McCoy v. Lyons

McCOY, Agnes McCoy, Gregory Paul

McCoy, McCoy, Justin Abraham

McCoy, Luke, Mary Pauline Louise

Luke, Luke, Mary Cecille Doreen Luke

White, Rudy Luke, individuals, and

Plaintiffs-Appellants, LYONS, individual,

James F.

James F. of the law firm Nix

on, Nixon, Lyons P.C., Douglas,

professional corporation in the state of

Idaho, Defendant-Respondent, individual;

Frank LeRoux an Frank

LeRoux, Ball Creek d/b/a

Ranch, Defendant.

No. 18169. Idaho,

Supreme Court Coeur April

d’Alene 1991 Term.

Oct.

Chiqui died of causes in Bonners natural Ferry September, in 1974. Before his death, Chiqui fractional inherited undivided land, parcels held in five interests States, him trust for the United status virtue of his as an enrolled Ameri- Chiqui his Indian. died testate but will can disapproved by Department was the U.S. the Interior due a technical violation of regulatory applicable scheme to Ameri- Indians.2 can result, 24, 1976, As a March Of- Hearings Appeals of the fice of and U.S. Department of Interior .conducted hearing to determine the heirs of the dece- dent, Chiqui. Joseph The defendant-re- appeal, attorney in this James spondent F. hearing Lyons, appeared at that on behalf Luke, persons Alice Shot- of three —David tana, Baptiste and Cutsack—who claimed Gabourie, Plummer, Sr., W. Fred Chiqui. heirs of The to be administrative plaintiffs-appellants. hearing judge determined at that law Miller, Paine, Hamblen, Coffin, Brooke & persons these lacked sufficient evidence of d’Alene, defendant-respondent. Coeur relationship gave to Chiqui their and them Robnett, argued. III Ausey H. produce days to such evidence. the administrative law On June BOYLE, Justice. determining the judge issued an order heirs appeal from a In this not based on of the estate. order was granted by the district court in an action produced Lyons. any information The fraud, claims, are alleging and other we decision, order “This administrative stated: upon to determine whether called concerned, heirship insofar as interests are properly af- judgment granted. was We solely upon of the is based records North- part, part reverse and remand for firm ap- one Agency ern Idaho Indian as no remaining trial on the issues. peared place at the time and set provide hearing data essential to able I. deceased, history nor family of the capable anyone so been identified thereto.” record,1 plaintiffs in According to the persons represent- had Lyons the three Of appeal, members of the Luke hearing, Luke only at the David was ed families, are all members of the McCoy heir of Chi- ultimately determined to be an Indian tribe and residents of Can- Kootenai qui. They ada in British Columbia. are the has no trust Chiqui, a Indian the United States Joseph heirs of chief of the Because Indians, plain- obligation in the on a to Canadian tribe who resided United States Chiqui Boundary interests in the estate Ferry, near Bonners tiff-heir’s reservation patents fee. issued alienable County, Idaho. were Chiqui to be whom considered his us of the verified to a woman 1. The record before consists exhibits, However, depo- predeceased "adopted amended attached mother." she transcripts plaintiff-heirs and the sitions Chiqui no new was made. will will hearings held district court. of two before the anti-lapse provision disapproved due to an by any parties. filed were No affidavits provisions regulatory C.F.R. 4.261 of 43 in the applicable to U.S. trust Indians. estate, given which con- Chiqui his entire had case, issue in this sisted of the land interests at interests, varying degrees the Luke, land but exception of David theWith of the heirs did indicate several depositions heirs3 identi- represent the thirteen did not sign- they were what fully understand prior to the time original order fied in the some depositions, According to the Nevertheless, ing. on October was issued. and was a sale thought the transaction agreement signed a fee Luke David All testi- it a lease. thought was all another Lyons represented provided that which the present to answer Lyons was heirs owed fied that each of the of the heirs and signed the they questions before plain- the heirs’ By April Lyons a fee. light most deeds, construed in a and when Lyons’ office signed tiff-heirs documents ex- appellants, Lyons never to re- favorable they “would have indicated that which signifi- the plaintiff-heirs plained to the estate or been no interest said ceived agreements and deeds which of the efforts of cance heir but for the declared an signed. they employment under the [Lyon’s law firm] David Luke.” agreement with addition, supports appel- the record not inform Lyons that did position and lants’ questions of fact record raises appraisal on the of an Lyons plaintiff-heirs ar- the allegations that seven contains by the States property made United Chiqui to Chiqui of the estate ranged the sale in 1975 for the of Indian Affairs as Ball Bureau doing business Frank LeRoux fees or the 1976 purpose fixing probate representing the Ranch while also Creek ap- accepted the order which verified administrative heirs in the sale. The amended alleg- Lyons Because had alleges praised value. plaintiff-heirs filed the complaint the adminis- edly appraisal the LeRoux in land received Lyons represented had that sale, the heirs prior order to the matters trative and other business transactions established, complaint Lyons that alleged in the verified prior to this sale. The record arranged price with that the sales summary judgment, that knew purposes inadequate it grossly because the heirs that he LeRoux was Lyons never informed ap- only a fraction of the nothing in amounted to LeRoux and there is represented indicating praised consent was value.4 the record us before to allowing Lyons the heirs obtained from Luke, the Koote- Christopher the chief of parties in land sale represent both suit, party to this be- nai and not a tribe transaction. price for which the land came of the aware He April, 1977. According depositions, heirs’ was sold to LeRoux to the Cranbrook, Brit- contacted a from they them that could obtain barrister Lyons notified Columbia, Canada, Harvey named ish proceeds from a transaction on cash April Lyons by traveling Bonners Gansner who wrote Chiqui property to adequacy of the inquiring about the sign necessary paperwork. Ferry to aspects of the transaction.5 price to their and other signed the deeds related The heirs Chiqui estimated at estate was in the administra- interests in $33,964.33 3. The thirteen heirs identified Luke, Chiqui’s death. original the date of judge’s David as of law order are tive Luke, Ernest, (Ce- remaining from the somewhat unclear Mary While record, Louise Cecelia Antoine Luke, Luke, Luke, portion of the estate inher- cille) Christopher based on the Pauline case, Luke, Luke, appears McCoy, plaintiffs it Rudy Gregory in this Mary ited Doreen plaintiffs McCoy, appraised of the share was McCoy, value McCoy, Abraham Paul Justine Chiqui estate. family full value of the McCoy. McCoy mem- less than the Nevertheless, Agnes All plaintiff- price the sales family the Luke members bers listed and all of $6,180.00, only a fraction listed, appellant's share exception David and Christo- with the portion plaintiffs appears be the appeal. what to plaintiffs Even- pher are in this Luke $2,060 Lyons appraised took of this Ignatius value. tually, Mary and Amelia Cecile Luke leaving contingent fee the heirs as a Ignatius be heirs amount were also determined to Luke $4,120, only land interests. appeal. for their plaintiffs with but are not to this of the estate Gansner, Harvey the barrister "Inventory Ap- from 5.The letter In a document entitled Luke, Christopher is attached contacted praisement Interests —Northern of Trust "W”, complaint as Exhibit verified com- the amended Agency,” the verified amended attached to "F”, specifically stated: land plaint total value of the as Exhibit hearing on the motion. letter two was held responded Gansner’s Lyons later,6 for his and asserted that but weeks hearing arguments After oral district noth- heirs would have received efforts the parties grant court advised would ing. summary judgment. The subse- motion arranged In December Gansner order indicated that facts quent written Shelton, Tony attorney in Bonners that form basis of oc- matter agreed to take over the Ferry, who prior April, 1977 and curred the file When forwarded Luke. years than two complaint was filed “more Shelton, he a letter also wrote material occurrence, act or omission of after Christopher explaining that Luke Chief complain.” The court also indi- contact Shelton would him and “[u]ntil “the did not submit cated that Plaintiffs nothing you for to then there is further affidavits, depositions or other evidence in 21, 1980, months April do.” On sixteen Summary to the for opposition Motion receiving file, Shelton forwarded after Judgment establish an issue which would Services, Legal Inc. to Idaho Aid the file regarding Defendant’s statute of fact 1981, 26, Legal Aid filed On October result, limitations defense.” As a alleging complaint heirs’ verified amended upon negligence summary judgment and causes of action based court entered district fraud theories.7 plaintiff- on the Lyons for basis by claims were the statute of heirs’ barred 26, 1987, a motion June filed On 13, followed. summary judgment. appeal March limitations. seeking On my Christopher originally came into When this matter been consulted Chief I have McCoys nothing. respect your handling to the Lukes had Luke with office and something. It estate. have two-thirds of above Now questions contingent a concern- a fee basis as He has raised number of was taken on David ing your money pay hourly I would conduct the case and have to an Luke did not early concerning appreciate reply the fol- Affairs had han- fee. If the Bureau of Indian lowing: entirely Lukes the matter and dled absolutely McCoys Luke has me that there is 1. Mr. informed would have received noth- Joseph Chiqui. land at ing offer for the sale of the tentative under the Will of which, per informs acre he further $150.00 me, grossly underestimating promised the estimated do not know Mr. David I who property. payments, any, value of the market advance if but this office Luke uncle, Luke, was induced absolutely 2. That his David would do that since cannot 22nd, agreement sign October dated under be done U.S. laws. 1976, payments. promise on the of advanced Apparently question is the the main sale your unnecessary it was for office 3. That price property____ As to valuation on the Bureau of the estate as it was the acreage, figures produced handle amount of and duty particular probate Affairs Indian Affairs the U.S. of Indian dat- are Bureau original estate. ing These are ... from the 1890’s. hearing you as soon We look forward from government surveys I have been advised and possible. as part of the has been washed down land truly, very Yours river. L. GANSNER HARVEY plaintiff-heirs’ amended verified com- 7. The letter, responding attached to In his allegations following relat- plaint contained the "X”, Exhibit verified as amended misrepresentation, ing Lyons: fraudulent Lyons stated: misrepresentation, negligent conceal- fraudulent concealment, ment, negligent recission for inca- surprised Christopher Luke's quite I am at fiduciary pacity, for relation- recission abuse to assert and I believe it is an effort attitude influence, ship undue recission insuffi- and Kootenai Band himself as Chief Canada____ consideration, ciency rescission fraud Indians malpractice, negligent purchaser, intentional Christopher taking ridic- Luke is a rather concealment, any malpractice, knowing matter, being one of attitude on this ulous the facts of claims are warranted “further hostility suspicion. originally Shelton LeRoux were (sic) this case.” he this office for the efforts of Bur proceed- original defendants in the named as anything the will of have under would not however, against Shelton ings, action Chiqui____ Joseph appeal and no taken. dismissed

