Walker v. Ostler

2009 UT 82
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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In the Matter of the 	No. 20080180
Estate of Gary Wayne Ostler,
Deceased,
__________________________________
Melissa Walker, on behalf of her
Son, Adam Kunic Moses Walker,
Plaintiff and Appellant,
v.
Douglas L. Stowell, as Personal
Representative of the Estate of 	F I L E D
Gary Wayne Ostler,
Defendant and Appellee. 	December 11, 2009
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Third District, Salt Lake
The Honorable L.A. Dever
No. 033901263
Attorneys: 	Moses Lebovits, Los Angeles, CA, Mary Jane Whisenant,
Salt Lake City, for plaintiff
Alan R. Andersen, James G. Swensen, Salt Lake City,
for defendant
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WILKINS, Justice:
INTRODUCTION
¶1 	Melissa Walker, on behalf of her minor child, brought a
wrongful death claim against the Estate of Gary Ostler, the pilot
of the airplane in which the child’s father was a passenger and
died. 	The claim against the Estate was brought nearly four years
after the father’s death, and more than three years after the
expiration of the 90-day window for the filing of claims against
the Estate under the Utah Probate Code. 	The Estate disallowed
the claim, and Melissa filed a wrongful death action in the
district court. 	On the motion of the Estate, the district court

No. 20080180 	2
dismissed the claim as barred by the Probate Code’s limitation on
the presentation of claims against an estate. 	We affirm.
BACKGROUND & PROCEDURAL HISTORY
¶2 	On July 13, 2003, pilot Gary Wayne Ostler crashed his
Cessna 401 airplane into the Pacific Ocean, killing himself and
three of his five passengers, including his brother-in-law, Adam
Woodruff Moses. 	Approximately two or three weeks after the
crash, Adam’s girlfriend, Melissa M. Walker (Melissa), learned
she was pregnant with Adam’s child. 	Paternity tests later
confirmed that fact.
¶3 	A probate estate (the Estate) was opened for decedent
Ostler, and the personal representative first published notice to
creditors on September 23, 2003. 	Under the Utah Probate Code,
all creditor claims were to be filed within 90 days, or by
December 23, 2003. 	The heirs of the other two deceased
passengers filed wrongful death claims against the Estate within
the 90-day period, but Melissa, on behalf of her unborn child,
did not. 	Melissa’s child, named Adam Kunic Moses Walker
(Walker), was born on March 27, 2004. 	No claim was filed on the
child’s behalf until Melissa did so on April 16, 2007.
¶4 	Walker alleges, and we accept for purposes of this
appeal as true, that the following events occurred in the
interim: 	Shortly after Walker’s birth, Christa Moses Ostler
(Christa), Ostler’s widow and Adam’s sister (thus Walker’s aunt),
told Melissa that the Estate had set aside $250,000 for Walker,
part of which would be available to Melissa for child support and
part to be placed in a trust fund available to Walker upon
reaching the age of majority. 	This money was neither paid nor
set aside. 	The Moses and Ostler families promised Melissa that
they would give Walker his father’s 1965 Ford Mustang Fastback
when he turned sixteen. 	The family later informed Melissa of
their intention to sell the car and give her the proceeds. 	When
the car sold for $12,000, Melissa eventually received $700. 	In
2006, while working and going to school full-time, Melissa
inquired about the status of the Estate and the distribution.
Christa told her the Estate had not yet settled and advised her
to quit school and take on a second full-time job in order to
support Walker, which Melissa did. 	In January 2007, Melissa
learned the Estate would not be directly distributing money to
Walker, but that Christa promised to personally make the
distribution, which she intended to do when Walker was eighteen.

1 This statute was amended in 2008 and renumbered as section
78B-2-108. 	Because substantive changes were made to the statute,
we refer to the 2002 version of the statute in effect at the time
of the appeal.
3 	No. 20080180
¶5 	In April 2007, Melissa filed a wrongful death claim
against the Estate on behalf of Walker, as well as a Notice of
Creditor’s Claim. 	The Estate disallowed the claim, and Melissa
filed a wrongful death suit in the Third Judicial District Court
in June 2007. 	In July 2007, the Estate moved to dismiss Walker’s
complaint, alleging that the complaint was barred by the probate
code statute of limitations. 	The district court granted the
motion to dismiss, finding that Walker’s claim was “barred except
as allowed by Utah Code Ann. § 75-3-803(4)(b),” which allows any
claim to be pursued to the limits of liability insurance only.
¶6 	Walker, through his mother, appeals. 	On appeal, Walker
raises the following question: 	Is a minor’s claim against an
estate tolled during the child’s period of minority pursuant to
the general tolling provisions of Utah Code section 78-12-36? 1
STANDARD OF REVIEW
¶7 	A district court’s grant of a motion to dismiss based
upon the allegations in the plaintiff’s complaint, “presents a
question of law that we review for correctness.” 	Ellis v. Estate
of Ellis, 2007 UT 77, ¶ 6, 169 P.3d 441. 	In the process, “the
district court’s interpretation of prior precedent, statutes, and
the common law are questions of law that we review for
correctness.” 	Id.
ANALYSIS
¶8 	Walker asks us to hold that Utah’s general statute of
limitations tolling provision applies to toll the limited claim
presentment period in the Utah Probate Code during a claimant’s
minority.
¶9 	The general tolling provision reads as follows:
If a person entitled to bring an action,
other than for the recovery of real property,
is at the time the cause of action accrued,
either under the age of majority or mentally
incompetent and without a legal guardian, the
time of the disability is not a part of the

