Albano v. SHEA HOMES LTD. PARTNERSHIP

SUPREME COURT OF ARIZONA
En Banc

ALFRED ALBANO, an unmarried man; ) Arizona Supreme Court
MONICA LEWIS, an unmarried ) No. CV-11-0006-CQ
woman; SAMANTHA BAKER, an )
individual; ARIEL BARR, an ) United States Court of
unmarried man; PHILLIP BARR, a ) Appeals, 9th Circuit
single man; KEITH BODIE, ) No. 09-15808
husband; STACY BODIE, wife; JON )
L. BRUCE, an individual; CRAIG ) United States District
BURKE, husband; LINDA BURKE, ) Court for the District
wife; DAWN R. CAIN, an ) of Arizona (Phoenix)
individual; CHRISTINA CARLSON, ) No. 07-CV-02359
an individual; CHARLES CHEN, ) No. 08-CV-00505
husband; LISA CHEN, wife; ) (Consolidated)
CHRISTOPHER CORDASCO, an )
individual; PAUL CRANDELL, )
husband; JENNIFER CRANDELL, )
wife; KENT ELLSWORTH, husband; ) O P I N I O N
LAUREE ELLSWORTH, wife; RONALD )
FILIPSKI, husband; LAURA )
FILIPSKI, wife; ANGELICA HARVEY, )
an individual; DIRK HOWARD, )
husband; NANCY HOWARD, wife; )
GEORGE HULECKI, husband; JEANNE )
HULECKI, wife; CANDACE HURTT, )
wife; JAMES CRAIG, husband; )
ROBERT KEGERREIS, Trustee of the )
Kegerreis Family Trust u/a/d )
June 15, 2005; CYNTHIA KEGERREIS, )
Trustee of the Kegerreis Family )
Trust u/a/d June 15, 2005; JOHN )
R. LETTEER, husband; JUDITH )
LETTEER, wife; KELLY J. MALLORY, )
an individual; CHARLES )
McGOLDRICK, husband; MAUREEN )
McGICK, wife; ROBERT L. MITCHELL, )
a single man; BEATRICE M. LINNE, )
an unmarried woman; RICHARD )
NAVARRO, an individual; SCOTT A. )
OLMSTEAD, husband; AMBER S. )
OLMSTEAD, wife; DONALD W. )
ROBERTS, husband; JULIA A. )
ROBERTS, wife; LINDA S. RODELA, )
an individual; JACK E. ROSE, JR., )
husband; SHAWNA R. ROSE, wife; )
MARK B. SAMFORD, husband; )
REBECCA L. SAMFORD, wife; JANE )
D. SCHMALTZ, an individual; )
RICHARD SCOTT, husband; SHARON )
SCOTT, wife; DENNIS SIMPSON, an )
individual; BLAKE SLAUGHTER, )
husband; CHANTELL SLAUGHTER, )
wife; BRUCE TARMAN, husband; )
JANELLE TARMAN, wife; MICHAEL L. )
TOMAINO, II, an individual; ERIC )
T. VALIMAKI, husband; CRISTI D. )
VALIMAKI, wife; DAVID A. WENMAN, )
husband, as Trustee of the Wenman )
Family Trust dated July 9, 1999; )
JACQUELINE DIANE WENMAN, wife, )
as Trustee of the Wenman Family )
Trust dated July 9, 1999; SETH )
WHEELER, husband, on his own )
behalf and on behalf of all )
others similarly situated; )
JACQUELINE WHEELER, wife, on her )
own behalf and on behalf of all )
others similarly situated; )
PHILLIS J. SIMPSON, an )
individual, )
)
Plaintiffs-Appellants, )
)
v. )
)
SHEA HOMES LIMITED PARTNERSHIP, )
an Arizona limited partnership; )
J.F. SHEA CO., INC., a Nevada )
corporation, dba SHEA HOMES, )
)
Defendants-Appellees. )
)
__________________________________)

Certified Questions from the
United States Court of Appeals for the Ninth Circuit

