If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud.
(Ga. L. 1855-56, p. 233, § 30; Code 1863, § 2872; Code 1868, § 2880; Code 1873, § 2931; Code 1882, § 2931; Civil Code 1895, § 3785; Civil Code 1910, § 4380; Code 1933, § 3-807.)
Cross references.- Barring of actions in equity due to laches, § 23-1-25.
Law reviews.- For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014). For annual survey of tort laws, see 67 Mercer L. Rev. 237 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on product liability, see 69 Mercer L. Rev. 231 (2017). For case note, "Lynch v. Waters: Tolling Georgia's Statute of Limitations for Medical Malpractice," see 38 Mercer L. Rev. 1493 (1987). For note, "Forty-Eight States are Probably Not Wrong: An Argument for Modernizing Georgia's Legal Malpractice Statute of Limitations," see 33 Ga. St. U.L. Rev. 805 (2017). For comment on Saffold v. Scarborough, 91 Ga. App. 628, 86 S.E.2d 649 (1955), see 18 Ga. B.J. 79 (1955). For comment on Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 138 S.E.2d 687(1964), see 1 Ga. St. B.J. 553 (1965).
JUDICIAL DECISIONSANALYSIS
History of this section, see Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978).
Rule in this section was applied in equity before it was enacted by legislature. Pendergrast v. Foley, 8 Ga. 1 (1850).
Strict construction of section.
- As an exception to statute of limitations, this section should be strictly construed. Bates v. Metropolitan Transit Sys., 128 Ga. App. 720, 197 S.E.2d 781 (1973).
Because this section provides for a departure from the general rule, requiring actual fraud involving moral turpitude or breach of duty to disclose because of relationship of trust and confidence, and does not toll the statute unless the fraud is distinguishable from that giving rise to cause of action, it must be strictly construed. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978).
Because a catheter was purposefully placed in a patient's body, it was not a "foreign object" as contemplated by O.C.G.A. § 9-3-72, and the fact that it might have been negligently placed did not alter this finding; hence, absent evidence of a doctor's fraud or concealment of the catheter, summary judgment in a patient's medical malpractice suit was properly granted to a doctor and a clinic as the applicable two-year statute of limitation had expired by the time the action was filed. Pogue v. Goodman, 282 Ga. App. 385, 638 S.E.2d 824 (2006).
Phrase "those under whom he claims" should be given a limited application. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978).
"Time of discovery of fraud" means time at which fraud is or should have been discovered. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).
Section tolls statute on original wrong.
- Language of this section means that statute of limitations which might run on original wrong is tolled, and cause of action on that wrong is preserved. Saffold v. Scarborough, 91 Ga. App. 628, 86 S.E.2d 649 (1955), for comment, see 18 Ga. B.J. 79 (1955).
When there is an allegation of fraud, a statute of limitations is tolled until the fraudulent conduct is discovered or by exercise of due diligence ought to have been discovered. Dunn v. Towle, 170 Ga. App. 487, 317 S.E.2d 266 (1984).
Statute tolled when no reason to investigate.- Statute of limitations was tolled under Georgia law with respect to commissions received by the debtor but not deposited when another shareholder had no reason to believe that the payments from a talent agency were continuing and no reason to believe that there was another account into which the money was being deposited. Hot Shot Kids Inc. v. Pervis (In re Pervis), 512 Bankr. 348 (Bankr. N.D. Ga. 2014).
Fraud defense adequately pled.
- Client adequately pled the client's fraud defense to a former employee benefits plan administrator's claim that the client's breach of contract claim was time-barred under the statute of limitation provided in the parties' agreement because in the consolidated pretrial order, which was signed by the trial judge and explicitly stated that it superseded the pleadings, the client asserted that the administrator falsely stated that there were no fund fees to be credited to the client, and the client provided details of the dates and contents of the administrator's alleged misrepresentations. Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).
Tolling of statute when gravamen of action is fraud.
- When actual fraud is gravamen of action, statute is tolled until the fraud is discovered or by reasonable diligence should have been discovered, and no other independent fraudulent act is required to toll the statute. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud. Hahne v. Wylly, 199 Ga. App. 811, 406 S.E.2d 94 (1991).
When a trust beneficiary alleged a bank violated the terms of a trust established for the beneficiary's benefit by failing to hold the trust property until it achieved maximum value, selling the property for less than market value, failing to report to the beneficiaries regarding the trust, and failing to distribute trust assets as directed, fraud was sufficiently alleged to toll the applicable statute of limitations, given the bank's fiduciary relationship with the beneficiary. Goldston v. Bank of Am. Corp., 259 Ga. App. 690, 577 S.E.2d 864 (2003).
When items stolen from an electric company were sold to a supply company, the trial court erroneously granted partial summary judgment dismissing some of the electric company's claims against the supply company on statute of limitations grounds as, under O.C.G.A. § 9-3-96, there were material fact issues as to whether the supply company's fraud precluded the electric company from filing within the limitations period. Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 590 S.E.2d 224 (2003).
Trial court did not err by failing to rule that a client's breach of contract action against a former employee benefits plan administrator was time-barred because the evidence authorized the jury to find that the administrator committed fraud and that under O.C.G.A. § 9-3-96, the limitation period provided in the parties' agreement was tolled by the administrator's fraudulent conduct since the client presented evidence that it had a confidential relationship with the administrator that entitled it to "conclusively rely" on writings and other communications from the administrator. The evidence also authorized the jury to find that the administrator's fraud hindered the client from discovering its cause of action because there was evidence that a close scrutiny of the administrator's invoices would not have disclosed the cause of action. Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).
Tolling of statute when gravamen of action is other than actual fraud.
- When gravamen of action is other than actual fraud, there must be a separate independent actual fraud involving moral turpitude which debars and deters the plaintiff from bringing the plaintiff's action, and the statute will be tolled only until fraud is discovered or should have been discovered. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980); Bray v. Dixon, 176 Ga. App. 895, 338 S.E.2d 872 (1985).
Attempt to set aside divorce time barred.
- Even if the plaintiff had the standing to ask for the 2012 divorce decree to be set aside, both Georgia's general fraud statute of limitation and the statute of limitation to set aside a judgment based on fraud had run before the plaintiff filed the complaint on September 22, 2017; therefore, the trial court properly granted the defendant's motion to dismiss the complaint. Copeland v. Miller, 347 Ga. App. 123, 817 S.E.2d 692 (2018).
This section consists of three elements: (1) actual fraud on part of the defendant involving moral turpitude; (2) which conceals existence of cause of action from the plaintiff; and (3) the plaintiff's reasonable diligence in discovering the cause of action despite failure to do so within time of applicable statute of limitations. Jim Walter Corp. v. Ward, 245 Ga. 355, 265 S.E.2d 7 (1980).
Fraud must debar or defer action.
- Fraud which will toll statute of limitations must be of that character which debars or deters the plaintiff from action. Perkins v. Aetna Cas. & Sur. Co., 147 Ga. App. 662, 249 S.E.2d 661 (1978).
Key element of this section is whether the plaintiff was debarred or deterred from action by alleged fraud. General Tire & Rubber Co. v. Alex, 149 Ga. App. 393, 254 S.E.2d 509 (1979).
Cause of action for fraudulent inducement to enter an employment contract and lease accrued when the employee became aware of alleged fraud, assuming, arguendo, that the employer's fraud debarred or deterred the employee from bringing the action. Smith v. Alimenta Processing Corp., 197 Ga. App. 57, 397 S.E.2d 444 (1990).
In order for fraud to toll the statute, it must have effect of deterring the plaintiff from bringing an action. Wolfe v. Virusky, 306 F. Supp. 519 (S.D. Ga. 1969), rev'd on other grounds, 470 F.2d 831 (5th Cir. 1972).
Parol promise is not such debarring as to prevent bar.
- If fraud cuts plaintiff off from suing, precludes the plaintiff, hinders the plaintiff, shuts the plaintiff out, or excludes the plaintiff, then it debars, and the statute is suspended, but a mere promise by parol, without consideration, is not such a debarring as is intended and does not save bar from attaching. Haynesworth v. Hall Constr. Co., 44 Ga. App. 807, 163 S.E. 273 (1932).
Mere request to defer action.
- Mere request by the defendant to the plaintiff, before expiration of statutory period for bringing of action, to defer action until after expiration of period will not, absent fraud, operate to estop the defendant from pleading statute of limitations to action brought after expiration of statutory period. Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642, 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001).
Mere uncertain and indefinite understanding, based on no consideration, that debt might be admitted as set-off on certain judgment if the debt should be recovered, on account of which the plaintiff refrained from bringing an action, was not such fraud as would relieve bar of statute. Haynesworth v. Hall Constr. Co., 44 Ga. App. 807, 163 S.E. 273 (1932).
Running of statute when the plaintiff debarred or deterred.
- When the plaintiff has been debarred or deterred by fraud of the defendant from bringing action, the statute of limitation does not begin to run until the discovery of the fraud. Buttersworth v. Swint, 181 Ga. 430, 182 S.E. 520 (1935); Georgia Power Co. v. Womble, 150 Ga. App. 28, 256 S.E.2d 640 (1979).
