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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jaworski v. Estates of Andrew G. Horwath, Marjorie Horwath, Horwath, Michael J. Horwath (5/25/2012) sp-6676

Jaworski v. Estates of Andrew G. Horwath, Marjorie Horwath, Horwath, Michael J. Horwath (5/25/2012) sp-6676

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



MARY JAWORSKI,                                    ) 

                                                  )   Supreme Court No. S-13566 

                       Appellant,                 ) 

                                                  )   Superior Court No. 1KE-91-00059 PR 

        v.                                        )   Superior Court No. 1KE-02-00054 PR 

                                                  )   Superior Court No. 1KE-07-00062 PR 

ESTATES OF ANDREW G.                              ) 

HORWATH, MARJORIE                                 )   O P I N I O N 

HORWATH, MICHAEL J.                               ) 

HORWATH, by Sue Streets,                          ) 

Personal Representative,                          )   No. 6676 - May 25, 2012 

                                                  ) 

                       Appellee.                  ) 

                                                  ) 



               Appeal from the Superior Court of the State of Alaska, First
 

               Judicial District, Ketchikan, William B. Carey, Judge.
 



               Appearances: Michael J. Zelensky, Ketchikan, for Appellant.
 

               Amanda M. Schulz, Ketchikan, for Appellee.
 



               Before:       Carpeneti,    Chief   Justice,  Fabe,   Winfree,    and
 

                Stowers, Justices.   [Christen, Justice, not participating.]
 



               PER CURIAM.
 

                STOWERS, Justice, concurring in part and dissenting in part.
 



                1.     Alaska's   probate   nonclaim   statute,   AS   13.16.460,   provides   that 



claims against an estate arising before the decedent's death are barred unless presented: 



(1) within four months of the first publication of notice to creditors; (2) within three 


----------------------- Page 2-----------------------

years of death if no notice to creditors is published; or (3) within limits specified by other 

applicable statutes of limitations.1         The statute also bars most claims arising after the 



decedent's death unless presented within four months of the time they arise.2 



                 2.      Andrew G. Horwath, Sr. died in 1991 in Ketchikan.                   His widow, 



Marjorie Horwath, later moved to Minnesota to live with their daughter, Mary Jaworski. 



A   Minnesota   court   entered   a   conservatorship   order   for   Marjorie,   appointing   Mary 



"Conservator of the Person" and Michael Horwath - Andrew and Marjorie's son, and 



Mary's brother - "Conservator of the Estate." Marjorie died in 2001, and Michael died 



in 2007.    Michael served for a time as personal representative of Andrew's estate and 



applied to do so for Marjorie's estate, as well, but was not formally appointed.  Another 



Horwath daughter, Sue Streets, became the personal representative for the estates of 



Andrew, Marjorie, and Michael. 



                 3.      In November 2008 Mary presented claims against all three estates, 



alleging that her then-deceased brother Michael had not always made a court-ordered 



monthly payment to her for their mother's care and that Michael had not reimbursed her 



        1        AS 13.16.460 provides in relevant part: 



                 All claims against a decedent's estate that arose before the 

                 death    of   the   decedent   .   .   .   if   not   barred   earlier   by   other 

                 statute[s]   of   limitations,   are   barred   against   the   estate,   the 

                 personal   representative,   and   the   heirs   and   devisees   of   the 

                 decedent, unless presented as follows: 



                         (1)   within    four   months    after   the  date   of  the  first 

                 publication     of   notice   to   creditors   if  notice   is  given    in 

                 compliance with AS 13.16.450; . . . 



                         (2)  within   three   years   after   the   decedent's   death,   if 

                 notice to creditors has not been published. 



        2        See AS 13.16.460(b). 



                                                    -2-                                               6676
 


----------------------- Page 3-----------------------

for improvements she made to her house while caring for Marjorie.  Mary also claimed 



Michael had improperly dissipated property and mismanaged both parents' estates. 



               4.      Personal representative Sue issued a disallowance of these claims in 



December 2008, asserting that the claims were unfounded and time-barred under both 



the nonclaim statute and the applicable statutes of limitations.       Mary petitioned for an 



extension of time to initiate proceedings on her disallowed claims.           Sue opposed the 



motion, arguing that no extension could be allowed because all of Mary's claims were 

barred by the applicable statutes of limitations.3     Mary did not respond to the merits of 



Sue's arguments.  The superior court denied Mary's extension petition on grounds that 



her claims were barred by applicable statutes of limitations. 



               5.      Mary moved for reconsideration, contending that the superior court's 



order was "not clear" but seemed to be based on her failure to comply with the nonclaim 



statute, rather than the underlying statutes of limitations. She asked for clarification.  The 



court did not respond to the motion for reconsideration, and under Alaska Civil Rule 

77(k)(4) it was deemed denied 30 days later.4 



               6.      Mary   appeals.   Although   Mary's   statement   of   issues   on   appeal 



asserts  the  superior  court   erred  by  denying   her  requested    extension   because    she 



"exceeded the period under the statute of limitations," thereby causing a "forfeiture" of 



her claims, the legal arguments in Mary's opening brief do not address this issue. Instead 



of addressing the court's ruling that her claims were barred by applicable statutes of 



limitations and that she therefore was not entitled to an extension of time to initiate 



proceedings on her disallowed claims, Mary argues her claims should not be barred by 



       3       AS 13.16.465(3) provides no extensions of time to initiate a proceeding on 



a disallowed claim may "run beyond the applicable statute of limitations." 



       4       Alaska R. Civ. P . 77(k)(4) provides that if the court does not rule on a 



motion for reconsideration within 30 days, the motion is considered denied. 



                                               -3-                                           6676 


----------------------- Page 4-----------------------

the nonclaim statute because  she had not been given notice the nonclaim period had 



begun to run. 