769 ing of a material fact rests the absence ii. G & M moving party. upon all times A motion Co., Irrigation Idaho Farms v. Funk 119 plead if the “shall be rendered forthwith v. Petricevich 514, (1991); P.2d 851 file, and admissions on ings, depositions, Co., 92 Idaho 865, River Canal Salmon affidavits, any, if together show 362, (1969); Chris 868-69, 452 P.2d 365-66 genuine any issue as to there is no 684, Rumsey, 91 Idaho tiansen v. 429 P.2d moving party is material fact and that the (1967). is onerous This burden because judgment entitled to a as a matter of law.” evidence can create even “[circumstantial Sudweeks, Bonz v. 56(c). Ida issue of material fact.” Doe v. 539, (1991); G & M Farms ho 808 P.2d 876 Durtschi, P.2d 1238 110 Idaho Co., Irrigation Funk 119 Idaho (1986); Petricevich v. River Canal Salmon (1991); Brown v. Matthews Mor P.2d 851 Co., 868-69, Inc., tuary, 118 Idaho 801 P.2d 37 (1969). Freeman, (1990); 365-66 Olsen v. J.A. 117 Idaho Enters, (1990); Tusch v. Moreover, 791 P.2d 1285 all inferences reasonable Coffin, (1987); can be made from the record shall be Am., Rawson v. United Steelworkers of party resisting the made in favor of the Doe v. 630, (1986); 111 726 P.2d 742 Idaho Irrigation Farms v. Funk G & M motion. Durtschi, 110 Idaho 466, 716 P.2d 1238 Co., 514, (1991); P.2d 119 Idaho 808 851 Ness, 495, Bailey v. (1986); 708 109 Idaho Inc., 118 Mortuary, Brown v. Matthews Ethington, Anderson v. (1985); P.2d 900 En 830, (1990); Tusch Idaho 801 P.2d 37 Kline 658, (1982); 103 651 P.2d 923 Idaho 37, Coffin, ters. v. 113 Idaho 740 P.2d 1022 Clinton, 116, v. 103 Idaho P.2d 645 350 Durtschi, (1987); 466, Doe v. 110 Idaho 716 Hubbard, (1982); 67, Ashby v. 100 Idaho Ethington, v. (1986); Anderson P.2d 1238 (1979); Farmers Ins. Co. v. 593 402 P.2d 658, (1982); Kline 103 Idaho 651 P.2d 923 Brown, 97 Idaho 380, (1976); 544 P.2d 1150 Clinton, 116, 645 P.2d 350 v. 103 Idaho Sparks Campbell Ed & v. Sons Joe (1982). conflicting If the record contains Co., 454, Constr. 96 Idaho 530 P.2d 938 minds upon inferences which reasonable Sales, v. Trailer (1974); Elswood Schaefer conclusions, might reach different a sum 654, (1973); Stew 516 95 Idaho P.2d 1168 mary judgment must be denied because all 198, Corp., art v. Hood 95 Idaho 506 P.2d against doubts are to be resolved the mov (1973); Agency, Central Idaho Inc. v. 95 Irriga Farms v. Funk G & M ing party. Turner, 306, (1968); 92 Idaho 442 P.2d 442 Co., 514, tion 119 Idaho 808 P.2d 851 Day Mortgage Corp., v. Ins. 605, 91 Idaho Mortuary, (1991); Brown v. Matthews (1967); Brough, Otts v. 428 524 P.2d 90 Inc., 118 Idaho 830, (1990); 801 P.2d 37 124, (1965); Steele v. Idaho 409 P.2d 95 Clinton, 116, Kline v. 103 Idaho 645 P.2d Nagel, 522, (1965); Idaho 406 P.2d 805 89 Brown, v. Farmers Ins. Co. (1982); 97 350 Fillmore, 36, Jack v. 85 Idaho 375 P.2d 321 (1976); Lundy v. 380, P.2d 1150 Idaho 544 Co., (1962); Duffy Merrill v. Reed Constr. (1966). Hazen, 323, 411 P.2d 768 90 Idaho 410, (1960). As we 82 Idaho 353 P.2d 657 infer requirement that all reasonable cases, upon have reiterated our recent light ences be construed in the most favor summary judgment, disputed all motion for non-moving party is a strict one. able to the of the liberally facts are construed favor 766, P.2d Prenger, Clarke v. 114 Idaho 760 v. Funk G & M Farms non-moving party. (1988). 1182 Co., 514, Irrigation 851 119 Idaho 808 P.2d Nevertheless, party when a moves for Mortuary, Brown v. Matthews (1991); opposing party’s summary judgment Inc., (1990); 830, 118 Idaho 801 P.2d 37 Enters, speculation mere case must not rest on 37, Coffin, Tusch v. 113 Idaho 740 Durtschi, not a mere scintilla of evidence is Doe v. (1987); because P.2d 1022 fact. enough to create a issue of Anderson 466, (1986); Idaho 716 P.2d 1238 Co., Irrigation & M Farms v. Funk 651 P.2d 923 G 658, Ethington, v. 103 Idaho (1991); Clinton, Petricevich Kline (1982); 808 P.2d 851 v. 103 Idaho Co., v. Salmon River Canal (1982). prov- 92 Idaho 645 P.2d 350 The burden of (1969). Notwithstanding unquestioned the heirs did It is oppose affidavits to the motion summary judgment, submit utility of a motion Therefore, summary judgment. be granted should us particular issue before is whether Nagel, with caution. 89 Idaho Steele plaintiff-heirs complied require with the (1965). P.2d It is with these provided ments “otherwise in this rule” principles in mind well-established that we required to further and whether were appeal. consider this respond Lyons’ motion. While Rule 56(e) ordinarily requires non-moving III. affidavits, party depositions submit “personal knowledge” other statements A. which would be “admissible in evidence” appeal The first on is whether the issue moving trial to refute affidavits comply failed to plaintiff-heirs in this case 56(e); party, I.R.C.P. see also Petricevich requirements affidavit Co., v. Salmon River Canal 56(e). Because the order of the trial court (1969), in case this granting summary judg- the motion for rely heirs both and the chose to partially ment stated it based on that was the amended verified plaintiff-heirs the failure of the “submit nothing in depositions on file. There is affidavits, depositions 56(e) or other evidence precludes plaintiff- Rule Summary their opposition relying depositions, the Motion heirs from own record,8 refute Judgment,” necessary part that we address which were arguments moving based issue. depositions. All that Rule on those same party It is well established a 56(e) non-moving party requires is that the summary judg against whom a motion for allegations solely upon not rest the bare sought merely “may ment is not rest on pleadings. The non-mov contained pleadings, allegations contained in his but ing merely evidence party must introduce produce come evidence must forward specific support that which forth “set[s] deposition affidavit by way of or to contra genuine issue showing facts that there a moving party and dict the assertions of the 56(e). state for trial.” I.R.C.P. The sworn genuine a issue of material fact.” establish ments in the verified contained amended Co., 117 v. J.A. Freeman Idaho Olsen complaint, the numerous attached exhibits (1990); v. Prenger, 791 P.2d 1285 Clarke satisfy depositions heirs’ thereto and the (1988); 114 Idaho Raw 56(e). requirements of I.R.C.P. Am., 110 son v. United Steelworkers of By basing partially order on the (1986); 630, 726 Doe v. Idaho P.2d comply ground had that the heirs failed Durtschi, 716 P.2d 1238 56(e), incorrect- with the district court Rule (1986). requirement has been made re- non-moving party was ly held that the 56(e) rules. I.R.C.P. part of our Court quired some additional evidence to submit states: moving par- upon by the already not relied summary judgment is a motion for When 56(e) are ty. requirements Rule The provided in this supported made provide the trial court with intended to rule, may upon rest person- adverse statements based on sworn factual his allegations mere or denials of are intended to be knowledge al response, by affidavits The pleadings, but his at trial. Idaho Court as evidence rule, complaint in this must a verified provided Appeals otherwise held that or requirements Rule specific showing that may forth facts alone meet set Jiminez, 56(e). 107 Idaho genuine Camp If he is a issue trial. there (Ct.App.1984). While if respond, summary judgment, P.2d does not opportunity had the against never him. Court has appropriate, shall be entered Luke, Mary Luke McCoy, Mary Luke and Doreen Louise depositions Pauline of Justin us. Luke, before record Agnes McCoy, McCoy, White are contained Cecille Abraham ments, puts ques- alone if motion at issue the address whether a verified 56(e), requirements of Rule we genuine meets the tion material issues of of whether hold that the heirs met and satisfied the any genuine fact remain. If there are is- requirements of the rule when relied sues of material fact which remain to be to, depositions, in on their addition trial court after receiv- determined amended sworn contents verified ing summary judgment then the motion for complaint and the numerous exhibits at- ap- definition is not long non-moving tached thereto. As as the 56(e). propriate. I.R.C.P. party relies on statements that are based Therefore, on those we hold that knowledge personal and which would be fact the heirs issues of material raised admissible as evidence at trial and does which are not eliminated as result allegations more than rest on mere or deni- Lyons’ supporting documents there is no pleading, als his it will be considered requirement respond by affirmative affi 56(e). comply sufficient to with Rule See rule, particu under davit or otherwise 56(e). larly light amended verified com if Even the district court had been cor- plaint, deposi the attachments thereto and 56(e) concluding required rect in that Rule Accordingly, tions on file. we hold that evidentiary the heirs to submit affidavits plaintiffs requirements have satisfied upon by matter other than those relied 56(e). of I.R.C.P. moving party, requirements of Rule 56(e) would have been met for an even