Rules of limitation do not apply if the defendant or those under whom the defendant claims have been guilty of fraud by which the plaintiff is debarred or deterred from the plaintiff's action; in such case, the period of limitation runs only from the time of the discovery of the fraud. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).
Fraud must involve moral turpitude.
- Fraud which will relieve the bar of the statute of limitations must be of that character which involves moral turpitude. Austin v. Raiford, 68 Ga. 201 (1881); Anderson v. Foster, 112 Ga. 270, 37 S.E. 426 (1900); Frost v. Arnaud, 144 Ga. 26, 85 S.E. 1028 (1915); Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931); Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938); Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942); Troutman v. Southern Ry., 296 F. Supp. 963 (N.D. Ga. 1968), aff'd, 441 F.2d 586 (5th Cir.), cert. denied, 404 U.S. 871, 92 S. Ct. 81, 30 L. Ed. 2d 115 (1971); Riddle v. Driebe, 153 Ga. App. 276, 265 S.E.2d 92 (1980); Bowen & Bowen, Inc. v. McCoy-Gibbons, Inc., 185 Ga. App. 298, 363 S.E.2d 827 (1987).
Effect of debarring and deterring.
- Fraud which will relieve the bar of the statute of limitations must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from action. Ponder v. Barrett, 46 Ga. App. 757, 169 S.E. 257 (1933); Silvertooth v. Shallenberger, 49 Ga. App. 133, 174 S.E. 365 (1934); Bates v. Metropolitan Transit Sys., 128 Ga. App. 720, 197 S.E.2d 781 (1973).
Fraud referred to in this section which is necessary to toll the statute of limitations until discovery of fraud which gives rise to cause of action, must be actual fraud, involving moral turpitude, which "debars and deters" plaintiff from action. Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978).
Actual fraud involves moral turpitude and has effect of debarring and deterring the plaintiff from action. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
To establish tolling, homeowners had to prove that the builder engaged in fraud sufficient to have debarred or deterred the homeowners from discovering the homeowners' cause of action; homeowners had to show that the builders concealed the defects through some trick to prevent inquiry or elude investigation. Gropper v. STO Corp., 250 Ga. App. 820, 552 S.E.2d 118 (2001).
Only actual fraud tolls statute of limitations. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
Statute of limitations for a written contract-based action was not tolled for fraudulent concealment because the named plaintiffs in a purported class action, the next of kin whose loved ones' bodies were mishandled by a crematorium, did not allege actual fraud involving moral turpitude on the part of the funeral homes. In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003).
Trial court did not err in concluding that there was no legal or factual basis to toll the statutes of limitation on the plaintiff's fraud claims asserted against the defendant, an investment advisory company, because the record was devoid of any evidence of any concealment or actual fraud on the part of the defendant which deterred or debarred the plaintiff from discovering the acts which were the basis of the action and which would have tolled the statute of limitation. Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 649 S.E.2d 779 (2007).
Constructive fraud does not toll the statute. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980); Macon-Bibb County Hosp. Auth. v. Georgia Kaolin Co., 646 F. Supp. 90 (M.D. Ga. 1986), aff'd, 817 F.2d 98 (11th Cir. 1987).
Constructive fraud as well as actual fraud may give rise to cause of action, but the only kind of fraud which will toll the statute of limitations is actual fraud. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938).
Fraud required by this section must be actual moral fraud, and not a mere constructive one, whether cause of action is original fraud or fraudulent concealment of existence of cause of action. Anderson v. Gailey, 33 F.2d 589 (N.D. Ga. 1929).
In determining whether alleged fraud is of type that "debarred or deterred" plaintiff from action, court should look only to the facts, and it should be borne in mind that constructive fraud as well as actual fraud may give rise to cause of action, whereas only kind of fraud which would toll statute of limitations is actual fraud. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
No tolling of limitations unless plaintiff had knowledge of alleged fraud.
- Motion for directed verdict as to a fraud in the inducement claim was properly denied when nothing in the record indicated that the plaintiff had any knowledge of the alleged fraud, which knowledge would have allowed the statute of limitations to have tolled prior to bringing this action. Growth Properties of Fla., Ltd. v. Wallace, 168 Ga. App. 893, 310 S.E.2d 715 (1983).
Actual fraud which tolls statute arises in two entirely different circumstances: when actual fraud is the gravamen of the action, and when the gravamen of the action is something other than actual fraud, such as constructive fraud, negligence, breach of contract, etc. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
This section applies when cause of action was not an original fraud, but when existence was fraudulently concealed; fraud in the latter instance must be an actual moral fraud, and not a mere constructive one. Anderson v. Foster, 112 Ga. 270, 37 S.E. 426 (1900); Maxwell v. Walsh, 117 Ga. 467, 43 S.E. 704 (1903); Mobley v. Faircloth, 174 Ga. 808, 164 S.E. 195, answer conformed to, 45 Ga. App. 406, 164 S.E. 910 (1932).
Fraud giving right of action not necessarily sufficient to conceal cause.
- While fraud in a particular case may be sufficient to give to complaining party a right of action, it may not in same case also be sufficient to serve to conceal cause of action within contemplation of the law. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938).
To constitute concealment of cause of action so as to prevent running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder party who has cause of action from obtaining information, and acts relied on must be of affirmative character and fraudulent. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938); Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 138 S.E.2d 687 (1964). for comment, see 1 Ga. St. B.J. 553 (1965), Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978); Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 406 S.E.2d 807 (1991); Turner v. Butler, 245 Ga. App. 250, 537 S.E.2d 703 (2000); Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 543 S.E.2d 760 (2000).
Actual fraud which conceals rather than creates cause of action by some affirmative trick or artifice to prevent inquiry or elude investigation and which hinders party who has cause of action from obtaining information operates to toll running of statute until cause of action is discovered. Kicklighter v. New York Life Ins. Co., 145 F.2d 548 (5th Cir. 1944).
Trial court properly dismissed the farmers' breach of contract claim against a county, as the successor to a city, as the agreement between the city and the farmers that permitted the city to spread sewer sludge on the farmers' land obligated the farmers to conduct annual testing for the same constituents for which the city was to test; thus, the farmers could not show that the farmers exercised reasonable diligence in relying on any misrepresentations by the city as to the presence of the substances and the farmers could not prove fraudulent concealment to toll the statute of limitations. McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 618 S.E.2d 59 (2005).
Concealment must be by affirmative act.
- To toll statute of limitation, concealment of cause of action must be by positive affirmative act and not by mere silence. Comerford v. Hurley, 154 Ga. App. 387, 268 S.E.2d 358 (1980).
If knowledge of existence of cause of action is fraudulently concealed by defendant, delay in bringing action is owing to defendant's fraud; and for purposes of limitation, cause of action should not be considered as accrued until discovery of fraud, for reason that fraud continues during whole period of its concealment, inseparable from original wrong. Kicklighter v. New York Life Ins. Co., 145 F.2d 548 (5th Cir. 1944).
Effect of silence when basis of action is fraud.
- When basis of action is actual fraud, silence of party committing the fraud is treated as continuation of original fraud. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
When gravamen of action is other than actual fraud, mere silence is not sufficient to toll the statute unless there is a duty to make disclosure because of a relationship of trust and confidence between the parties. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
Complaining party must use reasonable diligence to discover fraud, and statute will be tolled only when such diligence is used. Warnock v. Warnock, 206 Ga. 548, 57 S.E.2d 571 (1950).
Failure to exercise ordinary diligence which would have resulted in a discovery of the fraud is a good defense to this section. Little v. Reynolds, 101 Ga. 594, 28 S.E. 919 (1897); Bennett v. Bird, 139 Ga. 25, 76 S.E. 568 (1912).
Fraud which will remove bar of statute must be moral fraud, and there must be reasonable diligence on part of the plaintiff to discover the fraud. Brinsfield v. Robbins, 183 Ga. 258, 188 S.E. 7 (1936).
Fraud which must have been discovered if usual and reasonable diligence had been exercised is not good reply to statute of limitations. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938).
Mere ignorance not sufficient.
- Mere ignorance of fraud which, by use of ordinary diligence, might have been discovered in due time, will not suspend operation of statute of limitations. Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931); Brinsfield v. Robbins, 183 Ga. 258, 188 S.E. 7 (1936); Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938); Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Mere ignorance of existence of facts constituting cause of action does not prevent running of statute of limitations. Arnold v. Rogers, 43 Ga. App. 390, 159 S.E. 136 (1931); Peacock v. Retail Credit Co., 302 F. Supp. 418 (N.D. Ga. 1969), aff'd, 429 F.2d 31 (5th Cir. 1970), cert. denied, 401 U.S. 938, 91 S. Ct. 927, 28 L. Ed. 2d 217 (1971); Comerford v. Hurley, 154 Ga. App. 387, 268 S.E.2d 358, aff'd, 246 Ga. 501, 271 S.E.2d 782 (1980).