No. 20080180 	4
time limited for the commencement of the
action.
Utah Code Ann. § 78-12-36 (2002).
¶10 	The competing provision of the Utah Probate Code
provides the following limitation on claim presentation, in
relevant part:
(1) All claims against a decedent’s
estate which arose before the death of the
decedent, . . . whether due or to become due,
absolute or contingent, liquidated or
unliquidated, founded on contract, tort, or
other legal basis, 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 within the
earlier of the following dates:
(a) one year after the
decedent’s death; or
(b) . . . within the time
provided by Subsection 75-3-801(1)
for all claims barred by
publication.
Id. § 75-3-803(1) (1993).
¶11 	Section 75-3-801(1) requires claimants to “present
their claims within three months after the date of the first
publication of the notice or be forever barred.” 	Id. § 75-3-
801(1).
¶12 	To reconcile the apparent contradictory instructions of
these statutes, we look first at the general tolling statute and
examine its reach. 	Walker contends that the tolling statute is
applicable to all statutes of limitation absent an express
exemption provided by the legislature. 	On the other hand, the
Estate argues that the standard is less strict, that clear
legislative intent to exempt a statute from tolling, even if not
express, is sufficient to override the general provision. 	Our
prior decisions appear to side with Walker in that we have
consistently required express legislative intent to override the
general tolling provision.

5 	No. 20080180
¶13 	In our first case dealing with minority tolling, Scott
v. School Board of Granite School District, 568 P.2d 746 (Utah
1977), we held that the general tolling provision does toll the
notice requirement of the Governmental Immunity Act during a
claimant’s minority, concluding that “a minor claimant is justly
entitled to the protection afforded by said section 78-12-36(1)
. . . in all cases.” 	Id. at 748. 	Later, in Blum v. Stone, 752
P.2d 898, (Utah 1988), we considered our holding in Scott again,
holding that “[t]he sweeping scope of [the language of Scott]
requires that all statutes of limitations be tolled during
minority unless the legislature enacts a specific exemption.”
Id. at 900. 	However, the Blum court also said that “Scott has
been recognized to stand for the principle that, absent specific
intent, periods of limitation are tolled during minority,” Id.,
and that “Scott at least had the effect of tolling all statutes
of limitations during minority based upon section 78-12-36,
absent clear legislative intent to the contrary.” 	Id. at 900,
n.2. 	Ostler argues, that based on this language, clear
legislative intent is sufficient to overcome the tolling
provision.
¶14 	In Cole v. Jordan School District, 899 P.2d 776 (Utah
1995), a minor injured while at school was allowed to proceed
with a late-filed claim under the Governmental Immunity Act even
though an amendment to the Act gave the minor the ability to file
for an extension if he could not meet the one-year deadline.
Cole, 899 P.2d at 778. 	Looking at the plain language of the
amendment, the Cole court found it unambiguous in that it did not
express an intent to exempt the limitation from tolling. 	Id.
Indeed, the court stressed, “Moreover, we are unconvinced that
the legislature would dramatically depart from its general intent
to protect the causes of minors without a more definite statement
as to its intent to remove the protection provided by the general
tolling provision of section 78-12-36.” 	Id.
¶15 	In Bonneville Asphalt v. Labor Commission, 2004 UT App
137, 91 P.3d 849, the court of appeals held the Workers’
Compensation Act’s one-year limitation on death benefit claims to
be tolled during minority under the general tolling provision
even though the Act expressly provided that a notice of claim for
death benefits on behalf of minors “shall be made by the guardian
or next friend of the minor dependents.” 	Bonneville Asphalt,
2004 UT App 137, ¶ 6 (quoting Utah Code Ann. § 34A-2-414(3)(b)
(1997)). 	The court explained, “In order to except a statute of
limitations from the operation of the tolling statute, more
specificity is required.” 	Id. 	The court of appeals further
observed, “The Utah Legislature has demonstrated that if it seeks
specifically to exempt a statute from the tolling statute, it