more fundamental reason. In Central Ida- B. Turner, Agency, ho Inc. v. Having held that the heirs met the re- (1968), respondent sought 56(e), quirements of Rule the substantive uphold the trial by charg- court’s order question remains whether issues ing appellant complied had not Lyons’ of material fact existed on statute 56(e) Rule because of failure to submit of limitations defense. note at We response affidavits in to the motion. summary judg- outset that the motion for Turner, approved we of the Federal Advis- solely ment was based on a statute of ory explanation Committee of the identical limitations defense and the motion did not quoted Federal rule and the Committee summary judgment assert that be should saying: evidentiary “Where the matter in granted on the substantive issue of fraud. support of the motion does not establish Therefore, required the heirs were not genuine issue, the of a summary absence present any evidence to establish that a judgment oppos- must be denied even if no genuine issue of material fact existed on ing evidentiary presented.” matter is Cen- question the of fraud. 310, Agency, tral Idaho 92 Idaho at 442 limitations, P.2d at On the issue of the statute of accepted Lyons’ argu- the district court explanation directly follows from ment that the statute of limitations had run 56(e) because even without an affi- by the time the heirs filed their “opposing evidentiary davit or other mat- 26, on October 1981. The court’s order presented by non-moving party, ter” the stated: summary judgment “appropri- will not be argument The Court heard the of counsel ate,” as that term should be understood in determined, pleadings from the 56(e), the last sentence of if Rule the mo- forming the activities the basis of the tion for fails to elimi- place Plaintiffs’ claim took between Octo- genuine nate all issues of material fact. 1977____ ber, April, Thus, 1976 and The Court assuming original pleadings that the fact, further determined that the Plaintiffs did raise issues of material Rule November, 56(e) not file their action until non-moving party indicates that the is 1981; only required years to counter the assertions more than two the after occurrence, movant, by tendering made affida- act or omission which vits, added.) depositions, complain. (Emphasis state- or other sworn 772 discovery professional

