State ex rel. State Community College Bd. v. Sergent, Hauskins & Beckwith, Inc.

• Court: Arizona Court of Appeals
• Writing for the Court: OGG; FROEB
• Citation: State ex rel. State Community College Bd. v. Sergent, Hauskins & Beckwith, Inc., 556 P.2d 23, 27 Ariz.App. 469 (Ariz. App. 1976)
• Decision Date: 19 August 1976
• Docket Number: CA-CIV,Nos. 1,s. 1
• Parties: The STATE of Arizona ex rel. the STATE COMMUNITY COLLEGE BOARD, a body politic, the Cochise College District Governing Board, a body politic, Appellants, v. SERGENT, HAUSKINS & BECKWITH, INC., formerly Warne, Sergent & Hauskins, B. Dwaine Sergent and Jane Doe Sergent, his wife, John B. Hauskins and Jane Doe Hauskins, his wife, George H. Beckwith and Jane Doe Beckwith, his wife, James B. Warne, Jr. and Jane Doe Warne, his wife, Engineers Testing Laboratories, Inc., Appellees. The STATE of Arizona ex rel. the STATE COMMUNITY COLLEGE BOARD, a body politic, the Cochise College District Governing Board, a body politic, Appelants, v. MAGADINI ASSOCIATES, INC., a Professional Corporation, Charles R. Magadini and Jane Doe Magadini, his wife, H. M. Elliott and Jane Doe Elliott, his wife, J. S. Alagia and Jane Doe Alagia, his wife, J. H. Gervasio and Jane Doe Gervasio, his wife, Appellees. 2694, 1 2784.

Page 23

556 P.2d 23

27 Ariz.App. 469

The STATE of Arizona ex rel. the STATE COMMUNITY COLLEGE BOARD, a body politic, the Cochise College District Governing Board, a body politic, Appellants, v. SERGENT, HAUSKINS & BECKWITH, INC., formerly Warne, Sergent & Hauskins, B. Dwaine Sergent and Jane Doe Sergent, his wife, John B. Hauskins and Jane Doe Hauskins, his wife, George H. Beckwith and Jane Doe Beckwith, his wife, James B. Warne, Jr. and Jane Doe Warne, his wife, Engineers Testing Laboratories, Inc., Appellees.

The STATE of Arizona ex rel. the STATE COMMUNITY COLLEGE BOARD, a body politic, the Cochise College District Governing Board, a body politic, Appelants, v. MAGADINI ASSOCIATES, INC., a Professional Corporation, Charles R. Magadini and Jane Doe Magadini, his wife, H. M. Elliott and Jane Doe Elliott, his wife, J. S. Alagia and Jane Doe Alagia, his wife, J. H. Gervasio and Jane Doe Gervasio, his wife, Appellees.

Nos. 1 CA-CIV 2694, 1 CA-CIV 2784.

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

Aug. 19, 1976.

Rehearing Denied Oct. 6, 1976.

Petition for Review Denied Nov. 9, 1976.

Bruce E. Babbitt, Atty. Gen. by Monte C. Clausen, Sp. Asst. Atty., Phoenix, for appellants.

Engdahl, Jerman, Butler & Estep by Dean Estep, Lewis & Roca by Joseph E. McGarry, Paul G. Ulrich, Richard N. Goldsmith, Phoenix, for appellees Sergent, Hauskins & Beckwith, Inc., and others.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by M. E. Rake, Jr., Phoenix, for appellee Magadini Associates, Inc.

OPINION

OGG, Judge.

We are reviewing two consolidated cases involving alleged negligence and breach of contract in the construction of two dormitories at Cochise College in Douglas, Arizona.

The issue determining both appeals is whetherappellant/plaintiffs, the State Community College Board and the Cochise College District Governing Board qualify as the 'state' in order to nullify the defense of the statute of limitations under the provisions of ARS § 12--510, which reads:

The State shall not be barred by the limitations of actions prescribed in this chapter. (Emphasis added)

The two appellee/defendants Sergent, Hauskins and Beckwith, Inc., in 1 CA-CIV 2694, and Magadini Associates, Inc., in 1 CA-CIV 2784, are engineering firms who performed work in the construction of the two dormitories.

