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Russell/Packard Development9/18/2003
ga questioned the ownership or control status of CMT, in connection with the . . . closing of the last twelve lots [under the PRP contract].
This affirmative conduct and concealment of the defendants constituted a pattern during October and November 1996 during the sale and continued thereafter through spring of 2000 that CMT was known only to plaintiffs as Saratoga's agent or company owned by or under the control of Saratoga. The active concealment continued until spring of 2000 by the defendants.
After the conversation with Saratoga's representatives concerning CMT's actual status, further inquiry and investigations were made by plaintiffs concerning the ownership and control of CMT and the circumstances of the two contracts signed in November 1996 by plaintiffs and Saratoga.
We look to pertinent case law for guidance in determining whether these allegations are sufficient to support fraudulent concealment by the Appellees and reasonable action in the face thereof by Russell.
In Hill v. Allred, 2001 UT 16, 28 P.3d 1271, the district court granted summary judgment in favor of the defendants on the basis of an expired statute of limitations. See id. at . On appeal, the supreme court found that the plaintiff "met her burden of making a prima facie showing of fraudulent concealment" where the plaintiff submitted affidavits from five different people to bolster her allegations that the defendants had taken affirmative steps to conceal her cause of action. Id. at . She also alleged two meetings in which the defendants lied to her regarding the whereabouts of her stolen money. See id. Accordingly, the supreme court reversed summary judgment and remanded for the district court to weigh the reasonableness of the plaintiff's conduct in the face of the defendant's fraudulent concealment to determine whether the concealment prong of the discovery rule applied to toll the statute of limitations on the plaintiff's claims. See id. at -22.
At first glance, the concealment in Hill appears more egregious than the concealment pled by Russell in this case. However, on closer examination, Carson and Thomas had fiduciary obligations to Russell with the attendant "duty to speak the truth." Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1186 (Utah 1989). Therefore, material omissions such as Carson's and Thomas's failure to disclose to Russell the true involvement of CMT are similar to the defendant's lies in Hill.
Likewise, in Berenda v. Langford, 914 P.2d 45 (Utah 1996), the supreme court reversed a grant of summary judgment after the district court refused to apply the concealment prong of the discovery rule. See id. at 47, 50. In that case, the defendant asked our supreme court to affirm because, in the defendant's view, two letters written by the plaintiff evincing suspicion of the defendant's wrongful conduct were enough to start the statute of limitations running such that the plaintiff's claims were time-barred. See id. at 50. The supreme court reversed and remanded where the plaintiff "presented a prima facie case" of fraudulent concealment because "weighing the reasonableness of the plaintiff's conduct" in the face of fraudulent concealment to determine whether the statute of limitations was tolled is the province of juries rather than judges. Id. at 53-54.
In Chapman, our supreme court faced a "close call." 784 P.2d at 1186. There, the plaintiffs moved to dismiss without prejudice their own malpractice suit against a physician after the defendants allegedly misled and misinformed the plaintiffs about the viability of their claim. See id. at 1183. After receiving medical records containing the facts underlying their
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