This case principally presents an issue of probate limitations. We will skip other, less important or case-specific, issues. We also skip an issue that the court, after addressing it in a lengthy footnote, announces that “we will not address.”

Felger flipped commercial properties; Plaintiff financed his operations. Felger eventually died but his son-in-law took over the business. When Plaintiff stopped getting certain payments owed her she looked into the matter and discovered documents allegedly showing that Felger had not acted properly. She sued his estate, four years after his death, for breach of contract and a number of torts. The estate moved for summary judgment on the statute of limitations; the trial court granted it. Plaintiff appealed; the Court of Appeals affirms.

14-3803A says that claims “that arose before death” must be presented in two years plus the time for notice to creditors. 14-3803C sets a four-month limit for claims arising after death. “As argued by the parties and addressed by the trial court, the issue here is: Which subsection of §14-3803 applies.” Plaintiff argued for the discovery rule,  contending that C applies because she found the smoking-gun documents, and thereby discovered her claim, after the death and less than four months before suit. But the court explains that a time limit for creditors’ claims is a “nonclaim statute” rather than a statute of limitations; the discovery rule can’t apply because a nonclaim statute can’t be tolled or waived. We’re frankly not sure we were aware that the discovery rule is based on tolling or waiver.

The court also says that the discovery rule can apply to statutes of limitations because they say “accrue” but not to nonclaim statutes because they say “arise.” “Accrue” means “when one party is able to sue another”; “arise . . . refers to the decedent’s act or conduct upon which a claim is based.” Well, umm, okay, if you say so.

Plaintiff argued that “a claim is not actionable until all the elements of the claim exist.” That may seem part and parcel of a discovery-rule argument but it didn’t to the court. Plaintiff’s counsel apparently said it at oral argument, in the context of explaining that the element of damages couldn’t be determined until Plaintiff saw the documents. Because it wasn’t in the briefs the court declines to consider what it calls the “’elements’ argument.” Based on what’s in the opinion the argument may be wrong – it’s the knowledge that damages exist that’s the trigger, not the ability to calculate them, and Plaintiff had known for a few years that she hadn’t received some payments. But there may be more to it than that, otherwise we don’t know why the court would seize on such a restrictive interpretation of a rule its normally pretty lenient about.

Plaintiff argued that she had in part specifically alleged torts by the estate after Felger’s death, therefore 3803C applies at least to those claims. The court says that Plaintiff “misapprehends the concept of a decedent’s estate.” An estate is a “collection of . . . assets” that “cannot ‘act.’” So for post-death acts you have to sue the PR or the persons who committed the acts (which Plaintiff had apparently also done) and the estate isn’t liable for them.

(Put aside whether that’s right or wrong. We don’t know why courts must, every once in a while, indulge in the practice of gratuitously insulting the lawyers before them. To rule on the accuracy of an argument is one thing; that’s the court’s job. But to tell the world, and the lawyer’s client, that the lawyer doesn’t understand the law is quite another. Judges at the trial-court level who can’t do their jobs without announcing their own superiority and demeaning others aren’t respected; why should appellate opinions be held to a different standard? Experience, if nothing else, should have solved this problem: judges who pronounce the other guy the dummy turn out to be right about half the time. We hope it wasn’t a judge who wrote that line; we know it was a judge who should have edited it out.)

So, 14-3803A applies. But no PR was appointed, so no notice to creditors was sent or published. Since the 3803A period includes the time for notice to creditors, how do you figure it when there wasn’t one? The court agrees with the trial court that the answer is 14-3108, which says that probate can’t occur after two years (with inapplicable exceptions); that’s the “ultimate time limit” (the statute’s heading says that). Plaintiff cited Estate of Winn, in which the Supreme Court allowed a late-appointed PR to pursue a tort claim because the law is “intended to protect the decedent’s successors and creditors. The court distinguishes that case because it was the defendant there – not a successor or creditor – who wanted to invoke the time limitation. Although Plaintiff was a creditor the court explains that creditors are entitled only to timely claims, which is why Plaintiff’s is untimely. And if it seems to you that that doesn’t necessarily follow logically, you’re an idiot and your parents should be embarrassed.

(Opinion: Ader v. Estate of Felger)

This case involves the qualifications of an expert in a case of alleged nursing malpractice.

Plaintiff was in the ICU for extensive cardiac treatment. She survived that but developed a bedsore, so she sued. She named as her expert a nurse who didn’t work in an ICU but knew about pressure ulcers. She filed a motion to have the court declare that she could use that expert. The hospital moved for summary judgment, arguing that the expert wasn’t qualified. The trial court granted the hospital’s motion. Plaintiff appealed.

The Court of Appeals first tells us the elements of a malpractice action and that you normally need an expert. Now, presumably the court didn’t feel that these are arcane issues on which there was a dearth of authority. So why does it mention them? Because our courts of appeal have apparently decided that they must at least mention – or, better yet, discuss – every issue that the parties passed through before they got to the one they now appeal. And so we routinely see discussion of preliminary issues that are not before the court and add nothing to its holding.

The parties’ argument centered on whether an ICU nurse is a specialist; Plaintiff said “no”, the hospital  (and Plaintiff’s expert) said “yes.” The court says that it doesn’t matter. The statute (12-2604A) requires that the majority of an expert’s practice in the year before the suit be either in the applicable specialty or, if a specialty isn’t involved, in general practice. Plaintiff’s expert hadn’t practiced ICU nursing in the year before the suit but hadn’t been a general practitioner, either – she was a “wound care” specialist. (She worked in long-term acute-care facility, the type of place involved here, the other recent bedsore appeal.)

But the court is clearly not agnostic on the point and does seem to feel that an ICU nurse is an expert. It mentions, in one of several long footnotes, that the Supreme Court has included as specialties areas that are “eligible for certification” and it takes judicial notice that ICU nurses can be certified as such (though this isn’t required and the hospital’s weren’t). And it specifically rejects – in the body of the opinion, not a footnote – Plaintiff’s argument that the hospital’s general policy on repositioning patients can apply to ICU patients.

But the court reverses and remands to give Plaintiff a chance to find a new expert. The trial court had denied that; the Court of Appeals, citing Preston, which it says had “similar procedural facts,” concludes that this was an abuse of discretion. The hospital seems to have filed its motion reasonably soon after deposing the expert but didn’t take the depo until after the disclosure deadline. The court doesn’t appear to suggest, as had Preston, that deliberate sandbagging was or need be involved. So is the law now that the defendant must, regardless of circumstance, depose the expert and move to disqualify while the plaintiff still has time to find a new expert if necessary, on pain of giving the plaintiff more time to find a new expert if necessary? Maybe not; the trial court apparently granted Plaintiff’s motion to use the expert before giving the hospital summary judgment on the point; wrong-footing a party was, it appears, the basis of reversal.

The opinion also discusses, at great length, a couple of evidentiary issues that may come up on remand.

(Opinion: Rasor v. Northwest Hospital)