Hosogai v. Kadota, 1

• Decision Date: 10 July 1984
• Docket Number: No. 1,CA-CIV,1
• Citation: 700 P.2d 1354,145 Ariz. 254
• Parties: Michiko HOSOGAI, a surviving widow, individually and on behalf of the surviving children of Fukuo Hosogai, Deceased, Plaintiffs-Appellants, v. Hiroshi KADOTA, or if deceased, John Doe I, the personal representative or administrative or administrator of the estate of Hiroshi Kadota if deceased or Hiroshi Kadota and John Doe II guardian if Hiroshi Kadota is mentally incompetent, Defendant-Appellee. 6038.
• Court: Arizona Court of Appeals

Page 1354

700 P.2d 1354

145 Ariz. 254

Michiko HOSOGAI, a surviving widow, individually and on behalf of the surviving children of Fukuo Hosogai, Deceased, Plaintiffs-Appellants, v. Hiroshi KADOTA, or if deceased, John Doe I, the personal representative or administrative or administrator of the estate of Hiroshi Kadota if deceased or Hiroshi Kadota and John Doe II guardian if Hiroshi Kadota is mentally incompetent, Defendant-Appellee.

No. 1 CA-CIV 6038.

Court of Appeals of Arizona Division 1, Department B.

July 10, 1984.

Monbleau, Vermeire & Turley, P.C. by Albert Vermeire, Kent E. Turley, Phoenix, for plaintiffs-appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by John H. Westover, Larry L. Smith, Brian C. Bond, Phoenix, for defendant-appellee.

BROOKS, Judge.

Two issues are raised in this appeal from the judgment of the trial court dismissing appellant's complaint on the ground that the statute of limitations had run:

1. Whether the appellee's absence from the state tolled the running of the statute of limitations.

2. Whether public policy or the doctrine of "equitable tolling" requires that the action be reinstated.

On March 25, 1976, appellant filed her original wrongful death action in Maricopa County Superior Court within the applicable two year limitation period imposed on such actions by A.R.S. § 12-542(2). The complaint sought damages based on the death of appellant's husband, Fukuo Hosogai, in a July 26, 1975 automobile collision near Prescott, Arizona allegedly caused by appellee's negligence. Appellant attempted to achieve valid service of process on appellee on three occasions: (1) by service upon the Arizona Superintendent of Motor Vehicles pursuant to the non-resident motorist statutes A.R.S. §§ 28-502 and 503; (2) by personal service upon appellee in Japan via a Japanese process server who was also an attorney; (3) by service upon the guardian ad litem of appellee. Appellee filed Rule 12(b) motions asserting lack of personal jurisdiction and/or insufficiency of service on each occasion. The trial court denied the motions and the case proceeded to trial resulting in a jury verdict of $225,000 in favor of the appellee and against the appellant. On appeal, however, in Kadota v. Hosogai, 125 Ariz. 131, 608 P.2d 68 (App.1980) this court found that the trial court lacked jurisdiction over appellee because service of process was invalid and, accordingly, reversed and remanded with directions that appellant's motion to dismiss be granted.

Thereafter on March 19, 1980, appellant filed a new action for wrongful death in Maricopa County Superior Court. On that date, the Clerk of the Superior Court issued a summons, but service upon appellee was not attempted until later in 1980.

Appellant filed a first amended complaint on August 22, 1981, again alleging that appellee's negligent acts caused the wrongful death of her husband. The amended complaint further alleged that appellant as well as appellant's decedent and appellee were all Japanese citizens, but that they had been residents of Maricopa County at the time of the accident, and that appellee had caused an event to occur in Arizona out of which the cause of action arose. The complaint also alleged that the two year statute of limitations, A.R.S. § 12-542(2), had been tolled due to appellee's physical absence from the state since shortly after the date of the accident, and because of "public and judicial policy reasons."

A summons was issued, translated in Japanese, and appellant attempted to serve the appellee in Japan pursuant to the terms of a multilateral international convention governing "Service Abroad of Judicial and Extrajudicial Documents", 20 United States Treaties 361-367. Appellee filed a motion to dismiss the first amended complaint asserting that it failed to state a claim upon which relief could be granted because the claim was barred by the applicable statute of limitations. Also, on the same date, appellee filed a motion to dismiss for lack of service of process and for insufficiency of service of process. Appellant responded to appellee's motions by filing documentation relating to service on appellee in Japan in compliance with the multilateral convention. The trial court denied appellee's motion to dismiss for lack of service, but granted the motion to dismiss on the grounds that the limitation period had expired dismissing with prejudice the first amended complaint. This ruling is now at issue on appeal.

Appellant first contends that appellee's absence from the state tolls the running of the statute of limitations. The relevant statute provides:

§ 12-501 Effect of Absence from State

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.

Appellant's position is that this statute applies whenever a person is physically absent from the state. In Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732 (1966), our Supreme Court rejected such a narrow interpretation, holding that in order for a party to be "without the state" or "absent" within the meaning of the statute, such party must be out of the state in the sense that he could not be served with process. In this case, there is no allegation that appellee could not have been properly served. Appellant has not alleged that appellee attempted to secrete himself for purposes of avoiding service of process nor is it alleged that appellant was unaware of appellee's whereabouts during the running of the statute of limitations. Indeed, all of the facts and circumstances surrounding appellant's initial attempts to serve appellee indicate that appellant knew where appellee resided throughout the period. Kadota, 125 Ariz. at 133, 608 P.2d at 70. Further, the multilateral international convention sets forth the steps necessary to properly serve a party in Japan. Accordingly, under the rule established in Phillips, we find that § 12-501 did not toll the statute of limitations.

Appellant contends that the Supreme Court's decision in Phillips is incorrect and amounts to judicial legislation and should therefore be overruled. We do not address this argument since the issue of whether prior decisions of the highest court in a state are to be disaffirmed is a question for the court which makes the decisions. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968).

The second issue raised on appeal is whether dismissal of the action would violate public policy. Citing Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), appellant argues that the policy underlying the statute of limitations would not be undermined by the reinstatement of this action. Appellant concludes that she has not "slept on her rights" and that appellee has at all times been on notice of her claim by reason of the previous litigation, the appeal therein, and by service of the...