*1 CARPENETI, Justice, Before: Chief FABE, WINFREE, JAWORSKI, STOWERS, Appellant, Justices. HORWATH, OF Andrew G. ESTATES OPINION Marjorie Horwath, Horwath, Michael J. STREETS, Representa Sue Personal PER CURIAM.
tive, Appellee. 1. Alaska's nonclaim No. S-13566. 13.16.460, provides against that claims an
Supreme Court of Alaska. arising before the decedent's death are (1) presented: barred unless within four 25,May months of the first of notice to creditors; (2) within three of death if (8) no published; notice to creditors is within specified by limits statutes of limitations1 The statute also bars most claims after the decedent's death unless within four months of the time arise.2 Horwath, 2. Andrew G. Sr. died in 1991 widow, Ketchikan. Marjorie His Hor- wath, later moved to Minnesota to live with daughter, their Mary Jaworski. A Minne- sota court entered a conservatorship order Marjorie, for appointing Mary "Conservator of the Person" and Michael Horwath-An- son, drew and broth- er-"Conservator Marjorie Estate." died in and Michael died in 2007. Mi- chael served for a time as repre- sentative of applied Andrew's estate and do well, so for but was formally appointed. Another Horwath daughter, Streets, became the Andrew, for the estates Marjorie, and Michael. In Mary presented November 2008 all alleging three
her then-deceased brother Michael had not always made a court-ordered pay- Ketchikan, Zelensky, Michael J. Appel- for ment to her for their mother's care and that lant. Michael had not reimbursed improve- her for Schulz, Ketchikan, Amanda M. Appel- ments she made to her house caring while lee. Marjorie. Mary also claimed Michael had part: 1. AS 13.16.460 in relevant within four months after the date of the first of notice to creditors if notice All claims a decedent's estate that 13.16.450; compliance is with AS ... arose before the death of the ... decedent within three after the decedent's not barred earlier other statute[s] of limita- pub- if notice to creditors has not been tions, person- are barred lished. al and the heirs and devisees of representative, decedent, 13.16.460(b). as follows: 2. See AS *2 proceedings on her disallowed to initiate time property and misman- dissipated improperly claims, should not be Mary argues her claims parents' estates. aged both she statute because by the nonclaim barred a Sue issued representative Personal 4. peri- the nonelaim given notice had not been in December these of disallowance begun to run. od had were unfound 2008, asserting that the claims both the nonelaim under superior court time-barred ed and issue before the 7. The Mary's nor of limita of statutes neither the merits applicable the was statute and Sue's personal representative an extension of Mary merits of petitioned the tions. failure to Mary's her disallowed claims for proceedings on of initiate disallowance time to motion, issue arguing statute. The comply the with the nonelaim opposed claims. Sue requested exten Mary's allowed because could be the court was before that no extension barred the Sue's disallowance Mary's of time to contest sion all of Mary the exten limitations.3 did court denied Mary's claims. The applicable statutes argu of limita applicable merits of Sue's the to the because respond not sion Mary's Mary's denied on all of claims. superior already court had run The tions ments. grounds her elaims statute of limita Mary did not address the extension limita in her superior statutes of in court or by applicable tions issues were barred Only in to this court. opening brief tions. the statutes of did she address reply brief reconsideration, con Mary moved for 5. limitations, only in the context of and then superior court's order tending that Minnesota actions as her mother's Michael's her to be based on but seemed "not clear" conservator.5 the nonelaim comply failure limita argue the statute of underlying statutes of Having 8. failed to than the rather The court for clarification. tions. She asked in superior in the court or limitations issues respond to the motion reconsider not court, Mary to this has opening her brief did 77(k)(4) it ation, Civil Rule and under Alaska superior court's The waived these issues.6 days later.4 was deemed denied AFFIRMED.7 is therefore decision Although state- Mary appeals. CHRISTEN, Justice, participating. not superior appeal asserts ment of issues on denying requested exten- her court erred STOWERS, Justice, concurring period under she "exceeded sion because dissenting part. limitations," thereby causing a the statute of superior was a before the