 1988.During that time, the decedent had paid one fourth of household expenses such as utilities and provisions, the Redmans had paid one half of such expenses, and Litzenburg had paid the remaining one fourth.Decedent Page and his wife had told the Redmans on numerous occasions that the Pages had moved into the Litzenburg household pursuant to an agreement under which the Pages would perform all housekeeping tasks including cooking, laundry and cleaning in exchange for housing.

At the same time, O'Dea submitted his counsel's affidavit that counsel had attempted to contact Frank Redman and Joni Redman by telephone prior to the trial of this cause but had not been able to find a telephone listing for them.The Redmans had not responded to notices mailed to them concerning the estate.Counsel had assumed that the Redmans would provide no evidence helpful to the estate's contest of the claim of Joyce Litzenburg because Frank Redman is the brother of Joyce Litzenburg.After learning of the minute order of November 28, 1990, counsel wrote to the Redmans.Joni Redman telephoned counsel and advised him that the decedent and his wife had told the Redmans on several occasions that the decedent and his wife were provided housing by Joyce Litzenburg in return for the performance of household services and that the decedent had paid one fourth of the household expenses while the Redmans and the decedent lived at Joyce Litzenburg's house.

O'Dea's counsel subpoenaed the decedent's canceled checks and bank statements.He also submitted an additional affidavit of Frank and Joni Redman stating that shortly after Page's death, they turned over to Litzenburg's attorney all of Page's bank records which included...