The district court further stated that the ed the rule mal plaintiff-heirs’ claims practice involving “are barred not fraudulent conceal fraud, plaintiffs’ of limitations” and replaced statute or it ment and have with against Lyons damage” rule, claims were dismissed. “some v. Bonz Sud weeks, (1991); 119 Idaho 808 P.2d 876 granting While the written order sum- Nash, Griggs v. 116 Idaho 775 P.2d judgment specif- does mary identify not (1989); Valley Treasure Bank v. Kil relied provision ic statute of limitations P.A., Pittenger, len 112 Idaho & appears it upon, it from the record that (1987); Corp. Smith, P.2d 326 Mack Fin. 5-219(4), was based on I.C. our statute § (1986); 111 Idaho P.2d 191 Streib v. dealing professional malpractice. (1985); Veigel, 109 Idaho Generally, begins this statute of limitations Cruz, Blake v. Idaho years to run two from the date of (1985); Stearns, Stephens v. “oeurrence, complained act or omission of.” (1984), provision P.2d 41 makes 5-219(4). above, As the dis- I.C. noted § professional malpractice that when clear court determined the statute of trict involves fraudulent or intentional conceal began years limitation to run “two after wrongdoing, ment of the even when the occurrence, act or omission of wrongdoing merely negligent, initial is they complain.” the district Based on statute of limitations contained I.C. 5- § arguments and the defen- court’s order 219(4) injured is tolled until court, appears dant the district before “knows or exercise reasonable granted judg- that the trial court inquiry care should have been re 5-219(4). ment based on I.C. § garding the complained ... matter of.” However, by calculating the statute date, After that statute limitations period commencing from of limitations year is period one after which an action for “occurence, the date of the act or omission malpractice professional is barred.9 of,” complained analysis of the district addition, 5-218(4), I.C. the statute of discovery rule of court did not consider the fraud, applied limitations was not 5-219(4) alleged malpractice when I.C. § separately alleged fraud. acts of Ida fraudulently to have been concealed. 5-218(4) provides: Code section 5-219(4) part provides section ho Code ground An action relief on the fraud or The cause of action in mistake. has, damage the fact of for the when such case to be deemed to have [is] escaping there- purpose responsibility discovery, by ag- accrued until the for, knowingly fraudulently and been grieved party, injured party from the facts concealed added.) (Emphasis mistake. alleged wrongdoer standing at the time fraud act, wrongful neglect or breach appeal, Lyons argu On renews his relationship professional or commercial a made before district court that ment the injured of ac- party, with the the [cause allegations incorpo of fraud should be shall be deemed to accrue when tion] pro in the limitations for rated statute of injured party knows or in the exercise However, malpractice. in fessional Um reasonable care should have been 700, phrey Sprinkel, 106 Idaho 682 P.2d v. of or inquiry the condition regarding on (1983),we cause of 1247 held that a action complained matter sounding in fraud not fall within the “does of 5-219(4) added). professional mal (emphasis protective While embrace of the I.C. § prior practice this eliminat- statute. As this Court stated decisions of Court have of, "pro- 5-219(4) provides part: plained The term pertinent whichever is later. in § I.C. malpractice" refers as used herein to fessional further, provided action within that an perform- wrongful or in the acts omissions foreign foregoing object con- or fraudulent any person, by professional ance of services exceptions be commenced cealment must association, firm, entity corporation li- (l) or year following the date of one within (2) perform under the to such services law years follow- censed aforesaid accrual as or two occurrence, state of Idaho. ing omission corn- act or

