Floyd v. Koenig

• Decision Date: 06 February 2008
• Docket Number: No. CA 07-728.,CA 07-728.
• Citation: 274 S.W.3d 339,101 Ark. App. 230
• Parties: Angela FLOYD, Appellant, v. A. Samuel KOENIG III, M.D., Albert S. Koenig III, P.A. d/b/a Family Medical Center, Appellees.
• Court: Arkansas Court of Appeals

274 S.W.3d 339

101 Ark. App. 230

Angela FLOYD, Appellant, v. A. Samuel KOENIG III, M.D., Albert S. Koenig III, P.A. d/b/a Family Medical Center, Appellees.

No. CA 07-728.

Court of Appeals of Arkansas.

February 6, 2008.

Keith, Miller, Butler & Webb, PLLC, by Kristin L. Pawlik, Rogers, AR, for appellant.

Ledbetter, Cogbill, Arnold & Harrison, LLP, by J. Michael Cogbill and Farrah L. Fielder, Fort Smith, AR, for appellee.

SAM BIRD, Judge.

Appellant Angela Floyd appeals from the circuit court's order dismissing her complaint against Dr. Samuel Koenig III for failure to file her complaint within the applicable statute of limitations. Although appellant responded to Dr. Koenig's statute-of-limitations defense by claiming that the statute of limitations was tolled by the doctrine of fraudulent concealment, the circuit court rejected this argument, holding that appellant did not set out allegations of fraud in her complaint. Appellant argues on appeal that the circuit court erred in holding that Rule 9(b) of the Arkansas Rules of Civil Procedure, which requires that fraud be pleaded with particularity, applies to the doctrine of fraudulent concealment. Moreover, she claims that she pleaded sufficient facts in her complaint to establish fraudulent concealment and, therefore, that the statute of limitations in this case was tolled. We reverse the circuit court's order dismissing appellant's complaint and remand for further proceedings.

In cases where the appellant claims that the trial court erred in granting a motion to dismiss, appellate courts review the trial court's ruling using a de novo standard of review. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). We will not reverse a finding of fact unless it is clearly erroneous. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). We treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 441, 206 S.W.3d 837, 840 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in plaintiff's favor. Id.

According to appellant's complaint, in the late summer of 1987, appellant, then twenty-three years old and unmarried, became pregnant with her second child. Dr. Koenig, who was her family physician and the primary-care provider for her one-year-old son, provided prenatal care. During one of appellant's prenatal visits, Dr. Koenig suggested that appellant consider giving up her second child for adoption, said that he knew a family who would like to adopt, and told her that he could take care of all of the arrangements for the adoption. She agreed to the adoption, which was to be done anonymously. Appellant moved from Fort Smith to Tulsa, Oklahoma, in January 1988 in order to keep her pregnancy a secret from all but her parents and her aunt. Appellant gave birth to a baby girl on April 12, 1988, and executed the consent to adoption on April 13, 1988.

When appellant returned to Fort Smith after the birth, Dr. Koenig continued to treat appellant and her son. Appellant got married on September 28, 2003, and gave birth to her third child, a daughter, on February 20, 2004. Dr. Koenig assisted in the birth of this child. At this time, neither appellant's husband nor first-born child knew that appellant had given up the second child for adoption.

On March 27, 2006, appellant was contacted by Greg Whitsett, who, along with his wife Donna, had adopted appellant's daughter, named Rainy, in 1988. Appellant learned that, sometime in 1997, Dr. Koenig had released appellant's medical records, family history, and other identifying information, including her married name, address, date of birth, and social security number to Mr. Whitsett. The information released included medical records available at the time of Rainy's birth as well as information regarding appellant's and her son's care through 2006. Mr. Whitsett instructed appellant to tell Rainy that she did not want a relationship with her. When appellant hesitated to follow Mr. Whitsett's instructions, Mr. Whitsett threatened to reveal the facts of the adoption to appellant's husband and son. Thereafter, appellant told her husband and son the facts of the adoption.

Appellant filed a complaint against Dr. Koenig and Albert S. Koenig III, P.A., d/b/a Family Medical Center (hereinafter sometimes referred to together as "Dr. Koenig") on September 25, 2006, alleging invasion of privacy, public disclosure of private facts, negligence, and breach of fiduciary duty. Dr. Koenig moved to dismiss on the grounds that appellant's claims were barred by the three-year statute of limitations. Appellant responded, asserting that the statute of limitations was tolled because Dr. Koenig's failure to reveal his wrongful disclosure and the manner in which this disclosure was made amounted to fraudulent concealment. She argued that the statute was tolled until she discovered that Dr. Koenig had revealed this confidential information to Mr. Whitsett without her permission. The court granted the motion and entered an order dismissing the case for failure to file the complaint within the applicable statute of limitations. The court stated in a letter that appellant's complaint did not set out allegations of fraud or facts that would support an allegation of fraudulent conduct on the part of the defendants.

Appellant's first point on appeal is that the circuit court erred in holding that she was required to plead fraud with particularity under Ark. R. Civ. P. 9(b). She argues that the doctrine of fraudulent concealment is not a cause of action but merely a response to the affirmative defense of statute of limitations. She asserts that, as a general rule, plaintiffs have no duty to anticipate affirmative defenses. While appellant is correct as a general matter and appellant was not required to allege fraud or fraudulent concealment in her complaint, Arkansas law does require appellant's complaint to contain facts sufficient to support the application of fraudulent concealment to toll the statute of limitations. See Jones v. Central Ark. Radiation Therapy Inst., Inc., 270 Ark. 988, 607 S.W.2d 334 (1980); see also Federal Deposit Ins. Corp. v. Deloitte & Touche, 834 F.Supp. 1129 (E.D.Ark.1992).

For her second point on appeal, appellant contends that she did plead facts sufficient to support the application of fraudulent concealment and that the statute of limitations was tolled in this case. The parties agree that the statute of limitations for appellant's causes of action is three years. See O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997) (noting the longstanding Arkansas caselaw that a three-year statute of limitations applies to all tort actions not otherwise limited by law). The statute of limitations generally begins to run when the allegedly wrongful acts occurred—in this case, in 1997 when Dr. Koenig allegedly informed Mr. Whitsett about appellant's identity and medical history. Courtney v. First Nat'l Bank, 300 Ark. 498, 501, 780 S.W.2d 536, 538 (1989). However, fraud suspends the running of the statute of limitations until the party having the cause of action discovers the fraud, or should have discovered it by the exercise of reasonable diligence. Delanno, Inc. v. Peace, 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006). In order to toll the statute of limitations, the fraud perpetrated must be concealed. Id. The general rule of fraudulent concealment requires "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 conceals itself." Id. (quoting Shelton v....