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Kemp v. Kemp

Court of Appeals of Arizona, First Division

October 1, 2015

TERRI KEMP, a single person, Plaintiff/Appellant,
v.
KEVIN KEMP, a single person, Defendant/Appellee.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2013-006670 The Honorable Colleen L. French, Judge Pro Tempore

Clifford I. Levenson, Attorney at Law, Phoenix By Clifford I. Levenson Counsel for Plaintiff/Appellant

Charles Hultstrand P.C., Mesa By Charles Hultstrand Counsel for Defendant/Appellee

Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Patricia K. Norris joined.

MEMORANDUM DECISION

KESSLER, Presiding Judge:

¶1 Plaintiff/Appellant Terri Kemp ("Terri") appeals the superior court's dismissal of her civil complaint against Defendant/Appellee Kevin Kemp ("Kevin"). For the following reasons, we reverse the dismissal and award of attorneys' fees and costs to Kevin, and remand to the superior court to reinstate the complaint and for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 After a family court presiding over the Kemps' divorce proceedings determined that Kevin owed a debt to the Estate of Opal F. Buzan ("Estate") and that the Estate must pursue repayment, Terri, in her capacity as the personal representative of the Estate commenced an action against Kevin in probate court for breach of an oral contract and fraud. See Arizona Revised Statutes ("A.R.S.") section 12-543(1), (3) (2003).[1]

¶3 In February 2012, Terri as personal representative of the Estate, assigned to herself, as an individual, the Estate's claims against Kevin. She was substituted as the plaintiff for the contract claim, and joined as a plaintiff for the tort claim. The probate court then determined that because the fraud tort was economic only, it was assignable and had been assigned to Terri. The court concluded that the Estate no longer had an interest in the action, was no longer a party, and the court dismissed the probate case without prejudice in a signed ruling dated October 5, 2012, stating that Terri could file a civil action. The order of dismissal was entered by the superior court clerk on October 23, 2012.

¶4 Terri and the Estate appealed the probate court's order of dismissal. In February 2013, this Court issued an order ruling that because the order of dismissal by the probate court was without prejudice, Terri in her personal capacity could not appeal but Terri could file a new action in her own name and it appeared that such a claim would not be barred by the statute of limitations. Terri then filed the complaint in this civil matter on April 19, 2013. On April 4, 2014, this Court filed an order dismissing the Estate's appeal from the probate court order for lack of jurisdiction because the probate court's order of dismissal was without prejudice. We then issued an order awarding Kevin attorneys' fees and costs in the probate appeal, and on May 8, 2014, the clerk of this Court sent a letter to the clerk of the superior court informing the superior court that the probate appeal had been dismissed.

¶5 Once the probate appeal was dismissed, Kevin moved for dismissal of Terri's civil action pursuant to Arizona Rule of Civil Procedure 12(b). He asserted that her claims had accrued in February 2009, and thus, the statute of limitations expired in February 2012 barring the claims. In response, Terri asserted that her complaint was timely because of the applicability of the savings statute, A.R.S. § 12-504 (2003).

¶6 The superior court dismissed the civil complaint with prejudice. Terri filed a notice of appeal. The superior court entered a signed judgment in favor of Kevin including an award of attorneys' fees and costs in July 2014. Terri filed an amended notice of appeal.

¶7 Because we determined the judgment in the instant case was non-final because it lacked certification under Arizona Rule of Civil Procedure 54(c) that "no further matters remain pending, " we stayed the appeal and revested jurisdiction in the superior court to permit the entry of a final judgment including Rule 54(c) language. Pursuant to former Arizona Rule of Civil Appellate Procedure ("ARCAP") 9.1, we ordered that the ...


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