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Gust6/22/1995
om the state constitutional provisions to which Prudential refers. Ariz. Const. art. 2, § 31; art. 18, § 6. The rule has developed as a matter of equity, see Tom Reed Gold Mines, 39 Ariz. at 535, 8 P.2d at 450, not as a matter of constitutional law.
Disposition
We hold that the discovery rule can apply to breach of contract claims governed by section 12-548. The trial court and the court of appeals did not err in applying it here. Therefore, the statute of limitations did not commence on Gust's claim until Gust knew or in the exercise of reasonable diligence should have known that it had been injured. The trial court was correct to let the jury decide when that event occurred. We affirm. Pursuant to the fees provision in the parties' lease agreement, we award Gust attorney's fees for proceedings on the petition for review.
James Moeller
Vice Chief Justice
Robert J. Corcoran, Justice
Thomas A. Zlaket, Justice
Ruth V. McGregor, Judge
MARTONE, Justice, Concurring.
I agree with the court that the discovery rule can apply to some contract cases. In a very real sense, this case is no different than Tom Reed Gold Mines Co. v. United Eastern Mining Co., 39 Ariz. 533, 8 P.2d 449 (1932). Sixty-three years ago, we held that the discovery rule applied to an action in trespass, not because it was a tort, but because the defendant concealed facts from the plaintiff. So instead of applying the tort statute of limitations to the tort pled, we applied the fraud statute of limitations, which even today states that the "cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake." A.R.S. § 12-543(3).
This is that sort of case. As we note, ante, at 3, Gust wrote to the building's leasing agent and asked if anything had occurred that would invoke its most favored nation clause. "The leasing agent replied that it had not violated Gust's most favored nation clause and that it never would." Id. The discovery rule created by the legislature in A.R.S. § 12-543(3) applies just as it applied in the Tom Reed case.
And this is as it ought to be. Statutes of limitation are, by definition, peculiarly within the province of the legislature. As we note, ante, at 5 n.1, the legislature has adopted the discovery rule for some contract cases and not for others. But whenever there is concealment, the statutory discovery rule applies whatever the label of the cause of action. Because the rule the court adopts is but a modest extension of the discovery rule from cases in which there is true concealment to a carefully tailored class of contract cases in which "injury is difficult for plaintiff to detect," ante, at 10, I join its opinion.
Frederick J. Martone, Justice
Chief Justice Stanley G. Feldman did not participate in this matter; pursuant to Ariz. Const. art. 6, § 3, Judge Ruth V. McGregor of the Court of Appeals, Division One, was designated to sit in his stead.
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