Chalmers v. Toyota Motor Sales, USA, Inc.

Hugh CHALMERS, et. al. v. TOYOTA MOTOR SALES,
USA, INC., et al.

95-891                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Judgment -- grant of summary judgment -- standard of review. -
     - The standard for review of a grant of summary judgment is
     whether the evidentiary items presented by the moving party in
     support of the motion left a question of material fact
     unanswered and, if not, whether the moving party is entitled
     to judgment as a matter of law; the court views all proof in
     the light most favorable to the party opposing the motion,
     resolving all doubts and inferences against the moving party;
     however, once the moving party makes a prima facie showing of
     entitlement, the responding party must meet proof with proof
     to demonstrate that there is remaining a genuine issue of
     material fact; the response and supporting material must set
     forth specific facts showing that there is a genuine issue for
     trial.

2.   Limitation of actions -- two limitations periods involved --
     when limitations begin to run. -- The claims asserted by the
     appellants involved both the statute of limitations for breach
     of a written contract, five years, and the three-year statute
     of limitations found at Ark. Code Ann.  16-56-105(3) (1987);
     the limitations period found in Ark. Code Ann.  16-56-105(3)
     begins to run when there is a complete and present cause of
     action, and, in the absence of concealment of the wrong, when
     the injury occurs, not when it is discovered. 

3.   Limitation of actions -- statute of limitations raised as
     defense -- burden of proof. -- When the running of the statute
     of limitations is raised as a defense, the defendant has the
     burden of affirmatively pleading this defense; however, once
     it is clear from the face of the complaint that the action is
     barred by the applicable limitations period, the burden shifts
     to the plaintiff to prove by a preponderance of the evidence
     that the statute of limitations was in fact tolled.

4.   Limitation of actions -- fraud will suspend the running of
     statute -- how long suspension remains effective. -- 
     Fraud suspends the running of the statute of limitations, and
     the suspension remains in effect until the party having the
     cause of action discovers the fraud or should have discovered
     it by the exercise of reasonable diligence; no mere ignorance
     on the part of the plaintiff of his rights, nor the mere
     silence of one who is under no obligation to speak, will
     prevent the statute bar; there must be some positive act of
     fraud, something so furtively planned and secretly executed as
     to keep the plaintiff's cause of action concealed or
     perpetrated in a way that it conceals itself; and if the
     plaintiff, by reasonable diligence, might have detected the
     fraud he is presumed to have had reasonable knowledge of it.
  
5.   Limitation of actions -- three-year limitation applies to
     negligent acts -- fraudulent-concealment action may be suited
     to summary judgment. -- In determining when a negligent act
     occurs to begin the three-year statute of limitations, it has
     been determined that, at times, the beginning of the
     occurrence is a law question to be determined by the court; at
     other times, it is a fact question for the jury to determine;
     although the question of fraudulent concealment is normally a
     question of fact that is not suited for summary judgment, when
     the evidence leaves no room for a reasonable difference of
     opinion, a trial court may resolve fact issues as a matter of
     law.  

6.   Fraud -- mere allegations of fraud insufficient to create
     issue of material fact. -- Mere allegations of fraud,
     unsupported by evidence, are not enough to create an issue of
     material fact. 

7.   Limitation of actions -- appellant knew or should have known
     of alleged fraud at least six years prior to filing complaint
     -- statute of limitations had run. -- Where evidence clearly
     showed that the alleged wrong occurred at least six years
     prior to the filing of the complaint in 1993, letters 
     demonstrated that appellants knew or through reasonable
     diligence could have discovered the alleged fraud;
     furthermore, it was clear from the testimony of appellants'
     expert that the allegation of "dual pricing" was a further
     reference to the port-installed accessories, which appellant
     had known of since 1985; the evidence showed that the alleged
     wrong occurred even prior to 1987 and that appellants knew or
     through reasonable diligence could have discovered the alleged
     fraud and their other causes of action as early as 1987.
                                
