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
from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
T. Foss, Fargo, ND, for plaintiff and appellant.
J. Schultz, Fargo, ND, for defendant and appellee.
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
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
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
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 ...