court legal argu- The issue of her "forfeiture" for an extension of time daughter's request do not address Mary's opening brief ments in disal- personal representative's to contest a addressing the court's this issue. Instead against the daughter's claims by appli- lowance of the ruling her claims were mother, father, and brother. her estates of limitations and that she cable statutes denied the extension be- court an extension of not entitled to therefore was 2001))); America, (Alaska 13.16.465(3) id. at 28 P.3d extensions of time no 3. AS ("[Issues argued opening appellate claim on a disallowed to initiate may applicable Mundt, statute of limita- "run (citing Shearer v. briefs are waived." tions." (Alaska 2001))). P.3d 77(k)(4) provides that if the 4. Alaska R. Civ. P. may, position whether no 7. We take on a motion for reconsidera- court does not rule accountings in Andrew's with final connection days, considered the motion is tion within 30 Marjorie's probate misman- assert denied. agement Michael served as claims as to when partial extensive stat- Very dissent's little of 13.16.485(d) representative. See AS can be traced to discussion utes of limitations ("Issues liability between the estate and briefing. Mary's arguments or individually may be de- accounting, proceeding for sur- in a termined DeRamus, Hymes 222 P.3d appropriate charge, or other 2010) ("We party or indemnification repeatedly held that 'a have proceeding."). time on may for the first not raise an issue Corp. appeal.'" (quoting v. Corr. Brandon cause the statutes of limitations moved to Minnesota daugh to live with their ter, already Jaworski, daughter's had run as to all of the appointed who was "con daugh- claims. This court concludes that the person" by servator of a Minneso appeal argue ter failed on brother, ta court. Horwath-Mary's Michael *3 issues, focusing instead on Marjorie's the and Andrew Sr. and son-became probate nonclaim statute. The court con- Marjorie's conservator of estate during her daughter cludes the has therefore years. Marjorie waived the final died in and Mi statute of limitations issues. chael died in daugh 2007. Another Horwath ter, Streets, currently is the disagree I with the court's conclusion be- (PR) representative for the estates of An appears parties-and cause it to me that the Sr., Marjorie, drew and Michael. perhaps superior even the court-failed to clearly distinguish operation between the In Mary November presented probate nonelaim statute and other against estates, stat- all three alleging that her utes of limitations. I do not believe the then-deceased brother Michael had not al- arguments statute of limitations were waived ways paid the court-ordered $600 month appeal, they but even if I were would Mary for the care of their mother and that exercise our discretion to address these is- Michael had not improve- reimbursed her for merits, sues on the impor- because are Mary ments made caring to her house while tant and because I believe that the bar and Marjorie. She also claimed that Michael profit bench would opinion from an on the improperly had dissipated property and mis- Also, merits from this court. I believe if managed parents' both estates. this court would address the merits of the Personal Sue issued a disal- superior ruling, court's statutes of limitations lowance of these claims on December change that would the outcome with 2008, asserting that the claims were unfound- daughter's
to the
claims that
relate to her
Mary
ed and
petitioned
time-barred.
for an
mismanagement
estate
claim.
extension
which to commence her claims.
superior
petition
court denied this
I.
INTRODUCTION
grounds
were barred
Alaska's
nonelaim
AS applicable statutes of limitations.
183.16.460,provides
against
that all claims
an
reverse,
part,
would
arising
before the decedent's death are
court's
denial of
for exten-
barred
unless
within four
sion,
although
because
statutes of limitations
months of the first
of notice to
barred two
of her three claims
all
creditors, (2)
within three
of death if no
mismanagement
her
claim was not
published,
notice to creditors is
within
barred
statutes of limitations.
specified by
limits
other
provides
of limitations.1
It also
that most
II. FACTS AND PROCEEDINGS
after death are barred unless
presented within four
Horwath,
months of the time
A. Estate Of Andrew G.
Sr.
they arise.2
Andrew
chiefly
Sr.'s estate consists
of two
fishing
Horwath,
Andrew G.
Sr. died in 1991 in
interim Southeast
entry
Alaska limited
per
Marjorie
Permanent issuance of An
Ketchikan. His widow
Horwath
mits.4
13.16.460(b).
