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Friedland v. Gales12/29/1998
Appeal by plaintiff from order entered 6 November 1997 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 November 1998.
Plaintiff filed this wrongful death action on 29 March 1996 alleging that defendant had killed Kim A. Thomas on or about 27 July 1990. According to the allegations of the complaint, defendant denied killing Kim Thomas when questioned by the police, claiming that he suspected someone named "BJ" of committing the murder. However, defendant later confided in two fellow prison inmates, while incarcerated for unrelated crimes, that he killed Kim Thomas. Plaintiff alleged:
47. Marion Anthony Gales deliberately and fraudulently concealed his involvement in the murder of Kim Thomas by denying any involvement when confronted by the police in 1990. Gales involvement in the murder was therefore not known to Plaintiff until March 1995, when the facts above were first discovered.
Defendant filed a pro se answer in which he denied any knowledge about Kim Thomas' death. His subsequent motion to amend his answer to plead the statute of limitations as an affirmative bar to plaintiff's claim was not objected to by plaintiff.
Defendant was represented by counsel at trial. His motions for directed verdict at the close of plaintiff's evidence and at the close of all the evidence, based in part on the statute of limitations defense, were denied. At the jury instruction conference, defendant's counsel again argued that plaintiff's claim should be barred by the statute of limitations as a matter of law, in accordance with the previous motions for directed verdict, but requested, for "strategic" reasons, that the statute of limitations issue, and related instructions, not be submitted to the jury. In doing so, defendant agreed to waive "the right to a determination of any factual issues by the jury pertaining to the statute of limitations defense." Without objection from plaintiff, the trial court granted defendant's request that the statute of limitations issue not be submitted to the jury, without prejudice to defendant's right to argue, in further proceedings, that a tortfeasor's concealment of his or her identity has no legal effect upon such tortfeasor's right to assert the defense of the statute of limitations.
The jury found that Kim Thomas died as a result of defendant's acts and awarded plaintiff substantial compensatory and punitive damages. Defendant moved for judgment notwithstanding the verdict. In opposition to the motion, plaintiff contended that because defendant had concealed his identity as the perpetrator of the killing, he was equitably estopped from asserting the statute of limitations as a defense to the wrongful death action. In its order allowing the motion, the trial court found:
1. Kim Thomas died on July 27th, 1990 as a result of a battery by the Defendant, Marion Anthony Gales;
2. Thereafter the Defendant, Marion Anthony Gales, concealed certain material facts relating to his involvement in the death of Kim Thomas including: (a) He lied to police officers and others about his involvement in the death of Kim Thomas. . . .
3. The concealment as described above by Marion Anthony Gales was reasonably calculated to deceive police officers and others including the Plaintiff or such other persons as might qualify as personal representative of the estate of Kim Thomas.
4. That such concealment by Marion Anthony Gales was done with the intent to deceive police officers and others including the Plaintiff.
5. That the Plaintiff was, in fact, deceived by said concealment in that:
(a) The Plaintiff discovered
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