IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

MICHELE ADER, AN UNMARRIED WOMAN,

Plaintiff/Appellant,

v.

THE ESTATE OF DAN FELGER AND

CAROLYN FELGER, A WIDOW,

Defendants/Appellees.

No. 2 CA-CV 2015-0170

Filed May 27, 2016

Appeal from the Superior Court in Pima County

No. C20140037

The Honorable D. Douglas Metcalf, Judge

AFFIRMED

COUNSEL

Thompson∙Krone, P.L.C., Tucson

By Russell E. Krone and Evan L. Thompson

Counsel for Plaintiff/Appellant

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., 

Tucson

By Corey B. Larson and Ariel E. Henderson

Counsel for Defendants/Appellees
ADER v. ESTATE OF FELGER

Opinion of the Court

2

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in 

which Chief Judge Eckerstrom and Judge Howard concurred.

V Á S Q U E Z, Presiding Judge:

¶1 Michele Ader appeals the trial court’s entry of summary 

judgment in favor of the Estate of Dan Felger and his widow 

Carolyn Felger and its subsequent denial of her motion for a new 

trial. The primary issue presented in this appeal requires us to 

interpret A.R.S. § 14-3803 and A.R.S. § 14-3108 to determine whether 

Ader’s claims against the Estate are time-barred because no probate 

proceeding was initiated in Arizona within two years following Dan 

Felger’s death. For the reasons stated below, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences 

therefrom in the light most favorable to Ader, the party against 

whom summary judgment was entered. See Delo v. GMAC Mortg., 

L.L.C., 232 Ariz. 133, ¶ 2, 302 P.3d 658, 659 (App. 2013). However, 

the relevant facts are undisputed. In 1974, Ader began investing in 

commercial properties with Dan Felger. Ader helped fund the 

purchase of the properties, and Dan Felger rehabilitated, managed, 

and eventually refinanced or sold them. Starting in the mid-1990s, 

Dan Felger created separate limited liability companies for each of 

the investment properties. The members of those companies were 

Ader and the Felger Family Trust, for which Dan Felger served as 

trustee. In 2007, Dan Felger was diagnosed with cancer and started 

training his son-in-law, Michael Rosberg, to take over the business. 

Dan Felger died in November 2010. Less than two years later, Ader 

stopped receiving her monthly interest payments for two properties

in southern Arizona, Bella Vista Townhomes, L.L.C. and MV 

Apartments, L.L.C.

¶3 In January 2014, Ader filed a lawsuit against various 

defendants, including Bella Vista Townhomes, the Felger Family 
ADER v. ESTATE OF FELGER

Opinion of the Court

3

Trust, Rosberg, and, as relevant to this appeal, “the Estate of Dan 

Felger” and “Carolyn Felger, a widow.” Ader alleged numerous 

claims, such as breach of contract, breach of fiduciary duty, 

fraudulent concealment, negligent misrepresentation, conversion, 

and racketeering. Six months later, Carolyn Felger and the Estate of 

Dan Felger (collectively hereinafter Felger) filed a motion for 

summary judgment, arguing that, because Ader’s claims against the 

Estate were based on Dan Felger’s actions before his death, they 

were time-barred. Felger similarly asserted that the claims against 

Carolyn Felger were time-barred because Ader alleged her liability 

“for community property reasons.” With her response, Ader 

requested that the trial court defer ruling on the motion for 

summary judgment and allow additional time to conduct discovery. 

After requesting supplemental briefing and hearing oral argument, 

the court granted the motion for summary judgment and entered a 

final judgment pursuant to Rule 54(b), Ariz. R. Civ. P. Ader 

subsequently filed a motion for a new trial, which the court denied. 

This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1) and 12-2101(A)(1), (5).

Additional Discovery

¶4 Ader first contends the trial court “should have 

deferred ruling on . . . Felger’s motion for summary judgment” and 

should have granted additional time for discovery pursuant to 

Rule 56(f), Ariz. R. Civ. P.

1 We review a trial court’s Rule 56(f)

determination for an abuse of discretion. Lewis v. Oliver, 178 Ariz. 

330, 338, 873 P.2d 668, 676 (App. 1993).

¶5 Rule 56(f)(1)(A) provides:

If a party opposing summary judgment 

files a request for relief and expedited 

 

1 Although the trial court did not explicitly deny Ader’s 

Rule 56(f) motion, it implicitly did so by entering summary 

judgment in favor of Felger. See Atchison, Topeka & Santa Fe Ry. Co. 

v. Parr, 96 Ariz. 13, 15, 391 P.2d 575, 577 (1964) (motions not ruled 

upon deemed denied by operation of law).
ADER v. ESTATE OF FELGER

Opinion of the Court

4

hearing under this Rule, along with a 

supporting affidavit showing that, for 

specified reasons, it cannot present 

evidence essential to justify its opposition, 

the [trial] court may, after holding a 

hearing[,] . . . defer considering the motion 

for summary judgment and allow time to 

obtain affidavits or to take discovery before 

a response to the motion is required.

However, the court has no discretion and must “grant summary 

judgment if the moving party shows that there is no genuine dispute 

as to any material fact and the moving party is entitled to judgment 

as a matter of law.” Ariz. R. Civ. P. 56(a).

¶6 As part of her Rule 56(f) request, Ader sought 

additional information regarding Dan Felger’s separate property, 

which she alleged passed to different trusts upon his death, as well 

as “the trust documents, the trust funding documents, trust and 

personal banking records and trust and personal tax returns.” She 

also wanted information concerning any loans made by Dan Felger 

or the Felger Family Trust to the limited liability companies. She 

argued this information was “essential to understanding the 

financial arrangements” between the various defendants.

¶7 However, the issue presented in the motion for 

summary judgment—whether Ader’s claims were time-barred—was 

a pure question of law. Cf. Montano v. Browning, 202 Ariz. 544, ¶ 4, 

48 P.3d 494, 496 (App. 2002) (describing statute of limitations and 

accrual of action as question of law). The additional discovery Ader 

sought had no bearing on that issue and would have only delayed 

the inevitable result. See Josue v. Isuzu Motors Am., Inc., 958 P.2d 535, 

540 (Haw. 1998) (“Because this is solely a question of law, the 

discovery requested was not only irrelevant, but would have 

subjected the parties to unnecessary cost and expense.”); United Sav. 

