IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

IN RE THE ESTATE OF

RICHARD R. SNURE, DECEASED.

ELOISE GARBARENO,

Petitioner/Appellant,

v.

FRAN WHATLEY, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF RICHARD R. SNURE,

Respondent/Appellee.

No. 2 CA-CV 2013-0075

Filed February 28, 2014

Appeal from the Superior Court in Cochise County

No. PB200900115

The Honorable John F. Kelliher, Judge

REVERSED AND REMANDED

COUNSEL

Manning & Kass, Ellrod, Ramirez, Trester, LLP, Scottsdale

By Scott A. Alles, Debora L. Verdier, and Victoria M. Dunne

Counsel for Petitioner/Appellant

Jennings, Strouss & Salmon, P.L.C., Phoenix

By Brian Imbornoni

Counsel for Respondent/Appellee
IN RE ESTATE OF SNURE

Opinion of the Court

2

OPINION

Judge Eckerstrom authored the opinion of the Court, in which 

Presiding Judge Kelly and Judge Espinosa concurred.

E C K E R S T R O M, Judge:

¶1 Appellant Eloise Garbareno appeals from the trial 

court’s order dismissing her petition against the estate of Richard 

Snure (the estate) for failure to state a claim under Rule 12(b)(6), 

Ariz. R. Civ. P. We reverse the court’s order and remand for further 

proceedings consistent with this opinion.

Factual and Procedural Background

¶2 “In reviewing the granting of a motion to dismiss for 

failure to state a claim for relief, we assume the truth of all facts 

stated in the complaint,” or petition. Bischofshausen v. Pinal-Gila 

Cntys. Air Quality Control Dist., 138 Ariz. 109, 111-12, 673 P.3d 307, 

309-10 (App. 1983). In the summer of 2009, Garbareno notified the 

estate of her claim for approximately $146,000. In November 2009, 

Garbareno received a notice from the estate entitled “Notice to 

Known Creditors.” In December 2009, counsel for the estate 

corresponded with Garbareno via e-mail, confirming receipt of her 

claim. Garbareno provided the estate with her physical address, cell 

phone number, and e-mail address.

¶3 In May 2010, the estate mailed a “Notice of 

Disallowance of Claim” to Garbareno by certified mail, return 

receipt requested. The letter was returned unclaimed to the estate.

¶4 Garbareno remained unaware that her claim had been 

rejected until October 12, 2012. On November 30, 2012, she filed a 

petition for a hearing on her claim against the estate, asserting that 

because the estate had not provided her with notice of disallowance, 

her claim should be deemed allowed. The trial court dismissed 

Garbareno’s petition for failure to state a claim upon which relief 

could be granted. This timely appeal followed. We have 

jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).
IN RE ESTATE OF SNURE

Opinion of the Court

3

Sufficiency of Notice

¶5 Garbareno asserts the notice sent to her was 

constitutionally inadequate under the Due Process Clause of the 

Fourteenth Amendment because the estate knew she had not 

received it. We review this constitutional claim de novo. See Emmett 

McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, ¶ 16, 132 P.3d 

290, 294 (App. 2006).

¶6 A person facing a potential state deprivation of life, 

liberty, or property is entitled to due process of law. U.S. Const. 

amend. XIV, § 1. An essential component of due process is the right 

to notice and an opportunity to be heard. See, e.g., Jones v. Flowers, 

547 U.S. 220, 226 (2006); Fuentes v. Shevin, 407 U.S. 67, 80 (1972);

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). A 

creditor’s cause of action against an estate is a protected property 

interest for due process purposes. Tulsa Prof’l Collection Servs., Inc. v. 

Pope, 485 U.S. 478, 485 (1988). The estate has not disputed here 

Garbareno’s implicit contention that a probate court’s bar of a claim 

as untimely is considered to be state action sufficient to trigger due 

process rights. Id. at 485-88. Under such circumstances, a “known 

or reasonably ascertainable” creditor is entitled to notice. Id. at 491.

