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Click here for the full text of this decision FACTS:Bob Ehl leased his convenience store, underground storage tanks and gasoline pumps to Damon Webb on Feb. 1, 1997. Though the lease said there were four gasoline pumps, there were really only two. Immediately preceding his entry into the lease with Ehl, Webb entered into a fuel consignment agreement with PetroTex Fuels and its president, E.H. “Harvey” Steinhagen III, to sell PetroTex’s fuel at the store. Webb and Steinhagen then negotiated a deal with Jim White to sell White the old pumps in exchange for upgraded fuel pumps. The new pumps were installed on Aug. 8, 1997, and White paid Steinhagen for the old ones. Webb defaulted on his lease with Ehl in March 1999 and abandoned the premises. A few months later, Steinhagen and White removed the new pumps. In April 2000, Kim Chavez took over the convenience store, and in another agreement with PetroTex, installed another set of pumps in June 2000. Chavez defaulted on the lease and closed the business in November 2000. Ehl sued Steinhagen and PetroTex for conversion of the pumps. (There were other claims and counterclaims filed among all of the parties.) Ehl said he did not learn that his original pumps had been removed from the premises until May 1999, though Web said he discussed the pumps’ removal with Ehl and that he had Ehl’s approval to install new pumps. A jury found that Ehl, through reasonable diligence, discovered or could have discovered that the pumps were missing in the winter of 1998, then found Ehl’s action, or inaction, to be a waiver of his conversion claim. Nonetheless, a jury found for Ehl, awarding him more than $35,000 in actual damages and assessing $50,000 in exemplary damages against Steinhagen, and $30,000 against PetroTex. The trial court disregarded the jury’s waiver finding and entered a judgment of more than $115,000. Steinhagen and PetroTex appeal. They say Ehl’s claim was barred by the two-year statute of limitations for conversion. HOLDING:Reversed and rendered that Ehl take nothing. According to Ehl, the conversion was discovered when he learned that both his pumps and the replacement pumps had been removed. The court finds that in conversion cases, the general rule is that a cause of action for conversion accrues at the time of the unlawful taking, not when the taking is discovered. The court also finds that the running of the statute of limitations period in this case was not deferred by fraudulent concealment. Ehl did not make an allegation of fraudulent concealment, though he did argue that the alleged conversion was “fraudulent and malicious.” Fraudulent concealment refers to a concealment of the right of action, not to the tortfeasor’s identity, and here, Steinhagen stated to Ehl’s attorney on March 2, 2000, that Webb had taken Ehl’s pumps. This is not evidence of fraudulent concealment of the conversion. OPINION:McKeithen, C.J.; McKeithen, C.J., Burgess and Hill, JJ. CONCURRENCE:Burgess, J. The concurrence would find that the discovery rule does apply, but the concurrence would reverse the trial court judgment because of the jury’s finding on Ehl’s waiver.

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