8.   Limitation of actions -- fraudulent concealment alleged --
     promises to cure and offers of settlement admissible in action
     otherwise barred by statute of limitations. -- An offer of
     settlement is admissible as relevant to the issue of
     fraudulent concealment of a cause of action otherwise barred
     by a statute of limitations.

9.   Limitation of actions -- evidence showed no promise to cure or
     offer of settlement by appellee -- statue of limitations not
     tolled. -- Where the evidence submitted by appellants did not
     demonstrate conduct by appellees that could be considered a
     promise to cure or an offer of settlement, the statute of
     limitations was not tolled.

10.  Torts -- civil conspiracy defined. -- Civil conspiracy has
     been defined as a combination of two or more persons to
     accomplish a purpose that is unlawful, or oppressive, or to
     accomplish some purpose, not in itself unlawful, by unlawful,
     oppressive, or immoral means. 

11.  Torts -- continuous-tort theory not recognized in Arkansas --
     limitations begin to run at the date of the wrongful act. -- 
     The continuing-tort theory is not recognized in Arkansas; the
     continuing-tort theory of tolling the statute of limitations
     has been specifically rejected as inconsistent with the
     General Assembly's intent in stating that limitations begin to
     run at "the date of the wrongful act complained of and no
     other time." 

12.  Contracts -- Arkansas Unfair Practices Act applies to price
     discrimination in Arkansas -- statutes generally have no
     effect except within the state's territorial limits. -- The
     Arkansas Unfair Practices Act, by its very terms, applies to
     price discrimination between one area in Arkansas and another
     area in Arkansas; as a general rule, statutes have no effect
     except within the state's own territorial limits. 

13.  Contracts -- summary judgment granted to appellees not in
     error -- unfair practices act not applicable. -- Where
     appellants did not allege that there was any dual pricing
     within Arkansas, but instead argued for an extraterritorial
     application of the Arkansas Unfair Practices Act, under Ark.
     Code Ann.  4-75-207(b) (Repl. 1996), their argument was
     without merit; the Unfair Practices Act is not to be given
     application beyond the borders of Arkansas; the statute is
     penal in nature and must be strictly construed in favor of
     those upon whom the burden of the penalty is sought to be
     imposed; the trial court did not err in granting summary
     judgment to appellees on this claim.

14.  Appeal & error -- point not argued on appeal --  point waived.
     -- The appellants argument that the trial court erred in its
     dismissal of appellants' claims subject to no bar of any
     statute of limitations was waived on appeal where they
     presented no legal arguments or authority, but merely cited as
     an example certain objections and conduct by appellees'
     counsel during the taking of a deposition; failure to argue a
     point on appeal constitutes a waiver.  


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     Hargis, Wood, & Lockhart, by:  David M. Hargis, for
appellants.
     The Rose Law Firm, A Professional Association, by:  David L.
Williams and Vinson & Elkins, L.L.P., by:  Max Hendrick, III, for
appellees Gulf States Toyota, Inc. and Steven A. Woods.
     Wright, Lindsey & Jennings, by:  David M. Powell and Charles
L. Schlumberger, and Nelson, Mullins, Riley, & Scarborough, L.L.P.,
by: Stephen G. Morrison and Nina Nelson Smith, for appellee Toyota
Motor Sales, U.S.A., Inc.