773 before, fraud, gist malpractice of action is realization that an intentional a ‘[t]he scheme, ordinarily Howard, 52 often orchestrated is negligence Trimming v. (1932).” negli- to a 412, 416, 661, more difficult discover than 16 662 Idaho P.2d today is con- gent injury. holding Our based on the rationale that fraud This was legislature’s clear in- sistent with “part ordinary per- course of is not of more tent victims professional of services” formance afford of fraud the machina- time in which discover scope “does not therefore fall with exploitation. led to tions which their 706, Umphrey, the statute.” 106 Idaho at 1253. In the Court Umphrey, 682 P.2d 706-07, P.2d at 1253-54 106 Idaho at 682 therefore, concluded, hold, “We added). Thus, that the (emphasis it is clear by for fraud deceit is covered action is us in instant case question before fraud, limitations 5- statue of I.C. § some- plaintiffs knew that not whether 218(4), than limita- rather the statute of 1977, wrong thing was but whether professional malpractice, I.C. 5- tions for facts or should have known “of the knew 219(4).” In the action we hold 5-218(4). Id. instant constituting fraud.” I.C. § plaintiff-heirs’ allegations that the based action, In the instant the record con professional fraud are not covered firms that the district ruled that the court statute, malpractice by the but rather the cause of action accrued issue of when fraud statute limitations contained question in a fraud action is a of law. 5-218(4). Sprinkel, v. 106 Umphrey I.C. § However, held consistently our cases have (1983). P.2d Idaho 682 1247 discovery of action that where of a cause commences the limitations the statute of discovery applicable rule discovery question is a for the date of fact requires fraud more than an awareness creating a jury unless there is no evidence something may requires wrong be but In question Trosper Raymond, of fact. v. knowledge constituting facts fraud. (1978), P.2d 577 33 the Court Mines, Harrison, Nancy In Lee Inc. v. 95 discovery in the dealt with similar rule (1973), Idaho 511 P.2d held that 828 we statute of limitations contained in the Idaho begin “the statute does not [of limitations] Act. Tort Claims discovery’ run in fraud cases ‘until the fraud.” Determining county’s Id. at 511 P.2d at 829. when interest recognized Nancy gravel pond we also Lee reasonably While should knowledge that “actual question Mines been is a have discovered which, nature, aggrieved very fraud” can be if the inferred material its fact could have inappropriate discovered the fraud is determination diligence, judgment. reasonable since noted we have a motion for 56(c); in our cases that of this state Basin the courts I.K.C.P. Smith v. Great knowledge Co., should hesitate infer Grain Idaho (1977); Olsen, fraud. v. Idaho Fairchild (1974); P.2d 900 v. Beck- Langroise Sprinkel, Umphrey we noted (1974). er, P.2d 178 legislature’s discovery of policy on the question jury properly one Such inferring fraud inconsistent fraud jury trial has been determination unless readily. that dis- too We also reiterated waived, in deter- which case it must be covery relates to the facts mined the trial court after full factual recognition than a that fraud rather mere We that the presentation. therefore hold wrong something is the commence- in granting respondent erred trial court investigation. of an A unanimous ment County’s Canyon motion for Umphrey in stated: Court judgment. legislature policy made a deci- The 55, (emphasis Idaho at 577 P.2d at 34 99 sion, provide for approve, of which we original). in added and of action for fraud accrual cause 434, Cox, discovery 104 660 P.2d upon the In Reis v. of facts in- (1982), malpractice medical action upon This a is founded 46 fraud. 774 issue,