When alleged tort feasor or those under whom the tort feasor claims have been guilty of no fraud by which injured person has been debarred or deterred from instituting action within period of limitation, mere ignorance of injured person of existence of facts constituting cause of action does not prevent running of statute of limitations. Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754, 181 S.E. 597 (1935).
Bar of statute is not tolled merely because of ignorance of facts. Rigdon v. Barfield, 194 Ga. 77, 20 S.E.2d 587 (1942).
Mere ignorance of existence of right of action, absent element of fraud, does not toll statute of limitation. Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972), answer conformed to, 128 Ga. App. 319, 196 S.E.2d 475 (1973).
Absent fraudulent concealment or duty to disclose.
- Mere ignorance of facts constituting cause of action does not prevent running of statute of limitations; but when such facts are fraudulently concealed by other party, as when some trick or artifice has been employed to prevent inquiry or elude investigation, or to mislead and hinder a party who has cause of action from obtaining information, and when there is more than mere failure to disclose, or when there is a duty to make disclosure, the bar of the statute will be relieved. Priest v. Exposition Cotton Mills, 86 Ga. App. 301, 71 S.E.2d 743 (1952).
Reasonable diligence required by plaintiff.
- Since the plaintiffs took no steps to scrutinize the information provided to the plaintiffs by the defendant and did not consult independent advisers, the plaintiffs failed to act with reasonable diligence so as to toll the statute of limitations pursuant to O.C.G.A. § 9-3-96. Garland v. Advance Med. Funding L.P., 86 F. Supp. 2d 1195 (N.D. Ga. 2000).
Mere failure to sue, by reason of fraud, will not relieve bar of statute, since the plaintiff must be debarred or deterred from suing by reason of fraud involving moral turpitude, independent of facts which give rise to cause of action itself. Barrett v. Jackson, 44 Ga. App. 611, 162 S.E. 308 (1932).
Plaintiff has burden of establishing fraud involving moral turpitude. Bates v. Metropolitan Transit Sys., 128 Ga. App. 720, 197 S.E.2d 781 (1973).
If facts do exist which would toll the statute of limitations, the plaintiff has the burden of setting forth and supporting these facts. Edmonds v. Bates, 178 Ga. App. 69, 342 S.E.2d 476 (1986).
Teacher's fraudulent inducement claim against a school district arising from an agreement entered into between the parties with respect to the teacher's resignation was barred by the four-year statute of limitations pursuant to O.C.G.A. § 9-3-31; although the limitation period could be tolled pursuant to O.C.G.A. § 9-3-96 if the teacher was "debarred or deterred" from filing suit because of the district's fraud, the teacher failed to show the existence of facts that would toll the limitations period. Kaylor v. Rome City Sch. Dist., 267 Ga. App. 647, 600 S.E.2d 723 (2004).
Applicability of section to legal and equitable relief.
- This section is applicable when legal relief because of fraud is sought and also equitable relief. Anderson v. Gailey, 33 F.2d 589 (N.D. Ga. 1929); Mobley v. Faircloth, 174 Ga. 808, 164 S.E. 195, answer conformed to, 45 Ga. App. 406, 164 S.E. 910 (1932).
Equitable estoppel.
- When defendant has by fraudulent conduct induced the plaintiff to defer action until after the period of limitation, or has promised not to rely upon the statute, the defendant is estopped from pleading the statute on equitable grounds. Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642, 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001).
County, the county health department, and builders were not equitably estopped from raising a defense based upon the expiration of the statutory repose period of O.C.G.A. § 9-3-51 in a purchaser's action alleging that they committed fraud because the purchaser failed to allege or to present evidence of any fraudulent act or statement to the purchaser by the county, department, or builders regarding the property's history of drainage problems, or the possible causes thereof, that occurred after the purchaser bought the property or of any fraud that prevented the purchaser from filing the cause of action. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).
Notice of information needed to determine truth.
- Claims by limited partners in a real estate investment limited partnership that the general partners had breached the partners' fiduciary duty by making material misrepresentations and omissions about net sales proceeds for 13 years were time-barred under O.C.G.A. § 9-3-31; the first communication was in 1987, and the action had been brought more than four years after that date, and the limitation period was not tolled under O.C.G.A. § 9-3-96 because the limited partners had been on notice of the true contents of the partnership agreement the entire time and thus had always had proper notice of the information necessary to determine the truth. Hendry v. Wells, 286 Ga. App. 774, 650 S.E.2d 338 (2007), cert. denied, No. S07C1835, 2008 Ga. LEXIS 102 (Ga. 2008).
Trustees failed to exercise minimal degree of due diligence.
- Dismissal of the trustees' claims as time barred was upheld because the trustees conceded that, despite signing numerous documents as trustees of the marital trust, the trustees made no attempt at all to obtain information the trustees were legally entitled to in that capacity; thus, the trustees failed to exercise even a minimal degree of due diligence to discover their claims as a matter of law. Rollins v. LOR, Inc., 345 Ga. App. 832, 815 S.E.2d 169 (2018), cert. denied, No. S18C1362, 2019 Ga. LEXIS 49 (Ga. 2019).
Trust beneficiary's action against trustee barred.
- Because a decedent died in May 2013, the two-year period in O.C.G.A. § 53-12-45(a) barred the niece's challenge to the revocable trust asserted in January 2017; even assuming that § 53-12-45(a) was a statute of limitations that could be tolled by fraud, the trustee talked with the niece in early July 2013 and then notified the niece by letter that the niece was to receive a $25,000 distribution under the trust a week or two later, and did not act to conceal the trust's existence or contents. Howell v. Bates, 350 Ga. App. 708, 830 S.E.2d 250 (2019).
Questions of law and of fact.
- When sole question regards length of time which has elapsed between accrual of right and institution of action, question as to whether action is barred is one of law; but when there are facts involving fraud and excuses for delay in discovering the fraud, question becomes one of mixed law and fact, and is a proper question for determination by the jury under proper instructions from the court. Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953).
When there are facts involving fraud and excuses for delay in discovering the fraud, question is one of mixed law and fact, and is a proper question for determination by the jury under proper instructions from the court. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
It is the province of the jury to pass upon facts in questions of fraud, under proper instructions from the court, unless facts from which fraud is inferred are undisputed. Hickson v. Bryan, 75 Ga. 392 (1885).
Cited in Persons v. Jones, 12 Ga. 371, 58 Am. Dec. 476 (1852); Samples v. Bank, 21 F. Cas. 286 (S.D. Ga. 1873) (No. 12,278); Freeman v. Craver, 56 Ga. 161 (1876); Cook v. Commissioners of Houston County, 62 Ga. 223 (1879); Marler v. Simmons, 81 Ga. 611, 8 S.E. 190 (1888); Kirkley v. Sharp, 98 Ga. 484, 25 S.E. 562 (1896); Short v. Mathis, 107 Ga. 807, 33 S.E. 694 (1899); McWhorter v. Cheney, 121 Ga. 541, 49 S.E. 603 (1904); Garbutt Lumber Co. v. Walker, 6 Ga. App. 189, 64 S.E. 698 (1909); Slay v. George, 156 Ga. 771, 89 S.E. 830 (1916); Phipps v. Wright, 28 Ga. App. 164, 110 S.E. 511 (1922); McCranie v. Bank of Willacoochee, 29 Ga. App. 552, 116 S.E. 202 (1923); Massachusetts Bonding & Ins. Co. v. Smith, 159 Ga. 798, 126 S.E. 840 (1925); Anderson v. Gailey, 33 F.2d 589 (N.D. Ga. 1929); Colvin v. Warren, 44 Ga. App. 825, 163 S.E. 268 (1932); Ponder v. Barrett, 46 Ga. App. 757, 169 S.E. 257 (1933); O'Callaghan v. Bank of Eastman, 180 Ga. 812, 180 S.E. 847 (1935); Edwards v. Watkins, 52 Ga. App. 684, 184 S.E. 437 (1936); Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511, 188 S.E. 357 (1936); Edwards v. Monroe, 54 Ga. App. 791, 189 S.E. 419 (1936); Green v. Perryman, 186 Ga. 239, 197 S.E. 880 (1938); Carnes v. Bank of Jonesboro, 58 Ga. App. 193, 198 S.E. 338 (1938); Wood v. Anderson, 60 Ga. App. 262, 3 S.E.2d 788 (1939); Evans v. Evans, 190 Ga. 364, 9 S.E.2d 254 (1940); Tabor v. Clifton, 63 Ga. App. 768, 12 S.E.2d 137 (1940); Kicklighter v. New York Life Ins. Co., 157 F.2d 783 (5th Cir. 1946); Little v. Haas, 68 F. Supp. 545 (N.D. Ga. 