Wilson v. General Elec. Capital Auto Lease, Inc., 92-616

• Citation: 311 Ark. 84,841 S.W.2d 619
• Decision Date: 16 November 1992
• Docket Number: No. 92-616,92-616
• Parties: Robert and Cindy WILSON, Appellants, v. GENERAL ELECTRIC CAPITAL AUTO LEASE, INC. and Jones Toyota Volvo, Appellees.
• Court: Arkansas Supreme Court

Page 619

841 S.W.2d 619

311 Ark. 84

Robert and Cindy WILSON, Appellants, v. GENERAL ELECTRIC CAPITAL AUTO LEASE, INC. and Jones Toyota Volvo, Appellees.

No. 92-616.

Supreme Court of Arkansas.

Nov. 16, 1992.

Richard E. Worsham, Little Rock, for appellants.

Wright, Lindsey & Jennings, Little Rock, for appellees.

HOLT, Chief Justice.

The issue in this case is whether the trial court erred in its decision granting summary judgment to General Electric Capital Auto Lease, Inc. (GECAL) and Jones Toyota Volvo (Jones) on a contract to lease. We find no error and affirm.

In February, 1987, Robert and Cindy Wilson signed a contract to lease a 1987 Toyota Camry from Jones for a period of five years. The contract was later assigned to GECAL.

The Wilsons claimed that Jones' leasing manager, Cliff Wright, made false representations to them that they could return the car to the dealership in three years, two years before the contract ended, and they could walk away not owing anything. They also alleged that Mr. Wright advised them that they would not need to purchase excess mileage coverage over the 75,000 mile limitation contained in the contract since they would be returning the car in three years.

After three years, the car reached the 75,000 mile mark and the Wilsons attempted to return the vehicle. GECAL and Jones would not take it back. The contract contained a clause, "K. Early Termination," which provided a formula for an early termination charge should the party contracting to lease the car want to terminate the contract before the five year term ended.

Three years and four months after executing the contract, the Wilsons filed a complaint in federal court. This case was dismissed and the Wilsons refiled it in Pulaski County Circuit Court alleging intentional misrepresentation and usury. GECAL and Jones replied, among other defenses, that the statute of limitations had run on their claims.

Both GECAL and Jones filed motions for summary judgment which were granted after a hearing. The trial court ruled that the contract was a lease and not an installment sale contract so no usury was practiced; that the Wilsons' claims of misrepresentation were barred by the statute of limitations; and that Mr. Wright's statements were opinion and not fact. Since we agree with the trial court that the Wilsons' claims were barred by the statute of limitations, we restrict our opinion to this issue.

The standard of review for summary judgment is whether the evidentiary items presented by the appellee in support of the motion left a material question of fact unanswered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Here, the pivotal question is whether there is any genuine issue of material fact concerning the statute of limitations. Hickson v. Saig, 309 Ark. 231, 234, 828 S.W.2d 840, 841 (1992).

The applicable statute of limitations to this appeal is three years. Ark.Code Ann. § 16-56-105 (1987). See Scroggins Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950). The Wilsons' argued that although more than three years had elapsed from the contract date until the filing of the first complaint in federal court, Jones and GECAL perpetuated and concealed the intentional misrepresentation of Mr. Wright and thus tolled the statute of limitations. We conclude otherwise.

We have long held that where affirmative acts of concealment by the person charged with fraud prevent the discovery of that person's misrepresentations, the statute of limitations will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982); Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954); Meacham v. Mid-South Cotton Growers Assn., 196 Ark. 78, 115 S.W.2d 1078 (1938). See also Williams v. Hartje, 827 F.2d 1203 (8th Cir.1987). We have said that the "classic language on this point in Arkansas" is:

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be 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. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.

Scroggins Farms Corp. v. Howell, 216 Ark. 569, 572-3, 226 S.W.2d 562, 565 (1950) (quoting McKneely v. Terry, 61 Ark. 527, 545, 33 S.W. 953, 957 (1896)). The same rationale holds true today.

Even assuming that GECAL and Jones actively concealed a fraudulent misrepresentation, and there was no proof of this presented, the statute of limitations was suspended only until the alleged victims of the fraud discovered the fraud or "should have discovered it by the exercise of reasonable diligence." Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988) (quoting Hughes v. McCann, 13 Ark.App. 28, 678 S.W.2d 784 (1984)). See also Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950); City Nat'l Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39, cert. denied, 305 U.S. 614, 59 S.Ct. 73, 83 L.Ed. 391, reh'g denied, 305...