Gordon v. Estate of Brooks

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARK R. GORDON, Plaintiff/Appellant,

v.

ESTATE OF GEORGE BROOKS; SHERI SANBORNE and MARIBEL
MAZA, Defendants/Appellees.

No. 1 CA-CV 14-0802
FILED 5-30-2017

Appeal from the Superior Court in Maricopa County
No. CV2013-007561

The Honorable Lisa Daniel Flores, Judge

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS

COUNSEL

Mark R. Gordon, Phoenix
Plaintiff/Appellant

Tiffany & Bosco, P.A., Phoenix
By James A. Fassold, Amy D. Sells
Counsel for Defendants/Appellees
 GORDON v. ESTATE et al.
Opinion of the Court

OPINION

Judge Patricia K. Norris delivered the opinion of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

N O R R I S, Judge:

¶1 In 2007, Plaintiff/Appellant, Mark R. Gordon, purchased a
house from the Estate of George Brooks. After the sale closed, Gordon sued
Defendants/Appellees, the Estate and the personal representatives of the
Estate, Sheri Sanborne and Maribel Maza,1 both in their representative and
individual capacities, and, as relevant here, asserted claims against them
for various alleged defects and deficiencies in the house. The superior court
dismissed Gordon’s complaint. On appeal, Gordon does not take issue with
the superior court’s dismissal of his claims against the Estate or against
Sanborne and Maza in their representative capacities. Instead, he argues the
superior court should not have dismissed his claims against Sanborne and
Maza in their individual capacities. We agree. Accordingly, we affirm in
part, reverse in part, and remand for further proceedings consistent with
our instructions.

BACKGROUND AND PROCEDURAL HISTORY

¶2 On January 31, 2007, the probate court appointed Sanborne
and Maza as personal representatives of the Estate of George Brooks.2
While administering the Estate, Sanborne and Maza listed Brooks’ house
for sale. On May 19, 2007, Gordon presented Sanborne and Maza with a

1Maribel Maza’s name also appears in the record as “Maribel
Maza-Brooks” and “Maribel Brooks.” Consistent with the caption of this
case, we refer to her as “Maribel Maza.”

2We take judicial notice of the filings in the Estate’s probate
proceeding, In re Estate of Brooks, Maricopa County Cause No. PB2007-
000389. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212 (App.
2000) (under Ariz. R. Evid. 201, appellate court may take judicial notice of
anything superior court could take judicial notice of, even if superior court
did not do so).

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 GORDON v. ESTATE et al.
Opinion of the Court
written offer to purchase the house. Sanborne and Maza accepted Gordon’s
offer the following day.

¶3 The purchase contract listed the seller as “George Brooks,”
and Sanborne and Maza signed their names under the “seller’s signature”
section of the contract. The purchase contract did not state or otherwise
indicate that Sanborne and Maza were acting on behalf of the Estate or
serving as personal representatives of the Estate.

¶4 On June 11, 2007, Gordon sent a letter to the escrow agent
alleging Sanborne and Maza had breached their contractual obligations to
cure several alleged deficiencies in the house. Nevertheless, Gordon
submitted the final payment required to close the sale of the house to the
escrow agent. The following day, on June 12, 2007, Sanborne and Maza
recorded a warranty deed with the Office of the Maricopa County Recorder
conveying the house to Gordon. The warranty deed, which the Recorder
mailed to Gordon, identified Sanborne and Maza as the grantors acting as
“Co-Personal Representatives of the estate of George W. Brooks, deceased.
Maricopa County Superior Court Probate No. 2007-000389.”