1946); Jones v. Johnson, 203 Ga. 294, 46 S.E.2d 484 (1948); Warnock v. Warnock, 206 Ga. 548, 57 S.E.2d 571 (1950); Odom v. Atlanta & W.P.R.R., 208 Ga. 45, 64 S.E.2d 889 (1951); Homburger v. Homburger, 213 Ga. 344, 99 S.E.2d 213 (1957); Hackney v. Tench, 216 Ga. 483, 117 S.E.2d 453 (1960); Harper v. Jones, 103 Ga. App. 40, 118 S.E.2d 279 (1961); Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 106 Ga. App. 563, 127 S.E.2d 827 (1962); Frye v. Commonwealth Inv. Co., 107 Ga. App. 739, 131 S.E.2d 569 (1963); Fleming v. Ross L. Brown Granite Co., 219 Ga. 453, 133 S.E.2d 852 (1963); Commonwealth Inv. Co. v. Frye, 219 Ga. 498, 134 S.E.2d 39 (1963); Church of God of Union Ass'y, Inc. v. Isaacs, 222 Ga. 243, 149 S.E.2d 466 (1966); Bennett v. Stroupe, 116 Ga. App. 265, 157 S.E.2d 161 (1967); Quinn v. Forsyth, 116 Ga. App. 611, 158 S.E.2d 686 (1967); Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga. App. 224, 180 S.E.2d 256 (1971); Denham v. Shellman Grain Elevator, Inc., 123 Ga. App. 569, 181 S.E.2d 894 (1971); United States Fid. & Guar. Co. v. Lockhart, 124 Ga. App. 810, 186 S.E.2d 362 (1971); Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972); Webb v. Lewis, 133 Ga. App. 18, 209 S.E.2d 712 (1974); Retail Credit Co. v. Russell, 234 Ga. 765, 218 S.E.2d 54 (1975); Indon Indus., Inc. v. Charles S. Martin Distrib. Co., 234 Ga. 845, 218 S.E.2d 562 (1975); Day v. Bituminous Cas. Corp., 141 Ga. App. 555, 234 S.E.2d 142 (1977); Stephens v. Stephens, 238 Ga. 650, 235 S.E.2d 141 (1977); Sears, Roebuck & Co. v. Green, 142 Ga. App. 770, 237 S.E.2d 10 (1977); General Tire & Rubber Co. v. Alex, 149 Ga. App. 393, 254 S.E.2d 509 (1979); Jim Walter Corp. v. Ward, 150 Ga. App. 484, 258 S.E.2d 159 (1979); Shipman v. Horizon Corp., 151 Ga. App. 242, 259 S.E.2d 221 (1979); Lee v. All Am. Life & Cas. Co., 153 Ga. App. 733, 266 S.E.2d 248 (1980); Jim Walter Corp. v. Ward, 154 Ga. App. 407, 268 S.E.2d 443 (1980); Hanson v. Aetna Life & Cas., 625 F.2d 573 (5th Cir. 1980); Leagan v. Levine, 158 Ga. App. 293, 279 S.E.2d 741 (1981); Troup v. Troup, 248 Ga. 662, 285 S.E.2d 19 (1981); First Fed. Sav. & Loan Ass'n v. I.T.S.R.E., Ltd., 159 Ga. App. 861, 285 S.E.2d 593 (1981); Jones v. Hudgins, 163 Ga. App. 793, 295 S.E.2d 119 (1982); Ivey v. Scoggins, 163 Ga. App. 741, 295 S.E.2d 164 (1982); Donalson v. Coca-Cola Co., 164 Ga. App. 712, 298 S.E.2d 25 (1982); Gibson v. Home Folks Mobile Home Plaza, Inc., 533 F. Supp. 1211 (S.D. Ga. 1982); Hamilton v. Mitchell, 165 Ga. App. 717, 302 S.E.2d 589 (1983); Gerald v. Doran, 169 Ga. App. 22, 311 S.E.2d 225 (1983); Scott v. DeKalb County Hosp. Auth., 169 Ga. App. 257, 312 S.E.2d 154 (1983); Chester v. Bouchillon, 253 Ga. 175, 317 S.E.2d 525 (1984); Curlee v. Mock Enters., Inc., 173 Ga. App. 594, 327 S.E.2d 736 (1985); Tisdale v. Johnson, 177 Ga. App. 487, 339 S.E.2d 764 (1986); Gillis v. Palmer, 178 Ga. App. 608, 344 S.E.2d 446 (1986); Shapiro v. Southern Can Co., 185 Ga. App. 677, 365 S.E.2d 518 (1988); Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991); Adler v. Hertling, 215 Ga. App. 769, 451 S.E.2d 91 (1994); Jones v. Board of Regents of Univ. Sys., 219 Ga. App. 448, 466 S.E.2d 869 (1995); Farmers State Bank v. Huguenin, 220 Ga. App. 657, 469 S.E.2d 34 (1996); Moore v. Meeks, 225 Ga. App. 287, 483 S.E.2d 383 (1997); Gantt v. Bennett, 231 Ga. App. 238, 499 S.E.2d 75 (1998); AAA Truck Sales, Inc. v. Mershon Tractor Co., 239 Ga. App. 469, 521 S.E.2d 403 (1999); Vincent v. Bunch, 240 Ga. App. 255, 522 S.E.2d 495 (1999); Savage v. Roberson, 244 Ga. App. 280, 534 S.E.2d 925 (2000); Cotton v. NationsBank, N.A., 249 Ga. App. 606, 548 S.E.2d 40 (2001); Feinour v. Ricker Co., 255 Ga. App. 651, 566 S.E.2d 396 (2002); DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007); Effingham County v. Roach, 329 Ga. App. 805, 764 S.E.2d 600 (2014); S-D RIRA, LLC v. Outback Prop. Owners' Ass'n, 330 Ga. App. 442, 765 S.E.2d 498 (2014); Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019); Stubbs v. Hall, 308 Ga. 354, 840 S.E.2d 407 (2020).
Fraud Defined
Fraud cannot consist of mere broken promises, unfilled predictions, or erroneous conjecture as to future events. Riddle v. Driebe, 153 Ga. App. 276, 265 S.E.2d 92 (1980).
Evasion of a direct inquiry is fraud within this section. Broughton v. Winn, 60 Ga. 486 (1878).
Fraud which tolls statute may be distinct from fraud giving cause of action.
- Fraud referred to in this section, which tolls operation of the statute of limitations, is not necessarily the same fraud which gives rise to a cause of action. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938).
Establishment of fraud that gives rise to cause of action does not necessarily establish fraud that debars or deters plaintiff from action. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Fraud defense adequately pled.
- Client adequately pled the client's fraud defense to a former employee benefits plan administrator's claim that the client's breach of contract claim was time-barred under the statute of limitation provided in the parties' agreement because in the consolidated pretrial order, which was signed by the trial judge and explicitly stated that it superseded the pleadings, the client asserted that the administrator falsely stated that there were no fund fees to be credited to the client, and the client provided details of the dates and contents of the administrator's alleged misrepresentations. Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).
Relationship of Parties
More than mere failure to disclose, absent duty to do so or confidential relation.
- Mere failure to give notice of cause of action will not constitute necessary fraud, unless fiduciary relation exists which renders it the duty of one possessing facts as to cause of action to reveal them; mere kinship by blood does not create such a relation. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).
When right of action exists because of wrongful conduct which does not involve actual fraud, in order to prevent statute of limitations from running by reason of fraud consisting of concealment of such conduct there must be something more than mere failure, with fraudulent intent, to disclose the right unless the party committing such wrong has a duty to make disclosure thereof by reason of facts and circumstances or by reason of existence between parties of confidential relation. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
Confidential relationship between the parties imposes a greater duty on a defendant to reveal what should be revealed, and a lessened duty on the part of a plaintiff to discover what should be discoverable through the exercise of ordinary care, but the fraud itself - the defendant's intention to conceal or deceive - still must be established, as must the plaintiff's deterrence from bringing suit. Hunter, Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 507 S.E.2d 411 (1998).
When a confidential relationship existed, and that relationship lessened the plaintiff's obligation to discover the fraud and heightened the duty of the defendant to disclose what should be revealed, an action for fraud was still time-barred, since the plaintiff failed to exercise reasonable diligence in suing on an alleged fraudulent promissory note, the plaintiff should have known about the note, and the attendant indebtedness when plaintiff acknowledged the existence of a security deed. Boaz v. Latson, 260 Ga. App. 752, 580 S.E.2d 572 (2003).
Ordinary diligence necessary absent confidential relationship.
- In absence of any confidential relation, fraud which tolls statute of limitations must be such fraud as could not have been discovered by the exercise of ordinary care. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938); Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
In absence of fiduciary relation, even fraud will not prevent action from being barred when the plaintiff has failed to exercise reasonable diligence to detect such fraud. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942); Bates v. Metropolitan Transit Sys., 128 Ga. App. 720, 197 S.E.2d 781 (1973).
As a general rule, equity will grant no relief to one against whom an unfavorable judgment has been rendered, even in consequence of fraud, when the aggrieved party could have prevented return of such judgment by exercise of proper diligence; but this rule is not applicable when there is a confidential or fiduciary relation between the parties, in which case the law requires utmost good faith. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Fraud which tolls the statute of limitations must be such fraud as could not have been discovered by exercise of reasonable diligence, when there is no confidential or fiduciary relation existing between the parties, or other facts which will excuse a failure to act. Georgia Power Co. v. Womble, 150 Ga. App. 28, 256 S.E.2d 640 (1979).