     Andree Layton Roaf, Justice.
     The appellants filed suit against the appellees for breach of
contract, breach of implied contractual covenants of good faith and
fair dealing, fraud, interference of contract, violation of the
Arkansas Unfair Practices Act, and violation of the Arkansas
Franchise Practices Act.  The trial court granted summary judgment
for the appellees, holding that the Unfair Practices Act did not
apply to interstate price discrimination and that the remaining
claims were barred by the applicable statutes of limitations.  On
appeal, the appellants argue that the trial court erred in applying
the statutes of limitations because fraudulent concealment and the
Continuing Tort doctrine served to toll the running of the
statutes. The appellants further contend that the trial court erred
in finding that the Arkansas Unfair Practices Act did not apply to
their claims.  We find no error and affirm.
     Appellee Toyota Motor Sales, USA, Inc. ("TMS") is the
exclusive importer for Toyota vehicles in the continental United
States.  TMS uses a system of twelve multi-state distribution
regions, and sells imported and domestically produced vehicles to
these regional distributors.  The vehicles are in turn sold by the
twelve distributors to Toyota dealers in their regions.  
     Appellee Gulf States Toyota ("GST") is a privately owned
corporation and is the regional distributor for the states of
Texas, Oklahoma, Mississippi, Louisiana, and Arkansas.  Only GST
and one other regional distributor are not owned by TMS.  Appellee
Steve Woods is a former GST employee who served as its district
sales manager responsible for the state of Arkansas during 1989-
1993.  Appellee Toyota Motor Distributors ("TMD") is a wholly owned
subsidiary of TMS and is the regional distributor for Tennessee and
several other states.  
     The appellants Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc.,
and its owners, Hugh B. Chalmers, and Hugh B. Chalmers, Jr. ("the
Chalmers"), are located in West Memphis, Arkansas, and became a
Toyota dealership in 1976 by entering into a Toyota Dealer
Agreement with GST.  
     On February 6, 1987, Hugh Chalmers wrote a letter to the
president of GST expressing dissatisfaction with its vehicle
distribution policy.  Chalmers complained of an inequitable
distribution of Toyotas which had increased over the past several
years and asserted that TMD and GST were engaged in different
marketing strategies.  Chalmers complained that Toyota's
distribution boundaries resulted in an injustice to his dealership
because he could not participate in the programs and promotions
advertised by TMD in the Memphis area.  
     Chalmers later voiced his concerns to TMS.  On October 4,
1989, Chalmers wrote a letter to a vice-president of TMS and stated
that the Memphis dealerships had an unfair advantage because of a
dual pricing policy between the two regions and that this
discriminatory practice was causing him to lose both new car sales
and personnel.  In the ensuing years, Chalmers continued to
correspond with TMS and GST regarding the difficulties created by
the  Arkansas-Tennessee distribution boundary. 
     The Chalmers filed suit against the appellees on August 27,
1993.  They asserted six claims for relief:  1) frustration of
contract performance, prevention and breach of contract; 2) fraud,
misrepresentation and deceit; 3) interference with contract rights
and expectations; 4) destruction of competition through price
discrimination; 5) violation of Arkansas franchise law, and 6)
punitive damages.  The Chalmers allege that the appellees acted
conspiratorially and as agents of one another in engaging in the
unlawful actions. They allege that TMS allowed GST and Woods to
force dealers within GST's region to accept vehicles loaded with
option and accessory packages not required of the Memphis dealers,
and that the resulting pricing disparity destroyed their ability to
compete in their economic market.  The complaint further asserted
that the conspiracy and pricing disparity had begun at an earlier,
unknown time but that "the effects were not perceived by the
Chalmers until late 1989."
     The appellees moved for partial summary judgment on the
alleged violations of the Arkansas Unfair Practices Act.  The trial
court granted this motion, finding that the act did not apply to
interstate price discrimination.  Chalmers then filed an amended
complaint which alleged additional violations of the Arkansas