The Honorable Kenneth F. Ripple, Judge

The Honorable Pamela Ann Rymer, Judge

The Honorable Raymond C. Fisher, Judge

2
 QUESTIONS ANSWERED
________________________________________________________________

BURDMAN & SHORE PLLC Phoenix
By William F. Shore, III
Robert E. Barry
Robert H. Willis

And

PAUL G. ULRICH PC Phoenix
By Paul G. Ulrich
Attorneys for Alfred Albano, Monica Lewis, Samantha Baker, Ariel
Barr, Phillip Barr, Keith Bodie, Stacy Bodie, Jon L. Bruce,
Craig Burke, Linda Burke, Dawn R. Cain, Christina Carlson,
Charles Chen, Lisa Chen, Christopher Cordasco, Paul Crandell,
Jennifer Crandell, Kent Ellsworth, Lauree Ellsworth, Ronald
Filipski, Laura Filipski, Angelica Harvey, Dirk Howard, Nancy
Howard, George Hulecki, Jeanne Hulecki, Candace Hurtt, James
Craig, Robert Kegerreis, Cynthia Kegerreis, John R. Letteer,
Judith Letteer, Kelly J. Mallory, Charles McGoldrick, Maureen
McGick, Robert L. Mitchell, Beatrice M. Linne, Richard Navarro,
Scott A. Olmstead, Amber S. Olmstead, Donald W. Roberts, Julie
A. Roberts, Linda S. Rodela, Jack E. Rose, Jr., Shawna R. Rose,
Mark B. Samford, Rebecca L. Samford, Jane D. Schmaltz, Richard
Scott, Sharon Scott, Dennis Simpson, Blake Slaughter, Chantell
Slaughter, Bruce Tarman, Janelle Tarman, Michael L. Tomaino, II,
Eric T. Valimaki, Cristi D. Valimaki, David A. Wenman,
Jacqueline Diane Wenman, Seth Wheeler, Jacqueline Wheeler, and
Phillis J. Simpson

MARISCAL WEEKS MCINTYRE & FRIEDLANDER PA Phoenix
By Gary L. Birnbaum
Barry R. Sanders
Stephen E. Richman

And

RIGHI HERNANDEZ LAW FIRM Phoenix
By Jill Ann Herman
Attorneys for Shea Homes Limited Partnership and J.F. Shea
Co., Inc.

BONNETT FAIRBOURN FRIEDMAN & BALINT PC Phoenix
By Francis J. Balint, Jr.
Kevin R. Hanger

3
Attorneys for Amicus Curiae Public Justice PC

KOELLER NEBEKER CARLSON & HALUCK LLP Phoenix
By William A. Nebeker
Troy G. Allen
Rachel C. Nies
Melissa J. England
Attorneys for Amicus Curiae Home Builders Association of Central
Arizona

KASDAN SIMONDS WEBER & VAUGHAN LLP Phoenix
By Kenneth S. Kasdan
Stephen L. Weber
Michael J. White
Attorneys for Amicus Curiae Concerned Consumers of Sun City
Grand

FOLK & ASSOCIATES PC Phoenix
By P. Douglas Folk
Heather K. Seiferth
Attorneys for Amicus Curiae American Council of Engineering
Companies of Arizona, AIA Arizona and Structural Engineers
Association of Arizona
________________________________________________________________

P E L A N D E R, Justice

¶1 We accepted jurisdiction to answer three questions

certified to us by the United States Court of Appeals for the

Ninth Circuit:

1. Does the filing of a motion for class certification
in an Arizona court toll the statute of limitations
for individuals, who are included within the class, to
file individual causes of action involving the same
defendants and the same subject matter?

2. If so, does this class-action tolling doctrine
apply to statutes of repose, and more specifically, to
the statute of repose for construction defects set
forth in Arizona Revised Statutes (“A.R.S.”) § 12–552?

3. If the doctrine applies to statutes of repose, and
specifically § 12–552, may a court weigh the equities
of the case in determining whether, and to what

4
 extent, an action is tolled?

We have jurisdiction pursuant to Article 6, Section 5(6) of the

Arizona Constitution, A.R.S. §§ 12–1861 to 12–1867 (2003), and

Arizona Supreme Court Rule 27.