In absence of confidential relationship, type of fraud necessary to toll statute of limitation is actual fraud, involving moral turpitude, which could not have been discovered by the exercise of ordinary diligence. Comerford v. Hurley, 154 Ga. App. 387, 268 S.E.2d 358 (1980).
Plaintiffs could not rely on the tolling provisions of O.C.G.A. § 9-3-96 when the plaintiffs could have discovered the fraud if the plaintiffs had exercised reasonable diligence and when no relationship of trust which would excuse the failure to exercise due diligence existed at the time the actual fraud occurred. Stricker v. Epstein, 213 Ga. App. 226, 444 S.E.2d 91 (1994).
Relation of trust and confidence may justify failure to exercise ordinary diligence. Bennett v. Bird, 139 Ga. 25, 76 S.E. 568 (1912).
Rule that, in cases of fraud, statute of limitations begins to run only from time of discovery of fraud will not apply when party affected by fraud might, with ordinary diligence, have discovered the fraud; but failure to use such diligence may be excused when there exists some relation of trust and confidence, as principal and agent, client and attorney, or cestui que trust and trustee, between the party committing the fraud and the party who is affected by it, rendering it the duty of the former to disclose to the latter the true state of the transaction, and when it appears that it was through confidence in acts of the party who committed the fraud that the other was prevented from discovering the fraud. Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953).
When gravamen of action is actual fraud, failure to exercise reasonable diligence to discover the fraud may be excused if a relationship of trust and confidence exists between the parties. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980).
Summary judgment against sellers based on the statute of limitations was denied since failure to exercise reasonable diligence to discover an alleged fraud may be excused if a relationship of trust and confidence existed between the parties and the sellers presented evidence such that a jury could determine that the purchaser was in a confidential relationship with the heirs to the land. McLendon v. Georgia Kaolin Co., 782 F. Supp. 1548 (M.D. Ga. 1992).
Duration of confidential relationship.- Confidential relationship had to continue in order to excuse a continued failure to use diligence, as one is not necessarily expected to question the actions of a person with whom one has a confidential relationship. McLendon v. Georgia Kaolin Co., 837 F. Supp. 1231 (M.D. Ga. 1993).
This section tolls statute until fraud is discovered when fiduciary relationship exists between party defrauded and party under whom defendant claims. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Duty to make full disclosure.
- When fraudulent concealment of cause of action is in breach of confidential relation involving duty to make full disclosure, statute does not begin to run until discovery of fraud. Lowe v. Presley, 86 Ga. App. 328, 71 S.E.2d 730 (1952).
Jury issue as to whether trustees fraudulently concealed breach of duty.
- Because there were genuine issues as to whether the trustees fraudulently concealed their breach of fiduciary duty in selling the principal trust asset to a co-trustee at a discount through a straw man in 1979, tolling the statute of limitations, and whether the beneficiaries exercised diligence in discovering the fraud, summary judgment was improper. Smith v. SunTrust Bank, 325 Ga. App. 531, 754 S.E.2d 117 (2014).
Application
Trust company not "claiming under" depositor.
- Trust company with whom a corporation's executive vice-president and his wife fraudulently deposited checks payable to such corporation, subsequently converting such funds, was not "claiming under" vice-president and his wife within meaning of this section, and their fraud would not be imputed to the trust company so as to toll the statute of limitations. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978).
Claims brought under the Uniform Deceptive Trade Practices Act, the Georgia Uniform Limited Partnership Act, and common-law fraud were not barred by the four-year limitations period of O.C.G.A. § 9-3-31, which was tolled by the Georgia fraud discovery rule, O.C.G.A. § 9-3-96. Currie v. Cayman Resources Corp., 595 F. Supp. 1364 (N.D. Ga. 1984), modified on other grounds, 835 F.2d 780 (11th Cir. 1988).
Statute not tolled in unjust enrichment claim when employee failed to show reliance or fraud.
- Employee's claims for unjust enrichment and unpaid compensation were partially barred by the statutes of limitations; the statutes of limitations were not tolled since the employee failed to show fraud by claiming that the employee justifiably relied on the corporation's representations that the employee would be paid all the monies owed. Heretyk v. P.M.A. Cemeteries, Inc., 272 Ga. App. 79, 611 S.E.2d 744 (2005).
Unjust enrichment claim.- Unjust enrichment claim survived summary judgment because timeliness could not be determined as a matter of law; fact issues existed as to when an alleged fraud was discovered. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 22, 2015).
Due diligence required.
- Townhome buyers' fraud and Interstate Land Sales Full Disclosure Act (ILSA) claims against a seller were barred by the four-year statute of limitations for fraud, O.C.G.A. § 9-3-31, and the three-year statute of limitations for ILSA violations, 15 U.S.C. § 1711; the buyers were on notice when the closing did not take place in 2003, and certainly when the closing did not occur by 2006, that something was wrong and should have discovered any alleged violations of ILSA. Allmond v. Young, 314 Ga. App. 230, 723 S.E.2d 691 (2012).
Certain of plaintiff's claims for fraud, conversion, and breach of oral contract arose outside of the four-year statute of limitation, and the undisputed facts showed that the plaintiff did not exercise reasonable diligence in discovering the defendant's alleged fraud as to a certain account as the defendant was put on notice of the account when the defendant received two personal checks issued from that account, endorsed and cashed the checks, but never inquired as to the checks' source. Hot Shot Kids Inc. v. Pervis (In re Pervis), 497 Bankr. 612 (Bankr. N.D. Ga. 2013).
Court did not err in dismissing the tax advisor's claims as time-barred because the advisor filed the complaint long after the limitations periods governing the fraud, breach of fiduciary duty, and Georgia RICO claims expired, and the advisor had not plausibly alleged that the advisor exercised reasonable diligence in discovering the causes of action and thus could not have invoked tolling because the advisor received direct information that conflicted with the bank entities' representation that the tax shelter transactions at issue had economic substance, the advisor did not explain how the advisor exercised reasonable diligence in light of that notice, and the advisor did not explain why the advisor could not have sued earlier. Klopfenstein v. Deutsche Bank Sec., Inc., F.3d (11th Cir. Nov. 20, 2014)(Unpublished).
In a business dispute, the trial court properly granted summary judgment to the defendant because the evidence plainly showed that the plaintiff was aware of the alleged breach as early as 2008 and no later than November 2009, and thus the plaintiff had a duty to exercise reasonable diligence to discover the plaintiff's cause of action within the contractual one-year period of limitation set forth in the software development agreements. N4D, LLC v. Passmore, 329 Ga. App. 565, 765 S.E.2d 717 (2014).
Legal malpractice.
- In a legal malpractice action filed subsequent to the running of the four-year statute of limitations, since there was no evidence giving rise to factual merit in plaintiff's claim that the limitations statute was tolled due to fraud, and since there existed no justiciable issue of law as to such claim, the trial court erred in denying the defendant attorney's motion for attorney fees. Brown v. Kinser, 218 Ga. App. 385, 461 S.E.2d 564 (1995).
In a claim for legal malpractice sounding in tort, the plaintiff was not debarred or deterred from finding out the true facts and taking action, so as to toll the statute of limitations, when the plaintiff sought the advice of another attorney. Morris v. Atlanta Legal Aid Soc'y, Inc., 222 Ga. App. 62, 473 S.E.2d 501 (1996).
In an action for legal malpractice, it was error to grant summary judgment where there was a question of fact as to whether the attorney's conduct during the attorney's representation of the plaintiff in bankruptcy proceedings tolled the statute of limitation. Green v. White, 229 Ga. App. 776, 494 S.E.2d 681 (1998).
Statute of limitations was not tolled by O.C.G.A. § 9-3-96 after corporate shareholders sued the law firm that represented them in the sale of their corporation for malpractice in making material errors that led to a judgment against them by the purchasers, but there was no evidence that the law firm intentionally concealed the material errors, and the shareholders learned of the errors well within the applicable limitations period. Hunter, Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 507 S.E.2d 411 (1998).
When the client did not file the client's legal malpractice claim within four years of the time that the attorney stopped representing the client, and the client made no argument and presented no evidence of an independent act of fraud that prevented the client from discovering the malpractice that the client alleged the attorney committed in connection with the attorney's representation of the client in a bankruptcy proceeding, the four-year legal malpractice statute of limitations was not tolled because the client did not show that the client was deterred from timely filing a legal malpractice claim. Shores v. Troglin, 260 Ga. App. 696, 580 S.E.2d 659 (2003).
Client's legal malpractice claim was barred by the four-year statute of limitations and was not tolled by fraud pursuant to O.C.G.A. § 9-3-96 because the client learned of the client's action against the attorney within the limitations period but still did not file suit timely. There was no evidence that the attorney deterred the client from bringing the client's action, although the attorney erred in telling the client that the statute ran from the date the client's appeal was denied rather than from the date that the attorney filed the appeal improperly. Sowerby v. Doyal, 307 Ga. App. 6, 703 S.E.2d 326 (2010).