                 7.       The issue before the superior court was neither the merits of Mary's 



claims nor the merits of personal representative Sue 's disallowance of Mary's claims for 



failure to comply with the nonclaim statute.              The issue before the court was Mary's 



requested extension of time to contest Sue's disallowance of Mary's claims.  The court 



denied the extension because the applicable statutes of limitations already had run on all 



of Mary's claims.  Mary did not address the statute of limitations issues in the superior 



court or in her opening brief to this court.  Only in Mary's reply brief did she address the 



statutes of limitations, and then only in the context of Michael's actions as her mother's 

Minnesota conservator.5 



                 8.       Having failed to argue the statute of limitations issues in the superior 

court or in her opening brief to this court, Mary has waived these issues.6                The superior 



court's decision is therefore AFFIRMED.7 



        5        Very little of the partial dissent's extensive statutes of limitations discussion 



can be traced to Mary's arguments or briefing. 



        6       Hymes       v.  DeRamus ,     222    P.3d   874,   889    (Alaska    2010)    ("We    have 



repeatedly   held   that   'a   party   may   not   raise   an   issue   for   the   first   time   on   appeal.'   " 

(quoting Brandon v. Corr. Corp. of America , 28 P.3d 269, 280 (Alaska 2001))); id. at 

887 ("[I]ssues not argued in opening appellate briefs are waived." (citing Shearer v. 

Mundt , 36 P.3d 1196, 1199 (Alaska 2001))). 



        7        We   take   no   position   on   whether   Mary   may,   in   connection   with   final 



accountings in Andrew's and Marjorie's probate estates, assert mismanagement claims 

as to when Michael served as personal representative.  See AS 13.16.485(d) ("Issues of 

liability   as   between   the   estate   and   the   personal   representative   individually   may   be 

determined   in   a   proceeding   for   accounting,   surcharge,   or   indemnification   or   other 

appropriate proceeding."). 



                                                    -4-                                              6676
 


----------------------- Page 5-----------------------

STOWERS, Justice, concurring in part and dissenting in part. 



               The    issue  before  the  superior   court  was   a  daughter's  request   for  an 



extension of time to contest a personal representative's dissallowance of the daughter's 



claims against the estates of her mother, father, and brother.  The superior court denied 



the extension because the applicable statutes of limitations had already run as to all of 



the daughter's claims.  This court concludes that the daughter failed on appeal to argue 



the statute of limitations issues, instead focusing on the probate nonclaim statute.  The 



court concludes the daughter has therefore waived the statute of limitations issues. 



               I disagree with the court's conclusion because it appears to me that the 



parties - and perhaps even the superior court - failed to clearly distinguish between 



the operation of the probate nonclaim statute and other statutes of limitations.        I do not 



believe the statute of limitations arguments were waived on appeal, but even if they were 



I would exercise our discretion to address these issues on the merits, because they are 



important and because I believe that the bar and bench would profit from an opinion on 



the merits from this court.     Also, I believe that if this court would address the merits of 



the superior court's statutes of limitations ruling, that would change the outcome with 



respect to the daughter's claims that relate to her estate mismanagement claim. 



I.      INTRODUCTION 



               Alaska's probate nonclaim statute, AS 13.16.460, provides that all claims 



against   an  estate  arising  before   the  decedent's   death   are  barred  unless  presented 



(1) within four months of the first publication of notice to creditors, (2) within three 



years of death if no notice to creditors is published, or (3) within limits specified by other 



                                               -5-                                          6676
 


----------------------- Page 6-----------------------

applicable statutes of limitations.1     It also provides that most claims arising after death 



are barred unless presented within four months of the time they arise.2 



                Andrew G. Horwath, Sr. died in 1991 in Ketchikan.            His widow Marjorie 

Horwath3    moved to Minnesota to live with their daughter, Mary Jaworski, who was 



appointed "conservator of Marjorie's person" by a Minnesota court.  Michael Horwath 



-   Mary's   brother,   and   Andrew   Sr.   and   Marjorie's   son   -   became   conservator   of 



Marjorie's estate during her final years.         Marjorie died in 2001, and Michael died in 



2007. Another Horwath daughter, Sue Streets, is currently the personal representative 



(PR) for the estates of Andrew Sr., Marjorie, and Michael. 



                In November 2008 Mary presented claims against all three estates, alleging 



that her  then-deceased brother Michael had not always paid the court-ordered $600 per 



month to Mary for the care of their mother and that Michael had not reimbursed her for 



improvements Mary made to her house while caring for Marjorie. She also claimed that 



Michael had improperly dissipated property and mismanaged both parents' estates. 



                Personal   representative   Sue   issued   a   disallowance   of   these   claims   on 



December 17, 2008, asserting that the claims were unfounded and time-barred.                   Mary 



petitioned for an extension in which to commence her claims. The superior court denied 



        1       Alaska Statute 13.16.460 provides in relevant part that "[a]ll claims against 



a decedent's estate that arose before the death of the decedent . . . if not barred earlier by 

other statute[s] of limitations, are barred against the estate, the personal representative, 

and the heirs and devisees of the decedent, unless presented . . . within four months after 

the date of the first publication of notice to creditors if notice is given in compliance with 

AS 13.16.450," or "within three years after the decedent's death, if notice to creditors has 

not been published." 



        2       See AS 13.16.460(b). 



        3       Sometimes written in the record as Marjory Horwath. 



                                                 -6-                                           6676
 


----------------------- Page 7-----------------------

this   petition   on   grounds   that   Mary's   claims   were   barred   by   applicable   statutes   of 



limitations. 



                I would reverse, in part, the superior court's denial of Mary's petition for 



extension, because although statutes of limitations barred two of her three claims against 



all estates, her mismanagement claim was not barred by statutes of limitations. 



