DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CA 01-945

February 13, 2002

VANESSIA STURGIS

APPELLANT APPEAL FROM PULASKI COUNTY

CIRCUIT COURT

VS.

HONORABLE JOHN PLEGGE

CIRCUIT JUDGE

NORMAN C. CLIFTON, ET AL.

APPELLEES REVERSED AND REMANDED

This is an appeal from an order granting summary judgment on the ground that appellant's cause of action was barred by the statute of limitations. Appellant contends on appeal that the trial court erred in concluding as a matter of law that her claims were time-barred because genuine issues of material fact exist on the question of fraudulent concealment, which would toll the statute of limitations. We find appellant's argument persuasive and reverse.

In 1968, appellant, Vanessia Sturgis, was nineteen years old and was married to J.W. Clifton. On December 19, 1968, J.W. waskilled in an automobile accident while a passenger in a wrecker owned by Clifton's Auto Salvage, a business operated by his father, James C. "Papa" Clifton. J. W. and his two brothers, Norman and Kenneth Clifton, worked for their father in the business. At the time of the accident, J.W. and appellant had an eighteen-month-old daughter, Carolyn Frances Clifton.

On January 22, 1999, appellant filed a complaint in the Pulaski County Circuit Court on grounds of fraud and conversion. In her complaint, she alleged that there were several insurance policies on the life of J.W. at the time of his death that named her as the beneficiary, as purchased from James D. McElhanon, an insurance agent. Appellant alleged that Papa Clifton and Norman Clifton obtained the insurance policies from her and assisted her in filling out the claim forms. She alleged that on or about February 28, 1969, Papa Clifton, Norman Clifton, and James D. McElhanon informed her that the insurance companies would not pay on the policies because of defects in the applications and because alcohol was involved in the accident in which J.W. was killed.

Appellant further alleged that she received word in early 1996 that Papa Clifton was dying of kidney failure. She alleged that she spoke with Papa Clifton on the phone in February 1996 and that in this conversation Papa Clifton confessed to her that the insurance companies did honor the policies and that the proceedswere obtained by forging her signature on the drafts. Appellant alleged that she did not know and could not have known of this fraudulent scheme until Papa Clifton's revelation in 1996. Appellant named as defendants to the suit Norman Clifton and several businesses he operated; Ann Brown, who was formerly married to Norman Clifton; the Estate of James C. "Papa" Clifton, as Papa Clifton had died on May 7, 1996; and Kenneth Clifton [all herein-after referred to collectively as the "Clifton appellees"]; James McElhanon and his insurance agency; Woodmen of the World and several "John Doe" insurance companies said to have issued the policies.

Early on in the suit, appellant dismissed her claim against the insurance company, Woodmen of the World. Thereafter, the court granted James McElhanon's motion for summary judgment. The Clifton appellees later filed their own motion for summary judgment. They contended in their motion that appellant's claims were barred by the statute of limitations. They further argued that they were entitled to judgment as a matter of law based on a broad release that appellant had executed not long after J.W.'s death in connection with the settlement of a workers' compensation claim. The Clifton appellees also contended that appellant's claims were barred under principles of res judicata and collateral estoppel, because a probate court had denied the contingent claim thatappellant had filed against Papa Clifton's estate, which was based on the present cause of action. The trial court granted the Clifton appellees' motion for summary judgment on the sole basis that appellant's claims were barred by the statute of limitations.

Appellant appealed that decision, but we dismissed the appeal for the lack of a final order because appellant's claims against the John Doe insurance agencies remained outstanding. Sturgis v. Clifton, CA00-981, slip op. (Ark. App. May 2, 2001). The trial court subsequently entered an order dismissing those claims, and appellant has now brought this appeal.

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001). In appeals from the granting of summary judgment, this court reviews the facts in a light most favorable to the appellant and resolves any doubts against the moving party. Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999). Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). On appeal, our review is limited to examining the evidentiary items presented and determining whether the trial court correctly ruled that those items left all material facts undisputed. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).

The statute of limitations for tort-claims of fraud and conversion is three years. Ark. Code Ann. § 16-56-105 (1987). However, 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). Mere ignorance of one's rights does not prevent the operation of the statute of limitations, unless that ignorance is induced by conduct that is calculated to mislead, deceive, or lull inquiry. Wiliams v. Estate of Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954). In order to toll the statute of limitations, 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. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve this factual issue as a matter of law. Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996).