Disputes concerning material facts precluded summary judgment for defendants on the statute of limitations defense when in support of their tolling argument, the plaintiffs claimed that the defendants concealed the fact that defendants did not read the transaction documents, which would have alerted them to inaccuracies in the underlying assumptions of the tax opinion. Christenbury v. Locke Lord Bissell & Liddell, LLP, F. Supp. 2d (N.D. Ga. Aug. 22, 2013).
Underlying action based on malpractice.
- Statute of limitations is tolled in malpractice actions when a defendant intentionally conceals an act of professional negligence from a plaintiff, causing the plaintiff to be deterred from bringing a claim. Hunter, Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 507 S.E.2d 411 (1998).
In malpractice cases, the statute of limitations is tolled only upon a showing of a separate independent actual fraud involving moral turpitude that deters a plaintiff from filing suit. Before the running of the statute will toll, it must be shown that the defendant concealed information by an intentional act, which is something more than a mere failure, with fraudulent intent to disclose such conduct, unless there is on the party committing such wrong a duty to make a disclosure thereof by reason of facts and circumstances, or the existence between the parties of a confidential relationship. Hunter, Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 507 S.E.2d 411 (1998).
In a legal malpractice action, the plaintiff failed to satisfy the elements of fraud necessary to toll the statute since the plaintiff could point to no specific misrepresentations that misled or deterred the suit and only contended that failure to disclose was sufficient during the existence of the confidential relationship. Douglas Kohoutek, Ltd. v. Hartley Rowe & Fowler, P.C., 247 Ga. App. 422, 543 S.E.2d 406 (2000).
Concealment in doctor-patient relationship.
- When there is a confidential relationship between the physician and a patient, concealment of facts constitutes actual fraud and tolls the statute of limitations. Breedlove v. Aiken, 85 Ga. App. 719, 70 S.E.2d 85 (1952).
When the parties in a case are in a confidential relationship as between a physician and a patient, there is no requirement that actual fraud be shown in order to come within the purview of O.C.G.A. § 9-3-96 to toll the applicable statute of limitation. Lorentzson v. Rowell, 171 Ga. App. 821, 321 S.E.2d 341 (1984), rev'd on other grounds, 254 Ga. 111, 327 S.E.2d 221 (1985).
Question of the actual existence of fraud for failure on the part of a physician to disclose problems following an operation, as well as the question of plaintiffs' diligence in discovering the injury and the fraudulent concealment, are for the jury. Quattlebaum v. Cowart, 182 Ga. App. 473, 356 S.E.2d 91 (1987).
Facts raised an issue of fraud for jury determination which, if found, would estop a dentist from raising the defense of the statute of repose, when it was alleged that the dentist failed to inform a patient of an impacted tooth and that the dentist stated that the patient's pain was caused by bone slivers. Hill v. Fordham, 186 Ga. App. 354, 367 S.E.2d 128 (1988).
Statute of limitation was not tolled by defendant physician's alleged fraud, since the record contained nothing to suggest plaintiff was prevented from learning of the defendant's alleged negligence in treating the plaintiff's leg fracture. Padgett v. Klaus, 201 Ga. App. 399, 411 S.E.2d 126 (1991).
Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to physicians in a patient and the spouse's medical malpractice action against them, wherein the patient claimed that the patient had sustained radiation damage to the patient's arm which the doctors did not reveal until the expiration of the limitations period of O.C.G.A. § 9-3-71(a); however, the record revealed that the physicians had repeatedly informed the patient that such damage was one of the possible causes of the patient's arm pain and there was no fraud found on their part which would have extended the time period pursuant to O.C.G.A. § 9-3-96. Price v. Currie, 260 Ga. App. 526, 580 S.E.2d 299 (2003).
Plaintiffs' malpractice claims were not tolled by O.C.G.A. § 9-3-96 and thus were time-barred by O.C.G.A. § 9-3-71; plaintiffs, whose vision had deteriorated after laser surgery, had not shown that the defendants' alleged fraud prevented them from knowing of their claims at the time when each consulted other specialists about their vision problems. Gibson v. Thompson, 283 Ga. App. 705, 642 S.E.2d 366 (2007).
Evidence that a nurse-midwife, hospital, and medical practice deliberately misrepresented and withheld information concerning a baby's condition before and just after the baby's birth was sufficient to create a jury question as to whether they committed fraud sufficient to toll the statute of limitations and estop the application of the statute of repose, O.C.G.A. § 9-3-71(a), pursuant to O.C.G.A. § 9-3-96. Wilson v. Obstetrics & Gynecology of Atlanta, P.C., 304 Ga. App. 300, 696 S.E.2d 339 (2010).
Trial court did not err in granting a doctor's motion for judgment on the pleadings on the ground that a patient failed to file a medical malpractice complaint within the two-year period of limitation for medical malpractice claims pursuant to O.C.G.A. § 9-3-71(a) because the limitation period did not remain tolled due to the doctor's alleged fraudulent statements; the doctor's assertion that the doctor had not done anything wrong did not prevent the patient from asking any of the doctors that treated the patient over the next several months about what could have caused a needle to break in the patient's cheek. Pryce v. Rhodes, 316 Ga. App. 523, 729 S.E.2d 641 (2012).
Concealment by employer's physician.
- Because it was undisputed that, in 1994, plaintiff former flight attendant knew defendant doctor was the medical review officer for the employer and that the doctor had received a lab report that the sample was unsuitable, and it was also undisputed that, in 1993, the doctor told the attendant there was a problem with the test and the attendant was fired 6 weeks later due to the test, the attendant knew, 7 years before filing suit, that the attendant had suffered an injury and that the doctor was involved; thus, there was insufficient evidence of fraudulent concealment for equitable tolling under O.C.G.A. § 9-3-96. Drake v. Whaley, F.3d (11th Cir. Dec. 3, 2009).
Physician's fraudulent statements.
- In an action brought by a mother, as parent and next friend of her son who was diagnosed with cerebral palsy, summary judgment for the physician who treated the mother before and following the birth was precluded when there was a genuine issue of material fact as to whether the physician made knowing misrepresentations sufficient to toll the statute of limitations. Oxley v. Kilpatrick, 225 Ga. App. 838, 486 S.E.2d 44 (1997), rev'd in part, 269 Ga. 82, 495 S.E.2d 39 (1998).
Fraud in medical misdiagnosis.
- In a suit for medical malpractice, a fraud count must be based on more than evidence of a misdiagnosis to withstand a motion for judgment on the pleadings. Rather, the patient must present evidence of a known failure to reveal negligence in order to show fraud. Rowell v. McCue, 188 Ga. App. 528, 373 S.E.2d 243 (1988).
Since plaintiff knew the plaintiff's spouse died of a heart attack, a doctor's attribution of the cause to a heart murmur rather than cardiomyopathy did not constitute sufficient evidence of fraud to create a jury question on whether the defendant was equitably estopped from raising the defense of the statute of repose. Hutcherson v. Obstetric & Gynecologic Assocs., 247 Ga. App. 685, 543 S.E.2d 805 (2000).
Specificity of physician's admission that surgery unsuccessful.
- Statute of limitations is not tolled on grounds of fraudulent concealment against a physician when the physician informs the patient that surgery had been unsuccessful, even though the physician did not inform the patient of the specific complication. Cannon v. Smith, 187 Ga. App. 434, 370 S.E.2d 529 (1988).
Dental malpractice.
- Appellate court properly reversed the grant of summary judgment to a dentist because the statutory period of limitation was tolled where the second dentist the patient consulted provided professional services to the patient jointly with the first. Gallant v. MacDowell, 295 Ga. 329, 759 S.E.2d 818 (2014).
Although an oral surgeon told a dental patient that the reconstruction process was taking too long and that the patient's reconstruction was too narrow, material issues of fact remained as to whether the surgeon's communications gave the patient actual notice of the dentist's malpractice and fraudulent concealment for purposes of the statute of limitations. MacDowell v. Gallant, 344 Ga. App. 856, 811 S.E.2d 513 (2018), cert. denied, No. S18C0963, 2018 Ga. LEXIS 626 (Ga. 2018).
Two-year period of incontestibility in a health insurance policy was not tolled by the insured's fraudulent misrepresentations on the application and subsequent failure to file claims for more than two years. Blue Cross & Blue Shield of Ga., Inc. v. Sheehan, 215 Ga. App. 228, 450 S.E.2d 228 (1994).
Disability insurance limitation period not tolled.
- Trial court did not err in failing to find that the six-year statute of limitation contained in O.C.G.A. § 9-3-24 tolled under O.C.G.A. § 9-3-96 in a retirement plan participant's breach of contract action, which was related to the denial of the participant's claim for disability benefits, because the participant was aware of the facts that the participant contended gave rise to the participant's claim for disability benefits: the fact of the participant's disability, and the fact that the participant received a Social Security award; even if a hospital authority employees retirement plan had a duty to notify the participant when the participant became entitled to pursue a disability claim under the retirement plan. There was no evidence that the plan was aware that the participant had begun receiving Social Security benefits, thereby triggering the participant's eligibility for the disability benefits. Paschal v. Fulton-Dekalb Hosp. Auth. Emples. Ret. Plan, 305 Ga. App. 6, 699 S.E.2d 357 (2010).
