In Re: Estate Of Carver ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE ESTATE OF: No. 81447
DENNIS JOHN CARVER, DECEASED.
COLONIAL REAL ESTATE
PARTNERSHIP, LTD.; AND JOHN
HOULIHAN, FILED
Appellants,
vs. MAY 1 3 2022
RHONDA MORGAN, PERSONAL ELIZABETH A. BROWN
CLERK OFAUPREME COURT
REPRESENTATIVE OF THE ESTATE BY
PUTY CLERK
OF DENNIS JOHN CARVER,
Res • ondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a petition
to reopen an estate. Eighth Judicial District Court, Clark County; Trevor
L. Atkin, Judge.
Appellants paid Commercial Plumbing and AC, owned by
Dennis Carver, to store and eventually install plumbing equipment in one
of their properties. Carver died before the equipment was installed. While
respondent did not mail appellants a notice to creditors in the estate action,
appellants learned of Carver's death during the time for a creditor to file a
claim, but appellants failed to file a timely claim. Nine months after the
Nevada estate closed, appellants petitioned to reopen the estate so they
could file a creditor's claim and the district court denied that petition.
The district court did not abuse its discretion by denying
appellants petition to reopen the estate. See Reid v. Scheffler, 95 Nev. 265,
266, 592 P.2d 948, 949 (1979) (providing that this court reviews a district
court's decision to grant or deny a motion to reopen an estate for an abuse
of discretion). A district court has discretion to reopen an estate under NRS
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151.240. The party seeking tO reopen the estate has the evidentiary burden
of presenting facts warranting the district court's favorable exercise of
discretion. Cora? Coffee Co. v. Estate of Clark, 84 Nev. 208, 212, 438 P.2d
818, 821 (1968) ("The burden is upon him who seeks to file a late creditor's
claim in a probate proceeding to present facts to the trial court which justify
favorable exercise of discretion.").
Appellants did not meet their burden of demonstrating they
were a readily ascertainable creditor. While they assert that Commercial's
office manager was aware of appellants deposit at the time of Carver's
death and that they timely contacted respondent about installing their
equipment, there is substantial evidence in the record supporting
respondent's assertion that no claim was ever filed and that respondent was
unaware of appellants' claim. The record is conflicting at best as to
appellant's position that they were a readily ascertainable creditor, and
because substantial evidence existed in support of respondent's position, the
district court did not abuse its discretion in concluding that appellants did
not meet their burden of demonstrating that they were a readily
ascertainable creditor. See J & J Bldg. Contractors, Inc. v. Savage Constr.,
Inc., 92 Nev. 590, 590, 555 P.2d 488, 489 (1976) (explaining that the district
court's decision will not be disturbed if supported by conflicting, but
substantial evidence).
Further, the district court properly concluded that appellants'
creditor's claim was time-barred. A creditor has 30 days after receipt of a
mailed notice to creditors or 90 days after a published notice to creditors to
file a creditor's claim in an estate. NRS 147.040(2). If the creditor does not
file a claim within these time limits, "the claim is forever barred" unless the
creditor files the claim before the filing of the final account and
demonstrates that the creditor did not receive notice or have actual notice
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of the estate administration. NRS 147.040(3). "[K]nowledge of death or any
knowledge of the estate proceedings, coupled with failure to act after such
knowledge, are enough to support the lower court's discretion in denying a
late filing." Cont7 Coffee Co., 84 Nev. at 212, 438 P.2d at 821. Appellants
admitted to having actual knowledge of Carver's death during the time for
creditors claims to be filed, and thus, the district court did not abuse its
discretion in concluding that appellants' creditor's claim was time-barred.'
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
A'14G-ii) J.
Stiglich
J.
Herndon
'To the extent appellants contend the district court could not deny
appellants' petition without an evidentiary hearing, we conclude that
argument lacks merit. Appellants assert there was fraud upon the court,
but they did not properly raise the argument in an NRCP 60(b) motion, and
the evidence in the record belies that argument because there is no evidence
that fraud ever touched the Nevada estate. Further, an evidentiary hearing
would not be warranted merely because appellants asserted it was unclear
if the Nevada estate was ever closed, especially when the record does not
demonstrate the estate never closed.
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cc: Hon. Trevor L. Atkin, District Judge
Carolyn Worrell, Settlement Judge
Flangas Civil Law Firm, Ltd.
Rhonda Morgan
Eighth District Court Clerk
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