before July 30, 1984, and furthermore, knew by that date that Nash considered him liable for the additional amount which he would eventually pay. Rather, Perkins must establish that Nash continued his tortious conduct beyond July 30, 1984, and the fact that he sent a single dunning notice on July 31, 1984, fails to achieve this.
First, Perkins was not the victim of a continuous chain of tortious activity, no single incident of which can fairly or realistically be identified as the cause of significant harm. The January, 1982 conversation with Nash was a thunderbolt which shattered any notion Perkins may have had that he was close to repayment, or even that he had reduced the amount of principal owed, under the terms of the written note as now made known to him. Under Perkins' theory, every payment he made beyond the initial 24 constituted injury to him, and certainly the payments he made which exceeded $ 19,768 constituted injury. By July 30, 1984, he had made approximately 50 payments for over $ 21,000.
Further, the dunning notices did not represent an attempt by Nash to acquire a right to "baptize" tortious conduct, in the same way continued use does in the trade secret misappropriation cases. In Underwater Storage, 371 F.2d. at 955, the court declared that defendant could not argue that misappropriation took place outside the statutory period on the one hand, while at the same time arguing that continued use was not wrongful since the secret was now public knowledge, on the other. However in the present case, Nash was not "baptizing" an earlier wrong; he was merely asserting his belief that his earlier acts pursuant to creating the loan obligation were not wrongful to begin with.
Finally, while Perkins has claimed breach of fiduciary duty, he has neither pleaded nor produced facts indicating there was any more than an arm's length relationship with Nash. Thus, the Court finds no basis for applying the continuing tort doctrine on the basis that the continued association between Perkins and Nash was fostered in an atmosphere of trust or cooperation.
3. Misrepresentation of Law
There is, perhaps, a more fundamental reason why Nash's sending of the July 31, 1984 dunning notice does not delay the running of the statute of limitations, and which serves to distinguish more clearly the facts in Underwater Storage from those here. Under Perkins' theory, the dunning notices represent the second phase of the fraud, which began with their conversation in January, 1982 some two years after the loan was taken out, in which Perkins was convinced by Nash that despite his being tricked into signing the loan agreement he was nonetheless bound by its terms. At that point, the fraud had evolved from a misrepresentation of facts, i. e. the terms of the written agreement, to a misrepresentation of the legal effect of the Perkins' having signed it.
But a misrepresentation of law is ordinarily not a basis for fraud, W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton On the Law of Torts, § 109 at 758-762 (5th ed. 1984), citing at n.42, Williams v. Dougherty County, 101 Ga. App. 193, 113 S.E.2d 168 (1960) (in the absence of a fiduciary relationship, representation that particular conduct will lead to legal liability can not form a basis for fraud action, where plaintiff could have settled the question by consulting an attorney).
Although at one time based on the proposition that all people were charged with knowledge of the law, the rationale for the rule has become more realistic. "The general rule seems to have arisen rather out of a deliberate policy requiring the parties to a bargain to deal at arm's length with respect to the law, and not to rely upon one another." Prosser and Keeton, supra, at 759.
The exceptions to this rule do not apply here. There are no facts in the pleadings or record indicating that Nash and Perkins stood in a relation of trust and confidence such as family members do, or business partners, or an attorney and client; or that Perkins lacked access to information regarding his legal obligation under the note while Nash held himself out as having special knowledge of that matter. Id. at 760-61. Any artifice or trickery by Nash was used to induce Perkins to sign the note, and had long since been revealed to him by the time of the July 31, 1984, dunning notice.
That notice was nothing more than a straightforward declaration by an interested party to an arm's length transaction regarding his rights. There is no basis for finding it was fraudulent. Neither is there any basis for finding that it delayed accrual of the cause of action for statute of limitation purposes. Neff v. New York Life Insurance, Co., 30 Cal. 2d 165, 180 P.2d 900, 904 (1947) (running of statute of limitations not suspended by insurer's denial of liability: concealing no fact from the insured, it was free to make such a claim; the insured, knowing all the facts which were known to defendant, was then free to litigate the issue). Further, this result is not changed by the fact that, under Perkins' theory, the dunning notices were an attempt to enforce wrongful conduct occurring previously. See Hurick v. Lehman, 782 F.2d 984, 986-987 (Fed. Cir. 1986) (expiration of statute of limitations on wrongful discharge action was not avoided by plaintiff's assertion that he was actually challenging subsequent refusal by Naval Correction Board to grant relief from such discharge, the court holding that such action was "auxiliary" thereto: "No matter how the appellant seeks to frame his claim, in the final analysis he is challenging his discharge, and his attempt to do so was untimely").
Despite Perkins' attempt to inculpate the conduct of defendant Nash after July 30, 1984 in order to gain relief from operation of the statute of limitations, the reality is that the outcome of a trial would depend entirely on conduct alleged to have occurred seven and one half years before suit was filed. Where Perkins pleads facts showing he was aware of such conduct five and one half years before filing suit, and was clearly injured at least three years before filing, the only result can be that he was not diligent in filing any claims he may have had with a limitation period of three years or less. To hold otherwise would be to unfairly disturb the repose to which a prospective defendant is entitled in the conduct of his affairs, and would require a jury to make sense of evidence obscured by the fading memories of witnesses.
It is therefore
ORDERED, that defendant Nash's motion for summary judgment is granted, and this case is dismissed as to defendant Nash, and it is further
ORDERED, that all outstanding discovery motions are denied as moot, and it is further
ORDERED, that plaintiff shall have 10 days from the date of this Order to show good cause why this case should not be dismissed as to all remaining defendants for failure to effect service, pursuant to Rule 4(j).