II.     FACTS AND PROCEEDINGS 



        A.      Estate Of Andrew G. Horwath, Sr. 



                Andrew Sr.'s estate consists chiefly of two interim Southeast Alaska limited 

entry fishing permits.4      Permanent issuance of Andrew Sr.'s fishing permits has been 



denied by the Alaska Commercial Fisheries Entry Commission; thus, since his death in 

                                                                 5  Interim   permits   were   issued 

1991,   the   permits   can   be   fished   but   cannot   be   sold. 



annually to Marjorie after Andrew Sr.'s death, but beginning in 1993 the permits were 



fished by son Michael pursuant to a power of attorney.             Following Marjorie's death in 



2001, interim permits were issued directly to Michael as PR of Andrew Sr.'s estate. 



                Several members of the family have served as PR for Andrew Sr.'s estate. 



The first PR appointed was daughter Margorie Ramsey in August 1991.   The estate was 



administratively closed in 1994.  Son Michael replaced Margorie Ramsey as PR in April 



2002.  The estate was again administratively closed in 2004, and upon Michael's death 



in   2007,   daughters   Mary   and   Sue   petitioned   to   reopen   Andrew   Sr.'s   estate   and   be 



appointed successor co-PRs.   They were so appointed on April 30, 2007 and published 



        4       The permits are Sablefish Long Line Fishing Permit, Northern Southeast, 



Permit No. C61A52198 and Sablefish Long Line Fishing Permit, Southern Southeast, 

Permit No. C61C52199. 



        5       It appears that these interim permits continue to be issued pending the 



outcome of an administrative appeal before the Alaska Commercial Fisheries Limited 

Entry Commission concerning permanent issuance of the permits. 



                                                  -7-                                            6676
 


----------------------- Page 8-----------------------

notice to creditors once per week for three consecutive weeks in the Ketchikan Daily 



News from June 6 to June 20, 2007.             Proof of publication was filed with the court on 



June 28, 2007.   On January 28, 2008, following a hearing, Mary was removed as co-PR 



and Sue became the sole PR. 



        B.      Estate Of Marjorie Horwath 



                Widow Marjorie suffered from Alzheimer's disease and, following Andrew 



Sr.'s death, she moved to live with daughter Mary in Minnesota.                In 1999 a Minnesota 



probate     court   established    a  conservatorship     for  Marjorie.     Mary     was   appointed 



Conservator of the Person, and Michael was appointed Conservator of the Estate.  This 



arrangement charged Mary with daily care of her mother, while Michael was to "pay the 



reasonable charges for the support and maintenance of the conservatee in the manner 



suitable   to   her   station   in   life   and   the   value   of   her   estate." Specifically,   under   this 



Minnesota   conservatorship   arrangement,   Mary   was   to   receive   $600   monthly   from 



Marjorie's estate, payable by conservator Michael, as well as Marjorie's $398 monthly 



social security benefits; this $998 monthly sum was to be used by Mary to care for 

Marjorie.    Meanwhile, Michael would continue to manage the fishing permits.6 



                On November 9, 2001, Marjorie died intestate in Minnesota at age 79. 



Michael applied in Alaska to be PR for her estate on April 9, 2002.  Her remaining estate 



consisted     solely   of   an   unimproved       residential   lot  north    of  Ketchikan,     worth 



approximately $33,500. Michael obtained consent forms for his appointment as PR from 

all the Horwath children except Mary.7           The record does not reflect Michael's actual 



        6       Michael was free to outsource the permits, fish them himself, hand them off 



to others, or to participate in any way in fishing them.  Marjorie's conservatorship estate 

was to receive "not less than 30% of the gross payment." 



        7       Michael received consent forms from his three brothers John, William, and 



                                                                                       (continued...) 



                                                  -8-                                            6676
 


----------------------- Page 9-----------------------

appointment as PR for Marjorie's estate,8  but her estate was administratively closed on 



April 7, 2004, listing Michael as PR. 



                Michael died in 2007.        Following his death, daughter Sue petitioned to 



reopen Marjorie's estate and to be appointed successor PR in intestacy. Lacking consent 



from all her siblings, Sue filed a Request for Conversion to Petition for Adjudication of 



Intestacy, Determination of Heirs, and Appointment of Personal Representative in a 



Formal Proceeding on December 4, 2007.               A hearing was scheduled for January 28, 



2008 in Ketchikan. 



                At   this  January    2008    hearing,   Mary    testified  that  she  believed    there 



remained unpaid items that Michael had been required to pay in connection with her care 



of their mother Marjorie in Minnesota; specifically, she mentioned $150,000 in home 



renovations and a figure of $15 per hour for Marjorie's care. 



                Following the January 2008 hearing, Sue was appointed PR for Marjorie's 



estate.   Notice   to   creditors   was   published   in   the   Ketchikan   Daily   News   for   three 



consecutive weeks, from April 2 to April 16, 2008.  An affidavit of publication was not 



filed with the court until December 17, 2008, almost eight months later. 



        C.      Estate Of Michael Horwath 



                As previously stated, Michael Horwath administered his father's estate's 



interim   fishing   permits   from   1993   until   his   own   death   on   April   1,   2007   at   age   55. 



Michael also acted as PR for Andrew Sr.'s estate from April 2002 until his death, served 



        7       (...continued) 



Andrew Jr., as well as from two of his sisters, Margorie Ramsey and Sue.  Mary did not 

consent to the appointment but was, according to Michael, "considering" doing so. 



        8       When Marjorie's estate was administratively closed on April 7, 2004 , the 



closure listed Michael not as PR but as "other" representative.  Sue's petition to reopen 

Marjorie's estate later stated that Michael "was never formally appointed [as PR] as a 

review of the file shows the necessary documents were not filed." 