volving discovery garding complained or matter Court elabo- condition discovery rated on the factual nature of for of” because she had been told it was an purposes Reis, of the statute limitations: suture. In the Court de- undissolved discovery issue was one termined that time when a cause of action ac The summary judg- may question or a fact reversed crues be of law fact, 440, depending upon P.2d question of wheth ment.10 Id. at 660 46. any disputed er issues of material fact Thus, our cases make it clear that issues ¶. Babcock, exist. Brown 273 Or. See regarding discovery purposes 351, (1975). 540 P.2d 1402 Where there regarded statute of limitations should be dispute any no material is over issue of questions jury for the fact when the dis- regarding the cause of action fact when covery disputed. principle date is is accrues, question is one of law for in particularly applicable summary judg- determination the court. See Mantz proceedings in- ment where all reasonable 473, Follingstad, v. 84 N.M. 505 P.2d 68 ferences are in favor of the resolved (App.1972). See also 54 C.J.S. Limitation opposing summary judgment. 399(b). hand, of Actions On the other § 56(c). conflicting where there is evidence as to recognized by This distinction was accrued, when the cause action Appeals subsequent Court of two cases trier issue is one of fact for of fact. Circle, Schelling, In to Reis. Full Inc. v. The_ jurisdictions case law other is 634, (Ct.App.1985), 108 Idaho 701 P.2d 254 position. replete authority legal court faced with the identical was See, Hunt, e.g., Cal.Rptr. v. 154 Enfield presently issue us. In that before Full 146, (1979); Ca.App.3d Bipso 417 v. Appeals the Court of reversed a Circle Burton, 442, Cal.Rptr. Cal.App.3d the defendants Fertilizer, (1978); George v. W-G on the statute of limitations in a case based Inc., (1970); 205 Kan. 469 P.2d 459 alleging fraud. The court stated that “[o]r- Sons, E.R., Squibb Hill v. & 181 Mont. dinarily, dil- what constitutes reasonable (1979); 592 P.2d 1383 Christensen igence to discover fraud so as to affect the Rees, 20 Utah 2d 436 P.2d 435 begins the statute of limitations time when (1968); Dight, Ruth v. 75 Wash.2d question jury.” run is a of fact for the (1969); Clarke, 453 P.2d 631 Hill v. [161 at 108 Idaho at (W.Va.1978). W.Va. S.E.2d 258] Carman, 114 Idaho Carman v. Thus, correct whether trial court was (Ct.App.1988), the Court of law, holding, plain as a matter of Appeals in which the wife reviewed a ease tiff’s claim was barred the statute of suspected in a divorce action that her for- granting summary limitations and in inappropriately mer husband had obtained judgment depends on whether there were magistrate’s information about the decision any disputed issues of material fact re dividing property prior to set- garding plaintiff or in the marital when “[knew] However, in case the wife exercise of care should tlement. reasonable inquiry regarding the not have the evidence to substantiate have been did complained long suspected of.” I.C. after she condition or matter her claim until 5-219(4). added.) (Emphasis begun inquire of wrong doing and had suspected her former husband about The 660 P.2d at 50. Citing Trosper, wrongdoing. our case went on to review the facts Court Reis granting Appeals vacated the the Court although the and indicated that the record stating: summary judgment by knowledge something plaintiff had the claimant rea- question of when body opera- wrong with her after gov- sonably should have discovered tion, “put inquiry re- she still was not they knew not demonstrate that analogous plaintiffs in- record does to the in the 10. This is may required Although they constituting known in I.C. have fraud" as stant case. something "the facts wrong 5-218(4). the sale of their was with § obtained, price property the in and the repre- leged of his question fraudulent concealment entity’s is a of emmental role LeRoux, purchaser, the which, genuinely if dis- the at fact sentation of material inappropriate property determination heirs’ puted, is for time of his sale of the summary judgment____ appraised a on motion concealment of the of fraudulent Here, fact question of material exists a is- property to raise value of the concerning reasonably whether Cherie granting sues fact to foreclose of natural against claim should have discovered her summary judgment. Consequently, to county prior the 1984. undisputed is that the acts In this case it yet period be the limitation should complained April, in of occurred applied. This issue be determined should October, in complaint filed that the was omitted) (Citations jury. the two-year limi- beyond the usual well at 758 P.2d at However, 5-219(4). of I.C. period tation § light complaint

