Tenorio v. Cohen

OPINION WOOD, Judge. We discuss: (1) the ruling that the limitation period was tolled; and (2) the propriety of the interlocutory appeal. Tolling of Limitation Period Plaintiff sued defendants for damages allegedly resulting from an automobile accident. The trial court’s finding, that the accident occurred on October 13, 1975, is not contested. The complaint was filed October 18, 1978. Defendants claimed the suit was barred by the Statute of Limitations. The applicable limitation period is three years. Section 37-1-8, N.M.S.A.1978. Plaintiff moved that the trial court determine the number of days that should not be counted in computing whether the limitation period had run. Section 37 — 1—9, N.M.S.A.1978, provides that the time a person is absent from the state is not to be included in computing whether the limitation period had run. The trial court ruled that Sanford Cohen was absent from the state 118 days between October 13, 1975, and October 13, 1978, that for 98 of these days Sanford Cohen was in either Venezuela or Mexico and this 98-day presence in foreign countries shall not be included in computing the limitation period. Similarly, the trial court determined that a 52-day period, during which Elizabeth Cohen was in either Venezuela or Mexico, shall not be included in computing the limitation period. The trial court made no ruling as to Julia Cohen. The issue is the propriety of the ruling tolling the limitation period for 98 days as to Sanford and 52 days as to Elizabeth. Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967), states “the tolling statute should not be applied if a defendant could be served with process, either actual or substituted, in which event defendant’s absence from the state does not toll the running of the Statute of Limitations.” Kennedy v. Lynch, 85 N.M. 479, 513 P.2d 1261 (1973), states “the plaintiff must show that it is not possible to serve process on the defendant.” Plaintiff did not attempt to serve process on either Sanford or Elizabeth when they were in Venezuela or Mexico; the complaint had not been filed during these absences. As to whether process could have been served, the only showing is that during these absences, their home in Albuquerque was occupied by a non-rent paying house sitter, that the sitter was instructed to contact the Cohens as to anything requiring immediate attention. This showing suggests that the Cohens could have been served under N.M.R.Civ.P. 4(e)(1), N.M.S.A. 1978. Plaintiff did not meet her burden of showing it was not possible to serve process. The ruling of the trial court as to tolling the limitation period is erroneous. Propriety of the Interlocutory Appeal Defendants’ application for an interlocutory appeal posed only the tolling question discussed above. The trial court’s order stated that an immediate appeal of the tolling issue “may materially advance the ultimate termination of the litigation.” The interlocutory appeal was granted on the basis of these representations, which were false because incomplete. This Court requested the district court file. N.M.R.Civ.App. 8(c), N.M.S.A.1978. That file reveals two additional issues as to the limitation period — whether defendants had waived the limitation defense or whether defendants were estopped to assert the limitation defense. The file also reveals that these additional issues are matters of fact and that the trial court, expressly, had decided neither of them. If there was either a waiver or an estoppel, the tolling issue would not advance the ultimate termination of the litigation. By failing to disclose that other limitation issues had not been decided, defendants’ application presented the appeal in a false light. Similarly, the nondisclosure of these outstanding limitation issues in the trial court’s order also resulted in a false perspective as to the appeal. The nondisclosure was a violation of N.M.R.Civ.App. 6(b)(1) and (3), N.M.S.A.1978. Both the bench and bar are cautioned that good faith compliance with N.M.R.Civ.App. 6(b) is required. The trial court’s order, as to tolling, is reversed. The cause is remanded for further proceedings. Defendants are to bear the appellate costs. IT IS SO ORDERED. HERNANDEZ, C. J., concurs. SUTIN, J., dissents.