¶7 While the estate acknowledges that Garbareno enjoyed 

a protected interest that entitled her to notice, it asserts, relying on 

Mullane, that sending the notice of disallowance by certified mail

was sufficient because it was reasonably calculated to provide actual 

notice. 339 U.S. at 314. The estate claims that, at the time the notice 

was sent, it was reasonably calculated to reach Garbareno and was 

therefore constitutionally sufficient.

¶8 However, in 2006, the Supreme Court clarified that

when notice sent by certified mail has been returned as 

undeliverable, the notice is insufficient and additional reasonable 

steps must be taken to provide notice. Jones, 547 U.S. at 225; see also 

Yi Tu v. Nat’l Transp. Safety Bd., 470 F.3d 941, 942-43 (9th Cir. 2006)

(notice sent by federal agency suspending pilot’s license was 

insufficient where agency had reason to know certified mail did not 

reach pilot); Norgrove v. Bd. of Educ. of City Sch. Dist. of N.Y.C., 881 

N.Y.S.2d 802, 810 (Sup. Ct. 2009) (notice of possible termination to 
IN RE ESTATE OF SNURE

Opinion of the Court

4

tenured teacher was insufficient where notice sent by certified mail 

returned “unclaimed”).

1 The Court held that “‘when notice is a 

person’s due . . . [t]he means employed must be such as one desirous 

of actually informing the absentee might reasonably adopt to 

accomplish it.’” Jones, 547 U.S. at 229, quoting Mullane, 339 U.S. at 

315 (omission and alteration in Jones). In applying that standard to 

the case before it, the Court reasoned:

We do not think that a person who actually 

desired to inform a real property owner of 

an impending tax sale of a house he owns 

would do nothing when a certified letter 

sent to the owner is returned unclaimed. If 

the Commissioner prepared a stack of 

letters to mail to delinquent taxpayers, 

handed them to the postman, and then 

watched as the departing postman 

accidentally dropped the letters down a 

storm drain, one would certainly expect the 

Commissioner’s office to prepare a new 

stack of letters and send them again. No 

one “desirous of actually informing” the 

owners would simply shrug his shoulders 

as the letters disappeared and say “I tried.” 

Failure to follow up would be 

unreasonable, despite the fact that the 

letters were reasonably calculated to reach 

their intended recipients when delivered to 

the postman.

Id. The Court further noted that “additional reasonable steps” were 

available to notify the property owner, id. at 234, such as 

“[f]ollowing up with regular mail.” Id. at 235.

2

 

1We note that the Jones case, which we find dispositive here, 

was not presented to the trial court by either party.

2At oral argument, the estate contended that Jones requires a 

fact-specific balancing test in every situation to determine whether 
IN RE ESTATE OF SNURE

Opinion of the Court

5

¶9 The estate suggests that, even if the mailed notice was 

deficient, Garbareno was put on notice of the disallowance because 

it was filed in the superior court. But the Court in Jones found that a 

person who is entitled to notice of a proceeding is entitled regardless 

of whether the information is available elsewhere or whether the 

person has been diligent in her attention to her property. Id. at 232-

33; see also In re Estate of Evans, 901 P.2d 1138, 1143 (Alaska 1995)

(rejecting argument that inquiry notice sufficient).

¶10 Here, as in Jones, Garbareno had a protected property 

interest and was entitled to notice. Also as in Jones, the estate was 

alerted by the return of the notice as unclaimed that Garbareno had 

not actually been notified.3 Finally, as in Jones, the estate had other 

reasonable options for notifying Garbareno, including sending the 

notice by regular mail. For these reasons, we conclude the notice 

 

additional notice is required. We do not read Jones to suggest that 

trial courts must engage in such fact-specific inquiry in every case. 

Rather, we read Jones as—having balanced the interests of a party in 

receiving notice against those of the state—creating a bright-line rule 

that where a party is entitled to notice and the notice provided is 

known to be defective, due process requires that additional 

reasonable steps must be taken to provide notice. 547 U.S. at 229-30. 

