Jackson v. American Credit Bureau, Inc.

• Decision Date: 18 February 1975
• Docket Number: CA-CIV,No. 1,1
• Citation: 531 P.2d 932,23 Ariz.App. 199
• Parties: , 79 A.L.R.3d 841 Ann R. JACKSON, Administratrix of the Estate of Clarence O. Jackson, Deceased, Appellant, v. AMERICAN CREDIT BUREAU, INC., an Arizona Corporation, and Jack J. Schwartz, Appellees. 2090.
• Court: Arizona Court of Appeals

Page 932

531 P.2d 932

23 Ariz.App. 199, 79 A.L.R.3d 841

Ann R. JACKSON, Administratrix of the Estate of Clarence O. Jackson, Deceased, Appellant, v. AMERICAN CREDIT BUREAU, INC., an Arizona Corporation, and Jack J. Schwartz, Appellees.

No. 1 CA-CIV 2090.

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

Feb. 18, 1975.

Miller, Thur & Preston by Calvin C. Thur, Scottsdale, for appellant

Kaplan & Nelson by Jerold Kaplan, Phoenix, for appellees.

OPINION

FROEB, Judge.

In this case, the court is asked to determine when the statute of limitations begins to run against one having a claim for conversion of his personal property by another without the owner's knowledge.

Clarence O. Jackson was involved for many years in litigation with Sears, Roebuck and Co. over lengthy, complicated and burdensome legal issues, all beginning with a purchase he made in 1953 from Sears. It would serve no purpose to review the saga except to say that what began as a relatively small matter burgeoned into the loss of substantial property by Jackson and years of bitter dispute. Part of what took place in the courts was reviewed on appeal. See Jackson v. Sears, Roebuck and Co., 83 Ariz. 20, 315 P.2d 871 (1957); Jackson v. Pacific Investment Company, Inc., 94 Ariz. 416, 385 P.2d 708 (1963); Sears, Roebuck and Co. v. Jackson, 21 Ariz.App. 176, 517 P.2d 529 (1973). Much was not. The dispute attracted nationwide attention and was the subject of newspaper and magazine articles. Jackson kept personal files on the entire conflict, containing letters, receipts, notes, briefs, pleadings, lawyers' records and escrow papers. They were eight inches thick. These files are the subject of this lawsuit.

In May 1966, Jackson sought a grand jury investigation of various matters in connection with the civil litigation which had then taken place. To support the investigation, he turned over his files to Steve Fotinos, an investigator in the Maricopa County Attorney's Office. This was the last time he saw them. A month later he asked that they be returned but was told they had been misplaced and could not be found. He continued his attempt to retrieve the files in the months that followed. His attorney was informed 'not later than August 1966' that they had disappeared and could not be produced. Thereafter, on several occasions between September 1967, and May 1968, Jackson was told by an informant that a person by the name of Jack Schwartz was 'the person to look to' and not the Maricopa County Attorney's Office. On May 23, 1968, he filed a suit (which was a forerunner of this one) against Maricopa County, the Maricopa County Attorney and Steve Fotinos for loss of the files (Maricopa County Superior Court Cause No. C--212329). Thereafter, on January 6, 1969, some two years and seven months after he had originally given the files to the County Attorney's Office, and more than two years after they had disappeared from that office, Jackson (appellant) filed this law-suit against Sears, Roebuck and Co., American Credit Bureau, Inc. and Jack J. Schwartz (appellees). The complaint alleged, in substance, that American Credit Bureau, Inc. (Credit Bureau) and Jack J. Schwartz (Schwartz) were agents and employees of Sears, Roebuck and Co. (Sears) and that the Credit Bureau and Schwartz wrongfully and fraudulently took the files, or caused them to be taken, concealing the fact of their removal from Jackson. Substantial damages, both compensatory and punitive, were sought. In September, 1970, the action against Maricopa County and the Maricopa County Attorney was dismissed with prejudice by stipulation of the parties and order of the court.

In their answers, appellees denied the claim and raised an affirmative defense that the claim was barred by the two-year statute of limitations prescribed by Arizona Revised Statutes, § 12--542. The issue was presented to the trial court by motion for summary judgment on July 17, 1969, and, after a delay allowed by the court for additional discovery, was decided in favor of appellees. This appeal followed. During its pendency, and by stipulation, Sears was dismissed as a party.

There is no dispute that the action is barred if the two-year period of limitation began to run when the files were taken from the County Attorney's Office. Jackson contends, however, that the period did not begin to run until he first became aware that there had occurred an actual 'taking' as opposed to merely learning that the files were 'missing.'

At the outset, we note that the evidence presents a difficult question pertaining to whether the information which Jackson actually had acquired between August, 1966 and May, 1968, amounted to knowledge of an actual 'taking.' Even if we assume that his information did not rise to that level of understanding, we nevertheless find that the statute of limitations commenced to run from the date of the taking, regardless of what knowledge he in fact possessed.

Arizona Revised Statutes § 12--542 provides that an action for conversion must be 'commenced and prosecuted within two years after the cause of action accrues, and not afterward.' The cause of action 'accrues' at the time of the wrongful taking and not at the time of the discovery by plaintiff of the taking or of the identity of the taker. Stockmen's State Bank v. Merchants' and Stockgrowers' Bank, 22 Ariz. 354, 197 P. 888 (1921); 18 Am.Jur.2d, Conversion, § 76; 51 Am.Jur.2d, Limitations of Actions, § 124; 54 C.J.S. Limitations of Actions § 168(3); Annot., 136 A.L.R. 658 (1942).

Jackson contends that the running of the statute of limitations was tolled by reason of the concealment of the taking. He argues that the theft of the files from the County Attorney's Office by its very nature was equivalent to active concealment since he did not know, and could not determine, whether the files had been taken or who had taken them. He argues that he need not show an affirmative or intentional act of concealment since the surreptitious circumstances supply that by implication.

Schwartz and Credit Bureau argue that it is not the concealment of the property but rather concealment of the existence of the cause of action itself which must be shown in order to toll the statute. They say that Jackson has presented nothing which would indicate either an intent or an act of concealment beyond the taking itself.

There is in the record before us no showing of an affirmative act of concealment. We hold that the fact that the files were allegedly taken while in the hands of a bailee does not add the concealment factor which would be necessary to toll the statute of limitations. There must be some positive act of concealment done to prevent detection. See Tovrea Land...