Bank v. State, 823 A.2d 873, 876 (N.J. Super. Ct. App. Div. 2003) (if 

summary judgment turns on question of law, additional discovery 

unnecessary and summary judgment need not be delayed). We 

therefore cannot say the trial court abused its discretion. See Lewis, 

178 Ariz. at 338, 873 P.2d at 676.
ADER v. ESTATE OF FELGER

Opinion of the Court

5

Summary Judgment

¶8 Ader next contends the trial court erred in granting 

summary judgment in favor of the Estate.

2 Specifically, she 

maintains the court erroneously interpreted § 14-3803 and § 14-3108

to bar her claims against the Estate when no personal representative 

had been appointed and her claims “did not arise and had been 

concealed for more than two years after [Dan Felger’s] death.” We 

review de novo a grant of summary judgment. Cohen v. Lovitt & 

Touche, Inc., 233 Ariz. 45, ¶ 6, 308 P.3d 1196, 1198 (App. 2013).

¶9 The issue here turns on the interpretation and 

application of § 14-3803 and § 14-3108, which are questions of law 

that we review de novo. See Moore v. Browning, 203 Ariz. 102, ¶ 21, 

50 P.3d 852, 858 (App. 2002). We construe statutes to fulfill the 

intent of our legislature. First Credit Union v. Courtney, 233 Ariz. 105, 

¶ 9, 309 P.3d 929, 931 (App. 2013). “When interpreting a statute, we 

look first to the plain language because that is ‘the best and most 

reliable index of a statute’s meaning.’” City of Tucson v. Clear 

Channel Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App. 

2008), quoting N. Valley Emergency Specialists, L.L.C. v. Santana, 208 

Ariz. 301, ¶ 9, 93 P.3d 501, 503 (2004). In doing so, we “give words 

their ordinary meaning and may look to dictionary definitions.” 

DBT Yuma, L.L.C. v. Yuma Cty. Airport Auth., 238 Ariz. 394, ¶ 9, 361 

 

2As to Carolyn Felger, the trial court found, “Because the 

claims against the Estate of Dan Felger are barred, including the 

claims against his community property assets, the claims against 

[Carolyn] that are asserted against her under the community 

property laws are likewise barred.” In support of its reasoning, the 

court relied on A.R.S. § 14-3101(A), which provides that “the 

surviving spouse’s share of the community property is subject to 

administration until the time for presentation of claims has expired, 

and thereafter only to the extent necessary to pay community 

claims.” Ader does not contest the court’s grant of summary 

judgment in favor of Carolyn and instead focuses on her claims 

against the Estate. See Dawson v. Withycombe, 216 Ariz. 84, ¶ 91, 163 

P.3d 1034, 1061 (App. 2007) (argument not raised in opening brief 

waived). We therefore do not address it.
ADER v. ESTATE OF FELGER

Opinion of the Court

6

P.3d 379, 381 (2015) (internal citation omitted). And we construe 

statutes “in conjunction with other statutes that relate to the same 

subject or purpose.” Johnson v. Mohave County, 206 Ariz. 330, ¶ 11, 

78 P.3d 1051, 1054 (App. 2003).

¶10 Section 14-3803 provides the time limits for creditors to 

present their claims against an estate. Subsection (A) applies to 

claims that “arose before” the decedent’s death, while subsection (C) 

applies to claims that “arise at or after” the decedent’s death. The 

first issue here is whether subsection (A) or (C) applies to Ader’s 

claims against the Estate. For the reasons discussed below, we 

conclude that subsection (A) applies. The second issue is how to

calculate the time limits in § 14-3803(A) when no personal 

representative was ever appointed for the estate and, consequently, 

the creditors received no notice to present their claims. For this 

answer, we turn to § 14-3108, which generally requires a personal 

representative to be appointed within two years of a decedent’s 

death. For the reasons discussed below, we conclude that § 14-

3803(A) bars Ader’s claims against the Estate because no personal 

representative was appointed within two years.

¶11 At the outset, we note that both § 14-3803 and § 14-3108

are part of Arizona’s probate code, which was modeled after the 

Uniform Probate Code. In re Estate of Winn, 214 Ariz. 149, n.4, 150 

P.3d 236, 240 n.4 (2007). Consistent with the Uniform Probate Code, 

our probate code “was designed to ‘promote a speedy and efficient 

system for liquidating the estate of the decedent and making 

distribution to his successors.’” Id. ¶ 20, quoting A.R.S. § 14-

1102(B)(3); see also Unif. Prob. Code § 1-102(b)(3).

A.R.S. § 14-3803

¶12 In relevant part, § 14-3803 provides:

A. All claims against a decedent’s

estate that arose before the death of the 

decedent, including claims of the state and 

any of its political subdivisions, whether 

due or to become due, absolute or 

contingent, liquidated or unliquidated, 
ADER v. ESTATE OF FELGER

Opinion of the Court

7

founded on contract, tort or other legal 

basis, if not barred earlier by any other 

statute of limitations or nonclaim statute, 

are barred against the estate, the personal 

representative and the heirs and devisees 

of the decedent, unless presented within 

the earlier of either:

1. Two years after the decedent’s 

death plus the time remaining in the period 

commenced by an actual or published 

notice pursuant to [A.R.S.] § 14-3801, 

subsection A or B.

2. The time prescribed by § 14-3801, 

subsection B for creditors who are given 

actual notice and within the time 

prescribed in § 14-3801, subsection A for all 

creditors barred by publication.3

. . . .