¶5 On February 27, 2012, Sanborne and Maza filed closing
statements in the probate proceeding and represented the Estate had been
fully administered with all claims resolved. In June 2013, Gordon moved to
reopen the Estate, alleging he had outstanding claims against the Estate.
Specifically, Gordon asserted Sanborne and Maza, as personal
representatives of the Estate, had breached express and implied warranties
under the purchase contract because warrantied items “were not then in
working condition.” The probate court denied Gordon’s motion. Gordon
appealed. This court affirmed the probate court’s denial of Gordon’s motion
to reopen the Estate, see In re Estate of Brooks (“Gordon I”), 1 CA-CV 13-0592,
2015 WL 898743, at *5, ¶ 13 (Ariz. App. March 3, 2015) (mem. decision), and
held Gordon had failed to present any cognizable claims against the Estate
pursuant to Arizona Revised Statutes (“A.R.S.”) section 14-3804(1) (2012)
(requiring claim against an estate to be presented in writing, “indicating its
basis, the name and address of the claimant and the amount claimed”).

¶6 On May 17, 2013, before Gordon moved to reopen the Estate,
Gordon filed this case. As discussed below, in his complaint, as amended,
Gordon asserted claims against the Estate and Sanborne and Maza, both in
their representative and individual capacities. Sanborne and Maza moved
to dismiss for failure to state a claim, arguing Gordon’s claims were
time-barred by the probate code because they had closed the Estate and

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 GORDON v. ESTATE et al.
Opinion of the Court
precluded by the doctrine of claim preclusion.3 The superior court agreed
with Sanborne and Maza’s arguments and granted their motion to dismiss.

DISCUSSION

I. Gordon’s Claims

¶7 As relevant here, in his amended complaint, Gordon alleged
nine causes of action against Sanborne and Maza: count 1, failure to disclose
various defects in the home; count 2, breach of warranties in the purchase
contract regarding the condition of the property; count 3, breach of the
purchase contract by failing to take curative action as required under the
contract and by forcing Gordon to close the escrow; count 4, breach of the
purchase contract by failing to have the refrigerator/freezer and irrigation
systems properly repaired; count 5, breach of the purchase contract by
keeping the Estate open to avoid having to participate in alternative dispute
resolution as required by the contract; count 6, abuse of process by failing
to comply with their statutory obligations regarding their administration of
the Estate and in closing the Estate without paying or settling his claims;4
count 7, estoppel by refusing to comply with their contractual obligations
and promises; count 8, breach of their fiduciary duty to the Estate and its
creditors to pay and resolve creditor claims against the Estate; and count 9,
breach of the covenant of good faith and fair dealing owed to him under
the purchase contract by failing to disclose and repair defects to the house
and by administering the Estate in such a manner as to avoid having to pay
his creditor claims against the Estate.

¶8 As reflected by the foregoing summary, Counts 5, 6, 8, and 9
(in part) were grounded on allegations the Estate had failed to pay
Gordon’s creditor claims or that Sanborne and Maza had failed to properly
administer the Estate by failing to settle and pay Gordon’s creditor claims
against the Estate (the “Estate Claims”). In contrast, Counts 1, 2, 3, 4, 7, and
9 (in part) were grounded on allegations that Sanborne and Maza were

3We use the modern terms of claim and issue preclusion
rather than res judicata and collateral estoppel. See Circle K Corp. v. Indus.
Comm’n, 179 Ariz. 422, 425, 880 P.2d 642, 645 (App. 1993) (the terms claim
preclusion and issue preclusion are more descriptive, and thus less likely to
cause confusion, than the terms res judicata and collateral estoppel).

4In his opening brief, Gordon acknowledged two other causes
of action, recording a false document and slander of title, were moot.

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 GORDON v. ESTATE et al.
Opinion of the Court
personally liable to him under the purchase contract for alleged defects and
deficiencies in the house (the “Personal Liability Claims”).

¶9 On appeal, Gordon acknowledges that this case “is not about
probate administration nor about me being a creditor with probate claims
against the Estate; that was the previously decided Probate Matter. This
Civil Suit at-bar is against the remaining defendants, Appellees, as
individuals . . . .” Given this acknowledgment, we do not need to decide
whether the superior court properly dismissed the Estate Claims, and we
deem Gordon to have abandoned the Estate Claims. See DeElena v. S. Pac.
Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979) (issues not argued on appeal
are deemed abandoned); see also Torrez v. Knowlton, 205 Ariz. 550, 552 n.1, ¶
3, 73 P.3d 1285, 1287 n.1 (App. 2003) (appellate court deemed appellant to
have abandoned any argument that superior court improperly granted
summary judgment on one claim when, on appeal, appellant only
challenged summary judgment on a different claim).

