In re Estate of Strand

2015 UT App 259

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ESTATE OF VERN C. STRAND

MICHAEL STRAND,
Appellant,
v.
DIANE DIMEO AND JERRY STRAND,
Appellees.

Memorandum Decision
No. 20140439-CA
Filed October 22, 2015

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 123700456

Michael Strand, Appellant Pro Se
George A. Hunt and Richard C. Dibblee, Attorneys
for Appellees

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred.

DAVIS, Judge:

¶1 Michael Strand appeals from the district court’s denial of
his petition to probate the will of Vern C. Strand (Father) that he
filed twenty-five years after Father’s death in 1987. In his
petition, Michael alleged that his brother, Jerry Strand, had
drafted the will for Father in 1972 and fraudulently concealed it
by failing to affirmatively disclose the will’s existence to all of
the interested parties under the will. The district court rejected
Michael’s argument that Jerry’s alleged concealment of the
existence of Father’s will triggered the equitable discovery rule,
tolling the applicable three-year statute of limitations. See
generally Utah Code Ann. § 75-3-107(1) (LexisNexis Supp. 2014);
In re Estate of Strand

Berenda v. Langford, 914 P.2d 45, 51 (Utah 1996) (explaining that
the discovery rule, which tolls the statute of limitations, ‚applies
when mandated by statute, when a defendant has concealed a
plaintiff’s cause of action, or when exceptional circumstances
exist‛). We affirm.

¶2 Michael first argues that the district court erred when it
evaluated his fraudulent concealment claim under the version of
the Utah Code in effect at the time of Father’s 1987 death, rather
than the version in effect at the time Father executed the will in
1972. See Utah Code Ann. § 68-3-3 (LexisNexis 2014) (‚A
provision of the Utah Code is not retroactive, unless the
provision is expressly declared to be retroactive.‛). The district
court ruled that the relevant provision of the Probate Code is
procedural, rather than substantive, and that the version in effect
at Father’s death in 1987, not the version in effect when Father
executed his will in 1972, applied. See Goebel v. Salt Lake City S.
R.R. Co., 2004 UT 80, ¶ 39, 104 P.3d 1185 (explaining that the
prohibition against retroactive application of the Utah Code
‚applies only with respect to substantive laws‛ and that
procedural ‚statutes that do not enlarge, eliminate, or destroy
substantive rights can be applied retroactively‛ (citation and
internal quotation marks omitted)). We need not decide whether
the Probate Code provision at issue is procedural or substantive,
because the legislature has expressly indicated that the current
version of the Probate Code should apply. See generally Bailey v.
Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (‚It is well settled that an
appellate court may affirm the judgment appealed from if it is
sustainable on any legal ground or theory apparent on the
record . . . .‛ (citation and internal quotation marks omitted)).

¶3 ‚In interpreting a statute, the court must look first to its
plain language.‛ Valcarce v. Fitzgerald, 961 P.2d 305, 318 (Utah
1998). Section 75-8-101 of the Probate Code provides, ‚(1) This
code takes effect on July 1, 1977. (2) Except as provided
elsewhere in this code, on the effective date of this code: (a) This
code applies to any wills of decedents dying thereafter.‛ Utah
Code Ann. § 75-8-101(1), (2)(a) (Michie 1993). In other words, ‚it
is not the date of the wills’ execution that determines whether

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In re Estate of Strand

the present Probate Code applies. It is the fact that decedent died
after the statute’s effective date, July 1, 1977, that is
determinative.‛ In re Estate of Fitzgerald, 738 P.2d 236, 237 (Utah
Ct. App. 1987). Accordingly, the district court did not err when it
evaluated Michael’s petition under the current version of the
Probate Code, which is the same version that was in effect at the
time of Father’s death. See Utah Code Ann. § 75-8-101 & hist.

¶4 Next, Michael contends that the district court erred in
rejecting his argument that his petition to probate Father’s will
was timely because the fraudulent concealment branch of the
equitable discovery rule tolled the three-year statute of
limitations. See Russell Packard Dev., Inc. v. Carson, 2005 UT 14,
¶¶ 25–26, 108 P.3d 741 (explaining the equitable discovery rule
and the concealment version of the rule). Michael’s argument
and the district court’s ruling thereon presuppose the
availability of the equitable discovery rule in this case. We
conclude that the three-year ‚statute of limitations‛ in the
Probate Code is actually a statute of repose and is not subject to
the equitable tolling rules Michael relies upon.

¶5 ‚A statute of limitations requires a lawsuit to be filed
within a specified period of time after a legal right has been
violated or the remedy for the wrong committed is deemed
waived,‛ while a ‚statute of repose bars all actions after a
specified period of time has run from the occurrence of some
event other than the occurrence of an injury that gives rise to a
cause of action.‛ Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d
670, 672 (Utah 1985). Statutes of repose ‚are not subject to a
discovery rule.‛ See Willis v. DeWitt, 2015 UT App 123, ¶ 10, 350
P.3d 250 (citation and internal quotation marks omitted).

¶6 The Probate Code provides, ‚No informal probate
proceeding or formal testacy proceeding . . . may be commenced
more than three years after the decedent’s death.‛ Utah Code
Ann. § 75-3-107(1) (LexisNexis Supp. 2014). The code lists three
exceptions to this three-year rule, none of which apply in this
case. See id.; see also Russell Packard, 2005 UT 14, ¶ 21 (indicating
that some statutes contain an ‚‘internal discovery rule’‛ that

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In re Estate of Strand

mandates application of the discovery rule in certain
circumstances). The Probate Code then states, ‚If no will is
probated within three years from death, the presumption of
intestacy is final and the court shall upon filing a proper petition
enter an order to that effect.‛ Utah Code Ann. § 75-3-107(3). In
other words, the Probate Code not only enumerates the available
exceptions to its three-year timeframe, but it also marks the
beginning of the three-year period as the date of the decedent’s
death, i.e., it ‚bars all actions after a specified period of time has
run from the occurrence of some event other than the occurrence
of an injury that gives rise to a cause of action.‛ See Berry, 717
P.2d at 672.

