Gregory v. Whitney

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jeane Gregory, No. CV-19-04909-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Richard Whitney, et al., 13 Defendants. [14] 15 Pending before the Court are Plaintiff Jeane Gregory’s (“Plaintiff”) Motion for 16 Summary Judgment (Doc. 15) and Second Motion for Summary Judgment (Doc. 34).1 For 17 the following reasons, the motions are denied. 18 BACKGROUND 19 Plaintiff’s mother, a California resident, died leaving property in Arizona and 20 naming Plaintiff, a North Carolina resident, as Executor of her California will. The will 21 provided that all estate assets pour-over into the family trust. The trustee of the family trust, 22 situs of which was California, contracted to sell the Arizona property. However, a title 23 search revealed that the property was still in the name of the deceased. The title company 24 required that a personal representative be appointed to confirm the title and complete the 25 sale. Defendant Richard Whitney (“Defendant Whitney”), an Arizona attorney, and Gust [26] 1 Also pending before the Court are Defendants’ Motion to Dismiss Plaintiff’s complaint 27 pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 26) and Defendants’ Motion to Strike Plaintiff’s Second Motion for Summary Judgment (Doc. 38). The Court’s disposition of these motions 28 shall await a determination as to whether summary judgment should be entered in Defendants’ favor pursuant to Fed. R. Civ. P. 56(f). 1 Rosenfeld PLC, his Arizona based law firm, (collectively “Defendants”) were engaged to 2 open an ancillary probate in Arizona. Defendants requested that Plaintiff sign the prepared 3 probate documents so that the sale of the Arizona property could be completed. Defendants 4 filed an application for informal probate and appointment of a personal representative to 5 confirm title of real property. Plaintiff accepted the duties of personal representative in July 6 2011. 7 Plaintiff, acting as Personal Representative, sold the Arizona property and received 8 the proceeds of the sale but refused to remit the proceeds to the trustee of her mother’s 9 trust. Defendant Whitney filed a Petition for Order to Show Cause in an effort to recover 10 the sale proceeds. The state court set a show cause hearing to determine if Plaintiff violated 11 her fiduciary duties as personal representative and whether Defendant Whitney could 12 continue to represent Plaintiff. At the hearing, on December 8, 2011, the state court found 13 Plaintiff to be in contempt of court, revoked her authority to act as Personal Representative, 14 issued a Fiduciary Arrest Warrant for her arrest, and ordered that Defendant Whitney be 15 withdrawn as her counsel. (Doc. 24-1 at 26-27). 16 Plaintiff commenced this action pro se in May 20192 alleging that Defendants 17 “deceived [Plaintiff] into signing documents to sell property [Plaintiff] owned.” (Doc. 1 at 18 4.) Plaintiff claims that Defendants led to her to believe that they were representing her, 19 when in fact they were representing the California trustee. Plaintiff now moves for 20 summary judgment. Defendants respond in opposition and ask that summary judgment be 21 granted in Defendants’ favor to the extent permitted by Rule 56(f). 22 DISCUSSION 23 I. Legal Standard 24 Summary judgment is appropriate if the evidence, viewed in the light most favorable 25 to the nonmoving party, shows “that there is no genuine issue as to any material fact and 26 2 Plaintiff filed her complaint in the United States District Court for the Eastern District of North Carolina. Defendants moved to dismiss Plaintiff’s complaint for lack of jurisdiction 27 or in the alternative to transfer venue to this Court. The United States District Court for the Eastern District of North Carolina found that it lacked personal jurisdiction over 28 Defendants, but that jurisdiction and venue were proper in Arizona. The court granted Defendants’ alternative request to transfer the case to this Court. 1 that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[A] party 2 seeking summary judgment always bears the initial responsibility of informing the district 3 court of the basis for its motion and identifying those portions of [the record] which it 4 believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 5 323. Parties opposing summary judgment are required to “cit[e] to particular parts of 6 materials in the record” establishing a genuine dispute or “show[ ] that the materials cited 7 do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). Lastly, the 8 Court may “‘grant summary judgment for a nonmovant’ and grant a summary judgment 9 motion ‘on grounds not raised by a party,’ so long as the court gives ‘notice and a 10 reasonable time to respond’ prior to doing so.” Whitmire v. Wal-Mart Stores Inc., CV-1711 0818-PCT-JAT, 2018 WL 6110937 , n.3 (D. Ariz. Nov. 21, 2018) (quoting Fed. R. Civ. P. 12 56(f)). 