{
  "id": 1575480,
  "name": "In the Matter of the ESTATE of Billy Jack ONEY, Deceased. Edna ONEY, Personal Representative of the Estate of Billy Jack Oney, Appellant, v. Jerry ODOM and Coleen Odom, and their Trustee in Bankruptcy, Appellees",
  "name_abbreviation": "Oney v. Odom",
  "decision_date": "1981-02-12",
  "docket_number": "No. 4877",
  "first_page": "640",
  "last_page": "643",
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      "year": 1978,
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      "cite": "74 N.M. 399",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "weight": 2,
      "year": 1964,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T19:05:15.389388+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HERNANDEZ, C. J., and WALTERS, J., concur."
    ],
    "parties": [
      "In the Matter of the ESTATE of Billy Jack ONEY, Deceased. Edna ONEY, Personal Representative of the Estate of Billy Jack Oney, Appellant, v. Jerry ODOM and Coleen Odom, and their Trustee in Bankruptcy, Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nThis interlocutory appeal involves the late presentment of claims against an estate. We discuss the interrelationship of \u00a7\u00a7 45-3-803 and 45-3-804, N.M.S.A.1978.\nOney died in November, 1978. Administration proceedings were opened in December, 1978 and the first notice to creditors \u201cto present their claims within two months after the date of the first publication of the notice or be forever barred\u201d (\u00a7 45-3-801, N.M.S.A.1978) was published on December 14, 1978. The two-month period expired on February 14, 1979.\nThe claimants are the Odoms and their trustee in bankruptcy. Their \u201cformal claim\u201d was for breach of contract and wrongful repossession. Without reference to this \u201cformal claim\u201d, the claimants, at times, characterize their claims as involving assault, trespass, conversion and violation of the Commercial Code. An additional claim was for fraud. We do not dispose of the fraud claim on the basis that it was not raised in the trial court, R.Civ.App. 11; rather, we consider it on the merits.\nThe pertinent provisions of \u00a7 45-3-803, supra, are:\nA. All claims against a decedent\u2019s estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, 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 statutes of limitations, 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], except that claims barred by the nonclaim statute at the decedent\u2019s domicile, before the first publication for claims in this state, are also barred in this state; or\n(2) within three years after the decedent\u2019s death, if notice to creditors has not been published.\nB. All claims against a decedent\u2019s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, 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) a claim based on a contract with the personal representative, within four months after performance by the personal representative is due; and\n(2) any other claim, within four months after it arises.\nSection 45-3-803(A), supra, refers to claims \u201cwhich arose before the death of the decedent ****\u201d Claimants recognize that all claims, except the one for fraud, arose before Oney\u2019s death, and that the two-month provision applies. None of the \u201carose before the death\u201d claims were presented before the two-month provision expired on February 14, 1979.\nSection 45-3-803(B), supra, refers to claims \u201cwhich arise at or after the death of the decedent ****\u2019\u2019 Claimants assert the fraud claim comes within this category, and that they had four months to present the fraud claim after it arose. Assuming, but not deciding, that \u00a7 45-3-803(B), supra, does apply, claimants\u2019 brief refers to the fraud claim arising in \u201cearly 1979\u201d. No fraud claim was presented within four months after it arose.\nAlthough not specifically stated, claimants may be contending that a claim for breach of contract not timely presented under \u00a7 45-3-803(A), supra, was subsequently amended, or identified to be, a fraud claim under \u00a7 45-3-803(B), supra, and because of this subsequent change, the four-month provision rather than the two-month provision should apply. If such is the contention, it is without merit. The fraud claim stated in claimants\u2019 proposed first amended complaint relies on entirely different conduct allegedly resulting in an entirely different wrong than the conduct allegedly resulting in a breach of contract. See Scott v. Newsom, 74 N.M. 399, 394 P.2d 253 (1964). The amendment or identification of this claim as one of fraud rather than in contract, after the two-month period had expired, was insufficient to change the time period from two months under \u00a7 45-3-803(A), supra, to four months under \u00a7 45-3-803(B), supra. Ziegler v. Kramer, 175 Mont. 236, 573 P.2d 644 (1978).