¶10 Gordon has not, however, abandoned the Personal Liability
Claims against Sanborne and Maza. On appeal, Gordon argues the superior
court should not have dismissed those claims because Sanborne and Maza
are individually liable on the purchase contract and the Personal Liability
claims are neither time-barred nor barred by the doctrine of claim
preclusion. Reviewing the superior court’s ruling under the applicable
standards of review, we agree with Gordon.5

II. Sanborne and Maza as Parties to the Purchase Contract

¶11 Gordon argues that because Sanborne and Maza failed to
identify the Estate in the purchase contract, they cannot be shielded from
personal liability as personal representatives of the Estate pursuant to
A.R.S. § 14-3808(A) (2012). At common law, an estate was not liable on
contracts entered by its personal representative in administering the estate
even if the contracts were for the benefit of the estate. See Vance v. Myers’
Estate, 494 P.2d 816, 818 (Alaska 1972). This rule of personal liability was
grounded on the notion that an estate was not a legal entity. 14 Amy M.
Hess et al., Bogert’s Trusts and Trustees § 712 (3d ed., Sep. 2016) (similar to
personal representative of an estate, trustee was the only legal entity who
promised to perform a contract). This rule applied even when the personal

5See Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8, 284
P.3d 863, 866-67 (2012) (appellate court reviews a motion to dismiss for
failure to state a claim de novo and will affirm only if plaintiff would not
be entitled to relief under any facts susceptible of proof; appellate court
reviews issues of law de novo) (citations and quotations omitted).

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 GORDON v. ESTATE et al.
Opinion of the Court
representative disclosed to the other contracting party that he was acting
on behalf of the estate in entering the contract. In this situation, assuming
the contract benefited the estate, the personal representative could recover
from the estate based on reimbursement or indemnity theories. See
Restatement (Second) of Trusts § 246 cmt. a (1959) (trustee personally liable
upon contracts made by him; if liability properly incurred by him, trustee
entitled to indemnity from trust estate).

¶12 This was a harsh rule. Thus, beginning in the last century,
courts and legislatures began to carve out exceptions to the rule. See
generally Durden v. Century 21 Compass Points, Inc., 541 So.2d 1264 (Fla. Dist.
Ct. App. 1984). The Uniform Probate Code (“UPC”), which Arizona has
adopted, has dispensed, in part, with the rule of personal liability. Thus, a
contracting party with a claim against an estate may bring that claim
directly against the estate by suing the personal representative of the estate
in his fiduciary, that is, representational, capacity. See A.R.S. § 14-3808(C)
(claim based on contract entered into by personal representative in his or
her fiduciary capacity may be asserted against estate by proceeding against
personal representative in his or her fiduciary capacity, whether or not
personal representative is individually liable); see also Ader v. Estate of Felger,
240 Ariz. 32, 39, ¶ 22, 375 P.3d 97, 104 (App. 2016) (estate is a collection of
decedent’s assets and liabilities and does not have capacity to bring or
defend a suit; it can only sue and be sued through its personal
representative) (citations and quotations omitted). Nevertheless,
depending on the circumstances, a contracting party may also assert a
direct claim against the personal representative in his or her personal or
individual capacity. A.R.S. § 14-3808(B) (personal representative
individually liable for obligations arising from control of estate in the
course of administration of estate but only if personal representative is
personally at fault).

¶13 Further, under the UPC, a personal representative may avoid
personal or individual liability on a contract entered into in his or her
fiduciary capacity if he or she makes certain disclosures in the contract.
Section 14-3808(A), which is modeled after UPC § 3-808, provides:

Unless otherwise provided in the contract, a
personal representative is not individually
liable on a contract properly entered into in his
fiduciary capacity in the course of
administration of the estate unless he fails to
reveal his representative capacity and identify the
estate in the contract.