1. Alaska Statute 13.16.460
in relevant
2. See AS
that [alll claims
a decedent's estate
that arose before the death
decedent
...
if
Marjory
Sometimes written in the record as
not barred earlier
of limita-
statute[s]
Horwath.
tions,
are
and the heirs and devisees of the
representative,
decedent,
permits
Long
4. The
Fishing
are
within four
Sablefish
Line
Permit,
Southeast,
months after the date of the first
Northern
Permit No.
notice
if
compli-
to creditors
notice is
Long
Fishing
C61A52198 and Sablefish
Line
Per-
13.16.450,"
ance with AS
"within
three
mit, Southern Southeast, Permit No. C61C52199.
after the
decedent's
notice to creditors
published."
has not been
reasonable
"pay
Michael was
while
has been denied
permits
fishing
drew Sr.'s
Entry
support and maintenance
Fisheries
charges
Commercial
Alaska
by the
to her
suitable
in the manner
thus,
death
conservatee
Commission;
since his
sold.5
cannot be
fished but
her estate."
can be
the value of
permits
in life and
station
annually to
conserva-
Minnesota
issued
under this
permits
Specifically,
Interim
begin
receive
was to
arrangement,
Andrew Sr.'s
Marjorie
torship
son
payable
were fished
permits
ning
monthly
in 1993 the
from
$600
attorney.
power of
Michael,
to a
pursuant
Michael
as well
by conservator
2001, interim
benefits;
death in
Following
security
monthly social
$398
directly Michael as
were issued
permits
to be used
sum was
$998
*4
estate.
Sr.'s
PR of Andrew
Meanwhile,
Michael
Marjorie.
care for
perm
fishing
manage
to
continue
would
family have served
Several members
its.6
PR
The first
Sr.'s estate.
Andrew
as PR for
Ramsey
Margorie
in
daughter
appointed was
9, 2001, Marjorie died intes
On November
was administrative-
The estate
August 1991.
applied
age 79. Michael
in Minnesota at
tate
replaced
Michael
in 1994. Son
ly closed
9,
April
to be PR for her estate
in Alaska
April
in
2002.
Ramsey as PR
Margorie
solely
remaining estate consisted
2002. Her
administratively closed in
again
estate was
lot north
unimproved residential
of an
2007,
2004,
death in
upon Michael's
and
$33,500.
Ketchikan,
approximately
worth
reopen
petitioned to
Mary and Sue
daughters
ap
for his
consent forms
Michael obtained
appointed sucees-
and be
Andrew Sr.'s estate
Horwath chil
PR from all the
pointment as
appointed on
They were so
sor co-PRs.
not re-
Mary.7 The record does
except
dren
30,
notice to eredi-
published
April
2007 and
as PR for
appointment
actual
fleet Michael's
consecutive
for three
per week
tors onee
estate,8
admin
her estate was
Marjorie's
but
Daily
from
News
Ketchikan
weeks in the
2004,
7,
listing
April
istratively closed on
20,
Proof of
June
2007.
June 6 to
as PR.
Michael
28, 2007.
court on June
with the
was filed
Following
his
Michael died
following
hearing,
a
January
On
reopen
petitioned to
daughter Sue
co-PR and Sue became
Mary
removed as
was
PR in
appointed
and to be
successor
estate
PR.
the sole
all her sib-
intestacy. Lacking consent from
to
Request
Conversion
lings,
filed a
Sue
Marjorie Horwath
B. Estate Of
Intestacy, Deter-
Adjudication
Petition
from Alzheimer's
Marjorie suffered
Widow
Heirs,
Per-
Appointment of
mination of
and
and, following Andrew Sr.'s
disease
Proceeding
in a Formal
Representative
sonal
Mary in
daughter
to live with
she moved
hearing
A
was sched-
on December
In 1999 a Minnesota
Minnesota.
January
2008 in Ketchikan.
uled for
Mar
conservatorship for
court established
Mary
hearing,
testi-
January 2008
At this
Conservator of
jorie. Mary
appointed
was
unpaid
there remained
that she believed
fied
Person,
appointed Con
Michael was
and
pay
required to
had been
items that Michael
arrangement
This
servator of the Estate.
mother
mother,
care of their
with her
in connection
Mary
daily care of her
charged
sisters,
Ramsey
Margorie
and
permits
two of his
continue
as from
appears
interim
It
that these
appointment
adminis-
to the
pending the outcome of an
did not consent
to be issued
Sue.