\nClaims not timely presented under \u00a7 45-3-803, supra, are barred. Being barred, claimants may not recover on the untimely claims. Mathieson v. Hubler, 92 N.M. 381, 588 P.2d 1056 (Ct.App.1978).\nThe estate moved the trial court for an order declaring that claimants\u2019 claims were barred. The trial court denied the motion, ordered that claimants be allowed to present their claims under \u00a7 45-3-803, supra, and ruled that \u201cgood cause\u201d existed for authorizing the late presentments. The trial court\u2019s theory of \u201cgood cause\u201d, stated from the bench, was \u201ceverybody should have their day in court if there is any controversy of this sort so I\u2019m going to extend the time.\u201d This view, which disregards statutory provisions, is not defended in this appeal.\nClaimants assert that \u00a7 45-3-804(C), supra, \u201cgrants to the District Court a reservoir of equitable power in respect to contingent and/or unliquidated claims, such as indefinite tort claims, to allow an extension of time in order to avoid injustice in which to commence a proceeding to obtain payment from the estate of the claim.\u201d (Claimants\u2019 emphasis.) This is a misreading of the statute.\nSection 45-3-804, supra, reads:\nClaims against a decedent\u2019s estate may be presented as follows:\nA. the claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed, or he may file a written statement of the claim with the district court. The claim is presented on the first to occur of receipt of the written statement of claim by the personal representative, or the filing of the claim with the district court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the. security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made;\nB. the claimant, without the necessity of filing a claim, may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death;\nC. if a claim is presented under Subsection A of this section, no proceeding thereon may be commenced more than sixty days after the personal representative has mailed a notice of disallowance. However, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty-day period, or to avoid injustice, the district court, on petition, may order an extension of the sixty-day period, but in no event shall the extension run beyond the applicable statute of limitations.\nSection 45-3-804(A), supra, deals with presentment of a claim to the personal representative. Section 45-3-804(0), supra, states that if a claim has been presented, and the claim has been disallowed, proceedings to collect the disallowed claim may be commenced within 60 days after the mailing of the notice of disallowance. For certain claims, the trial court may extend this 60-day period in order to avoid injustice. Section 45-3-804(C), supra, deals with a time for bringing suit to collect a timely presented claim that had been denied.\nSection 45-3-804(C), supra, does not deal with the time limits for presenting claims under \u00a7 45-3-803, supra, and does not authorize the trial court to extend the time limits of \u00a7 45-3-803, supra. This view of the statute is:\n(a) Consistent with \u00a7 45-3-804(B), supra, which permits suit to collect a claim, without presentment to the estate representative, but such suit must be commenced \u201cwithin the time limited for presenting the claim ****\u2019\u2019\n(b) Consistent with pre-Probate Code decisions to the effect that the timely filing of a claim is mandatory, and if not timely filed, the claim is barred as a matter of law. 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).\nThe trial court\u2019s order allowing presentment of claimants\u2019 claims is reversed; the cause is remanded with instructions to enter a judgment declaring the claimants\u2019 claims are barred.\nIT IS SO ORDERED.\nHERNANDEZ, C. J., and WALTERS, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "Roger V. Eaton, Campbell, Cherpelis & Pica, Albuquerque, for appellant.",
      "Harold J. Breen, Broxterman & Breen, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "624 P.2d 1037\nIn the Matter of the ESTATE of Billy Jack ONEY, Deceased. Edna ONEY, Personal Representative of the Estate of Billy Jack Oney, Appellant, v. Jerry ODOM and Coleen Odom, and their Trustee in Bankruptcy, Appellees.\nNo. 4877.\nCourt of Appeals of New Mexico.\nFeb. 12, 1981.\nRoger V. Eaton, Campbell, Cherpelis & Pica, Albuquerque, for appellant.\nHarold J. Breen, Broxterman & Breen, Albuquerque, for appellees."
  },
  "file_name": "0640-01",
  "first_page_order": 672,
  "last_page_order": 675
}