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 GORDON v. ESTATE et al.
Opinion of the Court
(Emphasis added.) Although no reported Arizona appellate decision has
interpreted this provision, the Nebraska Supreme Court interpreted this
provision, under facts similar to the facts presented here, and concluded a
personal representative was not entitled to the protections afforded by the
statute when the personal representative failed to comply with the statutory
requirements.

¶14 In Purbaugh v. Jurgensmeier, 483 N.W.2d 757 (Neb. 1992), the
defendant, a personal representative of an estate, sold property belonging
to the estate to the plaintiffs. The defendant signed the purchase contract in
his own name followed by the initials “P.R.” Id. at 760. The contract did not
disclose or otherwise indicate the property was property of the estate. Id.
The plaintiffs subsequently sued the defendant for breach of the purchase
contract. Id. The trial court granted summary judgment to the defendant,
concluding the plaintiffs had sued the wrong party because they had notice
the defendant was acting in his capacity as personal representative for the
estate. Id. at 761.

¶15 The Nebraska Supreme Court reversed and remanded. Id. at
764. It held the defendant had failed to comply with Nebraska’s version of
UPC § 3-808, which is identical to A.R.S. § 14-3808(A). The court determined
the initials “P.R.” after the defendant’s signature, without more, failed to
put the plaintiffs on notice the defendant was acting for a particular estate:

The initials “P.R.” which [the defendant] added
to his signature may have been sufficient to
inform a layperson that he or she was dealing
with a personal representative, but there was
nothing in the documents or dealings set forth
in the record which would indicate what or
whom [the defendant] represented . . . .

Id. at 763

¶16 Here, as in Purbaugh, Sanborne and Maza did not disclose in
the purchase contract they were acting as personal representatives of the
Estate, or that the Estate was the actual seller of the house. Thus, they failed
to comply with the disclosure requirements of A.R.S. § 14-3808(A), and
were not entitled to the protections against individual liability afforded by
that statute.

¶17 Nevertheless, Sanborne and Maza argue Gordon had notice
they were acting in a representative capacity because the purchase contract
listed the seller as George Brooks and they signed their own names under

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 GORDON v. ESTATE et al.
Opinion of the Court
the “seller’s signature” section of the purchase contract. But, even if we
assume their signatures could have put Gordon on notice they were acting
for a George Brooks,6 to trigger the protections afforded by A.R.S. § 14-
3808(A), they were required to “reveal” both their “representative capacity
and identify the estate in the contract.” A.R.S. § 14-3808(A) (emphasis added).
The undisputed record before us reflects they failed to comply with the
latter requirement.7 That the purchase contract identified “George Brooks”
as the “seller” is insufficient, without more, to provide notice that Sanborne
and Maza were acting on behalf of the Estate. Compare Myers-Leiber Sign Co.,
2 Ariz. App. at 536, 410 P.2d at 493 (disclosure of tradename insufficient
identification of principal), with Empire Office Machines, Inc. v. Aspen Trails
Assocs. LLC, 322 P.3d 424, 426-27 (Mont. 2014) (disclosure of tradename
sufficient when parties had longstanding business relationship).

¶18 Sanborne and Maza also argue the warranty deed, which they
signed as the personal representatives of the Estate and which Gordon
received after the sale closed, see supra ¶ 4, placed Gordon on notice they
were acting in a representative capacity. We reject this argument. Section
14-3808(A) requires the personal representative to “reveal his
representative capacity and identify the estate in the contract.” (Emphasis
added.) Thus, a personal representative’s post-contractual disclosure that
he was acting for an estate when he executed the contract is, simply put, too
little, too late.8

6Gordon alleged in his amended complaint that Sanborne and
Maza had “indicated” to him they “were relatives of Brooks” and
authorized to negotiate and sign the purchase contract on his behalf.

