{ "id": 708644, "name": "Jere CORLETT, Personal Representative of the Estate of Harry S. Bishop, Deceased, Plaintiff-Appellee, v. Larry SMITH, Personal Representative of the Estate of Hadrudj Djeandi Bishop, Deceased, Defendant-Appellant", "name_abbreviation": "Corlett v. Smith", "decision_date": "1987-07-14", "docket_number": "No. 8766", "first_page": "207", "last_page": "211", "citations": [ { "type": "official", "cite": "106 N.M. 207" }, { "type": "parallel", "cite": "740 P.2d 1191" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "97 N.M. 625", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555086 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0625-01" ] }, { "cite": "104 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594954 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0500-01" ] }, { "cite": "56 N.M. 724", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584694 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0724-01" ] }, { "cite": "98 N.M. 322", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582461 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0322-01" ] }, { "cite": "101 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586434 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/101/0420-01" ] }, { "cite": "641 P.2d 211", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10435315 ], "year": 1982, "pin_cites": [ { "parenthetical": "bar of nonclaim statute is an affirmative defense to be pleaded and proved by the estate" } ], "opinion_index": 0, "case_paths": [ "/p2d/641/0211-01" ] }, { "cite": "84 Nev. 208", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4885437 ], "weight": 2, "year": 1968, "pin_cites": [ { "parenthetical": "burden is on party who files late creditor's claim in probate proceeding to offer justification for favorable exercise of discretion" }, { "parenthetical": "burden is on party who files late creditor's claim in probate proceeding to offer justification for favorable exercise of discretion" } ], "opinion_index": 0, "case_paths": [ "/nev/84/0208-01" ] }, { "cite": "172 P. 873", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "102 Wash. 16", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 670209 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/wash/102/0016-01" ] }, { "cite": "114 Utah 362", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 8870868 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/utah/114/0362-01" ] }, { "cite": "3 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1936, "opinion_index": 0 }, { "cite": "131 Ohio St. 481", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1013231 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/ohio-st/131/0481-01" ] }, { "cite": "634 P.2d 71", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10433660 ], "opinion_index": 0, "case_paths": [ "/p2d/634/0071-01" ] }, { "cite": "27 N.D. 346", "category": "reporters:state", "reporter": "N.D.", "case_ids": [ 2552813 ], "weight": 2, "year": 1914, "opinion_index": 0, "case_paths": [ "/nd/27/0346-01" ] }, { "cite": "95 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575480 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0640-01" ] }, { "cite": "98 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582560 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0357-01" ] }, { "cite": "80 N.M. 448", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354172 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0448-01" ] }, { "cite": "88 N.M. 130", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839932 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0130-01" ] }, { "cite": "49 N.M. 169", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841535 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/nm/49/0169-01" ] }, { "cite": "145 Ariz. 185", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1492596 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/145/0185-01" ] } ], "analysis": { "cardinality": 688, "char_count": 12752, "ocr_confidence": 0.792, "pagerank": { "raw": 1.2044540082426964e-07, "percentile": 0.5944325325530562 }, "sha256": "634cb7c1aaa563c3c3575377ede5390c622b1d498db352c17105bcc6c72f876a", "simhash": "1:4b23ec067de69761", "word_count": 2060 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER and APODACA, JJ., concur." ], "parties": [ "Jere CORLETT, Personal Representative of the Estate of Harry S. Bishop, Deceased, Plaintiff-Appellee, v. Larry SMITH, Personal Representative of the Estate of Hadrudj Djeandi Bishop, Deceased, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Chief Judge.\nUpon motion for rehearing, the prior opinion of the court is withdrawn and the following opinion is substituted.\nThis is an appeal by defendant as personal representative of the wife\u2019s estate, from a judgment entered following a jury trial in favor of plaintiff as personal representative of the estate of the deceased husband. We discuss initially a threshold jurisdictional issue concerning whether the claims of husband\u2019s estate against wife\u2019s estate have been timely presented. We remand for a hearing and adoption of specific findings of fact and conclusions of law as to the elements essential to plaintiff\u2019s claim and for further proceedings.\nFACTS\nHusband and wife lived together with their four-year-old grandson, Dennis Stuertz. Both husband and wife had been previously married to other spouses, and each had a child or children from their former marriages. The parties had been married thirty-seven years at the time of their deaths. Following their marriage, husband and wife adopted three children. Each of the surviving children are now adults.