Franchise Practices Act.  The appellees again moved for summary
judgment, raising multiple defenses.  The trial court granted the
motions and dismissed all claims against the appellees, finding
that the applicable statutes of limitations barred the remaining
claims.  The Chalmers appeal the granting of the summary judgments.
                   1. Statute of limitations.
   The Chalmers  first argue that the trial court erred in its
application of the statutory limitations periods as a bar to their
claims. This court has said that the standard for review of a grant
of summary judgment is whether the evidentiary items presented by
the moving party in support of the motion left a question of
material fact unanswered and, if not, whether the moving party is
entitled to judgment as a matter of law.  National Bank of Commerce
v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996).  The court views all
proof in the light most favorable to the party opposing the motion,
resolving all doubts and inferences against the moving party.  Id. 
However, once the moving party makes a prima facie showing of
entitlement, the responding party must meet proof with proof in
order to demonstrate that there is remaining a genuine issue of
material fact.  Mount Olive Water Ass'n v. City of Fayetteville,
313 Ark 606, 856 S.W.2d 864 (1993).  The response and supporting
material must set forth specific facts showing that there is a
genuine issue for trial.  Id.
     The claims asserted by the Chalmers involve two limitations
periods. The statute of limitations for breach of a written
contract is five years.  Ark. Code Ann.  16-56-111(b) (Repl.
1995).  The remaining claims of the Chalmers are governed by the
three-year statute of limitations found at Ark. Code Ann.  16-56-
105(3) (1987).  Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535
(1994) (fraud); Bankston v. Davis, 262 Ark. 635, 559 S.W.2d 714
(1978) (interference with contract); Winston v. Robinson, 270 Ark.
996, 606 S.W.2d 757 (1980) (liability imposed by statute).  The
limitations period found in Ark. Code Ann.  16-56-105(3) begins to
run when there is a complete and present cause of action,  Courtney
v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989), and, in
the absence of concealment of the wrong, when the injury occurs,
not when it is discovered. Hampton, supra.
     The litigation in the present case was begun on August 27,
1993, therefore the applicable statutes of limitations would act to
bar the Chalmers' if they knew or reasonably should have known
about their breach-of-contract claim on or before August 27, 1988,
and on or before August 27, 1990, with respect to the remaining
causes of action.
A.  Fraudulent concealment.
     Although the Chalmers had a contractual relationship with GST,
on appeal, they do not argue that the five-year statute of
limitations applies to their claims against GST or any of the other
appellees. In their brief, the Chalmers primarily assert that the
statutes of limitations on their claims should have been tolled
because of fraudulent concealment (including offers of settlement
and cure), and the doctrine of continuing tort. They further
present extensive factual information concerning Toyota sales,
investigations into Toyota's operations in the United States,
devaluation of the dollar against the yen and other matters as
bearing on the issue of whether they could have reasonably
discovered the alleged wrongful acts before the expiration of the
limitations periods.
     When the running of the statute of limitations is raised as a
defense, the defendant has the burden of affirmatively pleading
this defense.  First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313,
843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908 (1993).  However,
once it is clear from the face of the complaint that the action is
barred by the applicable limitations period, the burden shifts to
the plaintiff to prove by a preponderance of the evidence that the
statute of limitations was in fact tolled.  Id.; Cleveland v.
Gravel Ridge Sanitary Sewer Imp. Dist. No. 213, 274 Ark. 330, 625 S.W.2d 446 (1981).  
     Fraud suspends the running of the statute of limitations, and
the suspension remains in effect until the party having the cause
of action discovers the fraud or should have discovered it by the
exercise of reasonable diligence.  First Pyramid , supra.  We have
stated the following as the "classic language" on this subject:
No mere ignorance on the part of the plaintiff of his
rights, nor the mere silence of one who is under no
obligation to speak, will prevent the statute bar.  There
must be some positive act of fraud, something so
furtively planned and secretly executed as to keep the
plaintiff's cause of action concealed or perpetrated in
a way that it conceals itself.  And if the plaintiff, by
reasonable diligence, might have detected the fraud he is
presumed to have had reasonable knowledge of it.
First Pyramid , supra.  (quoting Wilson v. GECAL, 311 Ark. 84, 841 S.W.2d 619 (1992)).  
      In discussing when a negligent act occurs to begin the three-
year statute of limitations, we have noted that "[a]t times, the
beginning of the occurrence is a law question to be determined by
the Court. At other times, it is a fact question for the jury to
determine."  Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179,
833 S.W.2d 366 (1992). Although the question of fraudulent
concealment is normally a question of fact that is not suited for
summary judgment, when the evidence leaves no room for a reasonable
difference of opinion, a trial court may resolve fact issues as a
matter of law.  Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190
(1995) (citing Miles v. A. O. Smith Harvestore Prods., Inc., 992 F.2d 813, 817 (8th Cir. 1993)).     
     Moreover, in Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535
(1994), we affirmed the grant of summary judgment where the trial
court had found there was no issue of material fact with respect to
alleged fraudulent concealment of a cause of action.  We stated
that mere allegations of fraud, unsupported by evidence, were not
enough to create an issue of material fact, and that the
allegations of fraud made by the appellant in Hampton revealed no
"furtive planning" or "secret execution of a fraudulent act," to
keep the appellant's cause of action concealed.
     In the present case, it is difficult to determine from the
appellants' brief what specific, positive acts of fraud are alleged
to have occurred.  The Chalmers' complaint asserts that the
conspiracy between TMS and GST occurred at various unknown times
"and in the years 1987, 1988, 1989." The Chalmers primarily single
out the unequal distribution of vehicles to their dealership and
various port-installed options programs established by GST as the
causes for their inability to compete in their economic market. 
     Although GST denied that participation in the options program
was mandatory, the Chalmers offered considerable evidence that
dealers in GST's region were forced to accept vehicles "loaded"
with port-installed options and accessories while the Memphis
dealers received lower-priced vehicles without the costly options.
The Chalmers also presented strong evidence that compensation and
incentives plans for GST's district managers heavily influenced the
allocation of these loaded vehicles.  Nearly $86,000 of Appellee
Woods' 1992 salary of $122,690 came from commissions based on the
sale to GST's dealers of various port-installed options.
     However, the issue to be resolved is when the Chalmers knew or
should reasonably have discovered these alleged wrongful acts of
the appellees.  In the February 1987 letter to GST, appellant Hugh
Chalmers, Sr., stated: 
     In analyzing our Toyota sales we are struck with the
     realization that some major inequities have developed
     over the past several years, which have a negative impact
     on our effectiveness. ... We are disadvantaged because of
     the distribution boundary lines and are being relegated
     to the status of an outlying rural dealer by Toyota. ...
     To further compound the problem, not only are we not
     included, but we are totally ignorant of Toyota's
     marketing strategy for SMSA Memphis.
     The Cincinnati region [of TMD] has responsibility for
     developing Toyota's marketing plans, sales promotions and
     advertising programs in Memphis, and often Cincinnati is
     supporting an activity different from that adopted by
     GST. ... [B]ecause of the sometimes differing marketing
     programs of GST and [TMD], we find ourselves out of
     cinque [sic] with what the Toyota buyer has been led to
     believe is available at this dealership. ... There is no
     doubt that this injustice is the result of Toyota's
     distribution boundaries, but it would seem that Toyota
     would want to correct an obvious inequity, which is