¶2 Although the issue posed by the first question is not

directly presented here, we assume without deciding that the

timely filing of a class action complaint in Arizona tolls the

applicable statute of limitations for all non-named putative

class members from the date the complaint is filed until an

order denying class certification is entered. We answer the

second certified question in the negative and, therefore, find

it unnecessary to answer the third question.

I

¶3 The Ninth Circuit’s amended certification order

details this litigation’s lengthy history. See Albano v. Shea

Homes Ltd. P’ship, 634 F.3d 524, 526-29 (9th Cir. 2011).

Briefly, plaintiffs Alfred Albano and two other homeowners

appealed to the Ninth Circuit from the district court’s summary

judgment dismissing their construction-defect claims against

Shea Homes Limited Partnership and J.F. Shea Co., Inc.

(collectively “Shea Homes”) as barred by Arizona’s statute of

repose, A.R.S. § 12-552 (2003). The case pending before the

Ninth Circuit is the third of four related lawsuits alleging

construction defects in homes located in a Shea Homes planned

5
community (Carriage Lane) in Gilbert.

¶4 The first case (“Hoffman”) was filed as a putative

class action against Shea Homes in superior court in June 2003.

The named plaintiffs did not move for class certification until

November 2005. In February 2006, the superior court denied that

motion, both as untimely and for failure to establish the

“‘typicality’ and ‘commonality’” of claims required for class

certification under Arizona Rule of Civil Procedure 23. The

court also denied the plaintiffs’ motion to add eighty-six new

plaintiffs. The three named plaintiffs in Hoffman later settled

their claims.

¶5 The second case against Shea Homes was filed in 2006

by Carriage Lane homeowners not allowed to join Hoffman. After

serving a Notice and Opportunity to Repair (“NOR”) on Shea

Homes, those homeowners filed a new action (“Albano I”) in

superior court. That action, however, was dismissed because the

plaintiffs did not respond to the defendants’ offers to repair,

as required by the Arizona Purchaser Dwelling Act, A.R.S. § 12-

1363 (2003).

¶6 Thereafter, the Albano I plaintiffs sent additional

NORs to Shea Homes, and on November 5, 2007, filed a third

action in superior court (“Albano II”) against Shea Homes. The

defendants removed the case to federal court and moved for

summary judgment, asserting that the action was barred by the

6
eight-year statute of repose in § 12-552(A).

¶7 Before responding to the motion, the plaintiffs filed

another action in superior court (“Albano III”), naming as the

only defendant Shea Homes Arizona Limited Partnership. The case

was removed to district court and consolidated with Albano II.

Shea Homes filed a motion for summary judgment in Albano III,

which posed the same issue as the Albano II motion - whether

plaintiffs’ claims were time-barred by the statute of repose or,

instead, whether the statute’s eight-year period was tolled

between the filing of the Hoffman putative class action and the

superior court’s denial of class certification in that case.

¶8 The district court found plaintiffs’ claims were time-

barred. The court was persuaded that this Court would adopt the

tolling rule for class actions recognized in American Pipe and

Construction Co. v. Utah, 414 U.S. 538 (1974). The district

court also concluded that American Pipe tolling could apply to

the statute of repose at issue, A.R.S. § 12-552(A).

¶9 Applying American Pipe to the plaintiffs’ claims,

however, the court concluded that tolling could not save the

Albano III action because the tolling rule “presupposes that the

defendant is identical in both the class action suit and the

individual class members’ suits.” Shea Homes Arizona Limited

Partnership was not a defendant in Hoffman.

¶10 With respect to Albano II, the district court

7
concluded that tolling was only appropriate from the filing of

plaintiffs’ motion for class certification on November 2, 2005,

until the denial of that motion on February 24, 2006. The court

refused to toll the statute of repose for the nearly two and a

half years that it took the Hoffman plaintiffs to move for class

certification, finding “such prolonged tolling unwarranted.”

Without the benefit of tolling for the entire period from the

filing of Hoffman until the denial of class certification, the

district court concluded, plaintiffs’ claims were untimely.

¶11 On appeal,1 plaintiffs contended that the district

court erred in failing to apply American Pipe tolling for the

period between the filing of the Hoffman complaint and the

denial of class certification. Because this Court has never

determined whether American Pipe and its progeny apply to class

actions, and more specifically, to class actions subject to a

statute of repose, the Ninth Circuit certified the three

questions to this Court. See Albano, 634 F.3d at 526, 540-41.