\nSometime during the late evening hours of November 25, 1981, after the husband and his grandson had gone to bed, the wife started the engine of her automobile while it was parked in the closed garage attached to the home of the parties. The wife then prepared a bed for herself and laid down next to the exhaust pipe and was asphyxiated. Carbon monoxide fumes from the motor vehicle traveled from the garage, through a door which had been left partially ajar, into the main portion of the residence, also resulting in the deaths of the husband and the grandchild.\nFollowing the deaths of husband and wife, both estates were probated. Initially, plaintiff was appointed as the personal representative of both the husband\u2019s and the wife\u2019s estates. However, after an investigation indicated that the wife\u2019s suicide may have also accidentally caused the husband\u2019s death and that of the grandchild, plaintiff resigned as personal representative of wife\u2019s estate, and defendant was substituted as the personal representative of the estate of the wife. In November 1982, a wrongful death action was filed by plaintiff as personal representative of the husband\u2019s estate against the personal representative of wife\u2019s estate, alleging that the wife negligently permitted carbon monoxide from the vehicle to travel into the house and bedroom where her husband and grandchild were sleeping, thereby resulting in their deaths.\nDefendant\u2019s answer denied that the wife had proximately caused the death of the husband. After a jury trial, a verdict was returned in favor of plaintiff on the wrongful death action in the sum of $93,000.00.\nPRESENTATION OF CLAIMS\nDefendant moved to dismiss plaintiff\u2019s wrongful death action against defendant based upon plaintiff\u2019s failure to timely present his claim against wife\u2019s estate. Following a hearing, the trial court denied the motion.\nPlaintiff was appointed personal representative of the estate of both husband and wife on January 8, 1982. On September 20, 1982, plaintiff resigned as personal representative of wife\u2019s estate. Defendant was appointed personal representative of wife\u2019s estate on September 21, 1982. The wrongful death action filed by plaintiff against defendant was filed on November 10, 1982. No formal notice was presented to the personal representative of wife\u2019s estate concerning husband\u2019s tort action until the filing of husband\u2019s wrongful death action. The record indicates the first publication of notice to creditors occurred on January 22, 1982.\nDefendant argues that the trial court erred in refusing to dismiss plaintiff\u2019s action because plaintiff failed to present timely notice of his wrongful death claim on behalf of husband\u2019s estate as required by NMSA 1978, Section 45-3-803.\nThe nonclaim statute of the Probate Code, Section 45-3-803, contains specific time limitations governing the presentation of claims against a decedent\u2019s estate. This statute provides in applicable part:\nA. All claims against a decedent\u2019s estate which arose before the death of the decedent, including claims * * * founded on * * * tort or other legal basis * * * are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented as follows:\n(1) within two months after the date of the first publication of notice to creditors if notice is given in compliance with Section 3-801 [45-3-801 NMSA 1978] * * *\nB. All claims against a decedent\u2019s estate which arise at or after the death of a decedent * * * founded on * * * tort or other legal basis, are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented as follows:\n(2) any other claim, within four months after it arises.\nC. Nothing in this section affects or prevents:\n(2) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance.\nIn denying the motion to dismiss, the trial court did not indicate the basis for its ruling. Defendant argues that when a claim is not timely presented, the trial court is without jurisdiction to hear the claim. Plaintiff, however, asserts that defendant failed to include in the record on appeal those portions of the trial court\u2019s proceedings relating to the hearing on the motion to dismiss, and that absent this portion of the record, jurisdiction of the court may be presumed.\nUnder this posture, which party carries the burden of establishing the timely presentation of a claim? We determine that this burden in the trial court falls upon plaintiff.\nOne of the chief aims of the Probate Code is to promote and facilitate the speedy administration and closing of estates. NMSA 1978, \u00a7 45-l-102(B)(3). A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents\u2019 estates. See In re Estate of Levine, 145 Ariz. 185, 700 P.2d 883 (App.1985); cf. Levers v. Houston, 49 N.M. 169, 159 P.2d 761 (1945).\nNew Mexico follows the rule recognizing that timely filing of claims against a decedent\u2019s estate is mandatory, and if not timely filed, the claims are barred as a matter of law. See In re Will of Skarda, 88 N.M. 130, 537 P.2d 1392 (1975); In re Estate of Welch, 80 N.M. 448, 457 P.2d 380 (1969); Bowman v. Butler, 98 N.M. 357, 648 P.2d 815 (Ct.App.1982); In re Estate of Oney, 95 N.M. 640, 624 P.2d 1037 (Ct.App.1981). There is no statutory provision that authorizes the trial court to extend the time limits specified in Section 45-3-803. See In re Estate of Oney.\nThe burden of establishing a timely presentment of a claim against an estate rests upon the claimant. Mann v. Redmon, 27 N.D. 346, 145 N.W. 1031 (1914); see also In re Estate of Daigle, 634 P.2d 71 (Colo.1981) (En Banc); Beach v. Mizner, 131 Ohio St. 481, 3 N.E.2d 417 (1936); General Talking Pictures Corp. v. Hyatt, 114 Utah 362, 199 P.2d 147 (1948); Empson v. Fortune, 102 Wash. 16, 172 P. 873 (1918); cf. Continental Coffee Co. v. Estate of Clark, 84 Nev. 208, 438 P.2d 818 (1968) (burden is on party who files late creditor\u2019s claim in probate proceeding to offer justification for favorable exercise of discretion); contra Hitt v. J.B. Coghill, Inc., 641 P.2d 211 (Alaska 1982) (bar of nonclaim statute is an affirmative defense to be pleaded and proved by the estate).