Curry v. Thornsberry

• Decision Date: 06 November 2003
• Docket Number: No. 03-285.,03-285.
• Citation: Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (Ark. 2003)
• Parties: Howard W. CURRY and Linda Curry, His Wife v. William S. THORNSBERRY and Delores K. Thornsberry, His Wife.
• Court: Arkansas Supreme Court

128 S.W.3d 438

354 Ark. 631

Howard W. CURRY and Linda Curry, His Wife v.William S. THORNSBERRY and Delores K. Thornsberry, His Wife.

No. 03-285.

Supreme Court of Arkansas.

November 6, 2003.

Charles A. Brown, P.A., Quitman, for appellants.

Peel Law Firm, P.A., by: Richard L. Peel and Jennifer L. Modersohn, Russellville, for appellees.

TOM GLAZE, Justice.

Appellants Howard and Linda Currypetition for review from a court of appeals opinion affirming a directed verdict against them.The Currys purchased a home in the Lakehill Subdivision in Pope County in June of 1991.The house they bought had been built in 1987 by William Thornsberry and a partner, Lee Taylor.On March 17, 1995, the Currys filed suit against Thornsberry, alleging that Thornsberry had been negligent in the construction of the house.Particularly, the Currys asserted that the soil underlying the Lakehill Subdivision was composed of "Enders soil," a type of soil that shrinks and expands as moisture levels fluctuate.Further, the Currys alleged that Thornsberry concealed and failed to reveal and failed to inform and direct others to reveal the actual adverse soil components that made Lakehill Subdivision poorly suited for urban uses.The complaint further claimed that Thornsberry promoted the house as being properly constructed and fit for the purpose intended, and that the defects in the property were concealed from the buying public.The Currys alleged that Thornsberry breached the implied warranties of fitness, habitability, and merchantability by concealing the defects.

Thornsberry answered, generally denying the allegations of the complaint, and specifically averring that the three-year statute of limitations for negligence and the five-year statute of limitations for construction had expired prior to the filing of the complaint.Thornsberry further asserted that, prior to purchasing the house, the Currys "examined the property as fully as they desired and any alleged defects were present" and should have been revealed to the Currys through their inspection.

Following a trial on the complaint, Thornsberry moved for a directed verdict, arguing that the statute of limitations ran in 1992, and that there had been no acts of fraudulent concealment that would have tolled the statute.The trial court granted the motion, finding that the Currys did not prove Thornsberry had fraudulently concealed anything, so as to toll the statute of limitations.From that directed verdict, the Currys bring this appeal, arguing that the trial court erred 1) in directing a verdict in favor of Thornsberry, and 2) in awarding attorney's fees.

In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it.Woodall v. Chuck Dory Auto Sales, Inc.,347 Ark. 260, 61 S.W.3d 835(2001);Lytle v. Wal-Mart Stores, Inc.,309 Ark. 139, 827 S.W.2d 652(1992).A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict.Mankey v. Wal-Mart Stores, Inc.,314 Ark. 14, 858 S.W.2d 85(1993).Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside.Fayetteville Diagnostic Clinic v. Turner, supra,344 Ark. 490, 42 S.W.3d 420(2001);Conagra, Inc. v. Strother,340 Ark. 672, 13 S.W.3d 150(2000);Wal-Mart Stores, Inc. v. Kelton,305 Ark. 173, 806 S.W.2d 373(1991).Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed.Howard v. Hicks,304 Ark. 112, 800 S.W.2d 706(1990).It is not this court's province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict.City of Caddo Valley v. George,340 Ark. 203, 9 S.W.3d 481(2000).

For their first point on appeal, the Currys argue that the trial court erred in granting Thornsberry's motion for directed verdict at the close of the Currys' evidence.In granting the motion, the trial court found no evidence of fraudulent concealment that would have tolled the statute of limitations.That statute of limitations is found in Ark.Code Ann. § 16-56-112(a)(1987& Supp.2003), which provides as follows:

No action in contract ... to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.