                                                  -9-                                             6676
 


----------------------- Page 10-----------------------

as conservator of Marjorie's estate during her final years, and applied to be PR for 



Marjorie's estate following her death, although it is not clear whether he was ever so 



appointed.   Michael had a will, but died unmarried and without children. 



               Michael's will nominated Sue to be PR for his estate. She was so appointed 



on June 4, 2007.    Notice to creditors was published in the Ketchikan Daily News for 



three consecutive weeks, from July 10 until July 24, 2007.        An affidavit of publication 

does not appear to have been filed with the court.9 



       D.      Mary's Claims Against All Estates 



               On November 4, 2008, Mary filed written notice   of claims against the 



estates of Andrew Sr., Marjorie, and Michael.  At this time, Sue was sole PR for all three 



estates. 



               Mary's claims centered on allegedly unpaid expenses arising from her care 



of her mother Marjorie in Minnesota, as well as allegations of estate mismanagement by 



Michael during his tenure as PR. Specifically, Mary alleged that she was to be paid $500 



per month to care for Marjorie, and that there was "failure to pay the monthly amounts 



for   such   care."    She  also  alleged   that  she  made    home   improvements      totaling 



approximately $150,000 (with "the exact amount to be shown at trial") "for the specific 



benefit of" Marjorie.  Lastly, she claimed that Michael had "dissipated property, assets, 



proceeds and profits, and failed to account for the same" in   his   management of the 



fishing permits and of their parents' property "to the detriment of [Mary] and her share 



of profits in the decedent parents' estates."  Mary did not state which claim(s) applied to 



each estate.   She alleged that her claims had been "stated in-person in open court on 



       9       The affidavit was prepared and exists in the record, but only as a copy 



submitted with copies of affidavits for the other estates on December 17, 2008. 



                                             -10-                                          6676 


----------------------- Page 11-----------------------

January 29, 2008."10      In addition to being filed with the court on November 4, 2008, 



Mary's notice of claims was served directly on Sue's attorneys. 



                On December 17, 2008, Sue, in her capacity as PR of each estate, filed a 



Notice of Disallowance of Claims in which she rejected Mary's claims as baseless and 



asserted that in any event they were barred by applicable statutes of limitations. 



                With   respect   to   Mary's   claim   for   unpaid   compensation,   the   Notice   of 



Disallowance of Claims stated first that the proper amount was in fact $600 per month 



(not $500 as Mary alleged), that this was "for payment of the usual, customary and day 



to   day   expenses    of  supporting    and   caring   for  the  conservatee,"    that  it  was  "not 



compensation," and that "[r]ecords prove that all such payments were made." (Emphasis 



added, internal quotation marks omitted.)          Next, the Notice of Disallowance of Claims 



stated that Mary's claim was barred because it was not presented by Alaska's probate 

nonclaim statute, AS 13.16.460.11       The Notice of Disallowance of Claims also stated that 



Mary's claim was presented outside the applicable statute of limitations periods and that 



her claim was unconnected to the estate of Andrew Sr. 



                With respect to Mary's claim for home improvement reimbursement, the 



Notice of Disallowance of Claims stated that no contract existed for such reimbursement. 



        10      This    date   appears   to  be   incorrect,   since   the  hearing    was   held   on 



January     28,   2008,   not   January  29  -   and   no  record   exists   of   a  hearing  or  other 

proceeding      on  January    29.   Mary's     attorney   later  made   a  second    reference   to  a 

January 29 hearing, although this too appears to refer to the January 28 proceeding. 



        11      Alaska Statute 13.16.460 provides in relevant part that "[a]ll claims against 



a decedent's estate that arose before the death of the decedent . . . if not barred earlier by 

other statute[s] of limitations, are barred against the estate, the personal representative, 

and the heirs and devisees of the decedent, unless presented . . . within four months after 

the date of the first publication of notice to creditors if notice is given in compliance with 

AS 13.16.450," or "within three years after the decedent's death, if notice to creditors has 

not been published." 



                                                 -11-                                           6676
 


----------------------- Page 12-----------------------

The Notice of Disallowance of Claims also stated, as above, that the claim was not 



presented in a timely manner and that no connection existed between this claim and the 



estate of Andrew Sr. 



                 With respect to Mary's claim that Michael had dissipated funds, the Notice 



of Disallowance of Claims stated that it too was barred because it was not presented in 

a timely manner.12 



                 The Notice of Disallowance of Claims concluded with a notice   stating 



"YOU ARE HEREBY ADVISED that every claim which is disallowed in this notice is 



forever barred if you fail to file a petition for allowance in the Court or commence a 



proceeding against the personal representative within sixty (60) days of service of this 



notice." 



                 On February 18, 2009 - as this 60-day period ended - Mary petitioned 

under   AS   13.16.465(3)13      for   an   extension   of   time   until   March   6,   2009   in   which   to 



"commence"   her   claims.        She   argued   that   neither   she   nor   her   attorney   had   seen   or 



received   the   April   2008   notice   to   creditors   published   in   the   Ketchikan   Daily   News 



concerning Sue's appointment as PR for Marjorie's estate.                  In an affidavit by Mary's 



attorney supporting the petition for extension, the attorney stated "[t]he notice published 



        12       Sue's   response   states   that   she   is   represented   by   different   counsel   with 



respect to Michael's estate, and that her response only pertains to Andrew Sr.'s and 

Marjorie's estates.  It does not appear that Sue's other counsel filed a response to Mary's 

claims   with   respect   to   Michael's   estate;   but   in   her   opposition   to   Mary's   motion   for 

extension, Sue's original counsel did address the claims against Michael's estate. 



