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Russell/Packard Development9/18/2003
re to the title company to close the CMT contract; (6) Bustos received money in the form of a check at the closing of the CMT contract; (7) Bustos agreed to conceal from PRP the true nature of the "flip purchase and sell" of the lots; (8) Bustos was a real estate agent for Wardley along with Cary and Carson, both of whom represented PRP; and (9) Bustos interjected himself, along with Carson and Thomas, as undisclosed agents and principals for CMT and Poe, while acting as agents and fiduciaries of PRP.
Based on these allegations and reasonable inferences drawn therefrom, we accept that Bustos made overt acts and representations for the purpose of inducing PRP to execute the PRP contract. We also accept that Bustos schemed with the Appellees to commit fraud and later agreed to conceal the fraud in furtherance of the scheme. Likewise, we accept that Bustos aided Carson and Thomas in breaching their fiduciary duties toward PRP. Accordingly, we reverse the dismissal of the fraud claim against Bustos and remand for further proceedings.
CONCLUSION
For the purposes of surviving a rule 12(b)(6) motion to dismiss, we conclude the concealment prong of the discovery rule applies to toll the statutes of limitations on Russell's claims such that Russell's complaint was timely. Because Utah law allows the assignment of a fraud claim, we conclude Russell has standing to bring its cause of action for fraud. Finally, we hold that Russell's allegations that Bustos committed fraud either by making false representations or by breaching fiduciary duties are sufficient to survive a motion to dismiss. In short, we are not convinced that Russell cannot prove any set of facts to support its claims, and therefore we reverse and remand for further proceedings.
Judith M. Billings,
Associate Presiding Judge
I CONCUR:
William A. Thorne Jr., Judge
I CONCUR IN THE RESULT:
Russell W. Bench, Judge
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