In of this Court’s well-estab al- the verified amended heirs’ aggrieved party “intentionally lished rule that when an leged Lyons and know- that reasonably is should have discovered fraud his ingly malprac- from Plaintiffs concealed question, fact a of the a review record responsibility escape tice to therefore.” First, questions. reveals numerous factual alleged Accordingly, respect with to fraud- regard allegation the con with to sworn malprac- of professional ulent concealment Lyons in the tained verified 5-219(4), exception tice the to under I.C. § (Le- representing purchaser was both the two-year of is the usual statute limitations Roux) heirs in sale of and the applicable, one-year peri- additional depositions property, the of the heirs are begins od run from date to deter- to be time any clear that at no did of heirs fact, plain- mined trier of of when by the According know of this situation. to the tiffs or have been knew should exhibits attached the verified amended Lyons’ malpractice. inquiry alleged complaint, Lyons’, men letter to Gansner pro- While the statute of limitations for a “purchaser” tions but does not disclose it only malpractice year extends fessional one client, Second, alleged is his LeRoux. past discovery alleged of the the date regard allegedly selling property concealment, limi- fraudulent the statute of value, appraised less than LeRoux for applicable is for three tations to fraud suggests the real the record estate years discovery, by aggriev- after “the $6,100.00 approximately sold was constituting facts party, ed the fraud August, appraised having as a 5-218(4). statu- mistake.” I.C. § addition, $33,964.30. value of In the June tory period applicable is to the limitation order on the 1976 administrative law plaintiff-heirs’ causes of action that sound Chiqui also estate established total fraud, comprising major portion a $33,964.30, property based on the value complaint. this statute of amended While foregoing appraisal. Both exhibits hearing addressed at the limitation was appraised establishing the value the Chi summary judgment, the dis- the motion for prior qui property estate were known calculating the limita- trict court erred no the sale and at time does record period commencing from the date of tion appraised indicate disclosed the complained of rather than al- actions purchaser heirs value to the or that the plain- lowing jury to determine when the Rather, April his was client LeRoux. fraud or the facts tiff-heirs discovered the Gansner, from Lyons letter required in I.C. fraud as to the attached as exhibit verified 5-218(4). plaintiff- Accordingly, complaint, pur amended discusses both sounding in fraud heirs’ causes action general property chaser and value court trial. are remanded to the district purchaser disclosing terms that the without one of his other clients and that the IV. price substantially sale obtained was less conclusion, of the record review appraised than the There suffi value. Lyons’ genuine issues material in the record of al- indicates that cient evidence fact exist this case we conclude lants’ and motion for reconsideration and mo- district in granting the court erred sustaining defen- tion to amend and the court’s summary judgment. dants’ motion for The respondent’s granting order motion of the order district court affirmed in summary judgment. The order en- and part part. reversed in 1, 1989, stated, tered on June and in rele- part, following: vant the sounding For those causes of action professional malpractice allega- without The court determined that there were no fraud, of misrepresen- tions concealment or genuine fact, material that the issues of tation, Lyons’ explain such as failure applicable of limitation ex- statutes had significance heirs the of the they the deeds pired prior to the commencement of signing, applicable were statute of limi- previous action and that its Order Grant- years is two the act tation from or occur- ing Lyons’ Defendant Motion for Sum- complained years rence of or two from the mary Judgment was correct. plaintiffs damage. some A date incurred The district order re- granting court’s of the review record demonstrates that all spondent’s summary judgment, motion plaintiffs damage suffered some when 23, 1990, which was on March entered con- allegedly inadequate pro- received sale tains the following determinations: Lyons’ contingent ceeds less one-third fee. forming 1. The activities of basis Therefore, we the trial hold that court did place claim took Plaintiffs’ be- err in granting judgment not on October, 1977; April, tween and alleging “negligent malpractice” counts 2. The contacted a Plaintiffs Barrister fraud, allege those claims because do Cranbrook, B.C., from April, Canada in misrepresentation or concealment and purpose investigating 1977 for the of clearly accrued in the heirs 1977 when suf- potential against Plaintiffs’ claims damage. Accordingly, some fered we af- Defendants; moving granting firm the district court’s of sum- mary judgment on those counts. did The Plaintiffs not file their action November, 1981; until more than two alleging For those counts fraudulent con- occurrence, years after the act or omis- professional malpractice cealment under they complain; sion of which 5-219(4), we reverse and remand for trial the dates actions because those accrued 4. The Plaintiffs did not submit affida- plaintiffs should when knew or have been vits, depositions or other evidence inquiry alleged malpractice, Summary opposition to the Motion for questions are and factual be resolved Judgment would is- establish an trier of fact. regarding sue of fact the Defendant’s statute limitations or defense fraud, alleging misrep- For those counts any whether Plaintiffs were un- and under resentation concealment I.C. any specified der disabilities 5-218(4) alleged not related to conceal- § Idaho Code 5-230 which would toll professional malpractice, ment we re- limitations; the statute and verse remand for trial because those plaintiffs actions accrued when knew the 5. There are no issues of mate- fraud discovered facts fact, appellants’ rial claims questions fraud and are factual to be re- against are respondent’s barred by the trier solved of fact. the statute of limitations. appellants. appeal. No fees on Costs opinion states that Court’s “[t]he appeal plain- first issue is whether the BAKES, C.J., JOHNSON, J., concur. comply tiff-heirs in this case failed to BISTLINE, J., participate. did not sat but 56(e). Be- requirements of I.R.C.P. granting trial cause the order of the court McDEVITT, Justice, dissenting. the motion for stated partially based on the failure appellants to this that it was appeal Court from plaintiff-heirs affidavits, ‘submit denying appel- the district court’s order 9(b). mistake, Fraud, condition opposi- Rule depositions other evidence or mind, or consti- of civil of violation Summary Judg- Motion tion to the of rights. averments all tutional ment,’ necessary that we address this is —In mistake, of civil or violation fraud or added.) (Emphasis issue.” rights, circumstances constitutional misinterpreted I the Court has believe mistake, fraud or or viola- re- ruling the district court of rights shall tion civil or constitutional of rule court did not gard. The district Malice, in- particularity. with be stated failed to submit affida- appellants because of tent, knowledge, condition and other summary judg- vits or other evidence that person may gener- averred mind of a be proper. ment was What the district court ally. [appellants] rule that “the did not did was fraud, following nine ele- To establish affidavits, depositions or other evi- submit ments must be shown: to the Motion Sum- opposition dence fact; (1) representation A of mary Judgment which would establish an (2) falsity; Its added.) (Emphasis The issue of fact.” (3) materiality; held, Its in terms of the motion for trial court context of and in the judgment (4) knowledge of speaker’s its falsi- The 56(e), is that when the motion ty; supported, and the non-mov-

