Montano v. Browning

Decision Date20 June 2002
Docket NumberNo. 2 CA-SA 2002-0030.,2 CA-SA 2002-0030.
Citation202 Ariz. 544,48 P.3d 494
PartiesJessica Rae MONTANO, Petitioner, v. Hon. Christopher C. BROWNING, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Margaret Gutierrez and Marco Gutierrez, wife and husband, and Beatriz Gutierrez, their minor child, Real Parties in Interest.
CourtArizona Court of Appeals

Chandler, Tullar, Udall & Redhair, LLP, by D.B. Udall, Tucson, for Petitioner.

Risner & Graham, by Kenneth K. Graham, Tucson, for Real Party in Interest.


BRAMMER, Presiding Judge.

¶ 1 Petitioner Jessica Rae Montaño moved to dismiss the underlying personal injury action brought by real parties in interest Margaret Gutierrez and her husband Marco Gutierrez on their own behalf and on behalf of their minor child, real party in interest Beatriz Gutierrez, on the ground that Margaret and Marco's action was time barred by the statute of limitations.1 The respondent judge denied the motion, finding that the statute of limitations had been tolled until Montaño's eighteenth birthday. Montaño seeks special action relief from that ruling.

¶ 2 Montaño has no equally plain, speedy, or adequate remedy by appeal. See Fernandez v. Garza, 93 Ariz. 318, 380 P.2d 778 (1963)

(denial of motion for summary disposition not an appealable order); Engle Bros., Inc. v. Superior Court, 23 Ariz.App. 406, 533 P.2d 714 (1975) (special action relief appropriate when trial court erroneously denied motion to dismiss based on statute of limitations). Additionally, the issue she raises is purely a question of law. See Safeway Stores, Inc. v. Maricopa County Superior Court, 19 Ariz.App. 210, 505 P.2d 1383 (1973) (special action jurisdiction appropriate to review purely legal question as to applicability of statute of limitations to undisputed facts when correct ruling would avoid expense and delay of unnecessary trial). Further, insofar as we can tell, this is an issue of first impression, both in Arizona and the nation, an additional reason to accept jurisdiction. See Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126 (1993). Consequently, we accept jurisdiction of this special action and, finding the respondent judge abused his discretion in denying the motion to dismiss, we grant relief. Ariz. R.P. Special Actions 1(a) and 3, 17B A.R.S.

¶ 3 The limitations period applicable to an action for personal injury is two years. A.R.S. § 12-542. The underlying action arose from an October 13, 1999, motor vehicle collision between a car driven by then seventeen-year-old Montaño and a car driven by Margaret in which her one-year-old daughter Beatriz was a passenger. Montaño turned eighteen on January 18, 2000. Margaret filed her complaint on October 19, 2001, two years and six days after the collision but well within two years of Montaño's eighteenth birthday. Montaño moved to dismiss the personal injury action on the ground that it had been filed more than two years after the accident had occurred and was therefore time barred. Denying Montaño's motion, the respondent judge ruled as follows:

The Court believes that the statute of limitations is tolled during one's minority and that a cause of action only begins to accrue for purposes of the application of the statute of limitations once the individual reaches majority.
While there is apparently not a reported decision directly on point, there is a strong presumption in our State of litigating matters on the merits when possible. Technical defenses such as statute of limitations are generally disfavored. See, Continental Casualty [Co.] v. Grabe Brick Co [.], 1 Ariz.App. 214, 401 P.2d 168 (1965)


¶ 4 The respondent judge was correct that the resolution of claims on their merits is favored. And, although dismissal of an action based on expiration of the statute of limitations is generally disfavored, see Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 898 P.2d 964 (1995),

claims that are clearly brought outside the relevant limitations period are conclusively barred. See Hall v. Romero, 141 Ariz. 120, 685 P.2d 757 (App.1984); Gregory v. Porterfield, 26 Ariz.App. 353, 548 P.2d 847 (1976). We review de novo "any questions of law relating to the statute of limitations defense," Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App.1996), and, as here, the determination of when a particular cause of action accrues if it hinges solely on a question of law rather than resolution of disputed facts. See CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, 7 P.3d 979 (App.2000); Owens v. City of Phoenix, 180 Ariz. 402, 884 P.2d 1100 (App.1994).