        13       Alaska Statute 13.16.465(3) provides in relevant part that "no proceeding 



on [a claim] may be commenced more than 60 days after the personal representative has 

mailed a notice of disallowance; but . . . to avoid injustice the court, on petition, may 

order an extension of the 60-day period, but in no event shall the extension run beyond 

the applicable statute of limitations." 



                                                   -12-                                              6676
 


----------------------- Page 13-----------------------

by   [Sue's   attorney],   without   more,   constitutes   inadequate   service   under  Tulsa   Prof. 

Collection Services v. Pope, 485 U.S. 478 (1988)."14 



                On   February   23,   2009,   Sue   filed   her   opposition   to   Mary's   petition   for 



extension, arguing that each of Mary's claims was barred by a statute of limitations and 



that an extension was therefore inappropriate under AS 13.16.465(3), which provides 



that "in no event shall [any] extension run beyond the applicable statute of limitations." 

                Mary filed her commencement of claims on March 6, 2009.15                 On April 15, 



2009 the superior court denied Mary's Petition for Extension "because extension would 



be    beyond    [the   applicable]    statute[s]   of  limitations."    Mary      filed  a  Motion     for 



Reconsideration   on   May   1,   2009.      This   motion   was   deemed   denied   after   30   days 

pursuant to Alaska Civil Rule 77,16 and this appeal followed. 



III.    DISCUSSION 



        A.      Standard Of Review 



        14      This argument is not subsequently developed, either in the superior court 



or on appeal.    See infra note 26 for a brief discussion of Tulsa. 



        15      This would have been the last acceptable date for filing, if her petition for 



extension had been granted. 



        16      Civil    Rule    77(k)(4)   states   in  relevant   part   that  "[i]f  [a]  motion    for 



reconsideration has not been ruled upon by the court within 30 days from the date of the 

filing of the motion, or within 30 days of the date of filing of a response requested by the 

court, whichever is later, the motion shall be taken as denied." 



                                                  -13-                                             6676
 


----------------------- Page 14-----------------------

               We review for abuse of discretion a superior court's decision to grant or 

deny an extension of time.17     "A court abuses its discretion if it issues a decision that is 



arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper motive."18 



               Statutory    interpretation  is  a  question  of  law  to  which   we   apply   our 



"independent judgment, interpreting the statute according to reason, practicality, and 

common sense."19 



        B.     Alaska Nonclaim Provisions And Notice Requirements 

               In 1972 Alaska adopted the Uniform Probate Code (U.P.C.) in its entirety.20 



Alaska Statute 13.16.465 dictates the manner in which claims against a decedent's estate 



must be presented.     Section .465(2) provides in relevant part that "the commencement 



of the proceeding must occur within the time limited for presenting the claim."           This in 



turn invokes Alaska's probate nonclaim statute, AS 13.16.460, which sets clear time 

limits as to when claims may be presented.21 



        17     Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026 



(Alaska 2009) (citing Dobrova v. State, Dep't of Revenue, Child Support Servs. Div. , 171 

P.3d 152, 156 (Alaska 2007); Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska 

1985)). 



        18     Id . (citing Dobrova , 171 P.3d at 156) (internal quotation marks omitted). 



        19     Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 



1036 (Alaska 2008) (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)). 



        20     SLA 1972, ch. 78,  1. 



       21      I note that Alaska's probate limitations period by definition applies to most 



claims.   Alaska Statute 13.06.050 defines claims to include "liabilities of the decedent 

or protected person, whether arising in contract, in tort, or in another way, and liabilities 

of the estate that arise at or after the death of the decedent or after the appointment of a 

conservator, including funeral expenses and expenses of administration" but to exclude 

"estate or inheritance taxes, or demands or disputes regarding title of a decedent or 

                                                                                  (continued...) 



                                              -14-                                          6676
 


----------------------- Page 15-----------------------

                 Specifically, section .460 provides that claims arising before the decedent's 



death   are   barred   (1)   three   years   following   death,   or   (2)   if   notice   is   published   per 

section .450, within four months of the first publication of notice.22                If a claim is barred 



earlier by another statute of limitations, however, that statutory bar controls.23 



                 Any   claim   arising  after   death  is   barred   unless   presented   "within   four 

months after it arises,"24 unless it is based in contract, in which case it is barred unless 



         21      (...continued) 



protected   person   to   specific   assets   alleged   to   be   included   in   the   estate."   (Emphasis 

added.) 



         22      Claims   arising   before   death,   "if   not   barred   earlier   by   other   statutes   of 



limitations, are barred against the estate . . . unless presented" either "(1) within four 

months after the date of the first publication of notice to creditors if notice is given in 

compliance with AS 13.16.450," or "(2) within three years after the decedent's death, if 

notice to creditors has not been published." 



                 Alaska Statute 13.16.450, the notice provision, states in full: 



                 Unless notice has already been   given under this section, a 

                 personal   representative   upon   appointment   shall   publish   a 

                 notice once a week for three successive weeks in a newspaper 

                 of general circulation in the judicial district announcing the 

                 appointment and address and notifying creditors of the estate 

                 to   present   their   claims   within   four   months   after   the   first 

                 publication of the notice or be forever barred. 



         23      AS 13.16.460(a). 



         24      AS 13.16.460(b)(2). 



                                                     -15-                                               6676
 


----------------------- Page 16-----------------------

presented "within four months after performance by the personal representative is due"25 



These U.P.C. provisions exist as originally adopted and have not been updated.26 



        25      AS     13.16.460(b)(1).     Section    460(c)    provides    further   exceptions     for 



mortgages, pledges, liens upon property, and tort claims covered by liability insurance. 



