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Dunlap v. City of Phoenix12/27/1990
ote the lender's lien on the application for the initial registration for the car, the court held that the proper limitations period was that for liability arising out of statute. In regard to the bank's breach of contract claim, the court stated:
While rather far-fetched and of doubtful success, a breach of contract claim is thus technically pleaded here. However, it adds nothing to plaintiff's case. Essentially the alleged contract was one to perform a duty already imposed upon Pepe Motors by statute and administrative regulation. The only purpose served by the plaintiff pleading the contract and its breach is to avoid the Statute of Limitations. It does not change the essence of the action which, manifestly has its genesis in the statutory scheme concerning certificates of registration for automobile titles . . . . Where, as here, the alleged contractual obligations add nothing to the defendant's pre-existing common law or statutory duty, the shorter period of limitations is applicable (Citations omitted).
Id. at 163-64, 436 N.Y.S.2d at 321-22.
Like the contract claim in European American Bank, Dunlap's "fraud" claim adds nothing to the preexisting duty to reveal exculpatory evidence. This circumstance is especially true when the claim is fraudulent concealment. See von Bulow ex rel. Auersperg v. von Bulow, 657 F.Supp. at 1142 ("fraud" allegations involve nothing more than an attempt to evade the statute of limitations). To be guilty of fraudulent concealment, a defendant must have a legal or equitable obligation to reveal the information. Schock v. Jacka, 105 Ariz. 131, 133, 460 P.2d 185, 187 (1969). Absent such an obligation, no cause of action arises for fraudulent concealment. See Van Buren v. Pima Community College Dist. Bd., 113 Ariz. 85, 87, 546 P.2d 821, 823 (1976). The obligation giving rise to Dunlap's concealment claim is a constitutional duty, the violation of which gives rise to its own tort claim. See 42 U.S.C. § 1983. The added allegation of fraudulent intent does not affect the nature of the claim. See Taylor v. Betts, 59 Ariz. at 179-80, 124 P.2d at 767. If no cause of action for fraudulent concealment exists under these circumstances, none exists for direct fraud. In Schock v. Jacka, the supreme court noted that the dividing line between fraudulent concealment and fraudulent misrepresentation is narrow, and, in some cases, they may be two sides of the same coin. 105 Ariz. at 133, 460 P.2d at 187. "Where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative misrepresentation is tenuous. Both are fraudulent." Id. It would make no sense to dismiss the fraudulent concealment claim but allow the affirmative fraud to go forward when they are so interrelated.
CONCLUSION
Dunlap's complaint sounds in deprivation of his rights under the fourteenth amendment to the United States Constitution. This is an injury to the person and the statute of limitations is therefore two years under A.R.S. § 12-542(1) (Supp.1989). This action was filed more than two years after the time which Dunlap alleges it arose. The superior court's dismissal was therefore correct. The judgment is affirmed.
General Footnotes
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