However, § 16-56-112(d) further states that "[t]he limitations prescribed by this section shall not apply in the event of fraudulent concealment of the deficiency[.]"In the present case, the residence was constructed in 1987, and the Currys' suit was not filed until 1995.Therefore, in the absence of fraudulent concealment of the alleged deficiencies in the construction of their home, their suit was barred as of 1992 by the statute of limitations found in § 16-56-112(a).

This court has recognized that the effect of § 16-56-112(a) is to cut off entirely an injured person's right of action before it accrues, when that action does not arise until after the statutory period has elapsed.Rogers v. Mallory,328 Ark. 116, 941 S.W.2d 421(1997);Okla Homer Smith Furniture Mfg. Co. v. Larson & Wear, Inc.,278 Ark. 467, 646 S.W.2d 696(1983).Thus, § 16-56-112(a) is more accurately described as a "statute of repose," rather than a "statute of limitations."Rogers,328 Ark. at 120, 941 S.W.2d 421.The Rogers court further noted that the General Assembly's purpose in enacting the statute was to "enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit."Rogers,328 Ark. at 120, 941 S.W.2d 421(citingOkla Homer Smith Furniture,278 Ark. at 470, 646 S.W.2d 696).

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense.Adams v. Arthur,333 Ark. 53, 969 S.W.2d 598(1998);First Pyramid Life Ins. Co. v. Stoltz,311 Ark. 313, 843 S.W.2d 842(1992).However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled.Id.Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence.Shelton v. Fiser,340 Ark. 89, 8 S.W.3d 557(2000);Martin v. Arthur,339 Ark. 149, 3 S.W.3d 684(1999);First Pyramid Life Ins. Co. v. Stoltz, supra.

In order to toll the statute of limitations, this court has said that a plaintiff is required to show something more than a continuation of a prior nondisclosure; rather, there must be evidence creating a fact question related to "some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself."Shelton,340 Ark. at 96, 8 S.W.3d 557(quotingAdams v. Arthur, supra);see alsoMeadors v. Still,344 Ark. 307, 40 S.W.3d 294(2001).Accordingly, it is clear that not only must there be fraud, but the fraud must be furtively planned and secretly executed so as to keep the fraud concealed.Shelton, supra.Further, if the plaintiff, by the exercise of reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.O'Mara v. Dykema,328 Ark. 310, 942 S.W.2d 854(1997);Wilson v. General Elec. Capital Auto Lease, Inc.,311 Ark. 84, 841 S.W.2d 619(1992).

In O'Mara, supra, the issue was whether the seller of a house (Dykema) had misrepresented the condition of the house to the buyer (O'Mara).After living in the house for about three years, O'Mara noticed that some of the exterior walls were crumbling, and moisture was entering the house through the cracks.O'Mara sued Dykema, alleging misrepresentation, negligence, strict liability, and breach of warranties.Dykema answered and pleaded affirmatively that the statute of limitations had run on the negligence claim, as more than three years had elapsed since the home was constructed.O'Mara,328 Ark. at 314, 942 S.W.2d 854.The trial court granted Dykema's motion for summary judgment.On appeal, this court affirmed, holding that O'Mara offered the trial court nothing to indicate that Dykema experienced problems with the dryvit itself or knew it was defective.Nor did O'Mara put forth any evidence of any affirmative acts of concealment by Dykema of any defective condition.Accordingly, the O'Mara court held that there was no genuine issue of material fact as to fraudulent concealment and held that the trial court properly granted summary judgment on Dykema's claim.Seeid. at 318, 942 S.W.2d 854.

Although this case comes before us on a motion for directed verdict, rather than a summary judgment, the issue is much the same.In the present case, the Currys argued that Thornsberry concealed the defects in the house by having them repaired.The Currys point to the testimony of William Hegeman, who worked on the lot where the Currys' home was built.Hegeman testified that when the house was constructed, the concrete footings were poured...