        26      Alaska   is   apparently   the   only   state   that,   having   adopted   the   Uniform 



Probate Code, still retains the original U.P.C.  3-801 and 3-803 notice and nonclaim 

provisions - codified at AS 13.16.450 and .460, respectively - in the wake of the 1988 

U.S. Supreme Court decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 

U.S. 478 (U.S. 1988). 



                In  Tulsa,   the   U.S.   Supreme   Court   held   that   with   respect   to   known   or 

reasonably ascertainable probate creditors, publication notice violated due process and 

direct personal notice must be provided.          485 U.S. at 491. 



                It remains unclear whether Tulsa applies to the U.P.C., since the Oklahoma 

statute at issue in Tulsa directed considerably more state action than did the equivalent 

U.P.C.   provisions.      Nonetheless,   after   Tulsa   many   state    legislatures   adopted   rules 

requiring actual notice to probate creditors.         These include Alabama, Illinois, Kansas, 

Maryland, Minnesota, and Mississippi.             See  755 ALA . CODE        43-2-61  (1975); ILL . 

COMP . STAT . ANN . 5/18-3, as amended by P.A. 86-815,  1, eff. Sept. 7, 1989; KAN . 

STAT . ANN .  59-2239, amended by 2004 Kan. Sess. Laws, ch. 73,  2  (2004); MD . 

CODE ANN ., EST. & TRUSTS   7-103, 7-103.1; MINN . STAT . ANN .  524.3-801(b), as 

amended by 1989 Minn. Laws, c. 163,  1 (1989) (subsequent amendments omitted); 

MISS . CODE ANN .  91-7-145, amended by 1994 Miss. Laws, ch. 430,  1 (March 17, 

1994); see also Martel v. Stafford , 603 A.2d 345, 349 n.8 (Vt. 1991) ("Maryland law 

now requires personal notice to creditors, although the requirement was added after the 

[Tulsa] decision."); In re Estate of Petrick , 635 So.2d 1389, 1393 (Miss. 1994) ("The 

Mississippi statute, enacted shortly after [Tulsa], clearly requires an administratrix to 

give creditors who can be discovered through reasonably diligent efforts notice by mail 

and notice by publication."). 



                Moreover, Alaska appears to be alone in retaining original U.P.C. notice 

and nonclaim provisions post-Tulsa.           Alaska has adopted other U.P.C. revisions, such 

as the  1990 Revision of U.P.C. Article II and the  1989 Revision of U.P.C. Article VI. 

See, e.g., AS 13.12.802 (U.P.C.  2-802, a part of Article II), SLA 1996, ch. 75,  3; 

AS 13.33.101 (U.P.C.  6-101, a part of Article VI), SLA 1996, ch. 75,  12, amended 

                                                                                        (continued...) 



                                                  -16-                                            6676
 


----------------------- Page 17-----------------------

        C.      Other Statutes Of Limitations 



                Two limitations periods are relevant here:  AS 09.10.053, which provides 



a three-year period to bring contract claims, and AS 09.10.070, which provides two years 

to bring tort claims.27    For claims arising before death, a four-month tolling period also 



applies, effectively extending each of these limitations periods by four months.28  Finally, 



in each estate and for each claim, the earliest applicable limitations period - that is, 



either the probate nonclaim statute or the general tort or contract statute of limitations - 



           29 

governs. 



        26      (...continued) 



by SLA 2008, ch. 100,  3. These recent amendments indicate that the Alaska legislature 

has adopted various updated provisions of the U.P.C., just not the notice or nonclaim 

provisions. 



                I do not address the sufficiency of publication notice here because neither 

party explicitly raises this issue on appeal; Mary's attorney mentioned Tulsa in a cursory 

manner in an affidavit supporting Mary's petition for extension.                  The issue, if it was 

presented at all in the superior court, would be deemed waived on appeal.                  See Mullins 

v. Oates, 179 P.3d 930, 941 n.31 (Alaska 2008) (quoting Brandon v. Corr. Corp. of Am., 

28 P.3d 269, 280 (Alaska 2001) ("cursory treatment of an issue is considered by this 

court to be waiver of that issue").         Nonetheless, I note that the legislature may wish to 

revisit AS 13.16.450 and .460 in light of Tulsa. 



        27      Presentation      of   a  claim    is  sufficient    to  commence       a   proceeding. 



AS   13.16.455   provides that "[f]or purposes of any   statute of limitations,   the   proper 

presentation   of   a   claim   under   AS   13.16.465   is   equivalent   to   commencement   of   a 

proceeding on the claim." 



        28      AS 13.16.455 provides in relevant part that "[t]he running of any statute of 



limitations measured from some other event than death and advertisement for claims 

against a decedent is suspended during the four months following the decedent's death 

but resumes thereafter as to claims not barred pursuant to the sections that follow." 



        29      AS 13.16.455 corresponds to U.P.C.  3-802.  The comment to this U.P.C. 



section provides that "the first of the [applicable statutes of limitations] to accomplish a 

                                                                                         (continued...) 



                                                  -17-                                             6676
 


----------------------- Page 18-----------------------

        D.      Characterizing Mary's Claims Against All Estates 



                The superior court denied Mary's petition for an extension of time in which 



to commence claims "because extension would be beyond [the] statute[s] of limitations." 



Mary   argues   chiefly   that   publication   notice   was   insufficient   to   trigger   the   nonclaim 



statute time bars.     Mary seems to suggest that she was entitled to personal notice and 



argues that, in any event, Sue should have filed proof of publication of notice to creditors 



to the court.   Sue counters that proof of publication was eventually filed but maintains 



that in any case the claims are precluded under other statutes of limitations. 



                Mary did not specify which claim(s) applied to each estate, so I interpret 



each claim as applying to all three estates.   Two of Mary's three claims involve payment 



disputes arising from the conservatorship arrangement for Marjorie. 