C. All claims against a decedent’s 

estate that arise at or after the death of the 

decedent, including claims of the state and 

any political subdivision, whether due or to 

become due, absolute or contingent, 

liquidated or unliquidated, founded on 

 

3Pursuant to § 14-3801(A), a personal representative must 

“publish a notice to creditors once a week for three successive weeks 

in a newspaper,” and that notice must inform “creditors of the estate 

to present their claims within four months after the date of the first 

publication of the notice or be forever barred.” Section 14-3801(B)

requires a personal representative to give all known creditors 

written notice “to present the creditor’s claim within four months 

after the published notice, if notice is given as provided in 

subsection A, or within sixty days after the mailing or other delivery 

of the notice, whichever is later, or be forever barred.”
ADER v. ESTATE OF FELGER

Opinion of the Court

8

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 either 

of the following:

1. A claim based on a contract with 

the personal representative, within four 

months after performance by the personal 

representative is due.

2. Any other claim, within the later 

of four months after it arises or the time 

specified in subsection A, paragraph 1 of 

this section.

¶13 As argued by the parties and addressed by the trial 

court, the issue here is: Which subsection of § 14-3803 applies. Ader 

maintains that subsection (C) governs this case because “she did not 

discover her claims against the Estate” until after Dan Felger’s 

death. Felger, however, contends that § 14-3803(A) is the relevant 

subsection because Ader’s claims against the Estate arose prior to 

Dan Felger’s death.4

 

4 Felger alternatively contends that California rather than 

Arizona law applies, asserting that “any proceedings . . . concerning 

the administration of Dan Felger’s estate should have been brought 

in California” because “Dan and Carolyn were, at all times, 

California residents, and because Dan Felger died in California.” In 

support of this argument, Felger cites Cal. Civ. Proc. Code § 395,

which provides:

Except as otherwise provided by law 

and subject to the power of the court to 

transfer actions or proceedings as provided 

in this title, the superior court in the county 

where the defendants or some of them 

reside at the commencement of the action is 

the proper court for the trial of the action.
ADER v. ESTATE OF FELGER

Opinion of the Court

9

¶14 In granting the motion for summary judgment, the trial 

court found § 14-3803(A) applicable. Reciting Ader’s claims against 

the Estate, as identified in her amended complaint, the court 

reasoned that, “even if [Ader] did not discover the claims against 

Dan Felger until after his death, the claims against him arose prior to 

his death.”

¶15 In her opening brief, Ader maintains she “did not learn 

of her potential claims against the Estate until financial documents 

were received on September 17, 2013 and she did not discover that 

the representations and statements made by Dan Felger to [her]

were false, untrue, or negligently made until after September 17, 

2013.” Specifically, she argues she was unaware of Dan Felger’s

misrepresentations concerning Bella Vista Townhomes and MV 

Apartments until after his death. She therefore reasons that § 14-

 

However, according to the Code Commission Notes for the statute, 

“[t]his section does not apply to probate proceedings.” With a 

probate, there may be ancillary proceedings in multiple states. See

Restatement (Second) of Conflict of Laws § 342 (1971); see also Leiby 

v. Superior Court of Maricopa Cty., 101 Ariz. 517, 518-19, 421 P.2d 874, 

875-76 (1966); In re Reynolds’ Estate, 20 P.2d 323, 324-25 (Cal. 1933).

Nevertheless, our legislature has adopted the law of a 

decedent’s domicile if outside of Arizona in § 14-3803(B), which 

provides: “A claim that is described in subsection A of this section 

and that is barred by the nonclaim statute of the decedent’s domicile 

before the giving of notice to creditors in this state is barred in this 

state.” Felger argues that Cal. Civ. Proc. Code § 366.2(a) bars Ader’s 

claims against the Estate in California. But that statute is not a 

nonclaim statute. The California statutory scheme and case law 

consistently refer to Cal. Civ. Proc. Code § 366.2 as a “statute of 

limitations.” See, e.g., Cal. Prob. Code § 9100(c); Cal. Fam. Code 

§ 914(c)(1); Bradley v. Breen, 86 Cal. Rptr. 2d 726, 732 (Ct. App. 1999); 

Battuello v. Battuello, 75 Cal. Rptr. 2d 548, 549-50 (Ct. App. 1998); see 

also In re Estate of Van Der Zee, 228 Ariz. 257, ¶ 18, 265 P.3d 439, 442 

(App. 2011) (defining nonclaim statute and distinguishing statute of 

limitations). Accordingly, Cal. Civ. Proc. Code § 366.2(a) does not fit 

within the scope of § 14-3803(B) and does not bar Ader’s claims.
ADER v. ESTATE OF FELGER

Opinion of the Court

10

3803(C) applies and she “timely filed” this lawsuit “within the four 

month time limit” provided therein.5

¶16 The plain language of § 14-3803 indicates that claims 

against an estate must be presented within certain time limits based 

on when those claims “arise.” See City of Tucson, 218 Ariz. 172, ¶ 6, 

181 P.3d at 225. “Arise” has an ordinary meaning. See DBT Yuma, 

238 Ariz. 394, ¶ 9, 361 P.3d at 381. It generally means “[t]o come into 

being; originate.” The American Heritage Dictionary 95 (5th ed. 2011); 

see also Arise, Black’s Law Dictionary (10th ed. 2014) (“To originate; to 

stem (from).”). Applying that meaning to § 14-3803, a claim arises 

when it comes into being, for example, when a decedent commits 

the act that is the basis of the claim. Thus, under § 14-3803, it makes 

no difference when the plaintiff learns of or discovers the claim.

¶17 Ader nevertheless urges us to apply the discovery rule 

to § 14-3803. Under that doctrine, “a plaintiff’s cause of action does 

not accrue until the plaintiff knows or, in the exercise of reasonable 

diligence, should know the facts underlying the cause.” Gust, 

Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588, 

898 P.2d 964, 966 (1995); see also Wyckoff v. Mogollon Health All., 232 

Ariz. 588, ¶ 9, 307 P.3d 1015, 1018 (App. 2013) (statute of limitations 

does not run from moment of defendant’s injurious conduct but 

from when claimant knows or should know of injury and facts 

underlying cause).