When prospective purchaser not prevented from discovering discrepancy in lot numbers.
- When a prospective property purchaser sees a specific lot number and decides to purchase the lot, only to discover later that both the closing agreement and the warranty deed identify the purchased property as a different lot number, but the purchaser was not prevented or deterred by any act of the seller from discovering the difference in lot numbers, O.C.G.A. § 9-3-96 is not applicable. Kerce v. Bent Tree Corp., 166 Ga. App. 728, 305 S.E.2d 462 (1983).
Burglars' concealment of their identities as perpetrators did not toll statute of limitation.
- Action that was filed in 1999 by two property owners against three alleged burglars to recover money which was stolen in 1993 was barred by the four-year statute of limitation of O.C.G.A. § 9-3-32 because the burglars' concealment of their identities as the perpetrators by making threats against those to whom they had admitted their guilt or by denying their involvement to others did not constitute concealment of the existence of the cause of action for purposes of tolling the statute of limitation under O.C.G.A. § 9-3-96. Stewart v. Warner, 257 Ga. App. 322, 571 S.E.2d 189 (2002).
Statement made after running of statute did not support tolling.
- Since the homeowner did not become the owner of the house until after the tort and contract statutes of limitation had run, the homeowner was not allowed to revive those causes of action against the builder of the house based on alleged faulty construction of the house; all representations allegedly by the builder made after the cause of action arose took place after the statutes of limitation had expired and thus did not support equitable tolling. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700 (2004).
Ordinary care.
- Relative to fraud which gives cause of action, during period fixed by statute of limitations plaintiff can rely upon representations of defendant and take the representations at full face value; but as fraud which conceals cause of action, that is, fraud that "debars or deters," referred to in this section, is not limited to any time save time of discovery, plaintiff cannot rely unqualifiedly upon such representations, but must exercise ordinary care to discover the fraud. Middleton v. Pruden, 57 Ga. App. 555, 196 S.E. 259 (1938).
Fraud that "debars or deters," referred to in this section, not being limited to any time save time of discovery, the plaintiff cannot rely unqualifiedly upon representations, but must exercise ordinary care to discover the fraud. Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 138 S.E.2d 687 (1964). For comment, see 1 Ga. St. B.J. 553 (1965).
Equitable estoppel.
- Fraud under O.C.G.A. § 9-3-96 does not toll the statute of repose; however, if the evidence of defendant's fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant is estopped from raising the defense of the statute of ultimate repose. Esener v. Kinsey, 240 Ga. App. 21, 522 S.E.2d 522 (1999).
Secretion of property may constitute fraud which will relieve bar of statute of limitations. Burts v. Duncan, 36 Ga. 575 (1867).
Concealment as actual fraud.
- Concealment of a right by one whose duty it is to disclose it prevents running of statute of limitations. Hoyle v. Jones, 35 Ga. 40, 89 Am. Dec. 273 (1886); Southern Feed Stores v. Sanders, 193 Ga. 884, 20 S.E.2d 413 (1942).
Concealment per se amounts to actual fraud when for any reason one party has right to expect full communication of facts from another. Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931); Breedlove v. Aiken, 85 Ga. App. 719, 70 S.E.2d 85 (1952); Comerford v. Hurley, 154 Ga. App. 387, 268 S.E.2d 358, aff'd, 246 Ga. 501, 271 S.E.2d 782 (1980).
Knowledge of cause of action.- Even if the county school district fraudulently concealed matters pertaining to the child's condition so as to toll the two-year limitations period, the parents had actual knowledge of the child's condition and the tolling stopped. Accordingly, the child's claim for fraudulent concealment had to be asserted within two years of the time the parents had knowledge in order to not be barred by the two-year statute of limitations. Dekalb County Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371 (N.D. Ga. 2006).
Shareholder cannot turn a blind eye on available information, and when a general ledger contained information concerning the subject of plaintiff shareholder's complaint, the statute of limitations was not tolled because the plaintiff failed to acquire that knowledge. Averill v. Akin, 219 Ga. App. 32, 463 S.E.2d 730 (1995).
Concealment by law firm.
- Actions of a law firm in assuring the firm's client that an enforceable option existed, and continuing to represent the client in a breach of contract action, since the law firm had failed to include a negotiated option to purchase in the final contract, constituted such concealment as would toll the statute of limitations in a legal malpractice action. Arnall, Golden & Gregory v. Health Serv. Ctrs., Inc., 197 Ga. App. 791, 399 S.E.2d 565 (1990).
Insured's complaint rejected.
- Summary judgment was properly granted for the insurer because the insured's complaint fell outside the four-year statute of limitation for fraud and negligent misrepresentation claims. Nash v. Ohio Nat'l Life Ins. Co., 266 Ga. App. 416, 597 S.E.2d 512 (2004).
Abuse of power of attorney in handling farm quotas.
- In a dispute involving a family farm partnership, the trial court erred by granting summary judgment to the children/grandchildren as to the claim regarding the peanut and tobacco quotas and assignments because certain claims were not untimely since genuine issues of fact existed as to whether a son inappropriately used a power of attorney as to the quotas and assignments and the father/grandfather sought to recover damage to personalty. Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 766 S.E.2d 497 (2014).
Putative heir's action seeking an order opening the father's intestate estate was subject to the three-year statute of limitations contained in O.C.G.A. § 9-11-60(f); the action was untimely because the action was filed more than three years after the probate court issued an order discharging the decedent's widow as administrator and the heir did not provide evidence sufficient to show that the statute of limitations should be tolled pursuant to O.C.G.A. § 9-3-96 because the widow fraudulently kept the heir from learning that she filed a petition seeking letters allowing her to administer her husband's estate. Moore v. Mack, 266 Ga. App. 847, 598 S.E.2d 525 (2004).
Recording of deeds is merely one circumstance bearing on whether and when fraud was or should have been discovered. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).
Fraud action in real property transaction time barred.
- Seller's fraud claim against buyers was time-barred because the evidence was undisputed that more than four years passed between when the seller became aware that two parcels had been conveyed to the buyers, not just one, as the seller believed. Serchion v. Capstone Partners, Inc., 298 Ga. App. 73, 679 S.E.2d 40 (2009), cert. denied, No. S09C1642, 2009 Ga. LEXIS 781 (Ga. 2009).
Fraud on part of debtor, by which creditor is debarred or deterred from instituting action, and which deprives debtor of right to insist upon statute of limitations, as provided in this section, must be actual fraud involving moral turpitude, and must have effect of depriving or deterring creditor from action. Carnes v. Bank of Jonesboro, 58 Ga. App. 193, 198 S.E. 338 (1938), aff'd, 187 Ga. 795, 2 S.E.2d 495 (1939).
Promises of bank officer to pay note owed bank.
- Mere fact that debtor as surety on promissory note was one of directors and officer of payee bank, and that the debtor had assured other directors and officers, both before and after note was barred, that the debtor would pay the debt, is not sufficient to estop executors from pleading statute of limitations as bar to action on such note, since it does not appear that the debtor had practiced any fraud or deception on the bank, or that the debtor had made any misrepresentations to the bank save oral promises to pay. Bank of Jonesboro v. Carnes, 187 Ga. 795, 2 S.E.2d 495 (1939).
Negligence of bank directors.- This section was not applicable to action by receiver for misconduct and negligence of directors of national bank in making and handling loans. Anderson v. Gailey, 33 F.2d 589 (N.D. Ga. 1929).
Borrower's fraud claim against lenders.
- Plaintiff borrower's fraud claims against defendant lenders, in connection with an alleged long-term tax-favorable loan failed under O.C.G.A. § 9-3-31's four year statute of limitations because the limitations period began when the assumption agreement was signed but suit was not filed until almost six years later, and, at the very latest, if O.C.G.A. § 9-3-96 applied to toll the limitations period, the statute of limitations began to run nearly five years earlier when repayment was demanded only one year after the loan was made. Curtis Inv. Co., LLC v. Bayerische Hypo-Und Vereinsbank, AG, F.3d (11th Cir. 2009).
Directors of corporation who fraudulently induce persons to subscribe for stock are not trustees of such persons. Frost v. Arnaud, 144 Ga. 26, 85 S.E. 1028 (1915).
Relationship to bankruptcy law.- Creditor's nondischargeability claim was barred as the creditor's claim had expired under Georgia's statute of limitations for fraud claims and the creditor's first attempt to assert the creditor's rights came two months after the 30-day extension provided in the Bankruptcy Code had closed. Wilcox v. Dopson (In re Dopson), Bankr. (Bankr. N.D. Ga. Aug. 29, 2018).
Fraud and concealment of public official.
- When public official is not only guilty of intentional breach of public duty, but is also guilty of fraud and concealment in connection with public moneys, statute of limitations begins at expiration of the official's term of office. Gwinnett County v. Archer, 102 Ga. App. 821, 118 S.E.2d 102 (1960).
Statute of limitation does not begin to run against public official for fraud coupled with concealment thereof until fraud is discovered. Archer v. Gwinnett County, 110 Ga. App. 469, 138 S.E.2d 892 (1964).