                First, Mary alleges that as conservator of Marjorie's estate, Michael failed 



to make certain monthly payments as required under the conservatorship order.  The 



conservatorship order stipulated that Michael (conservator of Marjorie's estate) pay $600 



per month "[f]rom the funds of the conservatee, as available," to Mary (conservator of 



Marjorie's person).        (Emphasis added.)       The correct characterization of Mary's first 



claim seems to be as a breach of fiduciary   duty, because - if Mary can prove that 



sufficient funds were indeed available in Marjorie's estate, but withheld by Michael - 



Michael may have breached his duty as conservator of Marjorie's estate, which would 



        29      (...continued) 



bar controls."    Also, Alaska's nonclaim statute explicitly provides that claims arising 

before    death   are  barred    unless   presented    within   four  months     of  the  date  of  first 

publication of notice to creditors, or within three years of death if notice is not published, 

"if not barred earlier by other statute[s] of limitations." AS 13.16.460(a) (emphasis 

added). 



                                                  -18-                                            6676
 


----------------------- Page 19-----------------------

sound in tort.30   Thus, the applicable limitations period is two years under AS 09.10.070, 



with a potential four-month tolling period under AS 13.16.455.                    The latest possible 

accrual date31 for this claim is November 9, 2001, the date Marjorie died. 



                Regarding Mary's second claim, that Michael failed to reimburse her for 



home      improvements,      the   conservatorship     order    makes    no   mention    of  any   home 



improvements; Mary appears to have undertaken any such improvements under her own 



initiative.     Thus,    quasi-contract     or   unjust   enrichment      appear    to  be   the  proper 



characterization of her home improvement claim - both of which sound in contract. 



The applicable limitations period for contract claims is three years under AS 09.10.053, 



with a potential four-month tolling period under AS 13.16.455.  Like the first claim, the 



latest possible accrual date for the second claim is November 9, 2001, when Marjorie 



died. 



                Mary's   third   claim   concerns   Michael's   alleged   mismanagement   of   his 



parents'   estates,   a   claim   sounding   in   tort   and   governed   by   the   two-year   statute   of 

limitations.32   Thus, the applicable limitations period is two years under AS 09.10.070, 



        30      A conservator generally assumes fiduciary duty.  See, e.g., H.C.S. v. Cmty. 



Advocacy   Project   of   Alaska,   Inc.   ex   rel.   H.L.S.,   42   P.3d   1093,   1096   (Alaska   2002) 

(quoting a since-amended statutory passage applicable to "a conservator, guardian of 

property, or other like fiduciary") (emphasis added). 



        31      A claim's accrual date denotes the date on which the underlying event that 



triggers the claim occurred. 



        32      Alaska Statute 13.16.395 provides in relevant part that "[i]f the exercise of 



power concerning the estate is improper, the personal representative is liable to interested 

persons for damage or loss resulting from breach of fiduciary duty to the same extent as 

a trustee of an express trust."       We have held that to impose liability under section 395, 

"there must be findings that (1) there was an improper exercise of power, (2) there was 

damage or loss to the party to whom the personal representative is liable, and (3) this 

                                                                                         (continued...) 



                                                  -19-                                             6676
 


----------------------- Page 20-----------------------

with   a   potential   four-month   tolling   period   under   AS   13.16.455.      Because   it   alleged 



Michael's mismanagement of estate funds, the last possible date on which the third claim 



could arise is the date of Michael's death, which occurred on April 1, 2007. 



        E.	      The   Superior   Court   Did   Not   Err   In   Denying   Mary's   Petition   For 

                 Extension Of Time With Respect To Mary's First And Second Claims. 



                 Mary presented all three claims on November 4, 2008.                  Mary's first and 



second claims - for monthly support and home improvements - as asserted against 



Andrew   Sr.'s   estate,   arose   after   Andrew   Sr.'s   death   in   1991.     Marjorie   moved   to 



Minnesota to live with Mary in 1995, and the conservatorship was not instituted until 



                                                                                                         33 

1999.  Using the latest possible accrual date of November 9, 2001 (Marjorie's death), 



Mary's first and second claims were therefore barred four months after they arose per 

AS    13.16.460(b)34      (i.e.,   March   9,   2002).  The     first   claim  is  doubly   barred   as   of 



        32       (...continued) 



damage or loss resulted from a breach of a fiduciary duty." Gudschinsky v. Hartill, 815 

P.2d 851, 853 (Alaska 1991) (internal quotation marks omitted). 



                 This third claim could also be interpreted as an action to surcharge Michael 

as personal representative, see AS 13.16.485 ("Issues of liability as between the estate 

and the personal representative individually may be determined in a proceeding for 

accounting, surcharge, or indemnification or other appropriate proceeding"), although 

the underlying tort would be the same. 



        33       Because Mary's first and second claims concern monthly support and home 



improvements         connected       to  Mary's      care    of   Marjorie     under     the   Minnesota 

conservatorship order, the last possible accrual date for these claims is Marjorie's death 

- even though these claims, as discussed here, are asserted against Andrew Sr.'s estate. 



        34       Alaska Statute 13.16.460(b) provides: 



                 All claims against a decedent's estate that arise at or after the 

                 death of the decedent . . . are barred against the estate, the 

                personal   representative,   and   the   heirs   and   devisees   of   the 

                                                                                           (continued...) 



                                                   -20-	                                             6676
 


----------------------- Page 21-----------------------

November  9, 2003 (two-year bar on tort claims per AS 09.10.070) and the second as of 



November 9, 2004 (three-year bar on contract claims per AS 09.10.053).                     Thus, both 



claims   are   barred   against   Andrew   Sr.'s   estate   well   before   they   were   presented   on 



November 4, 2008. 