 

5At oral argument, Ader maintained that “a claim is not 

actionable until all the elements of the claim exist.” And she 

specifically asserted that the element of damages for her fraud claim 

could not be determined until after Dan Felger’s death. Although 

Ader alleged she did not discover her claims until after Dan Felger’s 

death, she did not present this “elements” argument in her opening 

brief. Instead, she argued that, because the defendants had 

concealed their conduct, she did not become aware of her claims 

until she received certain financial documents. We therefore do not 

address this “elements” argument further. See Mitchell v. Gamble, 

207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App. 2004) (“Generally, 

issues and arguments raised for the first time at oral argument on 

appeal are untimely and deemed waived.”).
ADER v. ESTATE OF FELGER

Opinion of the Court

11

¶18 However, § 14-3803 is a nonclaim statute. In re Estate of 

Barry, 184 Ariz. 506, 508, 910 P.2d 657, 659 (App. 1996). A nonclaim 

statute is “‘[a] law that sets a time limit for creditors to bring claims 

against a decedent’s estate. Unlike a statute of limitations, a 

nonclaim statute is usu[ally] not subject to tolling and is not 

waivable.’” In re Estate of Van Der Zee, 228 Ariz. 257, ¶ 18, 265 P.3d 

439, 442 (App. 2011), quoting Black’s Law Dictionary 1449 (8th ed. 

2004) (second alteration in Estate of Van Der Zee). Thus, by its very 

definition, a nonclaim statute is generally not subject to the 

discovery rule, which tolls the period for bringing a claim. See ELM 

Ret. Ctr., LP v. Callaway, 226 Ariz. 287, ¶ 11, 246 P.3d 938, 941 (App. 

2010) (discovery rule tolls limitations period); see also 51 Am. Jur. 2d 

Limitation of Actions § 3 (2016) (“The time element is a built-in 

condition of a nonclaim statute and is of the essence of the right of 

action . . . .”). Other states have also determined that the discovery 

rule does not apply to their comparable nonclaim statutes. See

Phillips v. Quick, 731 S.E.2d 327, 329-30 (S.C. Ct. App. 2012); In re 

Estate of Peterson, 9 P.3d 845, 849 (Wash. Ct. App. 2000).

¶19 Moreover, where the discovery rule applies, our 

legislature generally uses the term “accrue” to describe when the 

statute of limitations begins to run. See Gust, Rosenfeld & Henderson, 

182 Ariz. at 588, 898 P.2d at 966 (interpreting A.R.S. § 12-548, which 

uses “accrue”); Anson v. Am. Motors Corp., 155 Ariz. 420, 424, 747 

P.2d 581, 585 (App. 1987) (under A.R.S. § 12-542, two-year statute of 

limitations “does not begin to run until the cause of action ‘accrues,’ 

which means that the discovery rule applies”). However, § 14-3803

uses the term “arise,” not “accrue.” Contrary to Ader’s suggestion 

otherwise, these two terms do not “mean the same thing.” In this 

context, “accrue” has a special legal meaning. “[A] cause of action 

accrues, and the statute of limitations commences, when one party is 

able to sue another.” Gust, Rosenfeld & Henderson, 182 Ariz. at 588, 

898 P.2d at 966. By contrast, as stated above, in the context of a

nonclaim statute, “arise” refers to the decedent’s act or conduct 

upon which a claim is based. We “will not read into a statute 

something that is not within the manifest intent of the legislature as 

indicated by the statute itself, nor will [we] inflate, expand, stretch, 

or extend a statute to matters not falling within its express 

provisions.” Cicoria v. Cole, 222 Ariz. 428, ¶ 15, 215 P.3d 402, 405 
ADER v. ESTATE OF FELGER

Opinion of the Court

12

(App. 2009). This is particularly true given that our legislature has 

used the term “accrue” elsewhere. See Hughes v. Jorgenson, 203 Ariz. 

71, ¶ 11, 50 P.3d 821, 823 (2002) (we assume legislature said what it 

means). The discovery rule therefore does not apply to § 14-3803.

¶20 Here, Ader is alleging claims based on 

misrepresentations by Dan Felger. Such claims necessarily arose 

before his death. We therefore conclude that § 14-3803(A) applies.

¶21 In her reply brief, Ader nonetheless maintains that 

“[s]pecific paragraphs in the Amended Complaint clearly alleged 

that the Felger Estate had engaged in tortious conduct after Dan 

Felger’s death and that the tortious conduct was continuing.” She 

therefore reasons that § 14-3803(C) must apply to those claims. But 

Ader misapprehends the concept of a decedent’s estate.

¶22 An estate is a collection of the decedent’s assets and 

liabilities. See A.R.S. § 14-1201(17) (defining “estate” as “the 

property of the decedent”); see also In re Johnson’s Estate, 129 Ariz. 

307, 310, 630 P.2d 1039, 1042 (App. 1981). As such, it has no capacity 

to bring or defend a lawsuit. Simply put, an estate cannot “act.” 

Rather, it can only sue and be sued through its personal 

representative, who “acts” on behalf of the estate. See A.R.S. § 14-

3701 (duties and powers of personal representative). Accordingly, 

when an estate is involved in litigation, the personal representative 

is the proper named defendant. See A.R.S. § 14-3110; see also Ariz. R. 

Civ. P. 17(c); In re Balcomb’s Estate, 114 Ariz. 519, 521, 562 P.2d 399, 

401 (App. 1977). Moreover, personal representatives can be 

personally liable for their actions. See A.R.S. § 14-3935. For example, 

“[a] personal representative is individually liable for obligations 

arising from ownership or control of the estate or for torts 

committed in the course of administration of the estate . . . if he is 

personally at fault.” A.R.S. § 14-3808(B). Heirs or devisees of a

decedent can also be liable, for example, for improper distributions. 

See A.R.S. §§ 14-3909, 14-3936.

