Matter of Estate of Musgrove

696 P.2d 720, 144 Ariz. 168
CourtCourt of Appeals of Arizona
DecidedJanuary 8, 1985
Docket1 CA-CIV 6774
StatusPublished
Cited by5 cases

This text of 696 P.2d 720 (Matter of Estate of Musgrove) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of Musgrove, 696 P.2d 720, 144 Ariz. 168 (Ark. Ct. App. 1985).

Opinion

144 Ariz. 168 (1985)
696 P.2d 720

In the Matter of the ESTATE OF Sebe MUSGROVE,
Stanley MUSGROVE, Personal Representative, Appellant,
v.
Belvin BROWN, Claimant-Appellee.

No. 1 CA-CIV 6774.

Court of Appeals of Arizona, Division 1, Department C.

January 8, 1985.

*169 Engler, Engler & Weil by John A. Weil, Yuma, for personal representative, appellant.

Thaddeus G. Baker, P.C. by Barton L. Baker, Yuma, for claimant-appellee.

OPINION

JACOBSON, Chief Judge.

The primary issue on this appeal is when does the statute of limitations begin to run on an unwritten promise to pay money when no definite time is set for repayment.

Belvin Brown filed a claim on April 1, 1981 against the Estate of Sebe Musgrove for $22,347.65 based upon an oral agreement which was allegedly entered into in 1962. This matter was tried to the court which entered judgment in favor of Brown on his claim. Following a denial of his motion for new trial, the personal representative filed a timely notice of appeal to this court.

The estate has raised two issues on appeal: (1) whether the trial court abused its discretion in admitting the testimony of Brown in the face of the Dead Man's Statute, A.R.S. § 12-2251; and (2) whether the claim based on an oral debt is barred by A.R.S. § 12-543, the applicable statute of limitations. We find that A.R.S. § 12-543 is a bar to this action and dispositive of this appeal. Therefore, we do not decide whether Brown's testimony was properly admitted.

This court must view the evidence in a light most favorable to upholding the judgment. Davis v. Tucson Arizona Boys Choir Society, 137 Ariz. 228, 669 P.2d 1005 (App. 1983). So viewed, and assuming arguendo the admissibility of Brown's testimony concerning his conversations with the decedent, the record reflects the following. The basis for Brown's claim was an oral contract whereby Musgrove agreed to repay a debt owed Brown of $8,984, arising out of the sale of cattle owned jointly by Brown and Musgrove, from which Musgrove received the proceeds. The parties agreed that payments on the debt would be made from time to time and that the principal would bear annual interest at the rate of 6%. The parties modified their agreement in 1972 to increase the interest rate to 8%. Musgrove made the following payments to Brown: $400 in December 1962; $500 in 1964; $500 in 1968; $750 in 1972; and $600 in 1974. Additionally, Musgrove's daughter, Ruth Naomi Stevens, paid Brown $1000 on March 1, 1978. However, there was no evidence that she paid this money as an agent of her father. To the contrary, the evidence was that she paid this money from her own bank account and that Sebe Musgrove strenuously objected to that payment.

On appeal both parties agree that the statute of limitations applicable to this transaction is A.R.S. § 12-543, which provides in pertinent part:

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions.
1. For a debt where the indebtedness is not evidenced by a contract in writing....

The parties disagree as to when the cause of action accrued on the oral contract and thus triggered the running of the statute of limitations. The general rule is that a cause of action accrues whenever one person may sue another. Cheatham v. Sahuaro Collection Service, Inc., 118 Ariz. 452, 577 P.2d 738 (App. 1978); Rogers v. Smith Kline & French Laboratories, 5 *170 Ariz. App. 553, 429 P.2d 4 (1967). Brown characterizes the agreement as one which contemplated that demand would not be made until long into the future and thus the statute did not begin to run until demand was made. The estate characterizes the agreement to be payable on demand or an agreement which was silent as to repayment. The trial court stated:

The court finds that there was an oral agreement between claimant and the decedent, that the decedent owed claimant $8,984 and that he would make payments on this indebtedness from time to time. It was also agreed that the principal would bear interest at the rate of 6% per annum. In 1972 decedent agreed to pay 8% interest on the principal balance. There was ample consideration for each of these agreements.
No demand was ever made upon decedent for full payment that was not withdrawn after decedent persuaded claimant to continue the same arrangement. Decedent never refused to pay.

It appears that the trial court interpreted the agreement as one for the loan of money on demand without a fixed time for repayment. Further, the court appears to have implied that demand was a prerequisite for bringing suit.

We first note that most of the trial court's findings are mixed questions of law and fact or are legal conclusions. An appellate court is not restricted to construing the evidence most favorably to support such a judgment. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966). Rather, this court may draw its own legal conclusions from facts found or inferred in a judgment of the trial court and is not bound by findings of the trial court in mixed questions of law and fact. Huskie v. Ames Bros. Motor and Supply Co., 139 Ariz. 396, 678 P.2d 977 (App. 1984); Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz. App. 70, 449 P.2d 306 (1969).

Brown's testimony at trial as to the terms of the contract was, at best, confusing. Louis Pendergast, the only witness who corroborated the existence of a contract, contradicted Brown concerning the terms of that contract. Pendergast expressly testified that the parties agreed that the debt was to be repaid in two to three years. Reviewing the entire transcript and recognizing that the trial court apparently rejected Pendergast's version of the contract, we find that the contract was indefinite as to the time for repayment and further that demand was not expressly made a condition precedent to the right to bring suit. We further conclude that there was no evidence that at the time the agreement was made in 1962 that the parties agreed to postpone repayment until long into the future. In fact, the first payment occurred only a few weeks following the initial agreement. Brown testified as to repayment as follows:

Q. [By Mr. Baker]: Did you ever enter into any kind of agreement with Mr. Musgrove regarding your half of that money?
A. Yes. Mr. Musgrove wanted to pay me interest on it, he offered to pay me 6%.

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Bluebook (online)
696 P.2d 720, 144 Ariz. 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-musgrove-arizctapp-1985.