7The disclosure requirements of A.R.S. § 14-3808(A) mirror
Arizona common law regarding the liability of an agent who executes a
contract for a disclosed principal. See Cahn v. Fisher, 167 Ariz. 219, 221, 805
P.2d 1040, 1042 (App. 1990) (agent protected from personal liability on a
contract if agent discloses he is acting as an agent for a third party and the
third party’s identity); Myers-Leiber Sign Co. v. Weirich, 2 Ariz. App. 534, 536,
410 P.2d 491, 493 (1966) (agent who negotiates contracts on behalf of his
principal may avoid personal liability on the contract if he discloses not
only his agency but also the identity of his principal).

8This requirement also mirrors Arizona common law. See
Myers-Leiber Sign Co., 2 Ariz. App. at 536, 410 P.2d at 493 (agent must
disclose identity of principal to the other party at the time of the transaction;

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Opinion of the Court
¶19 The court in Purbaugh also rejected a similar argument.
Approximately one year after the parties had signed the contract, one of the
plaintiffs wrote a letter to the defendant that referenced the existence of the
estate. Purbaugh, 483 N.W.2d at 763. And, approximately three months
later, the plaintiffs received a deed to the property that identified the
defendant as the grantor, acting as the personal representative for the
estate. Id. at 760, 763. The Nebraska Supreme Court held that neither the
letter nor the deed demonstrated the plaintiffs had notice of the defendant’s
status at the time the parties signed the contract because both were
prepared after the parties had signed the contract. Id. at 763.

¶20 Here, Sanborne and Maza failed to comply with the
disclosure requirements of A.R.S. § 14-3808(A). Accordingly, they are not
entitled to the protections against individual liability afforded by A.R.S. §
14-3808(A).9

III. The Limitation Periods of the Probate Code

¶21 On appeal, as they did in the superior court, Sanborne and
Maza argue Gordon’s claims were barred by various limitation periods set
out in the probate code. Specifically, Sanborne and Maza argue A.R.S. § 14-
3803(C) (2012), A.R.S. § 14-3933 (2012), and A.R.S. § 14-3935 (2012) all barred
Gordon’s Personal Liability Claims. We address each statute in turn.

A. A.R.S. § 14-3803(C)

¶22 Section 14-3803(C) provides time limits for “claims against a
decedent’s estate that arise at or after” the decedent’s death. Under that
section, all such claims are “barred against the estate [and] the personal
representative” unless they are presented within the specified time periods.
A.R.S. § 14-3803(C). On its face, this section only bars claims against an
estate. It does not address claims against a personal representative in his or
her individual capacity. The comments to UPC § 3-803, which is virtually
identical to A.R.S. § 14-3803(C), make clear that the limitation periods
specified in this provision apply only to claims against an estate: “The time

disclosure of identity of principal after contract executed will not relieve
agent from liability on the contract).

9This
appeal arises out of the grant of a Rule 12(b) motion. We
express no opinion as to whether Sanborne and Maza are entitled to
protections against individual liability based on other legal principles,
including whether Gordon had actual notice they were acting on behalf of
the Estate.

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 GORDON v. ESTATE et al.
Opinion of the Court
limits stated would not, of course, affect any personal liability in
contract . . . of the personal representative . . . .” Unif. Probate Code § 3-803
cmt. (amended 2010), 8 pt. 2 U.L.A. (2013). The comments continue,
“Creditors of the estate and not of the personal representative thus face a
special limitation that runs four months after performance is due from the
personal representative.” Id. (emphasis added). Here, Gordon’s Personal
Liability Claims are against Sanborne and Maza individually. Thus, A.R.S.
§ 14-3803(C) is inapplicable.

B. A.R.S. § 14-3933

¶23 Section 14-3933 addresses a personal representative’s use of a
“closing statement” to close an estate. Section 14-3933(B) provides, “If no
proceedings involving the personal representative[s] are pending in the
court one year after the closing statement is filed, the appointment of the
personal representative terminates.” Even if we assume this provision
applies to a personal representative acting in his or her individual capacity,
termination “does not discharge a personal representative from liability for
transactions or omissions occurring before termination . . . .” A.R.S. § 14-
3608 (2012). Here, Gordon purchased the home before Sanborne and Maza
filed the closing statements. Thus, A.R.S. § 14-3933 does not bar Gordon’s
Personal Liability Claims.

