IN RE ESTATE OF ZARITSKY

• Decision Date: 14 November 2000
• Docket Number: No. 1 CA-CV 00-0158.,1 CA-CV 00-0158.
• Parties: In the Matter of the ESTATE OF David ZARITSKY, Deceased, Kathleen K. Johnson, creditor and former personal representative of the Estate, Appellant, v. Stephen Davis, Mohave County Public Fiduciary; JoAnn Pope, former personal representative of the Estate; Faye Moody, sole heir of the Estate; Speer Estate, creditor of the Estate, Appellees.
• Court: Arizona Court of Appeals

12 P.3d 1203

198 Ariz. 599

In the Matter of the ESTATE OF David ZARITSKY, Deceased,

Kathleen K. Johnson, creditor and former personal representative of the Estate, Appellant, v. Stephen Davis, Mohave County Public Fiduciary; JoAnn Pope, former personal representative of the Estate; Faye Moody, sole heir of the Estate; Speer Estate, creditor of the Estate, Appellees.

No. -0158.

Court of Appeals of Arizona, Division 1, Department A.

November 14, 2000.

Law Office of Thomas E. Price, P.C. By Thomas E. Price, Kingman, Attorneys for Appellant.

Richard D. Engler, Attorney at Law By Richard D. Engler, Yuma, Attorney for Appellee Stephen Davis.

Bruno, Brooks & Goldberg, P.C. By Robert H. Brooks, Kingman, Attorneys for Appellee JoAnn Pope.

OPINION

TIMMER, Judge.

¶ 1 Kathleen K. Johnson appeals from an order of the probate court and argues that the court erred by ordering her to reimburse moneys and relinquish property to the estate.¹ We are chiefly asked to decide whether a creditor who improperly received estate property, but then disposed of it, can be ordered to pay the value of the property to the estate pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 14-3909 (1995). We hold that the probate court can enter such an order against a creditor. Therefore, we affirm the court's order, but remand for the reasons set forth in our separately filed memorandum decision.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 David Zaritsky ("Decedent") was killed on July 27, 1997, when the airplane he was piloting crashed. Decedent's only heir is his mother, Faye Moody. Shortly after her son's death, Moody began collecting decedent's personal property through an affidavit of succession, as permitted by A.R.S. section 14-3971 (Supp.1997). During this process, Johnson demanded that Moody give decedent's truck to Johnson because she had lent him the money to buy it. Moody thereafter obtained title to the truck, signed it over to Johnson, and delivered the truck to her. At Johnson's request, Moody also gave her decedent's diamond ring and Omega watch. Johnson ultimately sold the truck for $17,000 and kept the proceeds.

¶ 3 On October 21, 1997, Johnson filed an application for informal appointment as personal representative of decedent's estate pursuant to A.R.S. section 14-3301(7) (Supp. 1997) as a creditor of the estate. The court thereafter issued letters of personal representative to Johnson on November 7, 1997. On January 21, 1998, pursuant to her duties, Johnson filed an inventory and appraisal of decedent's property owned by him at the time of his death, which excluded mention of the truck, ring, and watch.

¶ 4 Moody objected to Johnson's inventory and appraisal and moved the court to order Johnson to return to the estate the ring, the watch, and the truck-sale proceeds. After an evidentiary hearing, the probate court ordered Johnson to pay to the estate $17,000, representing the proceeds from the sale of the truck. The court further ordered Johnson to return the watch and the ring to the estate.

STANDARD OF REVIEW

¶ 5 We will not set aside the probate court's findings of fact unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility of witnesses. See Ariz.R.Civ.P. 52(a); In re Marriage of Berger, 140 Ariz. 156, 161, 680 P.2d 1217, 1222 (App.1983). We review the court's legal conclusions de novo. In re Estate of Travers, 192 Ariz. 333, 334, ¶ 11, 965 P.2d 67, 68 (App.1998).

DISCUSSION

¶ 6 Johnson argues that the trial court erred by ordering her to pay decedent's estate $17,000.00 and return the diamond ring and the watch. According to Johnson, the court violated A.R.S. sections 14-3909 and 14-3910 (1995) and entered an unfair order in light of the Moody family's retention of some of decedent's property.

¶ 7 Section 14-3909 provides, in relevant part, as follows:

[A] distributee of property or money improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If such a distributee does not have the property, he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.