II

¶12 American Pipe involved a putative class action under

Rule 23 of the Federal Rules of Civil Procedure, a rule that is

substantively similar to Rule 23 of the Arizona Rules of Civil

1
Because the Ninth Circuit’s caption does not include Shea
Homes Arizona Limited Partnership, we assume that plaintiffs
only appealed from the summary judgment entered against them in
Albano II.

8
Procedure. In American Pipe, the State of Utah, purportedly

representing various “public bodies and agencies of the state

and local government,” instituted a federal antitrust class

action shortly before the applicable statute of limitations

expired. 414 U.S. at 541 (internal quotation marks omitted).

The district court denied class certification. See id. at 543.

Various entities in the putative class then moved to intervene,

but that motion was denied because the limitations period had

run. Id. at 543-44. After the Ninth Circuit reversed that

ruling on appeal, the Supreme Court granted certiorari and

affirmed, concluding as follows:

Under the circumstances of this case, where the
District Court found that the named plaintiffs
asserted claims that were “typical of the claims or
defenses of the class” and would “fairly and
adequately protect the interests of the class,”
[Fed. R. Civ. P.] 23(a)(3), (4), the claimed members
of the class stood as parties to the suit until and
unless they received notice thereof and chose not to
continue. Thus, the commencement of the action
satisfied the purpose of the limitation provision as
to all those who might subsequently participate in the
suit as well as for the named plaintiffs.

Id. at 550-51.

¶13 The Court held that generally “commencement of the

original class suit tolls the running of the statute [of

limitations] for all purported members of the class who make

timely motions to intervene after the court has found the suit

inappropriate for class action status.” Id. at 553. A contrary

9
conclusion, the Court reasoned, would frustrate the purposes of

class actions recognized in Rule 23 of the Federal Rules of

Civil Procedure, “because then the sole means by which members

of the class could assure their participation in the judgment if

notice of the class suit did not reach them until after the

running of the limitation period would be to file earlier

individual motions to join or intervene as parties.” Id. at

551. That scenario would result in the multiple actions that

“Rule 23 was designed to avoid in those cases where a class

action is found ‘superior to other available methods for the

fair and efficient adjudication of the controversy.’” Id.

(quoting Fed. R. Civ. P. 23(b)(3)).

¶14 The Court said that a class-action tolling rule was

not “inconsistent with the functional operation of a statute of

limitations,” which is designed to avoid “stale claims” and

“prevent[] surprises through the revival of claims that have

been allowed to slumber until evidence has been lost, memories

have faded, and witnesses have disappeared.” Id. at 554

(citations omitted). Such policies are satisfied when “a named

plaintiff who is found to be representative of a class commences

a suit and thereby notifies the defendants not only of the

substantive claims being brought against them, but also of the

number and generic identities of the potential plaintiffs who

may participate in the judgment.” Id. at 554-55.

10
¶15 The Supreme Court later extended the American Pipe

tolling rule to parties who, after the denial of a motion for

class certification, institute their own actions rather than

seek to intervene in the putative class action. Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983). The Court held

that “[t]he filing of a class action tolls the statute of

limitations ‘as to all asserted members of the class.’” Id. at

350 (quoting American Pipe, 414 U.S. at 554). The Court

observed that many of “the same inefficiencies would ensue if

American Pipe’s tolling rule were limited to permitting putative

class members to intervene after the denial of class

certification.” Id. at 350.

¶16 Citing similar policy justifications, most states with

class action rules similar to federal Rule 23 have followed

American Pipe and adopted a class action tolling rule for

statutes of limitations. See Philip Morris USA, Inc. v.

Christensen, 905 A.2d 340, 354-55 & n.8 (Md. 2006) (adopting

American Pipe and citing other state cases); see also Grimes v.

Hous. Auth., 698 A.2d 302, 307 (Conn. 1997) (applying American

Pipe rule to toll statute of limitations); Stevens v. Novartis

Pharms. Corp., 247 P.3d 244, 251 (Mont. 2010) (same).

