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Law Offices of Steven D. Smith v. Borg-Warner Security Corp.12/23/1999
ations against it involved the latter sort of fraud. Therefore, the estate had only to show that its ignorance of the deception and its failure to discover "that evidence of a potential cause of action had been fraudulently concealed" were not "utterly unreasonable." This court noted in Palmer II that, when a party successfully fraudulently conceals facts, "the defrauded party's response is inaction . . . 'reliance' in the sense of a conscious change of position." The defrauded party is "ignorant of the concealment itself and will not act due to [that] ignorance."
Smith can show neither type of "reliance." He cannot show ignorant inaction resulting from Borg-Warner's initial fraudulent concealment, for he has affied that he "learned of the intentional withholding/misrepresentation of Facet" by April 23, 1990. He remained inactive, but not ignorant.
Nor can Smith show conscious, reasonable reliance on Borg-Warner's statements in Palmer I because their falsity was manifest by April 1990. Smith alleges that Borg-Warner falsely blamed him in Palmer I when it implied that he could have timely determined that the estate should sue Borg-Warner if he had made reasonable efforts to examine the record. Furthermore, Smith claims that he could not have discovered this false blame because Borg-Warner never owned up to fraudulently concealing evidence that should have been in the public record. No court has ruled on whether Smith could have unearthed Borg-Warner's fraud, but in April 1990 Smith himself filed a 60(b) motion on behalf of the Palmer estate seeking relief from judgment on the grounds that Borg-Warner had engaged in misconduct by concealing the cause of carburetor failure. From then on, Smith could not rely on Borg-Warner's representation that he could have known to sue Borg-Warner before the statute of limitations had run. From then on, whether Smith or Borg-Warner caused the late filing in Palmer I was an open question, one that Smith could have litigated.
Smith argues that despite his knowledge of the fraudulent concealment in 1990, he had no means to "conduct discovery and gather evidence on the issue" of which party's conduct had caused Palmer's case to be filed late until after Palmer's remand in September 1992. We disagree. He could have had "a vehicle by which to conduct discovery" had he filed a timely suit on his own behalf. His argument all but admits that he was using the estate's Rule 60(b) litigation as a dry run for his own suit. Smith's argument that he "relied upon the court's acceptance of Borg-Warner/Facet's fraudulent misrepresentation as to the nature of the public record" is irrelevant to the question whether he relied upon the misrepresentation, which he plainly did not.
2. Related arguments not made below
Neither Smith nor the trial court addressed the issues of quasi-estoppel or equitable tolling in the proceeding below. Smith does not argue on appeal why this court should do so, though the issues may well be sufficiently related to his equitable estoppel argument that this court could review them. Borg-Warner, moreover, has responded briefly to the very limited merits of Smith's points, rather than noting his waiver. Nonetheless, we decline to address them.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
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