-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

MATTIE KING,

Plaintiff-Appellant, UNPUBLISHED December 2, 2014

v No. 314188 Oakland Circuit Court PARK WEST GALLERIES, INC., ALBERT SCAGLIONE, MORRIS SHAPIRO, ALBERT MOLINA and PLYMOUTH AUCTIONEERING SERVICES, LTD., LC No. 2011-117393-CZ

Defendants-Appellees.

Before: S AWYER , P.J., and M ETER and F ORT H OOD , JJ.

P ER C URIAM

. Plaintiff appeals from the trial court’s orde r granting summary disposition to defendants. We reverse.

This case stems from a cruise plainti ff took in April of 1999 with her now deceased husband. While aboard the ship, plaintiff and he r late husband decided to attend a shipboard auction put on by defendant Park West Galleries, Inc. During this auction, plaintiff purchased a complete set of Salvador Dali’s Divine Comedy collection. This art co llection was represented by Park West’s auctioneer as a good investment that would incr ease in value over time. Further, defendant’s auctioneer stated that these works had been signed by Dali. Plaintiff purchased the works at the auction for $165,000. Plaintiff, as part of the purchase, received certificates of authenticity and appraisals to ensure that repr esentations made by Park West’s auctioneer were accurate. Defendant Albert Scaglione, the CEO of defendant Park West Galleries, Inc., signed the documents, and they were mailed to plaintiff after the cruise was over.

After ten years of holding onto th e collection of art, plaintiff decided to sell it in 2009. Unsure of how to sell the prints, plaintiff c ontacted Bruce Hoffman, who had previously shown interest in acquiring the art from her. Upon lear ning that the Dali works were from Park West, Hoffman informed plaintiff that Park West ha d recently been accused of forging signatures and advised her to get a new appraisa l. Plaintiff then had her artw ork looked at by an art advocacy group known as the Fine Art Registry; after the consultation, it was confir med that the artwork was most likely a forgery.-2- Plaintiff filed suit alleging eleven different counts including: negligen t misrepresentation, conspiracy, violation of the Mich igan consumer protection act, c onversion, intentional infliction of emotional distress, as well as other claims. Defendants successfully had all counts dismissed except for the fraudulent concealment and breach of warranty claims. Thereafter, defendants filed a second motion for summar y disposition, seeking dismissal of the remaining counts. Defendants argued several re asons why they were entitled to summary disposition, but the main issue was that the period of lim itations had already run on plai ntiff’s claim and she did not perform her due diligence to be entitled to a tolling of the period of limitations based upon fraudulent concealment. MCL 600.5855. Plaintiff stood by the tolling statute, claiming that fraud had prevented her from finding out that she did not have a real Da li signature. The court granted summary disposition to defendants on all of the remaining counts.

Plaintiff argues on appeal that the trial c ourt erred in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) because there is a dispute over the material fact of when discovery occurred or reasonably should have occurr ed. Plaintiff argues that she should be able to use MCL 600.5855 as a tolling m echanism to extend the statute of limitations because defendants fraudulently concealed the clai m from her. Further, she argues that, because of defendants’ knowledge of fine art, she was not negligent in re lying on their promise that the art was real and the appraisal was fair. We agree.

We review summary disposition claims pursuant to MCR 2.116(C)(7) and (C)(10) de

novo. Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003). Watts v Polaczyk

, 242 Mich App 600, 603; 619 NW2d 714 (2000). Plai ntiff acknowledged that her claim has exceeded the statute of limitations which would have been six years from the time of purchase of her collections of Dali’s Divine Comedy prin ts. She sought to use MCL 600.5855 as a tolling mechanism to extend the statut e of limitations until 2009, when she found out her artwork was not signed by Dali as she thought. MCL 600.5855 reads as follows:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discove red, the existence of the claim or the identity of the person who is liable for the claim, alt hough the action would otherwise be barred by the period of limitations.

In order to toll the statute of limitations ther e are two factors that must be met. First, the party seeking to toll the applicable limitations pe riod must show that there was an affirmative act on behalf of the concealing party that was aimed at preventing inquiry or hindering the acquirement of information di sclosing a cause of action. Sills v Oakland Gen Hosp, 220 Mich App 303, 310; 559 NW2d 348 (1996). Defendants’ affirm ative act was to provide plaintiff with a certificate of authenticity, as well as an appraisal for each piece of artwork.