III

¶17 Because this case involves only Arizona’s statute of

repose, we need not answer the first certified question, which

11
deals with statutes of limitations. We assume without deciding

that the filing of a class action in Arizona tolls the

applicable statute of limitations for non-named class members

until class certification is denied. This case, however,

requires us to address whether such a tolling rule would also

apply to a statute of repose. The statute at issue here

provides in relevant part:

Notwithstanding any other statute, no action or
arbitration based in contract may be instituted or
maintained against a person who develops or develops
and sells real property, or performs or furnishes the
design, specifications, surveying, planning,
supervision, testing, construction or observation of
construction of an improvement to real property more
than eight years after substantial completion of the
improvement to real property.

A.R.S. § 12-552(A).

¶18 The statute provides a limited exception if injury to

the real property occurs, or a latent defect is first

discovered, during the eighth year after substantial completion

of the improvement:

Notwithstanding subsection A of this section, in the
case of injury to real property or an improvement to
real property, if the injury occurred during the
eighth year after the substantial completion, or, in
the case of a latent defect, was not discovered until
the eighth year after substantial completion, an
action to recover damages for injury to the real
property may be brought within one year after the date
on which the injury to real property or an improvement
to real property occurred or a latent defect was
discovered, but in no event may an action be brought
more than nine years after the substantial completion
of the improvement.

12
Id. § 12-552(B).

¶19 Before § 12-552 was enacted, developers and builders

faced an indeterminable period of liability exposure. See,

e.g., Hershey v. Rich Rosen Constr. Co., 169 Ariz. 110, 116, 817

P.2d 55, 61 (App. 1991); Sheibels v. Estes Homes, 161 Ariz. 403,

404, 778 P.2d 1299, 1300 (App. 1989). The Legislature enacted

§ 12-552 to limit the “time period during which action may be

brought against those engaged in the development or construction

of real property and activity related to the construction of

real property.” See Ariz. State Senate, Fact Sheet for S.B.

1305, 39th Leg., 1st Reg. Sess. (Mar. 20, 1989); see also Evans

Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 239

¶ 9, 159 P.3d 547, 549 (App. 2006) (noting that § 12-552(A)

“limits the time within which parties may bring breach of

contract and implied warranty actions against developers,

builders, and certain others” (quoting Maycock v. Asilomar Dev.,

Inc., 207 Ariz. 495, 498 ¶ 15, 88 P.3d 565, 568 (App. 2004))).

¶20 Courts elsewhere are divided on whether American Pipe

tolling should apply to statutes of repose. See Albano, 634

F.3d at 535 (discussing the split in authority). In Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Supreme

Court concluded in a non-class action context that a federal

statute of repose was not subject to equitable tolling because

13
the purpose of the statute was “clearly to serve as a cutoff.”

501 U.S. 350, 363 (1991). Following Lampf, lower federal courts

and state courts addressing whether American Pipe applies to

statutes of repose have often focused on whether American Pipe

tolling is properly characterized as legal or equitable in

nature. See Albano, 634 F.3d at 535.

¶21 The decisions, however, have not clearly or

consistently differentiated between legal and equitable tolling.

Compare Joseph v. Wiles, 223 F.3d 1155, 1166-67 (10th Cir. 2000)

(concluding American Pipe tolling applies to statutes of repose

and characterizing such tolling as “legal rather than equitable

in nature” because it “occurs any time an action is commenced

and class certification is pending”), and Arivella v. Lucent

Techs., Inc., 623 F. Supp. 2d 164, 176 (D. Mass. 2009)

(concluding that American Pipe tolling applies to statutes of

repose because it “is a species of legal tolling, in that it is

derived from a statutory source” (quotation omitted)), with

Footbridge Ltd. Trust v. Countrywide Fin. Corp.,

___ F. Supp. 2d ___, 2011 WL 907121 at *6 (S.D.N.Y. Mar. 16,

2011) (holding American Pipe tolling does not apply to statutes

of repose and characterizing it as equitable tolling in that it

“is a judicially-created rule premised on traditional equitable

considerations of fairness, judicial economy, and needless

14
multiplicity of suits” (quotation omitted)).2

IV

¶22 We do not believe that characterizing American Pipe

tolling as either equitable or legal provides a sound basis for

deciding whether to apply the doctrine to a statute of repose.