Michael,
was,
"considering"
appeal
Commercial
according
before the Alaska
trative
to
concerning
Entry Commission
Fisheries Limited
doing so.
permits.
permanent
issuance of
administratively
Marjorie's estate was
8. When
permits, fish
6. Michael was free to outsource
Mi-
the closure
listed
closed
others,
himself,
them
hand them off
representative.
PR but as "other'"
chael not as
Marjo-
way
fishing
participate
them.
reopen Marjorie's
later
petition to
Sue's
conservatorship
receive "not
estate was to
rie's
formally appoint-
Michael "was never
stated that
gross payment."
less than
of the
30%
file shows
review of the
PR]
ed
as a
[as
his three
forms from
7. Michael received consent
filed."
necessary
were not
documents
Jr.,
John, William,
well
Andrew
and
brothers
Minnesota;
Marjorie
specifically,
she men-
his tenure as
Specifically, Mary
PR.
alleged
$150,000
tioned
in home renovations and a
paid
that she was to be
per
$500
month to
figure
Marjorie,
hour for
care.
care for
$15
that there was "failure
pay
amounts for such care."
Following
January
hearing,
alleged
She also
that she made home im
appointed
PR for
estate. No-
provements
$150,000
totaling approximately
published
tice to creditors was
in the Ketchi-
(with "the exact amount to be shown at tri
Daily
weeks,
kan
News for three consecutive
al")
specific
"for the
Marjorie.
benefit of"
April 2 April
from
2008. An affidavit
Lastly, she claimed that Michael had "dissi
was not filed with the court
assets,
pated property,
proceeds
profits,
17, 2008,
until
eight
December
almost
and failed to account for the same" in his
months later.
management
fishing permits
and of
parents'
their
property "to the detriment of
C. Estate Of Michael Horwath
[Mary] and her
profits
share of
in the dece
stated,
previously
As
Michael Horwath ad-
parents'
dent
estates."
did not state
ministered his father's estate's interim fish-
claim(s) applied
to each estate. She
ing permits from
until
his own death on
alleged that her claims had been "stated in-
*5
April
age
2007 at
55. Michael also acted
person
open
in
January
court on
2008."
as PR
April
for Andrew Sr's estate from
In addition
being
to
filed with the court on
2002 until his
served as conservator of
4, 2008, Mary's
November
notice of claims
during
years,
estate
her final
and
was
directly
served
attorneys.
on Sue's
applied
to be PR for
estate follow-
ing
although
her
it is not clear wheth-
17, 2008, Sue,
On December
capaci-
her
appointed.
er he was ever so
Michael had a
ty
as PR of each
filed a Notice of
will, but died unmarried and without chil- Disallowanee of Claims in which
rejected
she
dren.
Mary's claims as baseless and asserted that
event
were barred
Michael's will nominated Sue to be PR for
statutes of limitations.
his
appointed
estate. She was so
on June
2007. Notice to
published
creditors was
respect
With
Mary's
to
unpaid
claim for
Daily
the Ketchikan
News for three consecu
compensation,
the Notice of Disallowanee of
weeks,
tive
July
July
from
10 until
Claims stated first
proper
that
amount
An
affidavit of
appear
does not
to
(not
was in fact
month
$600
as
$500
have been filed with the court.9
alleged),
that
payment
this was "for
usual, customary
day
day
expenses
to
Mary's
Against
D.
Claims
All Estates
supporting
caring
conservatee,"
for the
4, 2008, Mary
On November
filed written
that
it
compensation,"
was "not
and that
notice of claims
the estates
An-
prove
"[rlecords
that
payments
all such
Sr., Marjorie,
drew
and Michael. At
this
added,
(Emphasis
made."
quotation
internal
time, Sue was sole PR for all three estates.
omitted.) Next,
marks
the Notice of Disal-
Mary's claims
allegedly unpaid
centered on
lowanee of
Mary's
Claims stated that
claim
expenses arising from her care of her mother was barred because it
presented by
was not
Minnesota,
Marjorie in
allegations
as well as
Alaska's
nonclaim
AS
13.16.460.11The Notice of Disallowance of
mismanagement by
during
Michael
prepared
9. The affidavit
hearing,
was
and exists in
although
appears
this too
to refer to
record,
only
copy
January
proceeding.