¶23 The causes of action described by Ader as arising after 

Dan Felger’s death must be aimed at those individuals directly 

responsible. See §§ 14-3808, 14-3909. Indeed, Ader’s amended 

complaint seems to reflect this notion. Her claims against the Estate 
ADER v. ESTATE OF FELGER

Opinion of the Court

13

for breach of fiduciary duty are premised on her belief that “the 

Felger Trust allowed . . . the Estate of Dan Felger to act as the alter 

ego of . . . the Felger Trust.” Thus, Ader is not alleging that the 

Estate affirmatively committed any act constituting a breach of 

fiduciary duty. Notably, Ader’s amended complaint also names 

Rosberg, the Felger Family Trust, Bella Vista Townhomes, and 

others as defendants; here, we are only concerned with the Estate. 

And Ader’s claims against the Estate fall under § 14-3803(A).

6

¶24 Turning to § 14-3803(A), it provides that claims against 

an estate arising before the decedent’s death are barred if not 

presented within certain time limits following the personal 

representative’s notice to creditors. The parties do not dispute the 

meaning of these provisions. Rather, the issue is: How does a court 

calculate the time limits in § 14-3803(A) when no personal 

representative has been appointed and, consequently, no notice has 

been given to creditors? See A.R.S. § 14-3104 (“No proceeding to 

enforce a claim against the estate of a decedent or his successors may 

be revived or commenced before the appointment of a personal 

 

6Ader additionally asserts that A.R.S. § 14-1106 allows her to 

bring claims against the Estate after they were discovered. 

However, Ader’s amended complaint did not rely upon § 14-1106 as 

the basis for any of her claims, and she developed no argument in 

her opening brief, as required by Rule 13(a)(7), Ariz. R. Civ. App. P., 

to explain how this statute applies. We therefore could deem the 

argument waived. See In re Aubuchon, 233 Ariz. 62, ¶ 6, 309 P.3d 886, 

888-89 (2013). But, even assuming it is not waived, we disagree with 

Ader.

In relevant part, § 14-1106 explains, “If fraud has been 

perpetrated in connection with any proceeding . . . under this 

title . . . , any person injured thereby may obtain appropriate relief 

against the perpetrator of the fraud . . . within two years after the 

discovery of the fraud.” This statute is thus specifically directed at 

the “perpetrator of the fraud” or “any person . . . benefiting from the 

fraud,” not an estate generally. As discussed above, Ader must 

direct her claims against those responsible individuals.
ADER v. ESTATE OF FELGER

Opinion of the Court

14

representative.”). For the answer to this question, we turn to § 14-

3108.

A.R.S. § 14-3108

¶25 In relevant part, § 14-3108 provides:

An informal probate or appointment 

proceeding or formal testacy or 

appointment proceeding, other than a 

proceeding to probate a will previously 

probated at the testator’s domicile and 

appointment proceedings relating to an 

estate in which there has been a prior 

appointment, shall not be commenced 

more than two years after the decedent’s 

death, except:

. . . .

4. An informal probate or 

appointment or a formal testacy or 

appointment proceeding may be 

commenced thereafter if no court 

proceeding concerning the succession or 

administration has occurred within the two 

year period. If proceedings are brought 

under this exception, the personal 

representative has no right to possess estate 

assets as provided in [A.R.S.] § 14-3709

beyond that necessary to confirm title 

thereto in the rightful successors to the 

estate. Claims other than expenses of 

administration shall not be presented 

against the estate.

¶26 After concluding that § 14-3803(A) applied, the trial 

court noted that the time limit thereunder is “two years from the 

date of death plus the time remaining of the four month period that 

begins to run after the personal representative provides notice to 
ADER v. ESTATE OF FELGER

Opinion of the Court

15

potential creditors.” However, the court also pointed out that, as to 

Dan Felger, “no probate has been opened, no personal 

representative has been appointed, and no notice has been provided 

to creditors.” Relying on § 14-3108, the court found “there is 

generally a two year limit on the time to appoint a personal 

representative” and the exception in subsection (4) does not apply to 

Ader’s claims against the Estate. Accordingly, “because the time to

seek the appointment of a personal representative has passed,” the 

court concluded that “the claims against the Estate of Dan Felger are 

barred under . . . § 14-3803(A).”

¶27 The plain language of § 14-3108, which is titled 

“ultimate time limit,” provides that a probate proceeding generally 

must be brought within two years of a decedent’s death. See City of 

Tucson, 218 Ariz. 172, ¶ 6, 181 P.3d at 225; see also A.R.S. § 14-

3301(B)(1)(f) (application for informal probate of will or 

appointment of personal representative must include statement that 

two-year “time limit . . . has not expired”). Indeed, the comment to 

Unif. Prob. Code § 3-108, after which § 14-3108 was modeled, 

indicates that probate proceedings “must be commenced” within the

“ultimate time limit” or “no administration could be opened.” 

Other states have also described their comparable statutes as 

providing a bar to late probate proceedings. See In re Estate of 

Collopy, 88 A.3d 153, ¶ 6 (Me. 2014) (Maine’s equivalent 

“unambiguously bars the commencement of all appointment 

proceedings . . . three years after the decedent’s death”); In re Estate 

of Taylor, 675 P.2d 944, 945 (Mont. 1984) (describing Montana’s 

equivalent as “clear[ly] and unambiguous[ly]” providing “threeyear time limit on commencing a proceeding to probate a will”).

¶28 However, § 14-3108(4) allows for a late proceeding if no 

earlier proceeding occurred within the two years following the 

decedent’s death.

7 Such is the case here, which means a personal 

representative could still be appointed. But § 14-3108(4) contains a 

 

7Section 14-3108 includes three other exceptions, but none 

applies here. There was no “doubt about the fact of” Dan Felger’s 

death, he was not “absent, disappeared or missing,” and there was 

no “informally probated will.” § 14-3108(1)-(3).
ADER v. ESTATE OF FELGER

Opinion of the Court

16

caveat: In a tardy proceeding, the personal representative can only 

“confirm title” to estate assets, and “[c]laims other than expenses of 

administration shall not be presented against the estate.” We thus 

must determine this latter provision’s effect on Ader’s claims.