C. A.R.S. § 14-3935

¶24 Section 14-3935 establishes a limitation period for claims
against a personal representative for breach of fiduciary duty. It provides:

Unless previously barred by adjudication . . . the
rights of successors and of creditors whose
claims against the personal representative for
breach of fiduciary duty have not otherwise
been barred are barred unless a proceeding to
assert the same is commenced within six
months after the filing of the closing statement.

A.R.S. § 14-3935. As we recognized in Tovrea v. Nolan, 178 Ariz. 485, 875
P.2d 144 (App. 1993), this six-month limitation period applies only to
individuals who are acting in the capacity as a personal representative.

¶25 In Tovrea, the defendants were the personal representatives of
a decedent’s estate and served as the trustees of a residuary trust created by
the decedent’s will. Id. at 487, 875 P.2d at 146. The defendants provided an
accounting to themselves in their individual capacities and as trustees of

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Opinion of the Court
the residuary trust. Id. They refused, however, to provide the accounting to
the trust’s remainder beneficiaries, the decedent’s children. Id. Well after
the six-month limitation period of A.R.S. § 14-3935 expired, the children
sued the defendants and accused them of breaching their fiduciary duties
as the estate’s personal representatives and as trustees of the residuary
trust. Id. The superior court granted the defendants’ motion for summary
judgment, ruling the six-month limitation period of A.R.S. § 14-3935 barred
all of the children’s claims. Id. at 488, 875 P.2d at 147. On appeal, this court
held the children’s claims against the defendants as personal
representatives were subject to A.R.S. § 14-3935 and thus time barred. Id. at
148, 875 P.2d at 489. But, we concluded A.R.S. § 14-3935 was inapplicable to
the children’s claims against the defendants as trustees. Id.

¶26 As Tovrea established, A.R.S. § 14-3935 does not apply to
claims against a personal representative who acts in a capacity outside that
of personal representative. Thus, the six-month limitation period of A.R.S.
§ 14-3935 is inapplicable to Gordon’s Personal Liability Claims against
Sanborne and Maza.

IV. Claim Preclusion.

¶27 Sanborne and Maza also argue the doctrine of claim
preclusion bars Gordon’s Personal Liability Claims because the probate
court rejected those claims when it denied his request to reopen the Estate.
See supra ¶ 5. Under the doctrine of claim preclusion, a final judgment on
the merits in a prior suit involving the same parties or the parties’ privies
bars a subsequent suit based on the same cause of action. Pettit v. Pettit, 218
Ariz. 529, 531, ¶ 4, 189 P.3d 1102, 1104 (App. 2008) (citation omitted).

¶28 Assuming, without deciding, that Sanborne and Maza have
established the first two elements of claim preclusion, an identity of claims
and a final judgment on the merits, Sanborne and Maza have failed to
establish the final element of claim preclusion, the same parties or the
parties’ privies. Therefore, the superior court should not have dismissed
Gordon’s Personal Liability Claims under the doctrine of claim preclusion.

¶29 Under the Restatement (Second) of Judgments § 36(2) (1982),
“A party appearing in an action in one capacity, individual or
representative, is not thereby bound by or entitled to the benefits of the
rules of [claim preclusion] in a subsequent action in which he appears in
another capacity.” The comments to § 36(2) explain this rule applies to
administrators of estates: “For [claim preclusion] purposes the
determination as to his capacity in the transaction is binding on him only in
the capacity in which he has participated in the litigation.” Id. cmt. b.

