Flynn v. Olsen

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of the Estate of:

DONALD S. OLSEN
DECEDENT
_________________________________

CELESTE M. FLYNN,
Petitioner/Appellant,

v.

BRYANNE OLSEN, et al.,
Respondents/Appellees.

No. 1 CA-CV 20-0343
FILED 4-15-2021

Appeal from the Superior Court in Yuma County
No. S1400PB201800202
The Honorable Roger A. Nelson, Judge

REVERSED AND REMANDED

COUNSEL

Schneider & Onofry, PC, Yuma
By Charles D. Onofry
Counsel for Petitioner/Appellant

Wong Carter, PC, Phoenix
By Rick K. Carter, Matthew Klopp, Shane Q. Parker
Counsel for Respondent/Appellee Bryanne Olsen
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Opinion of the Court

OPINION

Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.

M O R S E, Judge:

¶1 Celeste Flynn ("Celeste") appeals the probate court's order
granting a motion to dismiss filed by Bryanne Olsen ("Bryanne"). The
probate court erred by dismissing Celeste's timely petition to appoint a
personal representative. We hold that when a petition to appoint a personal
representative is timely filed under A.R.S. § 14-3108, the deadline to file
claims under A.R.S. § 14-3803(A)(1) does not expire until after the probate
court appoints a personal representative and the representative provides
the notice to creditors required by A.R.S. § 14-3801. Accordingly, we
reverse and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 We recite only the facts necessary to resolve this dispute,
viewing them in the light most favorable to Celeste, the non-moving party.
See Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2 (App. 1999).

¶3 Generally, Celeste asserts that her father, Donald Olson
("Donald") defrauded a trust he created with his first wife ("First Trust")
and moved assets that should have been in the First Trust to a trust he
created with his second wife Bryanne ("Second Trust"). This purported
fraud was discovered sometime after Donald died on November 15, 2016.

¶4 Celeste filed suit against Bryanne individually and as trustee
of the Second Trust ("First Civil Case"). Bryanne moved to dismiss,
asserting that Celeste needed to open probate because the personal
representative of Donald's estate would be an indispensable party. Celeste
responded that opening probate would serve no purpose because all the
assets were in the Second Trust and complete relief could be obtained
against Bryanne and the Second Trust.

¶5 In August 2018, the court dismissed the First Civil Case
without prejudice, stating Donald's estate "is an indispensable party to the
proceedings . . . . A probate case must therefore be initiated." On October
17, 2018, within two years of Donald's death, Celeste filed a petition to open

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 FLYNN v. OLSEN, et al.
Opinion of the Court

probate and requested appointment of a personal representative. Five days
later, Celeste filed a new civil suit naming the yet-to-be-named personal
representative as a fictitious John Doe defendant ("Second Civil Case").

¶6 By December 2018, the probate court had not appointed a
personal representative. Bryanne moved to dismiss the probate case,
asserting that "[o]pening probate proceedings will serve no purpose
because [] there are no assets to be distributed" and any claims against the
estate were barred by Arizona's two-year nonclaim statute because no
personal representative had been appointed within two years of Donald's
death. See A.R.S. § 14-3803(A)(1).

¶7 Finding Celeste's claim time barred under A.R.S. § 14-3803,
the probate court granted the motion to dismiss.1 Celeste timely appealed.
We have jurisdiction pursuant to A.R.S. § 12-2101(A)(9).

DISCUSSION

¶8 We review de novo an order granting a motion to dismiss.
Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 194, ¶ 6 (2016). We
also interpret statutes de novo. Vega v. Sullivan, 199 Ariz. 504, 507, ¶ 8 (App.
2001). "Our primary objective is to discern and give effect to the intent of
the legislature . . . ." Id. The best and most reliable indicator of intent is the
language of the statute. Id. at ¶ 9. "If the language is unambiguous, it must
be given effect as written." Poulson v. Ofack, 220 Ariz. 294, 297, ¶ 8 (App.
2009).

¶9 Bryanne argues that the time to file claims expired when the
probate court did not appoint a personal representative within two years of
Donald's death. In response, Celeste argues that the deadline does not run
until the personal representative provides the required notice to creditors.2

1 Based on this order by the probate court, the civil court dismissed
part of the Second Civil Case because "a personal representative had not
been appointed in accordance with" the order in the First Civil Case.
Celeste's appeal of the partial dismissal of the Second Civil Case remains
pending in this Court. See Flynn v. Olsen, 1 CA-CV 20-0451. We denied
Celeste's motion to consolidate the appeals.