13 II. Analysis 14 Defendants argue that Plaintiff’s claim or claims are time barred. While Plaintiff 15 does not clearly define the claims she is bringing against Defendants, the factual allegations 16 in the complaint suggest that she is asserting claims of fraud and/or malpractice. Fraud 17 claims must be brought within three years of accrual. A.R.S. § 12–543. Fraud claims accrue 18 “when the plaintiff by reasonable diligence could have learned of the fraud, whether or not 19 he actually learned of it.” Coronado Dev. Corp. v. Superior Court, 139 Ariz. 350, 352 , 678 20 P.2d 535 , 537 (Ct. App. 1984). Legal malpractice actions must be brought within two years 21 of accrual. A.R.S. § 12–542. Legal malpractice claims accrue “when the plaintiff has 22 sustained appreciable, non-speculative harm or damage as a result of such malpractice and 23 . . . knows, or in the exercise of reasonable diligence should know, that the harm or damage 24 was a direct result of the attorney’s negligence.” Hayenga v. Gilbert, 236 Ariz. 539, 541 , [25] 342 P.3d 1279, 1282 (App. Ct. 2015) (alteration in original) (citations and internal 26 quotation omitted). 27 In her complaint, Plaintiff quotes the state court’s minute entry setting the order to 28 show cause hearing (“2011 Minute Entry”) as evidence of her claims. Specifically, Plaintiff 1 alleges, [2] My California mother died leaving property in Arizona. I am Executor of her 3 Will. Two CA lawyers attempted to sell it, illegally. They put Whitney/Rosenfeld onto me. They told me they were my attorneys, I needed 4 to sign papers as Executor to complete a sale. The “sale” went through. I 5 complained to Whitney/Rosenfeld about issues as Executor. Turned out Whitney/Rosenfeld were working for the CA lawyers, NOT for me. Summed 6 up by Maricopa County Court – “it is obvious that the informal probate was established for the sole purpose of completing the sale of property, and [7] absolutely beyond the powers authorized by Arizona law and the powers 8 issued by this Court.” - Minute Entry 11/08/2011 Case PB 2011-001579 I was not the Executor! I was duped! [9] (Doc. 1 at 4.) Defendants argue that Plaintiff’s reliance upon the 2011 Minute Entry [10] demonstrates that Plaintiff “knew of or should have known of her claim no later than when [11] she received the state court’s [2011 Minute Entry].” (Doc. 23 at 4.) [12] Plaintiff does not refute Defendants’ assertion. Instead, Plaintiff relies on two letters [13] to support the allegations made in her complaint. The first letter is a response from the [14] Maricopa County Attorney to a November 21, 2011 letter he received from Plaintiff [15] regarding the probate matter. Plaintiff relies on this letter to demonstrate “that even at that [16] time I was looking for help in this abomination of Arizona’s legal system.” (Doc. 34 at 3.) [17] The letter nevertheless seems to demonstrate that, by 2011, Plaintiff was aware of the [18] claims she did not assert against Defendants until 2019. The second letter is a response [19] from the Arizona State Bar to a complaint Plaintiff filed with respect to Defendant [20] Whitney’s involvement in the probate matter. The second letter is dated June 27, 2012. [21] Again it demonstrates that by 2012, Plaintiff was aware of the claims she did not assert [22] against Defendants until 2019. [23] While the Court is sympathetic to Plaintiff’s efforts in righting a perceived injustice, [24] there is no dispute that Plaintiff knew of the alleged fraud or malpractice after receipt of [25] the 2011 Minute Entry. Plaintiff, by her own admission, has been seeking relief for the [26] alleged misconduct since receipt of the 2011 Minute Entry and consistently relies on its [27] language to support her claims. Now, over seven years later, Plaintiff’s claims are barred [28] by the applicable statutes of limitation.? 2 CONCLUSION 3 For the reasons stated, Plaintiff's motion for summary judgment is denied. 4|| Defendants opposed Plaintiff's motion for summary judgment but did not file its own 5 || motion for summary judgment. Nevertheless, having found no genuine dispute of material 6|| fact, and having also determined that plaintiff is not entitled to summary judgment on any 7\| of her claims, the Court believes that summary judgment for Defendants may be 8 || appropriate pursuant to Rule 56(f). The Plaintiff has until December 6, 2019 to file a motion 9|| showing cause why summary judgment should not be granted to Defendants. 10 IT IS SO ORDERED that Plaintiff's Motion for Summary Judgment (Doc. 15) and 11 || Second Motion for Summary Judgment (Doc. 34) are DENIED. Plaintiff has until 12 || December 6, 2019 to show cause why summary judgment should not be granted to 13 || Defendants pursuant to Fed. R. Civ. P. 56(f). 14 Dated this 5th day of November, 2019. [15] 6 A Whacrsay Sooo) Whicren 17 Chief United states District Judge [27] > Even if Plaintiffs complaint could be construed to assert a claim for breach of some 28! contract or for some other claim, any such claim is also barred by the general four-year statute of limitation. A.R.S. § 12-550. _5-