                Mary's first and second claims are similarly barred against Marjorie's and 



Michael's estates, with the chief difference being that claims one and two arose before 



Marjorie's and Michael's deaths.           Thus, with respect to these two estates, these two 

claims are governed by AS 13.16.460(a) as opposed to .460(b),35                    and   a four-month 



tolling   period    must   be  added    to  the  tort  and   contract   statutes   of  limitations   per 



AS 13.16.455.       Even so, Mary's monthly support and home improvement claims are 



again    barred    by   the  operation    of  non-probate      statutes   of  limitations:   the   home 



        34	     (...continued)
 



                decedent, unless presented as follows:
 



                (1)    a  claim    based     on   a  contract    with    the   personal 

                representative, within four months after performance by the 

                personal representative is due; 



                (2) any other claim, within four months after it arises. 



        35      Alaska Statute 13.16.460(a) governs claims against a decedent's estate that 



arose before the death of the decedent, and provides that such claims, 



                if not barred earlier by other statute of limitations, are barred 

                against the estate, the personal representative, and the heirs 

                and devisees of the decedent, unless presented as follows: 



                (1) within four months after the date of the first publication 

                of notice to creditors if notice is given in compliance with 

                AS    13.16.450;     however,     claims   barred   by   the  nonclaim 

                statute at the decedent's domicile before the first publication 

                for claims in this state are also barred in this state; 



                (2) within three years after the decedent's death, if notice to 

                creditors has not been published. 



                                                  -21-	                                           6676
 


----------------------- Page 22-----------------------

improvement claim was barred as of March 9, 2005 (last accrual date being Marjorie's 



death on November 9, 2001; I add three years per AS 09.10.053 and four months per 



AS 13.16.455), and the monthly support claim was barred as of March 9, 2004 (same 



date arising; I add two years per AS 09.10.070 and four months per AS 13.16.455). 



Thus, both claims were barred against Marjorie's and Michael's estates well before they 



were presented on November 4, 2008. 



                The superior court therefore did not err in holding that Mary's first two 



claims were barred against all three estates by statutes of limitations. 



        F.	     It Was Error To Deny Mary's Petition For Extension Of Time With 

                Respect To Her Third Claim. 



                Mary's     third  claim,   concerning    Michael's    alleged   mismanagement   of 



Andrew   Sr.'s   and   Marjorie's   estates,   was   not   yet   barred   by   non-probate   statutes   of 



limitations at the time it was filed, and it was error to so hold. 



                This   third   claim  necessarily    arose   after  Andrew     Sr.'s  death,  since   it 



concerns Michael's administration of Andrew Sr.'s and Marjorie's estates.   It may have 



arisen before or after Marjorie's death, but it necessarily could not have arisen after 



Michael's death.      Using the latest possible accrual date of April 1, 2007 (Michael's 



death), it would be barred by the tort statute of limitations at latest on April 1, 2009 



against Andrew Sr.'s estate (two years per AS 09.10.070, no additional four months per 



AS 13.16.455), and on August 1, 2009 against Marjorie's and Michael's estates (two 



years per AS 09.10.070, plus four months per AS 13.16.455).                   Mary's claims were 



presented before these two dates, on November 4, 2008. 



                It was therefore erroneous, and   an   abuse of discretion, to deny Mary's 



petition for extension on grounds that such "extension would be beyond [the applicable] 



                                                 -22-	                                          6676
 


----------------------- Page 23-----------------------

statute[s] of limitations."36      I would remand this case and require the superior court to 



consider Mary's third claim concerning Michael's alleged mismanagement of Andrew 



Sr.'s and Marjorie's estates.         In particular, the court should determine which estate, if 



any, this claim is properly asserted against; whether notice was adequate to trigger the 



nonclaim bar, and the timing of Mary's awareness of the claim. 



IV.      CONCLUSION 



                 I would affirm the superior court's denial of Mary's petition for extension 



as it applies to Mary's first and second claims against all estates because statutes of 



limitations   bar   these   claims,   and   to   this   extent   I   concur   in   the   result   of   the   court's 



opinion.    I would reverse that portion of the denial as it applies to Mary's third claim 



concerning Michael's alleged mismanagement of Andrew Sr.'s and Marjorie's estates 



because this claim was not barred by statutes of limitations, and I would remand for 



further proceedings.       To this extent, I dissent from the court's opinion. 



        36       Although   it   functions   similarly   to   a   statute   of   limitations,   the   probate 



nonclaim   statute,   AS   13.16.460,   is   not   itself   generally   referred   to   as   "a   statute   of 

limitations."     See   Hitt   v.   J.B.   Coghill,   Inc.,  641   P.2d   211,   212-13   (Alaska   1982) 

("Statutes such as  460 are commonly called nonclaim statutes" although they function 

similarly   to   statutes   of   limitations.); see   also   1   UNIFORM   PROBATE      CODE  PRACTICE 

MANUAL 325 (2d ed. 1977) (distinguishing between nonclaim provisions and statutes of 

limitation: "[T]he regular statute of limitations applicable during the debtor's lifetime, 

the nonclaim provisions of Sections 3-803 and 3-804, and the three-year limitation of 

Section   3-803   all   have   potential   application   to   a   claim.     The   first   of   the   three   to 

accomplish a bar controls."); id. at 328 ("[I]t is important to remember that a regular 

statute of limitation may run to bar a claim before the nonclaim provisions run.").  As 

such, I interpret the superior court's denial of Mary's petition for extension at face value 

- namely, I interpret the superior court's order as denying the petition for extension on 

the   basis   that   the   claims   are   barred   by   statutes   of   limitations,   not   on   the   basis   of 

preclusion of claims by the probate nonclaim statute. 



                                                    -23-                                                 6676 

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