     having a negative impact on sales. ... If this situation
     is left uncorrected, ... the problems will amplify.    
(Emphasis added.)
In his October 1989 letter to TMS, Chalmers wrote:
     The disastrous effect incurred by this dual pricing is
     easily seen when a comparison is made between our Toyota
     sales-zip code analysis and the R.L. Polk registrations
     over the last five years.  It conclusively shows that the
     Memphis dealers have an unfair advantage over this
     dealership in my area of sales responsibility.  So long
     as this discriminatory practice continues I cannot avoid
     continually losing both new car sales and qualified
     personnel, thereby having my Toyota franchise undermined.
(Emphasis added.)
     These letters clearly show that the alleged wrong occurred at
least six years prior to the filing of the complaint in 1993.  The
letters also demonstrate that the Chalmers knew or through
reasonable diligence could have discovered the alleged fraud. 
Furthermore, Hugh Chalmers, Jr., testified in his deposition taken
August 1993, that he was getting accessories on vehicles that he
did not want in 1985, and that he had requested of his GST
representative that the accessories not be put on. He further
stated that he had been forced to take automobiles he didn't want
for the past ten years.    
     Although Chalmers did not complain of "dual pricing" until the
1989 letter, and asserted in his deposition that he was not aware
of the dual pricing until late 1989, it is clear from the testimony
of the Chalmers' expert, Charles Venus, that the allegation of
"dual pricing" is a further reference to the port-installed
accessories, which the Chalmers had known of since 1985.  Dr. Venus
testified in his deposition that a price difference between the
Chalmers and the Memphis dealerships averaging almost $500 per
vehicle existed from at least 1986 onward, and that a substantial
part of the differences between what Chalmers and the Memphis
dealers paid for cars was the port-installed "CPP" (consumer
protection package).  Hugh Chalmers also testified that GST port-
installed at inflated prices floor mats, spare tires and the CPP in
"almost every car coming into West Memphis."  The evidence thus
shows that the alleged wrong occurred even prior to 1987 and that
the Chalmers knew or through reasonable diligence could have
discovered the alleged fraud and their other causes of action as
early as 1987.
                      B. Promise to cure. 
     The Chalmers allege that the appellees made promises to cure
and offers of settlement which would also serve to toll the statute
of limitations.  This court has said that an offer of settlement is
admissible as relevant to the issue of fraudulent concealment of a
cause of action otherwise barred by a statute of limitations.  Lake
v. Wright, 186 Ark. 227, 53 S.W.2d 233 (1932).  In Lake, the
appellant offered to pay the appellee a specific sum to settle a
claim involving partnership earnings from 1922, but demanded a
receipt for full payment of all claims and refused to allow the
words "for the year 1922" to be placed on the receipt.  The
appellee was unaware that he also had a claim against the appellant
earnings in 1923 and 1924.
     However, the evidence submitted by the Chalmers does not
demonstrate such conduct by the appellees. TMS wrote Chalmers in
October 1989 in response to his letter and denied that the price
differences were the result of an unfair pricing policy and stated
that it could not undertake an investigation as requested in his
letter.  Chalmers further testified in his deposition that he met
with GST representatives in May 1991, in an effort to resolve his
problems and that GST's response was that they would "let the judge
handle it."  Although Chalmers also testified that GST
representatives told him in 1990 and 1991 that they would "support"
the transfer of his dealership and "do what it took to get him
moved" to the TMD region, these statements fall short of a  promise
to cure or an offer of settlement which would toll the statute of
limitations.
                      C.  Continuing tort.
     In the alternative, the Chalmers assert that the statutes of
limitations should have been tolled on a theory of continuous tort. 
They further allege that the appellees' actions, at some time
unknown in the past and up to the time of the litigation,
constituted an ongoing civil conspiracy.  In Arkansas, civil