Sergent, Hauskins and Beckwith (soils engineers) entered into a written contract with the State Board of Directors for Junior Colleges to test the soils on the proposed building site. It is the position of the soils engineers that more than seven and one-half years elapsed from the time of the completion of the work and that any claim by the Board is now banned under the six year written contract statute of limitations, which reads:

§ 12--548, ARS. Contract in writing for debt; six year limitation

An action for debt where indebtedness is evidenced by or founded upon a contract in writing executed within the state shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward.

Magadini Associates, Inc. (structural engineers) were retained by the architects to do the structural engineering on the dormitories. For the purposes of this appeal all parties agree that the Boards' only cause of action against the structural engineers rests in tort.

It is the position of the structural engineers that the Boards had notice of the alleged tortious conduct at least six years prior to filing the complaint and that the Boards' cause of action is barred by ARS § 12--542, the two year tort statute of limitations. The pertinent portion of § 12--542 reads:

There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions: . . .

3. For trespass for injury done to the estate or the property of another.

Both engineering firms filed motions for summary judgment. The trial court granted the motions in ruling that all the claims of the Boards were barred by the statute of limitations. The Boards then filed this appeal.

The Boards allege that the trial court was in error in granting the motions for summary judgment for the reason that the statute of limitations has no application against the 'state' under the provisions of ARS § 12--510.

The facts in both cases are not in dispute. The State Community College Board holds the legal title to the dormitories involved in this litigation. The Cochise College District Governing Board is only a nominal party. The building of the dormitories was financed through the medium of revenue bonds which are repaid out of rent charged students for the use of the dormitories. The Boards waited more than seven and one-half years after completion of the work to bring an action against the soils engineers. Similarly, the Boards waited more than six years after notice of the alleged negligence of the structural engineers before filing the complaint. The Boards are clearly barred from seeking relief from the engineering firms by operation of the statute of limitations unless the Boards are considered to be the 'state' and entitled to immunity from the operation of the statute of limitations pursuant to the provisions of ARS § 12--510.

A review of cases from other jurisdictions shows there is a split of authority as to whether a state board has the same immunity from the operation of the statute of limitations as the state itself. See 53 C.J.S. Limitations of Actions § 16 (1948).

The Arizona Supreme Court has discussed the status of the Arizona Board of Regents, a body corporate, which has almost identical powers as the State Community College Board. ARS § 15--724. It is our opinion that the legal principles applicable to the Arizona Board of Regents also apply to the State Community College Board.

Depending upon the facts in each case the Arizona Supreme Court has found the Board of Regents to be: 1) a body corporate, Fairfield v. W. J. Corbett Hardware Co., 25 Ariz. 199, 215 P. 510 (1923); 2) Not to be the State of Arizona but a separate legal entity, Board of Regents v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935); 3) the 'state' as such term is used in the Minimum Wage Law, State v. Miser, 50 Ariz. 244, 72 P.2d 408 (1937); and 4) an agency of the state, Board of Regents v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960).

The criteria for determining if the Community College Board is acting as a corporation; agency of the state; political subdivision; or as the 'state' was set forth in Board of Regents v. City of Tempe, supra, at 305, 356 P.2d at 403:

Whether the Board of Regents is deemed to be the State depends on the Particular circumstances of the case. Thus, in Board of Regents of University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619, it was held that the Board of Regents is not the 'state' within the meaning of Article IX, Section 5 of the Constitution imposing a dollar limitation upon the power of the State to contract debts. In State of Arizona v. Miser, 50 Ariz. 244, 256, 72 P.2d 408, 413, on the other hand, this Court held that the Board of Regents, and consequently the State University, 'comes within the term, 'state", as used in the Minimum Wage Law. (Emphasis added)

After a review of the cases it appears that each case must stand on its own facts. Under the particular facts of this case it is our opinion that the Community College Board was acting in its corporate capacity and that the provisions...