Monroe v. Wood

724 P.2d 38, 150 Ariz. 419, 1985 Ariz. App. LEXIS 863
CourtCourt of Appeals of Arizona
DecidedJuly 18, 1985
DocketNo. 1 CA-CIV 7549
StatusPublished
Cited by2 cases

This text of 724 P.2d 38 (Monroe v. Wood) 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
Monroe v. Wood, 724 P.2d 38, 150 Ariz. 419, 1985 Ariz. App. LEXIS 863 (Ark. Ct. App. 1985).

Opinion

OPINION

BIRDSALL, Presiding Judge.

This personal injury action was dismissed because the trial court held that it was barred by the statute of limitations. That ruling is the only issue in this appeal.

There is no disagreement over the facts. On July 24, 1974, the plaintiff/appellant Irene 0. Holland Monroe was injured as a result of an automobile-pedestrian accident in Durango, Colorado, alleged to have been caused by the negligence of defendant/appellee Cindy K. Browning Wood. On August 30, 1978, suit was filed in Colorado, but the appellee was never served. Service was attempted, but the sheriff’s process server advised that the appellee then resided in Lakeside, Arizona. Actually, the appellee had moved to New Mexico in September 1976, and from New Mexico to Arizona in June 1978.

The appellant abandoned her Colorado action and, on September 22, 1978, filed her complaint in Pima County, Arizona. Personal service was accomplished and the appellee moved for change of venue to Yavapai County where she now resides. That motion was granted. Subsequently the superior court in Yavapai County dismissed the complaint.

The parties also agree that the three states had the following statutes of limitation for a personal injury action: Colorado, six years, C.S.R. 13-80-110 (1973); New Mexico, three years, N.M.S.A. § 37-1-8; Arizona, two years, A.R.S. § 12-542. They also agree that Colorado had an applicable “long arm” statute, C.R.S. 13-1-124, which would have permitted the appellant to have secured personal jurisdiction over the appellee in Colorado by service outside the state.

It is well established that statutes of limitation are controlled by the law of the forum. Scudder v. Union National Bank of Chicago, 91 U.S. (1 Otto) 406, 23 L.Ed. 245 (1875); Santana v. Holiday Inns, Inc., 686 F.2d 736 (9th Cir.1982) (applying Arizona law); Ross v. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); State of Michigan v. First National Bank of Arizona, 17 Ariz.App. 45, 495 P.2d 485 (1972).

The appellant does not disagree, but rather argues that A.R.S. § 12-507 allows her to maintain this action because the appellee had not resided in Arizona for “one year” prior to being served. A.R.S. § 12-507 provides as follows:

“No demand against a person who removes to this state, incurred prior to his removal, shall be barred by the statute of limitation until he has resided in this state one year, unless barred at the time of his removal to this state by the laws of the state or country from which he migrated.”

Therefore the question becomes, in applying this Arizona statute, do we look to the law of New Mexico as the state from which the appellee migrated, or to the law of Colorado? It is at this point that the parties disagree.

It is the appellant’s position that the event occurred in Colorado and the six-year Colorado statute had not run when the Arizona action was commenced. She contends that the appellee’s residence in New Mexico does not affect this result for several reasons. She contends that it is sufficient that suit was commenced in Arizona well within one year of the appellee’s residence here. She additionally emphasizes that when the Arizona suit was commenced, the statute in Colorado had not run. Six years from the date of the acci[421]*421dent, July 24, 1974, is July 24, 1980. The Arizona suit was commenced in September 1978.

We affirm and we will consider each of these contentions.

It is not sufficient to toll the Arizona statute that the suit was brought within the first year of residence here. The appellant’s reliance on Western Coal & Mining Co. v. Hilvert, 63 Ariz. 171, 160 P.2d 331 (1945) is misplaced. The relevant section of that opinion dealt with then-Section 29-301 of the 1939 code (now § 12-501). That section then and now provides:

“When a person against whom there is a cause of action is without the state at the time the cause of action accrues or at any time during which the action might have been maintained, such action may be brought against the person after his return to the state. The time of such person’s absence shall not be counted or taken as a part of the time limited by the provisions of this chapter.”

Western Coal interpreted this statute to mean that absences without the state included not only absences of resident defendants but also nonresident. Thus, if Western Coal were still Arizona law, the Arizona statute was tolled until the appellee became an Arizona resident. However, Western Coal was decided long before the advent of long-arm statute such as Colorado’s and Arizona’s. Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S. Western Coal’s interpretation of A.R.S. § 12-501 insofar as it applied to a non-resident who could be served pursuant to a long-arm statute was effectively overruled by our supreme court in Selby v. Karman, 110 Ariz. 522, 521 P.2d 609 (1974). There the court said at 110 Ariz. 523, 521 P.2d 609:

“The Court in Western Coal specifically rejected the argument that a resident should not be considered for the purposes of the tolling statute if he could have been served notwithstanding his absence.
Approximately 20 years after the Western Coal case, this court in Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732 (1966) held that terms ‘without the state’ and ‘absent’ as used in A.R.S. § 12-501 meant that a defendant must be out of the state ‘in the sense that it could not be served with process.’ The holding in Phillips was followed in Hawkinson Tire Co. v. Paul E. Hawkinson Co., 13 Ariz.App. 343, 476 P.2d 864 (1970) affirmed in 107 Ariz. 255, 485 P.2d 825 (1971).
According to the rule announced in Phillips and followed in Hawkinson Tire Co., a nonresident defendant is not ‘without the state’ or ‘absent’ within the meaning of A.R.S. § 12-501 if the defendant can be served with process for in personam jurisdiction; on the other hand the rule stated in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Village Savings Bank v. Albrecht, No. 116572 (Nov. 1, 1994)
1994 Conn. Super. Ct. 11417 (Connecticut Superior Court, 1994)
Monroe v. Wood
724 P.2d 30 (Arizona Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
724 P.2d 38, 150 Ariz. 419, 1985 Ariz. App. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monroe-v-wood-arizctapp-1985.