¶ 5 The legislature has provided for the tolling of the period of limitations under certain circumstances. Section 12-502, A.R.S., for example, states in pertinent part, as follows:

Effect of minority or insanity
If a person entitled to bring an action other than those [involving real property]... is at the time the cause of action accrues ... under eighteen years of age..., the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others.

However, by its express terms, this statute applies only to a person bringing an action. Other statutes provide for the tolling of the limitations period based on circumstances involving persons against whom the action is brought in specific situations. See A.R.S. § 12-501 (limitations period tolled during defendant's absence from state); A.R.S. § 12-528 (in actions for recovery of real property, limitations period tolled during minority or insanity of plaintiff or defendant). Had the legislature intended the statute of limitations found in § 12-542 to toll during the minority of the person against whom a personal injury action is brought, it presumably would have so stated in § 12-502. Cf. State v. Huskie, 202 Ariz. 283,

¶ 8, 44 P.3d 161, ¶ 8 (App.2002) ("`What a statute necessarily implies is as much a part of the statute as what the statute specifically expresses.'"), quoting Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App.1993).

¶ 6 As she did in opposing the motion to dismiss, Margaret relies primarily on the following portion of Pintek v. Superior Court, 78 Ariz. 179, 183-84, 277 P.2d 265, 268 (1954):

[A]n infant generally may sue or be sued, and is subject to and bound by the same rules of procedure as an adult litigant, yet an infant cannot bring or defend a legal proceeding in person, but must sue or be sued by a legally appointed guardian, or next friend or a guardian ad litem.

The Pintek court's only authorities for this dictum were 43 C.J.S. Infants § 103 (now § 215) and 27 Am.Jur. Infants § 116. The cited section in the latter encyclopedia does not address whether a minor defendant may be joined to a legal action as a party defendant without first having the court appoint a guardian ad litem; rather, it discussed the ability of a minor to appear in a legal action. The discussion in the current version of the former authority, 43 C.J.S., Infants § 215 (1978), essentially mirrors the above-quoted excerpt from Pintek, but sheds no further light on when in the course of the legal proceeding the guardian, next friend, or guardian ad litem must be appointed. Indeed, Pintek did not address any statute of limitations issue at all and held only that minors had "no right to appear by an attorney of their own choosing without first" having the court appoint a "next friend or guardian ad litem" to act on their behalf. 78 Ariz. at 184, 277 P.2d at 268. Nonetheless, Margaret relies on this dictum in Pintek for the proposition that one may not bring a cause of action against a minor unless and until a guardian is appointed by the court or the minor reaches the age of majority.

¶ 7 Actions are commonly brought against minors. See, e.g., Boomer v. Frank, 196 Ariz. 55, 993 P.2d 456 (App.1999)

(action in tort brought against minor defendant apparently without prior appointment of guardian); Tax Collector of the City of New Haven v. Miley, 34 Conn.App. 634, 642 A.2d 747 (1994) (no requirement that parent or guardian of defendant minor be served with process). And, no statute, rule, or applicable case law precludes a timely filed lawsuit against a minor defendant or otherwise supports Margaret's assertion that, before Montaño reached the age of eighteen years, an action "could not be filed against her absent her having had a general guardian, next friend, or guardian ad litem appointed by the court." Lastly, appearing in an action is far different than being named in one as a defendant. Pintek merely tells us that, once named as a defendant, a minor must have a court-appointed guardian ad litem or next friend only as a condition precedent to making an appearance.

¶ 8 Moreover, the rules of civil procedure related to service of process implicitly recognize that the appointment of a guardian is not a predicate to the commencement of an action against a minor. Rule 4.1(d), Ariz. R.Civ.P., 16 A.R.S., Pt. 1, sets forth the general procedures for the personal delivery of a summons and a complaint to a defendant of unspecified age. Rule 4.1(e) applies to minors under the age of sixteen years and requires that service be made not only on the minor but also on the minor's parent, guardian, or person having care or control of the minor. Rule 4.1(f) applies to minors for whom a guardian or conservator has already been appointed in this state and requires service on the minor and the guardian or conservator. Rule 4.1(d) therefore implicitly applies to minors between sixteen and eighteen years of age for whom a guardian or conservator has not been appointed. See Charles M. Smith, Arizona Civil Trial Practice § 222, at 210 (1986) ("Apparently, if the minor defendant is sixteen years of age or over, only the minor need be served unless an Arizona...

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