If such property is subsequently "acquired for value by a purchaser from or lender to a distributee," the purchaser or lender "takes title free of rights of any person interested in the estate and incurs no personal liability to the estate. . . ." A.R.S. § 14-3910.

¶ 8 Johnson contends that Moody, and not Johnson, was the "distributee" of the truck, ring, and watch under section 14-3909. Thus, she argues, Moody should be required to reimburse the value of this property to the estate. Because Johnson received this property from Moody, Johnson claims that, pursuant to section 14-3910, she cannot be held liable to the estate.

The Truck

¶ 9 Johnson maintains that she demanded and received title to the truck in order to satisfy an undocumented debt owed to her by decedent. Johnson's allegation constitutes a "claim" under our probate statutes. A.R.S. § 14-1201(6) (1995) ("`Claims'... include[ ] liabilities of the decedent ..., whether arising in contract, in tort or otherwise.. . ."). Under section 14-3909, therefore, Johnson is a "claimant" and was required to return the truck to the estate if it was in her possession. Because Johnson had sold the truck, the court ordered her to pay the proceeds to the estate. Appellee Stephen Davis argues that the court properly entered this order in light of Johnson's status as a "claimant" under section 14-3909. But the second sentence in section 14-3909 requires only "a distributee" to pay the value of improperly received property to the estate. No party specifically addresses whether this term also applies to "claimants." In order to properly interpret and apply the statute to this case, however, we must determine whether the legislature intended the term "distributee," as used in the second sentence of section 14-3909, to include a "claimant," such as Johnson. See Evenstad v. State, 178 Ariz. 578, 582, 875 P.2d 811, 815 (App.1993)

("[W]hen we are considering the interpretation and application of statutes, we do not believe we can be limited to the arguments made by the parties if that would cause us to reach an incorrect result.").

¶ 10 To determine legislative intent, we first review a statute's language. Calmat of Arizona v. State ex rel. Miller, 176 Ariz. 190, 193, 859 P.2d 1323, 1326 (1993). "Distributee" is defined in the probate statutes as "any person who has received property of a decedent from that person's personal representative other than as a creditor or purchaser." A.R.S. § 14-1201(15) (emphasis added). Because Moody² gave the truck to Johnson as a creditor of the estate, Johnson is not a "distributee" of the truck under this definition. But the statutory definition of "distributee" only applies "unless the context [of a particular provision] otherwise requires." A.R.S. § 14-1201. For the reasons that follow, we conclude that the context of the reference to "distributee" in section 14-3909 makes clear that the term also applies to "claimants" such as Johnson.

¶ 11 Section 14-3909 initially states that distributees and claimants must return property or money improperly distributed or paid. It then provides that "[i]f such a distributee" no longer has this property, he is liable to the estate for its value. If the legislature had intended to limit this provision to a "distributee," as defined in section 14-1201(15), its use of the word "such" was unnecessary. We avoid interpreting a statute "so as to render any of its language mere `surplusage,' [and instead] give meaning to `each word, phrase, clause, and sentence ... so that no part of the statute will be void, inert, redundant, or trivial.'" Herman v. City of Tucson, 197 Ariz. 430, 434, ¶ 14, 4 P.3d 973, 977 (App.1999) (quoting Walker v. City of Scottsdale, 163 Ariz. 206, 210, 786 P.2d 1057, 1061 (App.1989)). Moreover, we presume that the legislature did not intend an absurd result and our construction must avoid such a consequence. State v. Medrano-Barraza, 190 Ariz. 472, 474, 949 P.2d 561, 563 (App.1997); see also A.R.S. § 1-211(B) (1995) ("Statutes shall be liberally construed to effect their objects and to promote justice.").

¶ 12 Applying these principles to our interpretation of section 14-3909, we decide that the legislature's reference to "such a distributee" includes claimants who improperly receive money or property. This interpretation gives meaning to the term "such." It also avoids a construction of the statute that would compel a claimant to surrender improperly received property but allow him to keep the ill-gotten gains from a sale of the property, an absurd result. Accordingly, we hold that the probate court could properly order Johnson to pay the truck-sale proceeds to the estate pursuant to section 14-3909.

¶ 13 We also reject Johnson's argument that the court violated A.R.S. section 14-3910 by ordering her to pay the sale proceeds to the estate. Section 14-3910 applies to those purchasers or lenders who acquire property "for value" from a distributee. The record does not reflect that Johnson gave Moody anything of value for the truck. Moreover, Moody was not a "distributee" as she did not receive the truck from a personal...