2 Because we remand for further proceedings on this basis, we decline
to address other arguments Celeste raises.

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 FLYNN v. OLSEN, et al.
Opinion of the Court

¶10 There is no dispute that Celeste timely sought the
appointment of a personal representative. Arizona's Probate Code
provides that a "formal testacy or appointment proceeding . . . shall not be
commenced more than two years after the decedent's death," unless an
exception applies. A.R.S. § 14-3108 (emphasis added). When an interested
party timely moves to open probate, the court shall appoint a personal
representative for the estate. See A.R.S. § 14-3103 (providing "a person shall
be appointed [personal representative] by order of the court"). After an
action is commenced, however, the Probate Code imposes no deadline on
the court to make the appointment. See A.R.S. § 14-3414 (describing formal
proceeding to appoint representative); see also Kinnear v. Finegan, 138 Ariz.
34, 36 (App. 1983) (noting the statute "requires notice and an opportunity
to object").

¶11 Upon appointment, the personal representative must publish
a notice to "creditors of the estate to present their claims within four
months," and provide written notice to known creditors. A.R.S. § 14-
3801(A), (B); see also Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478,
491 (1988) (holding that due process requires actual notice to known
creditors). All claims against a decedent's estate that arose before the death
of the decedent are barred if not presented within "[t]wo years after the
decedent's death plus the time remaining in the period commenced by an
actual or published notice pursuant to § 14-3801, subsection A or B." A.R.S.
§ 14-3803(A)(1) (emphasis added).3

¶12 The plain language of A.R.S. § 14-3803(A)(1) supports
Celeste's position. The statute expressly provides that the period to file
claims is two years "plus the time remaining in the period commenced by
an actual or published notice" required by A.R.S. § 14-3801. A.R.S. § 14-
3803(A)(1). If the appointment of a personal representative is timely
sought, the time to file claims does not expire until after a representative is
appointed and the representative gives the required notice.

¶13 Bryanne's argument that notice cannot be given after the two-
year deadline would be compelling under a prior version of A.R.S. § 14-
3803. See A.R.S. § 14-3803(B) (1996) (barring all claims not brought within
two years of the decedent's death); see also In re Estate of Barry, 184 Ariz. 506,

3 Other statutes may shorten the period in which one may pursue
claims. See In re Estate of Van Der Zee, 228 Ariz. 257, 260, ¶ 17 (App. 2011)
("Section 14-3803(A)(1) gives a claimant at least two years to file his claim,
unless it would be earlier-barred by another statute of limitations or
nonclaim statute.").

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Opinion of the Court

509 (App. 1996) (noting claim barred pursuant to A.R.S. § 14-3803(B) (1996)
"because it had not been presented within two years after the date of [the
decedent's] death"). But in 1998, the legislature extended the two-year
deadline to include the notice period. See 1998 Ariz. Sess. Laws, ch. 203, §
11 (2nd Reg. Sess.) (H.B. 2360). Because an appointment was timely sought,
and the required notice has not been given by the yet-to-be-appointed
representative, any time measured from giving the required notice remains.

¶14 Bryanne relies on a prior decision of this Court in which a
creditor sought to bring claims against an estate three years after the
decedent's death. Ader v. Estate of Felger, 240 Ariz. 32, 35, ¶¶ 2-3 (App. 2016).
Bryanne cites a statement in Ader that A.R.S. § 14-3803(A) bars claims "if a
personal representative is not appointed within two years . . . ." Id. at 43,
¶ 36. But in Ader, no probate petition was ever filed, and no personal
representative appointed. Id. at 41, ¶ 26. Admittedly, language in Ader
could be read to conflate the commencement of appointment proceedings
with the appointment of a personal representative. See id. at 37, ¶ 10 (stating
"we turn to § 14-3108, which generally requires a personal representative to
be appointed within two years of a decedent's death"). But neither an
appointment nor any appointment proceedings occurred in Ader within the
two-year deadline, meaning the distinction between commencing
appointment proceedings and making the actual appointment was not at
issue. Id. at 41, ¶ 26. Because Ader does not address the present situation—
where a creditor timely sought appointment of a personal representative
but the probate court failed to appoint one within two years of the
decedent's death—it is distinguishable. See Ariz. Corp. Comm'n v. Mountain
States Tel. & Tel. Co., 71 Ariz. 404, 412 (1951) (noting language "unnecessary
to sustain the judgment of the court" may be considered "dictum").

¶15 Thus, when a petition to appoint a personal representative is
timely filed within two years of a decedent's death pursuant to A.R.S. § 14-
3108, the deadline to file claims established in A.R.S. § 14-3803(A)(1) does
not expire until after the probate court appoints a personal representative
and the representative provides the notice to creditors required by statute.
Because the deadline to file claims has not expired, the probate court erred
in dismissing Celeste's petition.

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Opinion of the Court

CONCLUSION

¶16 We reverse the probate court's dismissal of Celeste's petition
and remand for proceedings consistent with this opinion. We deny
Bryanne's request for attorney fees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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