Behle v. Harr, 2021 ND 190

Background

Decedent Henry L. Behle died on September 17, 2019; his will left all property to his nephew Darren Harr, who was appointed personal representative and admitted to informal probate.
Henry H. Behle (son) filed claims against the estate on January 27, 2020 (claims disallowed), asserting promises by the decedent to convey two parcels (the "Adrian Property" and the "Wilbur Quarter") and conversion of family photographs.
Behle alleged the Adrian Property was promised to him by agreement with his mother and the Wilbur Quarter was promised in exchange for $220,000 paid to the decedent, with conveyance to occur at the decedent’s death.
The district court granted summary judgment for Harr, holding the real-estate claims arose at decedent’s death and were barred by the nonclaim statute N.D.C.C. § 30.1-19-03(2) because they were not presented within three months; alternatively the promises failed for lack of writing.
The district court also held the conversion claim for photographs was time-barred by the six-year statute of limitations (N.D.C.C. § 28-01-16).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether real-estate claims are barred by the nonclaim statute (N.D.C.C. § 30.1-19-03(2)).	Behle: claims arose before death (or on repudiation) so nonclaim time limit doesn’t apply.	Harr: promises were to convey at death, so claims arose at death and must be presented within three months.	Court: claims arose at decedent’s death and were untimely under § 30.1-19-03(2).
Whether inconsistent sworn statements create a genuine factual dispute about when performance was due.	Behle: earlier discovery response said transfer would occur at death; later deposition suggested payoff timing.	Harr: later contradictory testimony is a sham; cannot create dispute to avoid summary judgment.	Court: inconsistent statements do not create a genuine issue; sham-affidavit doctrine applies.
Whether the title-dispute exception to the nonclaim statute (N.D.C.C. § 30.1-01-06(7)) applies.	Behle: his demands concern specific estate assets and thus are excluded from the nonclaim time limits.	Harr: claims sound in contract/tort and do not make a colorable showing of title, so exception does not apply.	Court: exception in § 30.1-01-06(7) does not apply; claims are not a colorable title dispute and are subject to the nonclaim statute.
Whether the conversion claim for photographs is barred by the six-year statute of limitations.	Behle: argues (conclusorily) that statute-of-limitations issue was not briefed.	Harr: raised the six-year limitations defense in summary judgment briefing.	Court: conversion claim is time-barred; Behle’s undeveloped objection is without merit.

Key Cases Cited

Steen & Berg Co. v. Berg, 713 N.W.2d 87 (N.D. 2006) (nonclaim statute promotes expeditious estate administration; labeling a claim as a title dispute is insufficient to avoid the statute).
Murphy v. Murphy, 595 N.W.2d 571 (N.D. 1999) (requires a colorable showing of title to invoke the title-dispute exception to the nonclaim statute).
In re Estate of Powers, 552 N.W.2d 785 (N.D. 1996) (ownership by operation of law can constitute a colorable showing of title for nonclaim exception).
In re Estate of Leavitt, 733 A.2d 348 (Me. 1999) (a promise to devise property is a contract/tort claim, not a title dispute; creative labeling cannot avoid nonclaim rules).
Hysjulien v. Hill Top Home of Comfort, Inc., 827 N.W.2d 533 (N.D. 2013) (a party cannot create a genuine fact issue by contradicting earlier sworn testimony; sham-affidavit doctrine).
Good Bird v. Twin Buttes Sch. Dist., 733 N.W.2d 601 (N.D. 2007) (breach of contract occurs when performance is due absent an anticipatory repudiation).
Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473 (N.D. 1986) (anticipatory repudiation can cause breach before performance is due).
Meide v. Stenehjem, 649 N.W.2d 532 (N.D. 2002) (parties may not deny prior sworn positions to manipulate litigation posture).