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 GORDON v. ESTATE et al.
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¶30 The court in Clark v. Amoco Prod. Co., 794 F.2d 967 (5th Cir.
1986), applied this Restatement provision. There, two heirs of a decedent
sued an oil company seeking records to establish that the decedent had an
interest in real property, and, thus, mineral rights in the property. Id. at 969.
The district court dismissed the complaint for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). Id. Then, in a second suit, after being appointed as
the administrators of the decedent’s estate, the same individuals brought
suit against the oil company seeking an accounting of minerals extracted
from the property. Id. As with the first suit, the district court dismissed the
second suit for failure to state a claim. Id. Citing the Restatement (Second)
of Judgments § 36(2), the Fifth Circuit reversed, explaining that claim
preclusion “does not apply to a situation . . . in which a party appears in
one action in an individual capacity and in a subsequent action in a
representative capacity.” Clark, 794 F.2d at 973; see also Brooks v. Arthur, 626
F.3d 194, 195-96 (4th Cir. 2010) (corrections officers not in privity with
themselves in their official and individual capacities for purposes of claim
preclusion).

¶31 The court in Jaramillo v. Burkhart, 999 F.2d 1241 (8th Cir. 1993),
examined a grandmother’s differing capacities under the related doctrine
of issue preclusion. There, a grandmother filed three diversity suits against
a truck driver who had fatally injured her daughter and injured her
grandchildren in a car accident. Id. at 1243. The grandmother filed one of
the suits as administrator of her daughter’s estate for wrongful death. Id.
The grandmother filed the second and third suits as guardian of the
grandchildren for personal injury. Id. The parties tried the wrongful death
action to a jury, which returned a defense verdict. Id. The truck driver then
moved for summary judgment in the personal injury suits, arguing the suits
were barred by issue preclusion. Id. The district court agreed and granted
the truck driver’s motion. Id.

¶32 On appeal, the Eighth Circuit reversed, holding the personal
injury suits were not barred by issue preclusion because the grandmother
appeared in the suits in different capacities: administrator and guardian. Id.
at 1244, 1246. The court explained:

A person acting in a fiduciary or representative
capacity who litigates to judgment questions
relating to his or her rights, duties, or liabilities
in that capacity is not bound by that judgment
in a subsequent proceeding with respect to his
or her personal or individual rights connected
with the same subject matter.

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Id. at 1244 (citation omitted).

¶33 Here, Sanborne and Maza argue “Gordon’s post hoc attempt
to assert that the Amended Complaint was filed against the Co-Personal
Representatives in their personal capacities is belied by a plain reading of
the Amended Complaint, which defines Sanborne and Maza as the Co-
Personal Representatives of the Estate.” Therefore, they assert Gordon sued
them only in their capacities as personal representatives of the Estate.
Although Gordon alleged Sanborne and Maza had been the personal
representatives of the Estate, he also alleged, in his amended complaint,
that his claims were against Sanborne and Maza personally and they were
individually liable on the purchase contract. Therefore, Gordon alleged
causes of action against Sanborne and Maza in their individual capacities.

¶34 Because Sanborne and Maza have appeared in this case, as
related to the Personal Liability Claims, in a different capacity than they
appeared in Gordon I, they are “not thereby bound by or entitled to the
benefits of the rules of [claim preclusion]” in this case. Restatement
(Second) of Judgments § 36(2) (1982).

CONCLUSION

¶35 For the foregoing reasons, the superior court should not have
dismissed Gordon’s Personal Liability Claims against Sanborne and Maza.
Because Gordon has abandoned the Estate Claims on appeal, we affirm the
superior court’s dismissal of the Estate Claims and remand this case for
further proceedings on, but only on, the Personal Liability Claims. On
remand, the superior court shall dismiss any claims Gordon attempts to
assert against the Estate or against Sanborne and Maza as personal
representatives of the Estate which pertain in any way to their
administration of the Estate.10

10On appeal, Gordon has also argued the superior court
violated his due process rights in dismissing his amended complaint. That
argument is frivolous and we reject it.

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Opinion of the Court
¶36 Because Sanborne and Maza have not prevailed on Gordon’s
Personal Liability Claims, we deny their request for attorneys’ fees
pursuant to A.R.S. § 12-341.01 (2016). As the prevailing party on appeal, we
award Gordon his costs on appeal pursuant to A.R.S. § 12-341 (2016),
contingent upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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