copies
as a
submitted
of affidavits for the other estates on December
11. Alaska Statute 13.16.460
in relevant
17, 2008.
that "[alll claims
a decedent's estate
that arose before the death of the decedent
...
if
incorrect,
appears
10. This date
to be
since the
not barred earlier
other
statute[s]
limita-
28, 2008,
hearing
January
was held on
not Janu-
tions,
are barred
ary
hearing
29-and
no record exists of a
representative, and the heirs and devisees of the
January
Mary's
attor-
decedent,
presented
within four
ney
January
later made a second reference to a
months after the date of the first
concerning
appoint
Sue's
Daily News
was
kan
Mary's claim
stated
also
Claims
In an
for
estate.
of ment as PR
applicable statute
outside
attorney
supporting
her claim was
and that
affidavit
periods
extension,
attorney
Sr.
stated
of Andrew
the estate
unconnected
attorney],
published
[Sue's
notice
"[the
home
Mary's claim for
respect
With
more,
inadequate service
without
constitutes
reimbursement,
the Notice
improvement
Services v.
Collection
under Tulsa Prof.
no con-
stated that
of Claims
Disallowance
S.Ct.
U.S.
Pope, 485
such reimbursement.
tract existed
(1988)."
L.Ed.2d
stated,
also
of Claims
Disallowance
Notice of
presented in
above,
was not
the claim
283,2009,
oppo-
filed her
February
On
no connection ex-
and that
timely manner
extension, argu-
Mary's petition for
sition
and the estate of
claim
isted between
was barred
ing that each
Andrew Sr.
and that an extension
of limitations
a statute
inappropriate
under
Michael
therefore
Mary's claim that
With
13.16.465(8),
"in
provides that
no event
funds,
Disallow
which
the Notice of
dissipated
had
beyond
applica-
run
[any]
it
was barred
extension
stated that
too
shall
ance of Claims
timely
limitations."
in a
statute of
ble
it was
because
manner.12
of claims on
Mary filed her commencement
of Claims con-
supe
Disallowance
2009the
The Notice of
March 2009.15On
ARE
stating "YOU
with a notice
cluded
Exten
Mary's Petition for
rior court denied
every
claim
HEREBY ADVISED
would be
"because extension
sion
is forever barred
statute(s]
in this notice
is disallowed
of limitations."
applicable]
[the
petition for allowance
you
to file a
fail
a Motion for Reconsideration
filed
*6
proceeding
commence
the Court or
deemed de
May
This motion was
2009.
(60)
sixty
within
representative
the
Civil
days pursuant
to Alaska
nied after 30
77,16
of this notice."
days of service
appeal
and this
followed.
Rule
60-day pe
February
2009-as
On
III. DISCUSSION
ended-Mary
under AS
petitioned
riod
13
13.16.465(3)
of time until
for an extension
Review
A.
Of
Standard
her
in which to "commence"
2009
March
superi-
discretion a
review for abuse of
nor her
We
argued that neither she
She
claims.
deny
exten
grant or
an
or court's decision to
the
2008
attorney
or received
had seen
"A
abuses its discretion
of time.17
court
in the Ketchi-
sion
published
notice to creditors
developed,
argument
subsequently
compli-
not
14. This
is
if notice is
notice to creditors
appeal.
or on
See
in the
court
either
"within three
13.16.450,"
ance with AS
death, if notice to creditors
discussion of Tulsa.
after
decedent's
note 26 for a brief
infra
published."
has
been
acceptable
last
date
have been the
15. This would
represented
response
that she is
12.
states
Sue's
filing,
for extension
had been
if her
by
to Michael's
counsel with
different
granted.
only pertains
response
her
and that
It does not
estates.
Andrew Sr.'s and
77(k)(4)
part that
states in relevant
16. Civil Rule
response
appear
filed a
that Sue's other counsel
has not been
for reconsideration
"{if [a] motion
estate;
respect to Michael's
claims with
days
from the
upon
the court within 30
ruled
Mary's motion for exten-
opposition
but
sion,
her
motion,
days
filing
or within 30
date of the
original
counsel did address
Sue's
requested by
filing
response
of a
of the date of
against Michael's estate.
claims
the motion shall be
court,
later,
whichever
is
taken as denied."
