Los Angeles Airways, Inc. v. Estate of Hughes , 99 Nev. 166 ( 1983 )

OPINION

By the Court,

Zenoff, Sr. J.:¹

Appellant, Los Angeles Airways, Inc. (hereinafter “LAA”), filed a lawsuit in district court against respondents (hereinafter the “Hughes interests”) for fraud and breach of contract. The Hughes interests moved for, and obtained, summary judgment, and this appeal followed.

The events giving rise to this lawsuit occurred in Nevada in the years 1968 through 1970, and the applicable statutes of limitations for both the tort and contract causes of action embodied in the lawsuit had begun to run by September 30, 1970. Howard Hughes left Nevada in November, 1970, and apparently spent the rest of his life elsewhere. He died in April, 1976. LAA filed the lawsuit on May 31, 1977.

Summary judgment was granted on the ground that the applicable statutes of limitations had run.² The district court also found that the statutory limitations periods were not tolled under NRS 11.300³ during Howard Hughes’ absence from Nevada, and therefore lapsed before LAA filed its lawsuit against the Hughes interests. LAA’s sole contention on appeal is that the trial court’s determination in this regard was incorrect. We agree, and therefore reverse and remand.

We have previously held that where a defendant is absent from the state, and there is a genuine issue of fact as to his amenability to service of process, summary judgment is precluded, and the tolling provision of NRS 11.300 may become operative. See Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966). It has already been noted that in the matter before us, Howard Hughes was absent from this state after November, 1970. Additionally, the evidence submitted by LAA in opposition to the motion for summary judgment was sufficient to create an issue of fact as to Howard Hughes’ amenability to service of process. Indeed, the record indicates that Howard Hughes purposefully arranged his living situation to avoid being served with process. Although he apparently resided at various hotels in North America and Europe after he left Nevada, Hughes ordinarily was not listed as a resident or guest at these hotels. Moreover, through numerous security measures, intruders such as process servers were prevented from seeing Howard Hughes or entering his quarters, and Hughes’ aides were instructed to refuse to accept registered or certified mail.

We recognize that in recent years, the continued viability of the tolling statute has been called into question in light of the enactment of statutes making it possible to obtain jurisdiction over defendants residing outside this state. Indeed, in granting summary judgment the district court expressed the view that the enactment of NRS 14.065,⁴ the so-called “long-arm” statute, rendered the tolling statute virtually inapplicable. Nevertheless, we note that in the number of years since the enactment of NRS 14.065 and similar provisions, the legislature has not repealed the tolling provision, and we are reluctant to do so by judicial declaration. See Duke University v. Chestnut, 221 S.E.2d 895 (N.C.Ct.App. 1976).

The judgment is reversed and remanded.

Springer and Gunderson, JJ., concur.

1 The Chief Justice assigned The Honorable David Zenoff, Senior Justice, to participate in this case. Nev. Const., art. 6, § 19(1)(c), SCR 10.

2 Under NRS 11.190(2)(c) and NRS 11.190(3)(d), the limitations periods applicable to the contract and fraud causes of action are 4 years and 3 years, respectively.

3 NRS 11.300 provides:

If, when the cause of action shall accrue against a person, he be out of the state, the action may be commenced within the time herein limited after his return to the state; and if after the cause of action shall have accrued he depart the state, the time of his absence shall not be part of the time prescribed for the commencement of the action.

4 NRS 14.065 provides in pertinent part:

2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated in this subsection thereby submits himself and, if an individual, his personal representative to the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:

(a) Transacting any business or negotiating any commercial paper within this state;

(b) Committing a tortious act within this state . . .