properly made (5) repre- that the speaker’s The intent coming ing party has the of then burden upon in a rea- sentation will be acted forward evidence that establishes manner; sonably contemplated genuine issue of material fact trial. (6) ignorance falsity; of its The listener’s lengthy “require- The discussion of the (7) on the truth of The listener’s reliance 56(e) and ments” of I.R.C.P. is dicta representation; misinterpretation of of the district result (8) rely right The listener’s ruling. court’s representation; and truth of Court, opinion, scope This in its limits the (9) consequent proxi- The listener’s respondent analysis of its of whether the injury. mate genuine there no established that issue 710 P.2d at 606 Galaxy, 109 of material fact for trial: omitted). (citations the outset that the motion did We note at alleging The fraud the burden not assert Galaxy, elements. showing these nine granted should on the is- be substantive 696, 710 P.2d at The 109 Idaho at Therefore, plaintiff- sue of fraud. “the heirs not Court’s statement that were required any heirs to assert were required present any estab- evidence to prove genuine evidence to that a issue of material fact lish that a issue question material fact existed on the question fraud” is con- existed on fraud. trary rule and removes burden to this appellant-heirs. from the The Court reverses and remands to the alleging counts district court those appellant-heirs al- fraudu- professional malprac- lent concealment following leges fraud: as to 5-219(4) fraud, mis- under I.C. tice § ACTION FRAUD- FIRST CAUSE OF under I.C. representation, concealment ULENT MISREPRESENTATION 5-218(4). incorporate by 31. Plaintiffs reference 9(b) This has stated that “I.R.C.P. Court Para- allegations contained in requires party alleging fraud must that a if through 30 as set forth graphs plead the factual circumstances constitut- herein. verbatim ing particularity.” Galaxy fraud with represented Transp. 32. That Defendant Dep’t, Adver. v. Idaho Outdoor repre- 692, 696, successfully to Plaintiffs that he probate Es- (1985). them the rule sented states: Joseph Chiqui; tate of that but for the price ests at the offered Defendant LeRoux, efforts of him through and his firm Lyons. Plaintiffs Defendant would nothing pro- have taken in the Lyons 47. That Defendant knew that bate and distribution of said Estate. the information concealed was material and that reasonably it could have 33. influ- representations by That said Defen- enced Plaintiffs’ decision Lyons whether to dant were false. respective sell their interests in the representations 34. That materially said Chiqui Estate. pay induced Plaintiffs to one-third of 48. That Plaintiffs were not aware of proceeds from the sale of their the fair by market value concealed De- respective in Chiqui interests Es- Lyons, prior fendant either to or at the Lyons. tate to Defendant signing by time of the Plaintiffs of the 35. Lyons That Defendant knew of the agreements aforementioned and in- falsity representations. of his struments. Lyons 36. That Defendant intended that That, by confidential, 49. virtue of their representations his upon by be acted fiduciary relationship with Defendant Plaintiffs and the manner reason- Lyons, Plaintiffs right rely had a ably contemplated; i.e., that Plaintiffs did, fact, rely on the counsel of pay would Lyons to Defendant one- Lyons regarding Defendant the fair- proceeds third of the from the sale of ness and price reasonableness of the respective their Chiqui interests in the by offered Defendant LeRoux. Estate. injured 50. That Plaintiffs were their ignorant That Plaintiffs were reliance on Lyons’ Defendant counsel falsity Lyons’ represen- of Defendant and his failure to disclose the fair mar- tations. ket value of their interests. relied, by 38. That Plaintiffs virtue of previously Court has ruled on the confidential, fiduciary their relation- very presented by appeal. issue ship Lyons, with Defendant on the ve- Co., Theriault v. A.H. Robins racity representation; of his and that (1985), appellant ap- right rely Plaintiffs had a thereon. pealed from the district court’s decision to 39. That consequently Plaintiffs were grant respondent’s summary motion for and proximately injured as a result judgment 5-219(4). on the basis of I.C. § thereof. appellant argued summary The judg- improper ment was because a is- THIRD CAUSE OF ACTION FRAUD- sue of material fact existed as to whether ULENT CONCEALMENT respondent guilty of fraudulent concealment. There were no affidavits or incorporate by 44. Plaintiffs reference evidentiary other materials the record to allegations contained in Para- support appellant’s generalized aver- graphs through ff set forth ments. herein. verbatim 45. That Defendant was aware began analysis The Court its Theriault Gorton, concealed from Plaintiffs the by quoting from Johnson v. respective fair 595, 598, (1972): market value of their Chiqui interests inherited from the Es- Summary proper if judgment is the evi- tate, prior to and at the time of the dence before the court on the motion signing by Plaintiffs the aforemen- verdict if would warrant directed agreements tioned to sell their inter- go case were to to trial. When mov- conveying ests and the instruments ing party presents materials would same. him if entitle to a directed verdict trial, presented responding party 46. That the information concealed was evidence; may he must decision Plaintiffs not hold back his material to the respective present their inter- sufficient materials to establish whether to sell incorporated hereto and Those must “Z” attached triable issue. materials set particularity; for if forth the facts with reference. herein general sufficient averments were of action and third causes The first judgment procedure would lose only complaint, which the verified requirement specifici- utility. its appellant’s fraud alle- for the factual basis where the ty is underscored in cases by reference both gations, incorporate established, pri- moving defendant conjunc- When read paragraphs. these facie, a on the grounded ma defense of ac- first and third causes tion with the statute limitations. tion, key language of I.C. they trigger the Theriault, 108 P.2d at Idaho at 698 5-219(4), to wit: original). The (emphasis 368 Court then has, damage for the [Wjhen the fact of on to hold: went responsibility there- purpose escaping above, requirement As noted we for, knowingly fraudulently been here, where, specificity is underscored injured by an party from the concealed prima party has a the other established time alleged wrongdoer standing at the of limita- facie defense on statute act, neglect wrongful or breach addition, 9(b) requires tions. relationship professional or commercial a fraud, alleging a when injured party, same be shall circumstances the fraud par- injured accrue when the deemed to particularity. must stated with be or in the exercise reason- ty knows produce any Theriault has failed put on in- able care should have been designed

evidence of conduct Robins matter quiry regarding the condition of in an effort to hinder her conceal facts complained claim; of..... prosecuting her ... Theriault, P.2d at at added.) words, (Emphasis In other the Ca-

369. plaintiffs representing nadian barrister or,

Paragraph aware, of the first amended com- the exercise reason- plaint care, states: been on reason- able should have representation inquiry

28. able of the double Plaintiffs first learned agreement Lyons by Lyons. between Defendant April and David Luke in of 1977. knowledge by plain- foregoing relative, Luke, Through Christopher a Lyons’ representa- tiff-appellants of dual a from Cran- contacted Barrister day of tion on or the 13th Decem- before B.C., Canada, brook, Harvey named L. ber, paragraph 29 of as set forth agreed Gansner. Mr. Gansner to investi- complaint, “prima the verified established a gate Chiqui the matter for the heirs. He grounded in the statute facie” defense April Lyons contacted Defendant Theriault, 108 limitations. See responded 1977. Defendant at 368. The burden then April Copies 1977. of these letters dictates, shifted, plain- as Theriault incorporated are attached hereto and tiff-appellants to come with suffi- forward respec- herein as “W” and “X” Exhibits contravening cient data create tively. issue fact. Paragraph 29 of first amended com- Certainly, appellant-heir’s plaint states: have been sufficient to withstand would Being unfamiliar with United motion, 12(b)(6) but based on control- law, Mr. Gansner referred the States opinion, I ling would hold that Theriault Shelton, to Defendant Talbot Jr. matter respondent’s motion cannot withstand the Ferry, Idaho. Defendant of Bonners opin- summary judgment. This Court’s agreed pursue the matter for Shelton bur- stripped away appellants’ ion has Chiqui On heirs. December elements of establishing the nine den of his file to De- Mr. Gansner transferred fraud, process, and in Shelton. See Exhibits “Y” and fendant judgment procedure in this case lost its

utility. reasons,

For the above I dissent. P.2d Idaho, Plaintiff-Respondent,

STATE of SABIN, Leroy

Wilbur Defendant

-Appellant.

No. 18655. Appeals

Court of of Idaho.

Nov.

Case Details

Case Name: McCoy v. Lyons

Court Name: Idaho Supreme Court

Date Published: Oct 25, 1991

Citation: 820 P.2d 360

Docket Number: 18169

Court Abbreviation: Idaho