As the split in authority illustrates, American Pipe tolling

does not fit neatly into either category. More pertinent to our

analysis is the Supreme Court’s observation in American Pipe

that, when determining whether to apply class action tolling,

“[t]he proper test is . . . whether tolling the limitation in a

given context is consonant with the legislative scheme.”

414 U.S. at 557-58.

¶23 In Arizona’s legislative scheme, statutes of repose

differ in purpose and operation from statutes of limitations.

2
Most federal courts addressing the issue have concluded
that American Pipe tolling is legal in nature and therefore
applicable to statutes of repose. See Footbridge, 2011 WL
907121 at *6 (discussing cases). Both the Supreme Court and
this Court, however, have suggested, albeit in dicta, that
American Pipe tolling is a form of equitable tolling. See Young
v. United States, 535 U.S. 43, 49 (2002) (citing American Pipe,
among other authorities, for the notion that “[i]t is hornbook
law that limitations periods are customarily subject to
equitable tolling . . . unless tolling would be inconsistent
with the text of the relevant statute” (citations and quotations
omitted)); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 &
n.3 (1990) (citing American Pipe as an example of “allow[ing]
equitable tolling” in certain situations); Hosogai v. Kadota,
145 Ariz. 227, 231-33, 700 P.2d 1327, 1331-33 (1985) (repeatedly
citing American Pipe as an example of equitable tolling). Those
cases, however, did not involve the issue of whether the
doctrine could apply to toll a statute of repose.

15
The latter generally begin to run after an injury occurs and is

(or reasonably should have been) discovered. See, e.g., Walk v.

Ring, 202 Ariz. 310, 315-16 ¶¶ 20-23, 44 P.3d 990, 995-96

(2002). But a statute of repose is intended “to establish a

limit beyond which no suit may be pursued,” and “sets a period

of time within which claims must be brought regardless of when

the cause of action may accrue.” Evans Withycombe, 215 Ariz. at

240 ¶ 12, 159 P.3d at 550 (quoting Maycock, 207 Ariz. at 501

¶ 28, 88 P.3d at 571).

¶24 Thus, under statutes of repose, “a claim may be barred

if it does not accrue within the allowable statutory period.”

Maycock, 207 Ariz. at 501 ¶ 28, 88 P.3d at 571. Although

statutes of limitations are generally considered procedural, see

Hosogai v. Kadota, 145 Ariz. 227, 231, 700 P.2d 1327, 1331

(1985), a statute of repose defines a substantive right, see

Resolution Trust Corp. v. Olson, 768 F. Supp. 283, 285 (D. Ariz.

1991); see also Snyder v. Love, 153 P.3d 571, 573 (Mont. 2006)

(observing that statutes of repose are “substantive grants of

immunity based on a legislative balance of the respective rights

of potential plaintiffs and defendants” (quotations omitted)).

¶25 American Pipe tolling is a court-created rule based on

policy considerations and principles underlying Rule 23. The

American Pipe Court aptly stated that its “judicial tolling of

the statute of limitations” was simply a matter of “recognizing

16
judicial power” to do so in federal courts. 414 U.S. at 558 &

n.29 (emphasis added); see also Footbridge, 2011 WL 907121 at *6

(noting that the Court in American Pipe did not “read the text

of Rule 23 as having embedded within it language that creates a

class action tolling rule”).

¶26 We cannot, however, employ a court-adopted rule of

procedure to alter the substantive effect of a statute of

repose. We have repeatedly recognized that when a

constitutionally enacted substantive statute conflicts with a

procedural rule, the statute prevails. Seisinger v. Siebel, 220

Ariz. 85, 91 ¶ 24, 203 P.3d 483, 489 (2009); see also In re

Marriage of Waldren, 217 Ariz. 173, 177 ¶ 20, 171 P.3d 1214,

1218 (2007) (“Court rules may not ‘abridge, enlarge, or modify

substantive rights of a litigant.’” (quoting A.R.S. § 12-

109(A))).