\nUnlike the bar of an ordinary statute of limitations, these cases hold that the claimant must plead facts showing the claim is timely. See e.g., Mann v. Redmon. Non-claim statutes limit the right of a creditor to file a late claim. See Beach v. Mizner. In describing the claim as jurisdictional, the Colorado Supreme Court refused to hold that the nonclaim statute was tolled by the minority of a child. In re Estate of Daigle.\nThe filing of a \u201cclaim\u201d against a decedent\u2019s estate, within the contemplation of Section 45-3-803, includes all liabilities of the decedent, whether arising in contract, in tort or otherwise, as well as liabilities of the estate. NMSA 1978, \u00a7 45-l-201(A)(4). But see Lucero v. Northrip Logging Co., 101 N.M. 420, 683 P.2d 1342 (Ct.App.1984) (claim for workmen\u2019s compensation falls outside of Section 45-3-803). In contrast to express provisions of the Workmen\u2019s Compensation Act, nothing in the statutes allowing recovery for wrongful death (NMSA 1978, Sections 41-2-1 to -4 (Repl. 1986)) expresses a legislative intent to create an exception to Section 45-3-803.\nThe Colorado Supreme Court in In re Estate of Daigle, interpreted a provision of the Uniform Probate Code identical to Section 45-3-803 of this state\u2019s Probate Code, determining that compliance with the non-claim statute is jurisdictional. The court said:\nOur construction of 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: \u201c[t]o promote a speedy and efficient system for settling the estate of the decedent and making distribution to his successors.\u201d\nId. at 76.\nThe court in Daigle also held that the nonclaim statute \u201ccreates a jurisdictional bar to a claim untimely filed\u201d on behalf of a claimant against a decedent\u2019s estate, except to the extent of the liability insurance exemption contained in the statute.\nApplying the above authorities to the facts of the present case, we find that plaintiff bore the burden of establishing the timely presentation of his claim against wife\u2019s estate. At the hearing on defendant\u2019s motion to dismiss, no record was made. On appeal, the record before us does not disclose what matters were presented at that hearing. The trial court denied the motion. As a general rule, where the record is deficient, every presumption will be indulged in favor of the correctness of the trial court\u2019s ruling. Nichols v. Nichols, 98 N.M. 322, 648 P.2d 780 (1982). Defendant contends that it was the burden of plaintiff to establish that jurisdiction existed, once it was challenged, and thus that plaintiff had the burden to affirmatively show in the record the existence of facts to support jurisdiction. Under the record before us both sides seek to place the burden upon the other for the deficient record. In the interests of justice we conclude that a remand is required on this matter. In reviewing this aspect of the appeal, the record does not disclose whether or not plaintiff\u2019s claim rested upon liability insurance, including either a household policy or automobile insurance policy, insuring against the negligence of wife, and the trial court\u2019s order denying defendant\u2019s motion to dismiss does not disclose whether plaintiff\u2019s claim was determined to come within the insurance exception as provided in Section 45-3-803(C)(2) of the Probate Code, or was grounded upon some other basis. Accordingly, we remand for hearing and adoption of specific findings of fact on this issue.\nWhere doubt or ambiguity exists as to the basis for the court\u2019s ruling, the ends of justice may require that the cause be remanded for specific findings on a determinative issue. See Farrar v. Hood, 56 N.M. 724, 249 P.2d 759 (1952); State ex rel. Human Services Dept. v. Coleman, 104 N.M. 500, 723 P.2d 971 (Ct.App.1986); cf. Sands v. American G.I. Forum, Inc., 97 N.M. 625, 642 P.2d 611 (Ct.App.1982). If plaintiff\u2019s claim is based upon the insurance exception of Section 45-3-803(C)(2), the claim is timely; if, however, insurance does not exist for the claim herein, plaintiff\u2019s claim must be dismissed.\nThe cause is remanded to the trial court for a hearing and for adoption of specific findings of fact and conclusions of law within sixty days from the date hereof, concerning whether specific insurance protection exists so as to bring the wrongful death claim of husband\u2019s estate within the statutory exception contained in Section 45-3-803(0(2). In the event the trial court determines that no specific insurance protection exists, the action must be dismissed; otherwise, a copy of the trial court\u2019s amended findings and conclusions and amended judgment should be filed with this court.\nIT IS SO ORDERED.\nMINZNER and APODACA, JJ., concur.", "type": "majority", "author": "DONNELLY, Chief Judge." } ], "attorneys": [ "Carl J. Butkus, Terry R. Guebert, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendant-appellant Larry Smith.", "James E. Thomson, Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "740 P.2d 1191\nJere CORLETT, Personal Representative of the Estate of Harry S. Bishop, Deceased, Plaintiff-Appellee, v. Larry SMITH, Personal Representative of the Estate of Hadrudj Djeandi Bishop, Deceased, Defendant-Appellant.\nNo. 8766.\nCourt of Appeals of New Mexico.\nJuly 14, 1987.\nCertiorari Denied Aug. 14, 1987.\nCarl J. Butkus, Terry R. Guebert, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendant-appellant Larry Smith.\nJames E. Thomson, Santa Fe, for plaintiff-appellee." }, "file_name": "0207-01", "first_page_order": 247, "last_page_order": 251 }