conspiracy has been defined as a combination of two or more persons
to accomplish a purpose that is unlawful, or oppressive, or to
accomplish some purpose, not in itself unlawful, by unlawful,
oppressive, or immoral means.  Williams v. Hency, 254 Ark. 685, 495 S.W.2d 875 (1973).
     Although the appellees assert that civil conspiracy was not
plead at the trial court level, the Chalmers' complaint contains a
number of allegations that the appellees engaged in a conspiracy. 
Nevertheless, the continuing-tort theory is not recognized in
Arkansas.  This court has adopted a "continuous treatment" theory
in medical malpractice cases, where the cause of action does not
accrue until ongoing treatment ends.  Lane v. Lane, 295 Ark. 671,
752 S.W.2d 25 (1988).  However, we have specifically rejected the
continuing-tort theory of tolling the statute of limitations as
inconsistent with the General Assembly's intent in stating that
limitations begin to run at "the date of the wrongful act
complained of and no other time."  Tullock v. Eck, 311 Ark. 564,
845 S.W.2d 517 (1993).  See also Taylor v. Phillips, 304 Ark. 285,
801 S.W.2d 303 (1990).  As the evidence clearly shows, the wrongful
acts which the Chalmers complain of began in the early to mid
1980s.
                    2. Unfair Practices Act.
     The Chalmers also argue that the trial court erred in
dismissing their claims of price discrimination under the Arkansas
Unfair Practices Act.
     The Arkansas Unfair Practices Act, codified at Ark. Code Ann.
 4-75-201, et seq. (Repl. 1996), provides in part that: 
"[i]t shall be unlawful for any. . . corporation doing
business in the State of Arkansas and engaged in the
production, manufacture, distribution, or sale of any
commodity or product . . . with the intent to destroy the
competition of any regular established dealer in the
commodity, product . . . to discriminate between
different sections, communities, or cities or portions
thereof, or between different locations in the sections,
communities, cities or portions thereof in this state, by
selling or furnishing the commodity, product. . . at a
lower rate in one section, community, or city . . . than
in another. ...   
Ark. Code Ann.  4-75-207(a) (Repl. 1996). (emphasis added). 
     Here, the alleged dual-pricing scheme involved TMD sales of
vehicles to dealerships in Tennessee.  The Arkansas Unfair
Practices Act, by its very terms, applies to price discrimination
between one area in Arkansas and another area in Arkansas.  As a
general rule, statutes have no effect except within the state's own
territorial limits.  Widmer v. Wood, 243 Ark. 457, 420 S.W.2d 828
(1967).  The Chalmers do not allege that there was any dual pricing
within Arkansas.
     The Chalmers argue for an extraterritorial application of the
Arkansas Unfair Practices Act, under Ark. Code Ann.  4-75-207(b)
(Repl. 1996), which provides: 
The inhibition of this section against locality
discrimination shall include any scheme of. . .
collateral contracts, or any device of any nature whereby
such discrimination is, in substance or fact, effected in
violation of the spirit and intent of this subchapter.
     However, we have not heretofore held that the Unfair Practices
Act is to be given application beyond the borders of Arkansas. 
Moreover, the statute is penal in nature and must be strictly
construed in favor of those upon whom the burden of the penalty is
sought to be imposed.  Wal-Mart Stores, Inc. v. American Drugs,
Inc., 319 Ark. 214, 891 S.W.2d 30 (1995).  We cannot say that the
trial court erred in granting summary judgment to appellees on this
claim.  
                    3. Trial-practice issues.
     The Chalmers finally argue that the trial court erred in its
dismissal of the appellants' claims subject to no bar of any
statute of limitations.  In this point, the Chalmers state that
"this space was intended to bring certain trial-practice issues
before this Court," had space permitted. They present no legal
arguments or authority, but merely cite as an example certain
objections and conduct by appellees' counsel during the taking of
a deposition.  Failure to argue a point on appeal constitutes a
waiver.  Hazen v. City of Boonville, 260 Ark. 871, 545 S.W.2d 614
(1977); Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976). 
     Affirmed.
     Special Justice Henry Kinslow joins in this opinion.
     Corbin, Brown, J.J., and Special Chief Justice B.W. Sanders, 
dissenting. 
     Jesson, C.J., and Glaze, J., not participating.