¶27 We agree that “many of the policy considerations

present in American Pipe would support tolling a statute of

repose.” See Footbridge, 2011 WL 907121 at *7; see also Joseph,

223 F.3d at 1167-68. But § 12-552(A) provides that “no action

. . . based in contract may be instituted or maintained against

a person who develops or develops and sells real property . . .

more than eight years after substantial completion of the

improvement to real property.” When a latent defect is

discovered, a claim may be brought within a year after

17
discovery, but “in no event may an action be brought more than

nine years after the substantial completion of the improvement.”

Id. § 12-552(B).

¶28 The eight-year statute of repose period began to run

on November 6, 1997, the date of the Town of Gilbert’s final

inspection. Albano II was filed on November 5, 2007. Applying

class action tolling to this case would thus permit a lawsuit to

be commenced nearly ten years after substantial completion of

the improvement. Tolling the statute here to permit such a

result is simply not “consonant with the legislative scheme” of

§ 12-552. See American Pipe, 414 U.S. at 558.

¶29 If the Legislature wishes to permit class action

tolling under § 12-552, it may of course amend the statute to so

provide. Absent such legislative action, however, we cannot

apply American Pipe tolling to override the statute of repose in

this case. See Florez v. Sargeant, 185 Ariz. 521, 529, 917 P.2d

250, 258 (1996) (“If the legislature wants to broaden the

category of disability to toll the statute of limitations . . .

it is, of course, free to do so. But the weighing, balancing,

and policy making that go into such an enterprise are properly

legislative, not judicial, tasks.”).

V

¶30 Although the Ninth Circuit did not certify a question

relating to Arizona’s savings statute, A.R.S. § 12-504(A)

18
(2003), that court stated that its “phrasing of the questions

should not limit [our] consideration of the issues involved.”

Albano, 634 F.3d at 541. Because the district court addressed

that statute at some length, as did the parties in this Court,

we turn briefly to that issue.

¶31 The Arizona savings statute provides in relevant part:

If an action is commenced within the time limited for
the action, and the action is terminated in any manner
other than by abatement, voluntary dismissal,
dismissal for lack of prosecution or a final judgment
on the merits, the plaintiff, or a successor or
personal representative, may commence a new action for
the same cause after the expiration of the time so
limited and within six months after such termination.

A.R.S. § 12-504(A). Plaintiffs contend that the savings statute

does not conflict with the statute of repose because § 12-552

“governs the time for bringing an original action,” and § 12-

504(A) “governs the time to refile an action that was originally

brought timely.” Pursuant to § 12-504(A), they argue, “putative

class members can automatically refile follow-on or renewed

identical individual actions against the class defendant(s)

within six months from the entry of the order denying class

certification.”

¶32 The savings statute, however, cannot save the

plaintiffs’ claims here. If we assume, without deciding, that

the savings statute could be applied to claims of unnamed

putative class members after class certification is denied, and

19
to an action otherwise barred by the statute of repose,

plaintiffs did not commence Albano II within the six-month

period required by § 12-504(A). The superior court denied class

certification in Hoffman in February 2006. Albano I was filed

on May 30, 2006, but it was dismissed in July 2007. Albano II

was filed in November 2007, more than fourteen months after the

savings statute’s six-month period had expired.

¶33 Plaintiffs seek to apply the savings statute to Albano

II. The savings statute, however, only allows a plaintiff to

“commence a new action for the same cause;” it does not allow

successive refilings to be tacked together. See, e.g., Koffski

v. Village of N. Barrington, 988 F.2d 41, 43 (7th Cir. 1993)

(concluding that savings statute “provides for only one

refiling”); Pintavalle v. Valkanos, 581 A.2d 1050, 1052 & n.5

(Conn. 1990) (same). The savings statute thus does not apply to

any new action other than the since-dismissed Albano I filing,

and can be of no aid to the plaintiffs in their appeal of the

dismissal of Albano II.

VI

¶34 For the reasons above, we hold that American Pipe

tolling does not apply to the statute of repose in § 12-552.

Given our answer to the second certified question, we find it

unnecessary to address the first and third questions.

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 _____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
Robert M. Brutinel, Justice

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