¶29 Admittedly, there is “scant case law on § 14-3108 in 

Arizona and analogous Uniform Probate Code provisions in other 

states.” Estate of Winn, 214 Ariz. 149, ¶ 20, 150 P.3d at 240. 

However, the language of subsection (4) is plain and unambiguous. 

See City of Tucson, 218 Ariz. 172, ¶ 6, 181 P.3d at 225; see also In re 

Estate of Baca, 984 P.2d 782, ¶ 22 (N.M. Ct. App. 1999) (“Perhaps 

because of its clarity, there is little case law interpreting this 

provision of the Uniform Probate Code.”). Although a personal 

representative can be appointed more than two years after the 

decedent’s death if no prior proceeding occurred, in that late

proceeding, the personal representative can only settle claims for 

“expenses of administration”8 because “[c]laims other than expenses 

of administration shall not be presented against the estate.” Limiting 

the claims to be brought in a tardy proceeding is consistent with the 

purpose of Arizona’s probate code—it puts the burden on a creditor 

to keep informed of the status of a debtor and to promptly pursue 

his or her claims if the debtor dies. See § 14-1102(B)(3); see also Estate 

of Baca, 984 P.2d 782, ¶¶ 24-25.

¶30 “Expenses of administration” are “[e]xpenses incurred 

by a decedent’s representatives in administering the estate.” 

Expenses of Administration, Black’s Law Dictionary (10th ed. 2014); see 

also Garver v. Thoman, 15 Ariz. 38, 42, 135 P. 724, 725 (1913)

(describing “expenses of administration” as debts incurred while 

locating and disposing of estate assets and obligations). Ader’s 

claims for damages stemming from Dan Felger’s misrepresentations

do not fall within this definition. Therefore, even though a personal 

representative could still be appointed for the Estate, Ader’s claims 

 

8Pursuant to A.R.S. § 14-1201(7), “claims” includes “liabilities 

of the decedent or the protected person, whether arising in contract, 

in tort or otherwise, and liabilities of the estate that arise at or after 

the death of the decedent or after the appointment of a conservator, 

including funeral expenses and expenses of administration.”
ADER v. ESTATE OF FELGER

Opinion of the Court

17

could not be presented. See In re Estate of Wood, 147 Ariz. 366, 367, 

710 P.2d 476, 477 (App. 1985) (describing § 14-3108 as “statutory 

limitation” on court’s power).

¶31 Construing these statutes together, we conclude that the 

two-year time limit for appointing a personal representative in § 14-

3108 applies to § 14-3803(A). See Johnson, 206 Ariz. 330, ¶ 11, 78 P.3d 

at 1054. Thus, despite the fact that a personal representative has not 

been appointed because no probate proceeding was initiated, § 14-

3803(A) bars claims other than expenses of administration presented

more than two years after the decedent’s death. Without applying 

the two-year time limit to § 14-3803(A), the time for presenting a 

claim thereunder could continue indefinitely. This would be an 

“absurd result,” Knight Transp., Inc. v. Ariz. Dep’t of Transp., 203 Ariz. 

447, ¶ 22, 55 P.3d 790, 795 (App. 2002) (we attempt to give statutes 

sensible meaning and avoid construction that produces absurd 

result), particularly in light of our probate code’s stated purpose of 

“speedy and efficient” estate administrations, § 14-1102(B)(3).

¶32 Ader nevertheless contends that, pursuant to Estate of 

Winn, 214 Ariz. 149, ¶¶ 19-20, 150 P.3d at 240, “[t]he efficient 

administration of estates is intended to benefit creditors as well as 

successors.” She argues that, under the trial court’s summaryjudgment ruling, she was “denied the benefit of the Probate Code,” 

while “the defendants, including Carolyn Felger, failed to open a 

probate and seek to use the probate code as a sword to avoid 

probating Dan Felger’s separate property.”

¶33 Estate of Winn is inapposite. There, our supreme court 

had to determine whether a late-appointed personal representative 

could pursue an elder-abuse claim, brought under the Adult 

Protective Services Act, on behalf of a decedent’s estate, despite the 

language in § 14-3108(4) indicating that, in tardy proceedings, a 

personal representative can only “confirm title.” Estate of Winn, 214 

Ariz. 149, ¶¶ 1, 5-6, 150 P.3d at 237-38. Although the court 

recognized that “efficient administration and finality” under 

Arizona’s probate code “are intended to protect the decedent’s 

successors and creditors,” it was the putative tortfeasor in that case 

that sought to “invoke this policy to protect itself from potential 

liability.” Id. ¶ 20. And the court refused to so apply it. Id.
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Opinion of the Court

18

¶34 Moreover, although the goals of “efficient 

administration and finality” may be intended to benefit creditors,

their purpose is to secure a distribution from the decedent’s estate 

and to resolve any further “disruptions to possession of the 

decedent’s property.” Id.; see also § 14-3909 (liability of improperly 

paid claimant). In other words, creditors are entitled to timely and 

conclusively receive that which they are owed. However, that is not 

the way in which Ader attempts to use this policy; rather, she is 

trying to use it as a basis for allowing her untimely creditor claims to 

proceed.

¶35 As mentioned above, creditors have a responsibility to 

timely pursue their claims. See § 14-1102(B)(3); Estate of Baca, 984 

P.2d 782, ¶¶ 24-25. The Joint Editorial Board of the Uniform Probate 

Code recognized a problem similar to the one identified by Ader: 

“Successors who are willing to delay receipt and enjoyment of 

inheritances may consider waiting out the non-claim period running 

from death simply to avoid any public record of an administration 

that might alert known and unknown creditors to pursue their 

claims.” Unif. Prob. Code § 3-803 cmt. However, the Board 

concluded that this scenario was “unlikely” because “unpaid 

creditors of a decedent are interested persons . . . who are qualified 

to force the opening of an estate for purposes of presenting and 

enforcing claims.” Id.; see also A.R.S. § 14-3203(A) (allowing “any 

creditor” to seek appointment as personal representative). Ader 

knew within a week of his death that Dan Felger had died. She had 

an obligation to promptly pursue any potential claims but failed to 

do so.

