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Pettinger v. Carroll

Supreme Court of North Dakota

June 5, 2018

Robert W. Pettinger, Plaintiff and Appellant
John T. Carroll, Personal Representative of the Estate of James F. Pettinger, aka Jim F. Pettinger and Jim Pettinger, Defendant and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

          Sean T. Foss, Fargo, ND, for plaintiff and appellant.

          Robert J. Schultz, Fargo, ND, for defendant and appellee.


          JENSEN, JUSTICE.

         [¶ 1] Robert Pettinger ("Pettinger") appeals from a district court judgment dismissing his lawsuit against the estate of his brother, James Pettinger ("the Estate"). The court granted summary judgment in favor of the Estate, concluding Pettinger's lawsuit was untimely and barred by the applicable statute of limitations. Pettinger contends material questions of fact exist precluding summary judgment. We affirm.


         [¶ 2] In August 2016, following the denial of Pettinger's claim against the Estate, Pettinger sued John Carroll, personal representative of the Estate. Pettinger alleged he gave his brother nearly $110, 000 to invest in the late 1980s and early 1990s and that the funds had not been returned. Pettinger alleged the Estate was wrongfully in possession of his investment funds and requested more than $1.5 million from the Estate for the return of his initial investment plus interest.

         [¶ 3] Pettinger asserted that about ten years after he gave the funds to his brother he began asking his brother to return his money, but his brother refused or otherwise ignored the requests. Pettinger again requested the return of his money in 2007, but his brother continued to refuse or ignore the requests.

         [¶ 4] The Estate moved for summary judgment, arguing Pettinger's lawsuit was barred by the statute of limitations. The Estate argued Pettinger "knew or should have known as early as 2003 that James did not intend to return the alleged investments... belonging to Robert." The Estate argued Pettinger should have sued his brother within six years after Pettinger last requested the return of his money in 2007. Pettinger argued in response that his claim against his brother did not arise in 2007 because his brother did not expressly state he would not return the money. Pettinger asserted he did not know his money would not be returned until the Estate denied his claim.

         [¶ 5] Pettinger did not plead in his complaint, but argued in response to the Estate's motion for summary judgment, that an implied trust was created when he gave his brother money to invest. Pettinger contended the existence of a trust delayed the six-year time period for initiating a lawsuit against his brother until the trust was repudiated by Carroll's denial of his claim against the Estate in 2016.

         [¶ 6] The district court granted the Estate's motion for summary judgment, concluding Pettinger's claim against his brother's estate was statutorily time-barred. The court held Pettinger's cause of action began to accrue in 2007 because a reasonable person under the same circumstances should have known a cause of action existed. The court dismissed Pettinger's lawsuit with prejudice.


         [¶ 7] Pettinger argues the district court erred in granting the Estate summary judgment. This Court's standard of review for summary judgment is well established:

Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary judgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegations. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court's decision on summary judgment is a question of law that we review de novo on the record.

A.R. Audit Servs., Inc. v. Tuttle, 2017 ND 68, ¶ 5, 891 N.W.2d 757 (internal citations omitted).

         [¶ 8] Pettinger alleged the Estate wrongfully possessed his investment funds. Under N.D.C.C. § 28-01-16(4), "[a]n action... for the specific recovery of personal property must be commenced within six years after the claim for relief has accrued." "Generally, the statute of limitations begins to run from the commission of the wrongful act giving rise to the cause of action; however, that rule is subject to a discovery rule." Larson v. Midland Hosp. Supply, Inc., 2016 ND 214, ¶ 11, 891 N.W.2d 364. The discovery rule postpones a claim's accrual until the plaintiff knew, or with reasonable diligence should have known, of the wrongful act and its resulting injury. Id. (citing Wells v. First Am. Bank W., 1999 ND 170, ¶ 10, 598 N.W.2d 834). Courts use an objective standard for the knowledge requirement under the discovery rule, focusing on whether the plaintiff was aware of facts that would place a reasonable person on notice a potential claim exists, without regard to the plaintiff's subjective beliefs. Larson, at ¶ 11 (citing Wells, at ¶ 10). The determination of when a plaintiff's cause of action has accrued is generally a question of fact, but if the relevant facts are undisputed, the determination is for the court. Larson, at ¶ 11.

         [¶ 9] Both parties agree that the applicable statute of limitations is six years and the issue on appeal is limited to when the limitations period began to run. In other words, when did Pettinger's cause of action against his brother accrue? The parties agree to the relevant facts and contest only the legal significance of those facts. Pettinger argues the district court wrongfully concluded that there are no material questions of fact about when his cause of action arose, erred in concluding his cause of action arose in 2007, and erred in concluding his cause of action was time barred.

         [¶ 10] The district court concluded Pettinger's cause of action accrued in 2007 and reasonable persons could reach only one conclusion from the evidence. After addressing the applicable law, including ...

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