13.16.465(3) provides in rele-
13. Alaska Statute
may
part
proceeding
[a claim]
"no
vant
Admin.,
State, Dep't
Div. Ret. &
17. Shea v.
per-
days
60
after the
be commenced more than
2009) (cit-
(Alaska
Benefits,
1026
204 P.3d
of disal-
representative mailed a notice
sonal
has
State,
Revenue,
Dep't
Child
court,
ing
v.
lowance;
Dobrova
injustice
but ...
to avoid
Div.,
Support
171 P.3d
Servs.
60-day
petition, may
extension of the
order an
Alaska,
2007);
700 P.2d
v. Univ.
Sheehan
the extension
run
in no event shall
period,
(Alaska 1985)).
of limitations."
1295, 1297
ute,
arbitrary, eapri-
if it
a decision that is
issues
which sets clear time limits
cious,
unreasonable,
may
manifestly
as to when
presented.21
be
or ... improper
from an
motive."
Specifically,
provides
section 460
Statutory interpretation
question
ais
arising
the decedent's death are
before
apply
"independent
law to which we
our
following
three
judgment,
interpreting
according
the statute
published
.450,
if notice
is
section
within
reason, practicality,
and commonsense."
four
months of the first
of not
ice.22 If a claim
is barred earlier
another
B. Alaska Nonclaim Provisions And
limitations, however,
statute of
statutory
Requirements
Notice
bar controls.23
adopted
In 1972 Alaska
the Uniform Pro
Any
(U.P.C.)
claim
death is barred
entirety.20
bate Code
in its
Alaska
"within four months after it
Statute
18.16.465 dictates
the manner
arises,"
contract,
unless it is based in
which
a decedent's
465(2)
case it
is barred unless
presented.
provides
must be
Section
"within
performance
four
in relevant
months after
that "the commencement of
must occur within the time
is due" These
presenting
provisions
limited for
the claim." This in U.P.C.
originally adopted
exist as
updated.26
and have not been
probate
turn invokes Alaska's
nonclaim stat
156) (internal
(citing
their claims within four months after the first
Id.
Dobrova, 171 P.3d at
omitted).
quotation
marks
of the notice or be forever barred.
13.16.460(a).
23. AS
State,
Revenue,
Dep't
19. Parson v.
Alaska Hous.
(Alaska 2008)
Fin.
189 P.3d
Corp.,
13.16.460(b)(2).
24. AS
(citing
Wagoner,
Grimm
77 P.3d
(Alaska 2003)).
13.16.460(b)(1).
460(c)
25. AS
Section
exceptions
mortgages, pledges,
further
liens
78, §
20. SLA
ch.
upon property,
and tort claims covered
liabili-
ty insurance.
period
I note that Alaska's
applies
definition
to most claims. Alaska
that,
apparently
only
26. Alaska is
state
hav
Statute 13.06.050 defines claims to include "lia
*7
Code,
ing adopted the Uniform Probate
still re
protected person,
bilities of the decedent or
original
§§
tains the
U.P.C.
3-801 and 3-803
arising
whether
contract,
tort,
in
in
or in another
provisions-codified
notice and nonclaim
at AS
way, and liabilities of the estate that arise at or
.460,
13.16.450 and
the wake of
respectively-in
ap-
after the death of the decedent or after the
Supreme
the 1988 U.S.
Court decision in Tulsa
including
of a conservator,
pointment
funeral
Collection Services,
Inc. v.
485
Pope,
Professional
expenses
expenses
and
of administration" but to
478,
1340,
(U.S.
U.S.
108 S.Ct.
claim.
IV. CONCLUSION
I would affirm the court's denial Mary's petition applies for extension as it first and second claims all
estates because statutes of limitations bar
these and to this extent I concur in opinion.
the result of the court's I would portion
reverse that applies the denial as it third claim concerning Michael's
alleged mismanagement of Andrew Sr.'s and
Marjorie's estates because this claim was not limitations, statutes of and I would proceedings.
remand for further To this ex-
tent, opinion. I dissent from the court's VILLARS, Appellant,
Richard Jude VILLARS, Appellee.
Kathleen Estelle
No. S-14094.
Supreme Court of Alaska.
June