Summary

¶36 Claims against an estate that arose before the decedent’s 

death must be presented within the time limits of § 14-3803(A). 

Because such claims cannot be presented until a personal 

representative has been appointed for the estate, § 14-3104, the onus 

is on creditors to initiate probate proceedings when none are 

forthcoming, see § 14-3203(A)(7). Otherwise, if a personal 

representative is not appointed within two years of the decedent’s 

death, most claims cannot be presented against the estate. § 14-

3108(4). And, despite the fact that a personal representative has not 
ADER v. ESTATE OF FELGER

Opinion of the Court

19

been appointed, § 14-3803(A) bars most claims when brought more 

than two years after the decedent’s death. See § 14-3108(4). 

Accordingly, pursuant to § 14-3803(A) and § 14-3108(4), Ader’s 

claims against the Estate are time-barred. The trial court therefore 

did not err in granting summary judgment. See Cohen, 233 Ariz. 45, 

¶ 6, 308 P.3d at 1198.

Motion for a New Trial

¶37 Ader lastly asserts the trial court erred in denying her 

motion for a new trial. Specifically, she contends the court “erred by 

entering judgment for the Estate of Dan Felger when it lacked 

personal jurisdiction over that party.” We generally review a trial 

court’s denial of a motion for a new trial for an abuse of discretion. 

Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 8, 322 P.3d 

168, 172 (App. 2014). However, jurisdiction is a question of law 

subject to our de novo review. Duwyenie v. Moran, 220 Ariz. 501, ¶ 7, 

207 P.3d 754, 756 (App. 2009).

¶38 As part of its summary-judgment ruling, the trial court 

“note[d] that the estate of a deceased is not a proper party in a civil 

matter” and “the personal representative of the estate is the proper 

party.” See § 14-3110; Ariz. R. Civ. P. 17(c). However, relying on 

Rule 17(a), the court stated, “[W]hen an action is not filed against the 

real party in interest, the remedy is to allow the real party in interest 

to be substituted in rather than dismissing the action.” And the 

court concluded that “resolution of whether the nonclaim statute 

bars the claims against the Estate should [not] be postponed until 

after a personal representative is appointed” because “the claims are 

time barred in part because the time to have a personal 

representative appointed has passed.”

¶39 Ader apparently relied on this determination as the 

basis for her motion for a new trial. She pointed out the trial court 

“found that a personal representative can never be appointed [for 

the Estate] under any circumstances because of the two year 

limitation” in § 14-3108(4). She then reasoned that “there can never 

be an appropriate real party in interest substituted in this case” and 

“the Estate of Dan Felger” as named in her amended complaint “is 
ADER v. ESTATE OF FELGER

Opinion of the Court

20

obviously not a proper party.” She therefore concluded, “[I]t is error 

and contrary to law to enter any type of judgment for the Estate.”

¶40 Ader seems to reurge this argument on appeal. She

maintains the trial court had “no personal jurisdiction to enter 

judgment on behalf of the Estate.” She additionally asserts the court 

did not have subject matter jurisdiction over the “probate claims.”

She therefore contends “the Rule 54(b) judgment is void.”9

¶41 We recognize the initial logic of Ader’s personal 

jurisdiction argument. See Ariz. R. Civ. P. 54(b) (referring to 

judgment involving “parties”); see also Ariz. R. Civ. P. 17(c). 

However, improperly naming a defendant in a complaint does not 

somehow defeat otherwise proper personal jurisdiction. See Ariz. R. 

Civ. P. 10(f) (when name of defendant unknown to plaintiff, 

defendant may be designated “by any name” and “amended 

accordingly”); see also Morgan Bank (Delaware) v. Wilson, 164 Ariz. 

535, 537, 794 P.2d 959, 961 (App. 1990) (personal jurisdiction may be 

waived). As explained above, a personal representative can still be 

appointed for the Estate; Ader’s claims, however, could not be 

presented in that tardy proceeding. See § 14-3108(4). It would thus 

be futile to name a personal representative for the sole purpose of 

 

9Felger contends this argument is waived because it was first 

asserted in Ader’s motion for a new trial. See Conant v. Whitney, 190 

Ariz. 290, 293, 947 P.2d 864, 867 (App. 1997). In response, Ader 

correctly points out that challenges to a court’s subject matter 

jurisdiction can be asserted at any time. See Health for Life Brands, 

Inc. v. Powley, 203 Ariz. 536, ¶ 12, 57 P.3d 726, 728 (App. 2002). But

the thrust of her argument appears to be one of personal jurisdiction, 

which can be waived. See Morgan Bank (Delaware) v. Wilson, 164 

Ariz. 535, 537, 794 P.2d 959, 961 (App. 1990). Moreover, we question 

whether Ader can properly challenge the court’s personal 

jurisdiction over a defendant she named in her amended complaint. 

Cf. Bohreer v. Erie Ins. Exch., 216 Ariz. 208, ¶ 24, 165 P.3d 186, 193 

(App. 2007) (when party consents to personal jurisdiction, party 

estopped from later denying such jurisdiction). Nevertheless, we do 

not resolve these issues and instead address the merits of Ader’s 

argument.
ADER v. ESTATE OF FELGER

Opinion of the Court

21

entering summary judgment in favor of the Estate. Cf. Yamamoto v. 

Santa Cruz Cty. Bd. of Supervisors, 124 Ariz. 538, 539, 606 P.2d 28, 29 

(App. 1979) (affirming entry of summary judgment in favor of 

superior court because court not sui juris and not proper defendant). 

¶42 Ader’s argument contesting the trial court’s subject 

matter jurisdiction seems to be based on an imprecise understanding 

of the concept. Older case law has used the phrase subject matter 

jurisdiction “somewhat loosely,” for instance, to describe a “court’s 

inability to enter a valid judgment.” State v. Maldonado, 223 Ariz. 