Second, the courts require that the fraud be of such a nature that , even through reasonable diligence, the defrauded party did not discover the claim within the statutory period. McNaughton v Rockford State Bank, 261 Mich 265, 269-270; 246 NW 84 (1933). In the trial court, defendants argued that plai ntiff did not do enough to satisf y the reasonable diligence part-3- of the two-part test. McNaughton laid out “reasonable diligence” as the standard applied to persons wishing to toll the statute of lim itations in a fraudulent concealment case. McNaughton, 261 Mich at 269. Michigan courts have decided that a party’s duty of diligence must be viewed under a standard of reasonableness. Doe v Roman Catholic Archbishop, 264 Mich App 632, 653; 693 NW2d 398 (2004). The issues of concealment and diligence are questions of fact reserved for the jury. Int’l Union United Automobile Workers of America v Wood, 337 Mich 8, 13; 59 NW2d 60 (1953). The circuit court he ld that there was no genuine issue of material fact that precluded summary dispos ition and also held:

[Ms. King’s] complete inaction over the course of te n years cannot be excused based on representations [Par k West] made in 1999. Although the issue whether a party exercised reasonable dilige nce can present a question of fact, . . . reasonable jurors could not differ on the f act that Ms. King failed to exercise any diligence with regard to the valu e or authenticity of her art.

In our opinion, the circuit cour t erred in making the determin ation that reas onable jurors could not differ whether or not plaintiff was reasonably diligent. If a material issue of fact exists, the jury must make a determination as to whether plaintiff was reasonably diligent. Doe, 264 Mich App at 654. The trial court ignored the do cumentary evidence that plaintiff supplied to show her claim that reasonable diligence was conducted, with plaintiff’s reliance on the certificate of authenticity provided to her by defendant. The certificat e of authenticity is the most important document in this case. Defendant c ontends that reliance on the certificate of authenticity by plaintiff showed that she di d not conduct reasonable di ligence. However, under MCL 442.322, an art merchant creates an express wa rranty as to the au thenticity of art by providing a non-merchant buyer with a certificate of authenticity. Further, MCL 442.322(a) states that, when a written instrume nt is provided with fine art, it is “presumed to be part of the basis of the bargain and creates an express warranty of the authenticity of th e authorship as of the date of sale or exchange.” A certificate of authenticity is therefore a legal document that certifies that the artwork, and signatures, are exactly what they are represented to be. Any deviance from the authenticity of the statements made by that legal document are actionable as a breach of warranty.
Plaintiff next argues she had a viable clai m of fraud against defendants. A party in Michigan that has a viable claim of fraud owes no duty of diligence to discover the claim. The circuit court erred in dismissing her case for lack of diligence, even though Michigan caselaw states that she did not have a duty to discove r the fraud. The Supreme Court reasoned that a defrauded party had no duty to co nduct diligence where that party was a victim of fraud. The Court cited to Smith in Gard v Gard, 204 Mich 255, 259; 169 NW 908 (1918), stating:

[I]n cases involving fraud that it doe s not lie with one charged with fraud, who assumes to have knowledge of a s ubject of which another may well be ignorant, to claim that such other shoul d have used greater diligence to discover the fraud, should have been mo re vigilant, less credulous.

In summary, plaintiff did not ha ve a duty to defendants to conduc t diligence because defendants defrauded her as to the validity of the artwork she purchased from defendants. We agree that she-4- should not be precluded from tolling the statut e of limitations because she owed no duty to conduct diligence.

Lastly, plaintiff argues that the circuit cour t erred by dismissing the claims for breach of the warranty of quality. By pr oviding a certificate of authen ticity, which guaranteed the authorship of plaintiff’s art, defendant made a representation that equates to a warranty of quality. The statute of limitations does not begi n to run on a claim of breach of warranty until plaintiff discovered or reasonably should ha ve discovered the claim. MCL 600.5833 outlines when the claim accrues:

In actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the brea ch of the warranty is discovered or reasonably should be discovered.

Thus, an action for breach of warranty of quality is not time barred if plaintiff files suit within the normal statute of limitations after di scovering her claims, which is two years. When plaintiff made it known that th is art purchase was for investme nt purposes, she was relying on defendants’ judgment as to the validity of Dali’s signature. This created the implied warranty of quality that defendants breached with the fraudulen t representation of the signatures. We agree.

Defendants also argue two issues that were not raised in the lower court. First, as an alternative ground for affirming the circuit court’s order, defendants argue that plaintiff lacked standing to assert her claims because the purchas es were made by her late husband. However, in order for an issue to be preserved for appeal, th e issue must be raised, addressed, and decided by a trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Second, as an alternative ground for partially affirming the circuit court’s order, defendants argue that summary disposition on all claims against Morr is Shapiro and Albert Molina was appropriate because plaintiff did not allege any claims agains t them. In plaintiff’s deposition she stated that she did not know why she was suing either Shap iro or Molina. But th ese issues were not preserved for appeal, therefore we decline to address them.

Reversed. Plaintiff may tax costs.

/s/ David H. Sawyer /s/ Patrick M. Meter /s/ Karen M. Fort Hood