For reversal, appellant contends that genuine issues of material fact exist on the question of fraudulent concealment. She argues that the Clifton appellees, acting in concert, misrepre sented to her that she could not collect on the policies that named her as the beneficiary and that they converted the proceeds to their own use by forging her name on the drafts issued by the insurance companies. She contends that the Clifton appellees' actions were secretly planned and executed in such a manner as to conceal their fraud and to prevent discovery. As factual support, she relies on her own deposition testimony setting forth what she alleged to have occurred and that of Ann Brown, who stated in her deposition that she forged appellant's name on an instrument at the request of Papa Clifton and Norman Clifton soon after J.W.'s death. We agree that the trial court should not have decided this issue as a matter of law.

In Gibson v. Herring, 63 Ark. App. 155, 975 S.W.2d 860 (1998), the appellant alleged that he had entrusted appellee with a loose diamond to be mounted in a ring. Several years later, the appellant had the ring appraised and learned that the stone was a cubic zirconium, not a diamond. The appellant filed suit alleging that the appellee had fraudulently switched the diamond for a glass stone. The trial court granted appellee's motion for summary judgment, ruling that appellant's claim was barred by the statuteof limitations. We reversed, holding that the alleged act of switching the stones was an act of fraud perpetrated in such a way as to conceal itself and that the issue of fraudulent concealment should not have been decided as a matter of law. Here, appellant's claims of fraud and conversion include allegations of overt misrepresentation and forgery, which are types of fraud that tend to be self-concealing. As in Gibson v. Herring, we conclude that the trial court erred in granting summary judgment.

Appellees argue, however, that appellant knew that she had a cause of action on the policies, as suggested by the fact that she knew that the benefits were not going to be paid and because she admitted in her deposition that she had mentioned the insurance policies to the attorney who represented her on the workers' compensation claim and had possibly consulted another attorney about the insurance benefits. We cannot say that these facts establish, as a matter of law and undisputed fact, certain knowledge of a cause of action, or that appellant could have discovered the fraudulent scheme by the exercise of reasonable diligence. Appellant has maintained that she believed what she was told about the denial of benefits, that she did not believe that she had a legitimate claim, and that she did not learn that the benefits were actually paid and kept from her until Papa Clifton's confession in 1996. Appellant also points out that consulting anattorney could be viewed as an exercise in reasonable diligence and that, despite that effort, the fraud remained undetected.

In Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992), the appellant signed a lease for retail space after being assured by the appellee leasing agent that the Wal-Mart store would remain in the shopping center. After the lease was signed, an article appeared in the local newspaper stating that the Wal-Mart store was relocating, but the appellant denied being aware of the article. The trial court granted the appellee's motion for summary judgment, finding that the statute of limitations was not tolled by fraudu lent concealment because, following publication of the article, the appellant knew or could have discovered with reasonable diligence that Wal-Mart was moving. The supreme court reversed based on the appellant's proof that she relied on the statements of the appellee and that she did not see the article. The court held that there existed a question of material fact as to whether the article should have put the appellant on notice and required her to investigate to determine whether Wal-Mart was moving. Similarly, as reasonable minds might reach different conclusions based on the evidence in this case, summary judgment was not appropriate. See also, Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982).

Appellees further contend that the only evidence appellant offered to substantiate her conspiracy theory was the testimony ofAnn Brown who admitted forging appellant's name on an unknown document. Appellees argue that they countered this evidence with the testimony of Norman Clifton who stated that the document his ex-wife signed was perhaps a car title. The object of summary judgment is not to try the issues, but to determine whether there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001). The evidence on this point was conflicting, and at this stage of the proceedings we are concerned only whether fact issues remain to be decided, not whether appellant will ultimately succeed in proving her case.

Appellees raise other arguments as alternate grounds for affirming the trial court's decision. Appellees contend that appellant's claims are barred by the release that she signed and by res judicata and collateral estoppel because the probate court denied the contingent claim she filed against Papa Clifton's estate. Appellees did raise these issues below, but the trial court made no ruling on them. Appellant contends that the release was also procured by fraud and that she did not have a full and fair opportunity to litigate her claim in the probate court. In reviewing the propriety of an order of summary judgment, we will not affirm a trial court on alternative grounds when those groundsrequire additional fact finding. Schwarz v. Colonial Mortgage Co., 326 Ark. 455, 931 S.W.2d 763 (1996); Gibson v. Herring, supra.

Reversed and Remanded.

Stroud, C.J., and Crabtree, J., agree.