309, ¶¶ 15-16, 223 P.3d 653, 655 (2010). This appears to be the basis 

of Ader’s argument.

¶43 However, “‘[i]n current usage,’” subject matter 

jurisdiction “‘refers to a court’s statutory or constitutional power to 

hear and determine a particular type of case.’” In re Marriage of 

Thorn, 235 Ariz. 216, ¶ 17, 330 P.3d 973, 977 (App. 2014), quoting 

Maldonado, 223 Ariz. 309, ¶ 14, 223 P.3d at 655. The trial court had 

jurisdiction over this civil action in which Ader sought damages for 

various claims, including breach of fiduciary duty and fraudulent 

concealment. See Ariz. Const. art. VI, § 14; Gatecliff v. Great Republic 

Life Ins. Co., 154 Ariz. 502, 507, 744 P.2d 29, 34 (App. 1987). And, 

although the probate of the Estate of Dan Felger is not the focus of

this action, the trial court also had subject matter jurisdiction over 

probate-related issues. See A.R.S. § 14-1302(A)(1).

¶44 Ader nevertheless suggests the trial court should have 

dismissed without prejudice her claims against Felger rather than 

entering a judgment on the merits. “‘A judgment on the merits is 

one which is based on legal rights as distinguished from mere 

matters of practice, procedure, jurisdiction or form.’” Columbia 

Parcar Corp. v. Ariz. Dep’t of Transp., 193 Ariz. 181, ¶ 15, 971 P.2d 

1042, 1045 (App. 1999), quoting Fairmont Aluminum Co. v. Comm’r of 

Internal Revenue, 222 F.2d 622, 625 (4th Cir. 1955). Whether Ader’s 

claims against Felger are time-barred is a legal question, see Montano, 

202 Ariz. 544, ¶ 4, 48 P.3d at 496, the answer to which resolves her 

rights in this matter, cf. Albano v. Shea Homes Ltd. P’ship, 227 Ariz. 

121, ¶ 24, 254 P.3d 360, 366 (2011) (“[A] statute of repose defines a 

substantive right.”). Although the court’s summary judgment was a 

final judgment on the merits, see El Paso Nat. Gas Co. v. State, 123 
ADER v. ESTATE OF FELGER

Opinion of the Court

22

Ariz. 219, 222, 599 P.2d 175, 178 (1979), we cannot say the court 

abused its discretion in denying Ader’s motion for a new trial.

10 See

Sandretto, 234 Ariz. 351, ¶ 8, 322 P.3d at 172; Duwyenie, 220 Ariz. 501, 

¶ 7, 207 P.3d at 756; see also Pi’Ikea, LLC v. Williamson, 234 Ariz. 284, 

n.7, 321 P.3d 449, 454 (App. 2014) (we may affirm trial court’s ruling 

if correct for any legal reason).

Attorney Fees on Appeal

¶45 Felger has requested attorney fees on appeal pursuant 

to A.R.S. § 12-341.01. That statute provides: “In any contested 

action arising out of a contract, express or implied, the court may 

award the successful party reasonable attorney fees.” § 12-

341.01(A). Felger has the burden of proving entitlement to an award 

under § 12-341.01(A). See Woerth v. City of Flagstaff, 167 Ariz. 412, 

419, 808 P.2d 297, 304 (App. 1990).

¶46 The “contract” on which Felger relies as the basis for the 

award is presumably the operating agreements for the limited 

liability companies. However, the parties to the operating 

agreements for both Bella Vista Townhomes and MV Apartments 

were Ader, Rosberg, and the Felger Family Trust—and Dan Felger 

signed those agreements as trustee of the trust. Neither Dan Felger 

in his individual capacity nor Carolyn Felger in her individual 

capacity was a party to those agreements. And, as Ader points out, 

she alleged no breach-of-contract claims against the Estate. 

Accordingly, Felger has failed to show that Ader’s claims against the 

Estate arose from the operating agreements. See Chaurasia v. Gen. 

Motors Corp., 212 Ariz. 18, ¶¶ 25-27, 126 P.3d 165, 173 (App. 2006)

(§ 12-341.01(A) permits recovery for non-contract action if action 

 

10 In her reply brief, Ader also asserts that “the entry of 

judgment for Carolyn Felger, on community property grounds, was 

invalid because the trial court did not have jurisdiction to enter a 

judgment in favor of the Felger Estate.” But her argument was 

raised too late. See Dawson v. Withycombe, 216 Ariz. 84, ¶ 91, 163 

P.3d 1034, 1061 (App. 2007) (argument not raised in opening brief 

waived). And, in any event, we disagree that the court lacked 

jurisdiction to enter judgment in favor of the Estate.
ADER v. ESTATE OF FELGER

Opinion of the Court

23

could not exist “but for” breach of contract; however, attorney fees 

not recoverable if contract only serves as “factual predicate” for 

action).

¶47 Felger nevertheless points out that Ader relied on § 12-

341.01 as a basis for attorney fees in her amended complaint. Felger 

therefore reasons that they “are entitled to recover their attorney’s 

fees for successfully defending against such claims.” But Felger has 

cited no authority to support this proposition, and we are aware of 

none. Notably, Ader’s amended complaint included breach-of 

contract-claims as to other defendants. 

¶48 In any event, “an award of fees under . . . § 12-341.01 is 

discretionary; it is not an entitlement.” Munger Chadwick, P.L.C. v. 

Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, ¶ 14, 329 P.3d 

229, 232 (App. 2014); see also Schwab Sales, Inc. v. GN Constr. Co., 196 

Ariz. 33, ¶ 11, 992 P.2d 1128, 1132 (App. 1998) (even if claim arises 

out of contract, award under § 12-341.01 is discretionary). We 

therefore exercise our discretion and deny Felger’s request for 

attorney fees.

Disposition

¶49 For the reasons stated above, we affirm the judgment 

and the denial of the motion for a new trial. As the prevailing party, 

Felger is entitled to costs on appeal, see A.R.S. § 12-341, contingent 

upon compliance with Rule 21, Ariz. R. Civ. App. P.