Even assuming we agreed with this contention, given Garbareno’s

substantial interest in the estate, the fact that the notice of 

disallowance was dispositive of Garbareno’s entire claim, and the 

very minor additional burden that sending the notice by regular 

mail, calling, or e-mailing would have imposed on the estate, we 

believe such a balance would easily weigh in Garbareno’s favor.

3We do not address today the situation in which a party 

affirmatively rejects or avoids receipt of certified mail. The estate 

does not suggest, and the record does not reflect, that Garbareno 

took any such action here. See $14,980 v. State, 261 S.W.3d 182, 189-

90 (Tex. App. 2008) (constructive notice could not be imputed to 

party “[w]ithout evidence . . . that appellant dodged or refused 

delivery of certified mail”).
IN RE ESTATE OF SNURE

Opinion of the Court

6

sent by certified mail and returned unopened to the estate was 

constitutionally insufficient.4

Remedy

¶11 Under A.R.S. § 14-3806(A), when a claim is presented 

against an estate under A.R.S. § 14-3804, the estate “may mail a 

notice to any claimant stating that the claim has been disallowed.” 

§ 14-3806(A). After a notice of disallowance has been sent, if the

claimant does not file a petition for allowance or commence a 

proceeding against the personal representative of the estate within 

sixty days, the claim is barred. Id. On the other hand, if the estate 

does not “mail notice to a claimant of action on h[er] claim for sixty 

days after the time for original presentation of the claim has 

expired,” the claim is deemed to be allowed. Id.

¶12 Garbareno asserts that her claim should be deemed 

allowed under the statute because the estate failed to timely comply 

with the requirement of mailing notice. But the estate complied 

with § 14-3806(A), which simply requires that the representative of 

the estate “mail a notice,” without prescribing any specific method 

of mailing to be used.5 Because Garbareno has not established a 

 

4Because we find the notice sent to Garbareno was insufficient, 

we need not address her claim that the estate was obligated to send 

notice to her counsel. Further, although Garbareno’s notice of 

appeal states that she is appealing from the trial court’s denial of her 

motion for a continuance under Rule 56(f), Ariz. R. Civ. P., she has 

not presented an argument on this claim, and it is therefore waived. 

See Ariz. R. Civ. App. P. 13(a)(6) (opening brief “shall contain the 

contentions of the appellant with respect to the issues presented, 

and the reasons therefor, with citations to the authorities, statutes 

and parts of the record relied on”); Ritchie v. Krasner, 221 Ariz. 288, 

¶ 62, 211 P.3d 1272, 1289 (App. 2009) (failure to comply with 

Rule 13(a)(6) waives argument).

5We do not hold that § 14-3806 is unconstitutional on its face. 

In general, proof that notice was sent either by certified or regular 

mail will be sufficient to comply with due process. It is only because 

the estate had actual knowledge that the notice had not been 
IN RE ESTATE OF SNURE

Opinion of the Court

7

statutory violation, the statutory remedy of deeming the claim 

allowed is inappropriate.

¶13 Instead, Garbareno should be provided precisely what 

due process guarantees—notice and an opportunity to be heard. 

Because Garbareno received actual notice of the disallowance of her 

claim on October 12, 2012, we conclude that the sixty-day time limit 

began to run on that date, and her petition was therefore timely 

filed. Cf. Yi Tu, 470 F.3d at 943, 946 (allowing delayed appeal as 

appropriate remedy where insufficient notice denied pilot right to 

timely appeal suspension of license). Garbareno should be allowed 

to proceed with her petition for allowance.

Conclusion

¶14 For the foregoing reasons, we reverse the trial court’s 

order granting the estate’s motion to dismiss, vacate the judgment 

entered against Garbareno, and remand for further proceedings 

consistent with this opinion.

 

received and had reasonable steps available to provide notice that 

we find a constitutional violation. See Jones, 547 U.S. at 238

(declining “‘to prescribe the form of service that the [government] 

should adopt’”), quoting Greene v. Lindsey, 456 U.S. 444, 455 n.9 (1982)

(alteration in Jones).