¶7 Moreover, the Probate Code provides a remedy to
individuals in Michael’s position who claim that they were
prevented from bringing a probate petition within three years of
the decedent’s death due to another’s concealment of the will.
Section 75-1-106 states,

Whenever fraud has been perpetrated in
connection with any proceeding or in any
statement filed under this code or if fraud is used
to avoid or circumvent the provisions or purposes
of this code, any person injured thereby may obtain
appropriate relief against the perpetrator of the
fraud or restitution from any person (other than a
bona fide purchaser) benefitting from the fraud,
whether innocent or not. Any proceeding must be
commenced within three years after the discovery
of the fraud, but no proceeding may be brought
against one not a perpetrator of the fraud later than
five years after the time of commission of the
fraud.

Utah Code Ann. § 75-1-106 (Michie 1993). The editorial note
following section 75-1-106 clarifies that this section aims to
provide a remedy to a plaintiff ‚if a will is fraudulently
concealed after the testator’s death and its existence is not
discovered until after the basic three-year period . . . has

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In re Estate of Strand

elapsed.‛ Id. editorial note. The editorial note also indicates the
need to balance the injury caused by an individual’s fraudulent
concealment with the need for finality in probate actions, stating,
‚The final limitation in this section is designed to protect
innocent distributees after a reasonable period of time. There is
no limit (other than the [3] years from discovery of the fraud)
against the wrongdoer.‛ See id. (alteration in original).

¶8 Similarly, the Probate Code imposes section 75-3-107’s
three-year timeframe on actions to modify or vacate a formal
testacy order based on proof of a late-discovered will. See id.
§ 75-3-412(1) (‚*A+ formal testacy order . . . is final as to all
persons with respect to all issues concerning the decedent’s
estate that the court considered or might have considered . . . .‛);
id. § 75-3-412(3)(b) (‚A petition for vacation under either
Subsections (1)(a) or (b) must be filed prior to the earlier of the
following time limits: . . . the time prescribed by Section 75-3-107
when it is no longer possible to initiate an original proceeding to
probate a will of the decedent.‛); see also In re Estate of Chasel, 725
P.2d 1345, 1347 (Utah 1986) (‚After an estate has been probated
and a closing order entered in a formal testacy proceeding, the
court may not thereafter vacate an order approving final
distribution of the estate to admit a newly discovered will to
probate.‛). Thus, our conclusion that section 75-3-107 is a statute
of repose, rather than a statute of limitations, complements the
availability of a cause of action under section 75-1-106 against an
individual believed to have fraudulently concealed a will and
the Probate Code’s underlying purpose of facilitating the prompt
and final settlement of estates.1 See Utah Code Ann. § 75-3-101

1. We recognize that in Berneau v. Martino, 2009 UT 87, 223 P.3d
1128, our supreme court applied the exceptional circumstances
branch of the discovery rule to toll a previous version of section
75-3-107’s three-year timeframe. See id. ¶¶ 16, 27. We do not
consider the Berneau court’s application of the exceptional
circumstances branch of the discovery rule to be at odds with
our decision in the present case. When Berneau was decided,
section 75-3-107 imposed a time limit on the court’s ability to
(continued…)

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In re Estate of Strand

(Michie 1993); id. § 75-1-102(2)(c) (indicating that one of the
purposes of the Probate Code is ‚*t+o promote a speedy and
efficient system for administering the estate of the decedent and
making distribution to his successors‛).

¶9 Accordingly, we affirm the district court’s ruling denying
Michael’s petition to probate Father’s will, but we do so on the
limited ground that the discovery rule is not available to toll
section 75-3-107, a statute of repose. See Bailey v. Bayles, 2002 UT
58, ¶ 10, 52 P.3d 1158 (‚It is well settled that an appellate court
may affirm the judgment appealed from if it is sustainable on
any legal ground or theory apparent on the record . . . .‛ (citation
and internal quotation marks omitted)). And because Michael’s
fraudulent concealment argument is not framed in the context of
section 75-1-106, we do not address the court’s findings on that
issue or Michael’s arguments related to it on appeal.

(…continued)
appoint a personal representative to a decedent’s estate and, in
turn, undermined the Berneau plaintiff’s ability to bring a
statutorily provided tort cause of action against a deceased
tortfeasor’s liability insurer. See id. ¶¶ 16 & n.1, 21, 27 (applying
the 1993 version of section 75-3-107). Berneau, however, is
factually distinct from the present case, and most notably, it did
not involve issues that would undermine the finality of the
decedent’s estate. In fact, the Berneau court recognized, ‚The
need for finality in estate assets trumps any equitable tolling,
even if irrational or unjust. Harsh requirements are typical in
estate matters and the legislature purposely sets strict time limits
for efficient and final administration of estates.‛ Id. ¶ 30; see also
Act of May 14, 2013, ch. 364, § 15, 2013 Utah Laws 1874, 1885–86
(addressing the issues raised in Berneau by amending section 75-
3-107 so that a court’s ability to appoint a personal
representative is explicitly excluded from the three-year
timeframe).

20140439-CA 6 2015 UT App 259