United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court are Plaintiff Jeane Gregory's
(“Plaintiff”) Motion for Summary Judgment (Doc.
15) and Second Motion for Summary Judgment (Doc.
For the following reasons, the motions are denied.
mother, a California resident, died leaving property in
Arizona and naming Plaintiff, a North Carolina resident, as
Executor of her California will. The will provided that all
estate assets pour-over into the family trust. The trustee of
the family trust, situs of which was California, contracted
to sell the Arizona property. However, a title search
revealed that the property was still in the name of the
deceased. The title company required that a personal
representative be appointed to confirm the title and complete
the sale. Defendant Richard Whitney (“Defendant
Whitney”), an Arizona attorney, and Gust Rosenfeld PLC,
his Arizona based law firm, (collectively
“Defendants”) were engaged to open an ancillary
probate in Arizona. Defendants requested that Plaintiff sign
the prepared probate documents so that the sale of the
Arizona property could be completed. Defendants filed an
application for informal probate and appointment of a
personal representative to confirm title of real property.
Plaintiff accepted the duties of personal representative in
acting as Personal Representative, sold the Arizona property
and received the proceeds of the sale but refused to remit
the proceeds to the trustee of her mother's trust.
Defendant Whitney filed a Petition for Order to Show Cause in
an effort to recover the sale proceeds. The state court set a
show cause hearing to determine if Plaintiff violated her
fiduciary duties as personal representative and whether
Defendant Whitney could continue to represent Plaintiff. At
the hearing, on December 8, 2011, the state court found
Plaintiff to be in contempt of court, revoked her authority
to act as Personal Representative, issued a Fiduciary Arrest
Warrant for her arrest, and ordered that Defendant Whitney be
withdrawn as her counsel. (Doc. 24-1 at 26-27).
commenced this action pro se in May 2019 alleging that
Defendants “deceived [Plaintiff] into signing documents
to sell property [Plaintiff] owned.” (Doc. 1 at 4.)
Plaintiff claims that Defendants led to her to believe that
they were representing her, when in fact they were
representing the California trustee. Plaintiff now moves for
summary judgment. Defendants respond in opposition and ask
that summary judgment be granted in Defendants' favor to
the extent permitted by Rule 56(f).
judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, shows “that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. Parties opposing summary
judgment are required to “cit[e] to particular parts of
materials in the record” establishing a genuine dispute
or “show[ ] that the materials cited do not establish
the absence . . . of a genuine dispute.” Fed.R.Civ.P.
56(c)(1). Lastly, the Court may “‘grant summary
judgment for a nonmovant' and grant a summary judgment
motion ‘on grounds not raised by a party,' so long
as the court gives ‘notice and a reasonable time to
respond' prior to doing so.” Whitmire v.
Wal-Mart Stores Inc., CV-17-0818-PCT-JAT, 2018 WL
6110937, n.3 (D. Ariz. Nov. 21, 2018) (quoting Fed.R.Civ.P.
argue that Plaintiff's claim or claims are time barred.
While Plaintiff does not clearly define the claims she is
bringing against Defendants, the factual allegations in the
complaint suggest that she is asserting claims of fraud
and/or malpractice. Fraud claims must be brought within three
years of accrual. A.R.S. § 12-543. Fraud claims accrue
“when the plaintiff by reasonable diligence could have
learned of the fraud, whether or not he actually learned of
it.” Coronado Dev. Corp. v. Superior Court,
139 Ariz. 350, 352, 678 P.2d 535, 537 (Ct. App. 1984). Legal
malpractice actions must be brought within two years of
accrual. A.R.S. § 12-542. Legal malpractice claims
accrue “when the plaintiff has sustained appreciable,
non-speculative harm or damage as a result of such
malpractice and . . . knows, or in the exercise of reasonable
diligence should know, that the harm or damage was a direct
result of the attorney's negligence.” Hayenga
v. Gilbert, 236 Ariz. 539, 541, 342 P.3d 1279, 1282
(App. Ct. 2015) (alteration in original) (citations and
internal quotation omitted).
complaint, Plaintiff quotes the state court's minute
entry setting the order to show cause hearing (“2011
Minute Entry”) as evidence of her claims. Specifically,
My California mother died leaving property in Arizona. I am
Executor of her Will. Two CA lawyers attempted to sell it,
illegally. They put Whitney/Rosenfeld onto me. They told me
they were my attorneys, I needed to sign papers as Executor
to complete a sale. The “sale” went through. I
complained to Whitney/Rosenfeld about issues as Executor.
Turned out Whitney/Rosenfeld were working for the CA lawyers,
NOT for me. Summed 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
absolutely beyond the powers authorized by Arizona law and
the powers issued by this Court.” - Minute Entry
11/08/2011 Case PB 2011-001579 I was not the Executor! I was
(Doc. 1 at 4.) Defendants argue that Plaintiff's reliance
upon the 2011 Minute Entry demonstrates that Plaintiff
“knew of or should have known of her claim no later
than when she received the state ...