{
  "id": 1891357,
  "name": "Robert O'BRYANT v. Calvin HORN and Horn Lumber Co.",
  "name_abbreviation": "O'Bryant v. Horn",
  "decision_date": "1989-02-13",
  "docket_number": "89-20",
  "first_page": "617",
  "last_page": "621",
  "citations": [
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      "cite": "764 S.W.2d 445"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "reporter": "Ark.",
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      "cite": "292 Ark. 590",
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      "reporter": "Ark.",
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      "year": 1987,
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      "reporter": "Ark.",
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      "year": 1987,
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    {
      "cite": "284 Ark. 5",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1878581
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      "weight": 2,
      "year": 1984,
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      "case_paths": [
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    {
      "cite": "Ark. Code Ann. \u00a7 16-56-111",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
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    {
      "cite": "Ark. Code Ann. \u00a7 16-56-105",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "opinion_index": 0
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    {
      "cite": "295 Ark. 9",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1893793
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      "weight": 2,
      "year": 1988,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T17:24:39.933112+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Robert O\u2019BRYANT v. Calvin HORN and Horn Lumber Co."
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nThis is an appeal from the trial court\u2019s dismissal with prejudice of the appellant\u2019s cause of action. The trial court granted the appellee\u2019s motion to dismiss based on the finding that the appellant\u2019s complaint stated a tort cause of action for fraud or deceit, which was barred by the three year statute of limitations. On appeal, the appellant argues the following three reasons why the trial court erred in dismissing the cause: (1) his complaint states a cause of action on a writing under seal and therefore a five year statute of limitations is applicable; (2) even if his cause of action only stated a cause of action in torts, the statute of limitations was tolled because of appellee\u2019s fraudulent concealment; and (3) the complaint on its face states a cause of action for breach of warranty of sales controlled by the Uniform Commercial Code and therefore a four year statute of limitations is applicable. We find no merit in appellant\u2019s arguments and therefore affirm.\nWe summarily dismiss appellant\u2019s second and third arguments by stating that these arguments were not made below, and we are unable to address them for the first time on appeal. See, e.g., Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988). In addition, it is undisputed that a cause of action for deceit or fraud is subject to a three year statute of limitations as set out in Ark. Code Ann. \u00a7 16-56-105 (1987). Therefore the sole question before the court is whether the appellant\u2019s complaint also stated a cause of action based upon a writing under seal so that the five year statute of limitations for such actions under Ark. Code Ann. \u00a7 16-56-111 (b) (1987) would apply.\nIn making this determination, the court must look to the complaint itself. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). If this court finds that two or more statutes of limitations apply to a cause of action, generally the statute with the longest limitations will be applied. See Ballheimer v. Service Finance Corp., 292 Ark. 92, 728 S.W.2d 178 (1987). However, we look to the gist of the action to determine which statute of limitations to apply. See Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).\nAppellant\u2019s cause of action arises out of the purchase of a used Clark log skidder from the appellee on May 3, 1984. Apparently, the appellant was told he was buying a 1978 model. The log skidder was destroyed by fire. The appellant had purchased insurance on the equipment based on its fair market value of $18,000. When settling the claim, the insurance company determined that the log skidder was a 1973 model, and the appellant could only recover its fair market value of $10,000. Because of this loss and expenses of repairs on the older log skidder, the appellant filed suit against the appellee on May 18, 1987, more than three years after the cause of action accrued.\nIn his complaint, the appellant alleged that due to the misrepresentation, negligence and/or fraud perpetrated by the appellee in selling him a skidder some five years older than what had been represented and what had been contracted for, he claimed damages in the amount of $15,000 for loss of the fair market value of the skidder and loss of wages and income. The notarized bill of sale was attached to the complaint. The bill of sale contains a warranty of title to a 1978 Clark skidder and that the title is free of any and all encumbrances, against the lawful claims of any and all persons.\nMost of the appellant\u2019s brief presents arguments not heard below, such as breach of warranty of sales and fraudulent concealment of the cause of action. In the part of his argument we do address, the appellant relies on the bill of sale when arguing he alleged a contract action, which is covered by a five year statute of limitations. However, attachment of the bill of sale to the complaint is not enough to transform his action into one for breach of contract. As noted earlier, we look to the complaint to determine which statute of limitations to apply, and therefore the language of that complaint must show that the cause of action was based upon that writing, in this case the bill of sale.\nWhile the complaint mentions the bill of sale, the allegations made in the complaint do not state a cause of action for its breach. For example, there is no statement that the appellee breached the bill of sale for failure to deliver title to the described property. Instead, throughout the appellant\u2019s complaint, allegations are made of misrepresentation and fraud, reliance on that misrepresentation and fraud, and damages suffered because of that reliance. An action for misrepresentation and fraud lies in tort, and we agree with the lower court that this is the only cause of action pled in the appellant\u2019s complaint.\nFurther, we note the appellant\u2019s reliance on this court\u2019s holding in Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966). In Booth, this court held that part of a complaint relating to a property description contained in the warranty deed was controlled by the five year statute of limitations for written instruments and therefore not barred. However, in doing so, the court stated that the Booths\u2019 complaint contained an alternative prayer based upon breach of warranty, which concerned certain acreage the Booths contended had been properly made a part of the property described in the warranty deed given them. In the present case, the appellant\u2019s complaint is void of any alternative prayer based upon the bill of sale, and instead, appellant concludes his complaint by stating that he is entitled to adequate compensation from the appellee for losses, which resulted from the appellee\u2019s misrepresentation, fraud and negligence \u2014 which is consistent with the allegations of misrepresentation he made throughout his complaint.\nIn sum, the gist of appellant\u2019s complaint clearly sounds in tort, and we simply are unable to construe it to include another type action so as to permit the application of a longer statute of limitations. Thus, we affirm the trial court\u2019s holding that the appellant\u2019s cause of action was barred by the three year statute of limitations for torts.\nThe cause of action was also dismissed as to Calvin Horn, since the appellant\u2019s complaint did not state that Horn was acting in an individual capacity. Because this point is not argued on appeal, we do not address it and will refer to Horn Lumber Company as the only appellee.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Tatum & Sullivan, P.A., by: Terry Sullivan, for appellant.",
      "Wright, Chaney & Berry, P.A., by: William G. Wright, for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert O\u2019BRYANT v. Calvin HORN and Horn Lumber Co.\n89-20\n764 S.W.2d 445\nSupreme Court of Arkansas\nOpinion delivered February 13, 1989\nTatum & Sullivan, P.A., by: Terry Sullivan, for appellant.\nWright, Chaney & Berry, P.A., by: William G. Wright, for appellee."
  },
  "file_name": "0617-01",
  "first_page_order": 653,
  "last_page_order": 657
}