=================================================================
               Robert L. Brown, Justice, dissents.

     This is a complex matter involving the Chalmers Toyota
dealership in West Memphis and the parent company for Toyota as
well as the regional Toyota distributors.  The majority affirms
summary judgment against Chalmers, and in favor of the Toyota
corporations, on the ground that Chalmers's complaint filed on
August 27, 1993, was too late and violated the three-year
limitations period for torts.  I disagree because I believe a fact
question has been created by Toyota's actions.
     Chalmers's contention is that Toyota has discriminated against
his dealerships in West Memphis compared with the Toyota
dealerships in Memphis.  This discrimination took the form of price
disparities for vehicles shipped into the Memphis and West Memphis
markets, with higher prices for the same vehicles assessed to
Chalmers's West Memphis dealership.  It also took the form of
vehicles loaded with accessories being made available to Chalmers
which resulted in higher prices to him as compared to his Memphis
counterparts.  The problem arises, according to Chalmers, because
West Memphis and Memphis are in different distribution regions for
Toyota: West Memphis is in Gulf States Toyota region (GST) and
Memphis is in Toyota Motor Distributors region (TMD).
     According to the record before us. Chalmers complained
bitterly about this disparate treatment but, according to Chalmers,
GST gave him assurances that the matter would be rectified.  In
1990 and 1991 those efforts to cure the situation centered around
Chalmers being placed in the TMD region with the Memphis
dealerships.  That would have eliminated the disparity in treatment
between the dealerships in West Memphis and Memphis.  According to
Chalmers, GST was amenable to the idea and misled him into
believing that this solution was viable.
     The chronology on this point is important:
October 4, 1989:
          Chalmers wrote the parent company, Toyota Motor
     Sales, that the price of cars to him was more than the
     Memphis dealerships.  He said he did not know how long
     the price discrimination had existed but that it should
     be investigated.
October 16, 1989:
          Toyota Motor Sales wrote Chalmers that there were no
     discriminatory pricing practices and that the Gulf States
     Toyota president would work with him to create a
     situation where its dealers were competitive.
December 1, 1989:
          Chalmers wrote Toyota Motor Sales and contested the
     division of one metropolitan area (Memphis and West
     Memphis) into two operating distributorships with
     separate pricing policies.
January 22, 1990:
          Chalmers met with Gulf States Toyota representatives
     to discuss, among other things, his joining the TMD
     region with the Memphis dealerships.  GST, according to
     Chalmers, committed to solving his problem.
March 12, 1990:
          Chalmers wrote to Gulf States Toyota that his sales
     deficiencies were due to the discriminatory pricing
     between the West Memphis and Memphis markets.
July 1, 1992:
          Chalmers wrote Jerry Pyle, Gulf States Toyota's
     president, that GST had disregarded its commitment to
     rectify his situation.  One solution had been his
     transfer into the same distribution region as Memphis. 
     He wrote that though GST had committed to correcting his
     problem in January 1990, when he contacted Toyota Motor
     Sales in December 1990, the company was unaware of this
     commitment.
July 15, 1992:
          Jerry Pyle, president of Gulf States Toyota, wrote
     Chalmers that Gulf States Toyota was not discriminating
     with its pricing and that a market study had been
     conducted of the West Memphis market which "irrefutably
     demonstrated" that West Memphis should not be part of the
     Memphis distribution area.  Pyle wrote: "TMS and GST
     consider this issue closed . . . ."
          Pyle added that GST stood ready to assist him in his
     sales performance but then stated: "If, for any reason,
     you choose not to work toward the solution that I have
     suggested, there are other forums (both administrative
     and legal) where you can properly address your
     grievances."
     Chalmers's argument contemplates that Toyota cajoled,
manipulated, and ultimately misled him into believing the situation
would be cured by placing him in the TMD region with the Memphis
dealerships.  This occurred until July 15, 1992.  That constitutes
enough positive action in my judgment under First Pyramid Life Ins.
Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied,
510 U.S. 908 (1993), to raise a fact question concerning a
concealment of Toyota's true intentions.  Certainly, Chalmers
relied on Toyota's promise to study his unique marketing region. 
A market study was done, but Chalmers was not told that the issue
was closed until Jerry Pyle's letter in 1992.  With that letter,
negotiations broke down, and Toyota referred Chalmers to the
courts. 
     We are not required at this juncture to determine whether
substantial evidence supports Chalmers's claim of concealment but
only to decide whether a material issue of fact exists.  Ark. R.
Civ. P. 56.  I conclude that one does.  I would remand this matter
so that Chalmers can further develop his case.
     Corbin, J., joins.
     Sanders, B.W., Special Associate Justice, joins.