Baer v. Davis

267 S.E.2d 581 (1980)

Ervin BAER, Personal Representative of the Estate of Michael J. Paroby, Jr., Deceased, v. William R. DAVIS, Personal Representative of the Estate of Sharon Jean Saxon, Deceased, and Jerome Karl Person, Personal Representative of the Estate of Gary Lynn Schreckendgust, Deceased.

No. 8012SC40.

Court of Appeals of North Carolina.

July 15, 1980.

Pollock, Fullenwider & Cunningham, by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Bryan, Jones & Johnson by Robert C. Bryan, Lillington, for defendant-appellee Person.

*582 ARNOLD, Judge.

Plaintiff argued on appeal that it is the statute of limitations established by G.S. 28A-19-3(a) which is pertinent to this case, and not that of G.S. 28A-19-3(b)(2). G.S. 28A-19-3(a) applies to claims arising prior to a decedent's death while G.S. 28A-19-3(b)(2) applies to claims arising at or after his death.

However, plaintiff's argument is of no avail since the issue of the applicability of G.S. 28A-19-3(a) was not raised before the trial court. See Wallace Men's Wear, Inc. v. Harris, 28 N.C.App. 153, 220 S.E.2d 390 (1975), cert. denied 289 N.C. 298, 222 S.E.2d 703 (1976). It is clear from the trial court's order and the pleadings of the parties that it is G.S. 28A-19-3(b)(2) which the parties alleged as a plea in bar and upon which the trial court ruled. The sole question for our review is whether the trial court ruled correctly that G.S. 28A-19-3(b)(2), as it existed prior to amendment in 1979, bars plaintiff's action.

G.S. 28A-19-3(b)(2) provides that with an exception not pertinent here all claims against a decedent's estate arising at or after the death of the decedent must be presented within six months after the claim arises. A cause of action for wrongful death accrues at the date of death, G.S. 1-53(4), in this case 23 October 1976, and the claim was not presented until some 15 months later.

Plaintiff argues that since no administrators were appointed for the estates of defendants' intestates until January of 1978, he was only required to file his claim within six months of the appointment of the administrators, but we find this argument to be without merit. As defendants point out, plaintiff could have applied for letters of administration in the estates of defendants' intestates, see G.S. 28A-4-1(b)(5) and (6), or sought to have the public administrator appointed, see G.S. 28A-12-4(3), before the six-month statute of limitations established by G.S. 28A-19-3(b)(2) had run. In fact, it was at plaintiff's instigation that administrators were finally appointed for the estates. The trial court correctly ruled that plaintiff's claim was barred by the statute of limitations.

Affirmed.

ROBERT M. MARTIN and HILL, JJ., concur.