No. 20080180 	6
will do so with clear, explicit language.” 	Id. ¶ 8 (citing Utah
Code Ann. § 78-14-4(2) (2002) (exempting medical malpractice
actions from the tolling statute by stating that “this section
shall apply to all persons, regardless of minority or other legal
disability under section 78-12-36”)).
¶16 	It has become the law, based upon legislative
enactments and our review of the question, that exemption from
the tolling statute requires clear legislative intent, explicitly
stated. 	Thus, as Walker contends, because our probate code does
not include explicit exemption language regarding the limit on
time to present claims, any statute of limitations would be
tolled during minority under the general tolling statute.
¶17 	However, the district court did not treat the probate
code claim presentation limitation as a statute of limitation.
Instead, persuaded by Colorado case law, the district court
treated the probate code limitation as a jurisdictional bar. 	The
district court quoted In re Estate of Daigle, 634 P.2d 71 (Colo.
1981), a Colorado Supreme Court case with very similar facts and
underlying statutes:
A nonclaim statute operates to deprive a
court of jurisdiction. 	The personal
representative of an estate can neither waive
it nor toll it . . . . 	A nonclaim statute
imposes a condition precedent to the
enforcement of a right of action; that is to
say, the claim must be presented within the
time set in the notice to creditors or be
barred. 	A statute of limitations, on the
other hand, does not bar the right of action
but only the remedy . . . . 	Such a statute
may be tolled. 	Such a statute is a defense
which is waived if not affirmatively pleaded.
634 P.2d at 75 (ellipses in original) (internal quotation marks
omitted).
¶18 	Although we have not yet addressed the nature of the
nonclaim statute as a jurisdictional bar, in Switzer v. Reynolds,
606 P.2d 244 (Utah 1980), we applied a similar analysis to the
wrongful death statute of limitations. 	In Switzer we held that
the wrongful death statute of limitations was tolled by the
general tolling provision because it was of the nature affecting
only the remedy and not the actual cause of action. 	Id. at 246.
We explained:

7 	No. 20080180
In a case where the limitation period has
been construed as merely affecting the remedy
but not the right of action itself, a tolling
statute has been held applicable to a statute
of limitations for wrongful death. 	In
contrast, the limitation period was not
tolled due to infancy, where the wrongful
death statute was construed as creating a
right of action that did not exist at common
law and thus the time restriction provided
therein affected the right of action and not
merely the remedy.
Id.
¶19 	The Colorado courts have made a distinction between a
statute of limitation and a jurisdictional bar. 	In Daigle, the
Colorado Supreme Court explained that the tolling statute is
intended to affect only statutes of limitation because it allows
the cause of action to continue after the disability is removed.
Daigle, 634 P.2d at 75 n.7. 	In contrast, the language of a
jurisdictional bar provides “that claims ‘if not so filed, shall
be forever barred.’” 	Estate of Randall, 441 P.2d 153, 155 (Colo.
1968) (quoting Colo. Rev. Stat. § 153-12-12(1) (1963)).
¶20 	In addition, the policy relied upon by the Colorado
Supreme Court in construing the Colorado Probate Code nonclaim
statute as a jurisdictional bar instead of a statute of
limitation may be applied equally to the provisions of the Utah
Probate Code. 	The Daigle court stated that interpreting the
nonclaim statute
as
jurisdictional in character, and therefore
not subject to the tolling provisions
otherwise applicable to statutes of
limitations, is consistent with one of the
basic purposes of the Colorado Probate Code:
“to promote a speedy and efficient system for
settling the estate of the decedent and
making distribution to his successors.”
Daigle, 634 P.2d at 76 (quoting Colo. Rev. Stat. § 15-10-
102(1)(c)). 	In addition, the court noted that construing the
nonclaim statute as a statute of limitation, subject to tolling
for minority, would cast doubt on the finality of distributions.
Id. 	Further, the Colorado Supreme Court stated:

2 Walker also raises the question of whether, under the
facts alleged, the Estate is equitably estopped from asserting
the statute of limitations as a defense where specific
representations were made that resulted in the delay in filing
the claim. 	We decline to address this argument as it was not
preserved. 	Walker did not raise equitable estoppel or any of the
facts on which he now relies to support this theory in the
pleadings before the district court. 	“As a general rule, claims
not raised before the trial court may not be raised on appeal.”
State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
No. 20080180 	8
The nonclaim statute providing for an
absolute bar of a claim filed late is
intended to expedite the orderly and exact
settlement of estates of decedents.
Otherwise, . . . the settlement of an estate
might be deferred indefinitely, and the heirs
and legatees, the rightful owners of the
property of the estate, or beneficiaries of
the will of the decedent, [could be] kept out
of the enjoyment of their possessions and
deprived of the benefits secured to them by
the laws of the state for such unreasonable
time as to practically deprive them of their
property.
Randall, 441 P.2d at 155 (internal quotation marks omitted).
This reasoning applies equally to other timely claims, which
would also be delayed, perhaps unreasonably, in receiving
distributions appropriate for their claims.
¶21 	We are persuaded by the reasoning of the Colorado
courts. 	While an express intent to exclude the general tolling
provisions from application to the claim presentation limitation
of the probate code would reach the same result, the absence of
such an express exclusion does not change the overall nature and
intent of the estate settlement provisions as a whole. 	To
harmonize the probate code with our case law on the tolling of
statutes of limitation requires us to carefully consider the
analysis and reasoning followed by the Colorado courts, and in
doing so we adopt the reasoning used by Randall and Daigle, and
employed by us in Switzer, to construe the Utah nonclaim statute
as a jurisdictional bar not subject to tolling during minority
under the general tolling statute. 2
¶22 	Affirmed.

9 	No. 20080180
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¶23 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.