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Gregory v. Whitney

United States District Court, D. Arizona

November 5, 2019

Jeane Gregory, Plaintiff,
Richard Whitney, et al., Defendants.


          G. Murray Snow Chief United States District Judge.

         Pending before the Court are Plaintiff Jeane Gregory's (“Plaintiff”) Motion for Summary Judgment (Doc. 15) and Second Motion for Summary Judgment (Doc. 34).[1] For the following reasons, the motions are denied.


         Plaintiff's 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 July 2011.

         Plaintiff, 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act as Personal Representative, issued a Fiduciary Arrest Warrant for her arrest, and ordered that Defendant Whitney be withdrawn as her counsel.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).

         Plaintiff commenced this action pro se in May 2019[2] 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).


         I. Legal Standard

         Summary 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. 56(f)).

         II. Analysis

         Defendants 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).

         In her 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, Plaintiff alleges,

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 duped!

(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 ...

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