Collusion of trustee to defraud beneficiary.
- When trustee colludes with third person to defraud cestui que trust, statute of limitations does not begin to run until after fraud is discovered. Walker v. Walker, 25 Ga. 76 (1858).
Fraud of administrators.
- When receipt in full is given by heir at law to administrators of estate in consequence of fraudulent conduct and misrepresentations of administrators, statute of limitations will run only from discovery of fraud. Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931).
Fraud by former land manager.
- Partnership's claims against its former managing partner with regard to a land deal and with regard to alleged mismanagement were not tolled by O.C.G.A. § 9-3-96; there was no evidence that the former partner concealed or failed to disclose information that deterred any partner from deciding if the partnership had claims arising from the purchase, and the partners were sophisticated business people who were put on notice of the former partner's alleged mismanagement as early as 1990. Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 648 S.E.2d 764 (2007).
Failure of gas company to inform owner who had paid for extension that certain consumers had been taken on the extension, was fraud which deterred owner from action on contract, and period of limitation within which owner could bring action on amount due under contract by reason of taking on of consumers ran from time when the consumer discovered the gas company's fraud. Macon Gas Co. v. Crockett, 58 Ga. App. 361, 198 S.E. 267 (1938).
Failure to review legal bills.
- Appellants' claims for alleged fraudulent billing for legal work billed before the date a fee award was approved by a federal district court were not tolled under O.C.G.A. § 9-3-96; it was error to hold that fees associated with appellate work were time-barred, however, as the evidence did not establish that the alleged fraud as to this work, which was not included in the bills submitted to the district court, occurred outside the limitation period as a matter of law. Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 648 S.E.2d 690 (2007).
Mere statements by attorney to effect that documents which the attorney had prepared were legally sufficient are not sufficient to establish fraud required to toll statute of limitation pursuant to this section. Riddle v. Driebe, 153 Ga. App. 276, 265 S.E.2d 92 (1980).
Opinions held insufficient to support fraudulent concealment.- Statements made to investors to the effect that counsel were working to recover misappropriated assets, which would be used to repay the investors, were essentially opinions that did not support fraudulent concealment so as to toll the statute of limitations governing actions under the Georgia securities law. Barton v. Peterson, 733 F. Supp. 1482 (N.D. Ga. 1990).
Evidence did not show that a limited liability company (LLC) which bought land from a city in 1994 and agreed to pay $125,000 for the land and an additional one percent of its profits up to $1 million did anything to conceal its profitability or business plans from the city at the time it bought the land, and the trial court ruled correctly that a claim alleging fraudulent concealment which the city filed after the LLC paid $125,000 but no more because it did not make a profit was governed by the four-year statute of limitation and that the statute of limitations was not tolled by O.C.G.A. § 9-3-96 because there was no evidence of fraudulent concealment, and that the city's claim was time-barred. City of McCaysville v. Cardinal Robotics, LLC, 263 Ga. App. 847, 589 S.E.2d 614 (2003).
When unskillfulness and neglect in agent is cause of action, unskillful act itself sets statute in motion, not occurrence of special damage, and ignorance of it by plaintiff is not important. Anderson v. Gailey, 33 F.2d 589 (N.D. Ga. 1929).
Surveyor's alleged statements to home buyers that the survey was correct constituted mere statements of opinion, which were not sufficient to establish the fraud required to toll the statute of limitation. Forsyth v. Jim Walter Homes, Inc., 177 Ga. App. 353, 339 S.E.2d 350 (1985).
To establish passive concealment by the seller of defective realty, the purchaser must prove that the concealment was an act of fraud and deceit, that the defect could not have been discovered by the purchaser by the exercise of due diligence, and that the seller was aware of the defect and did not disclose the defect. Wilson v. Phillips, 230 Ga. App. 290, 495 S.E.2d 904 (1998).
In action based on breach of an oral agreement which provided that plaintiff and defendant would be joint owners of any patent issued for the apparatus in question, the breach occurred when the defendant executed the patent application naming the defendant as the sole inventor, but the statute of limitations was not tolled by fraud since the defendant had no duty to disclose the defendant's actions to the plaintiff, the plaintiff having previously terminated the plaintiff's association with defendant. Palmer v. Neal, 602 F. Supp. 882 (N.D. Ga. 1984).
Defendant's repeated promises to repair windows.
- When plaintiffs asserted that the property damage claim was not time-barred because the statute of limitation was tolled by the defendant's alleged repeated promises to repair or replace the windows, there was no allegation of the type of fraud necessary to stop the clock from running as to plaintiff's claim for property damage and thus to save the property damage count from the dismissal. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 346 S.E.2d 923 (1986).
In action for conversion of plaintiff's property interest in a patent, when the plaintiff ended the plaintiff's association with the defendant prior to the defendant's filing the patent application without the plaintiff's name, the defendant had no duty to disclose the defendant's actions to the plaintiff, and therefore there was no basis for tolling the statute of limitations for fraud. Palmer v. Neal, 602 F. Supp. 882 (N.D. Ga. 1984).
Concealment of sewer line damage.
- Placement of a tin covering over a damaged sewer line in the course of phone company equipment installation was a positive and affirmative act of intentional concealment of damage and amounted to fraud which tolled the running of the statute until the fraud's discovery. Fleming v. Lee Eng'g & Constr. Co., 184 Ga. App. 275, 361 S.E.2d 258 (1987).
Concealment by accounting firm.
- In a negligent misrepresentation case wherein a trustee obtained a $10 million verdict against an accounting firm, the evidence authorized the jury to find that the firm's fraud prevented the trustees from discovering the trusts' cause of action until January 2002, despite reasonable diligence and, therefore, the claim was properly filed within four years after the beginning of the limitation period. PricewaterhouseCoopers, LLP v. Bassett, 293 Ga. App. 274, 666 S.E.2d 721 (2008).
Statute not applicable to notice of appeal in condemnation action.
- O.C.G.A. § 32-3-14 sets forth a mandatory time period for filing an appeal in a condemnation action, not a statute of limitation for commencing a particular type of action; thus, O.C.G.A. § 9-3-96 did not apply to extend a property owner's time for filing an appeal. Moreover, the owner did not show that the Department of Transportation committed actual fraud involving moral turpitude or that the owner itself exercised reasonable diligence. Cedartown North P'ship, LLC v. Ga. DOT, 296 Ga. App. 54, 673 S.E.2d 562 (2009).
Equitable tolling disallowed in action concerning excessive notary fee.- In an action by borrowers claiming that the lender defrauded the borrowers by charging an excessive notary fee, the district court did not err in dismissing, on statute of limitations grounds, the fraud claim, which was brought more than five years after the borrowers signed the loan agreement because, even assuming the lender's conduct constituted actual fraud, Georgia's Supreme Court, in response to a certified question, declined to allow equitable tolling because the borrowers could have discovered the discrepancy between the notary fee statute and the actual fee charged at any time by simple reference to the notary fee statute. Anthony v. Am. Gen. Fin. Servs., 626 F.3d 1318 (11th Cir. 2010).
Statute of limitations not tolled in application of proceeds case.- Even assuming that a confidential relationship existed between the parties, it would not have tolled the statute of limitations on plaintiffs' claims under Georgia law because the plaintiffs were already aware as of at least November 2005 that the defendants did not plan to distribute the proceeds of a sale equally to the plaintiffs and the defendants, but instead planned to apply the proceeds to the preexisting debts of one of the plaintiffs' entities. HealthPrime, Inc. v. Smith/Packett/Med/Com, LLC, F.3d (11th Cir. June 3, 2011)(Unpublished).
Statute of limitations not tolled against county.
- In a landfill's suit against a county and the county's commission asserting an open meetings violation, neither the landfill's complaint nor the landfill's brief on appeal alleged with any particularity that the county commission made any fraudulent statements or representations or that the commission committed any fraudulent actions; thus, the trial court did not err in finding that the landfill could not avail itself of the tolling provisions of O.C.G.A. § 9-3-96. Sweet City Landfill, LLC v. Lyon, 352 Ga. App. 824, 835 S.E.2d 764 (2019).
Fraud not shown.
- Four-year statute of limitations applicable to accountant malpractice actions, O.C.G.A. § 9-3-25, was not tolled by fraud pursuant to O.C.G.A. § 9-3-96 because there was no evidence that the accountant concealed or failed to disclose information that deterred the client from filing suit within the limitation period; the accountant consistently and truthfully informed the client that the tax return was not complete. Bryant v. Golden, 302 Ga. App. 760, 691 S.E.2d 672 (2010).
Property owners' argument that a utility defrauded the owners by claiming that the utility had no easement and no plan to enter the owners' property again did not toll the owners' claims relating to the entry of the owners' property because the trespass was completed and would not recur, and no matter what, the utility could not put back the trees and vegetation the utility had clear-cut, so the conversion was complete. There was no allegation, much less evidence, that the utility misled the owners as to a damages action. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).
Claim for pain and suffering was time barred under O.C.G.A. § 9-3-33 because O.C.G.A. § 9-3-96 failed to provide any tolling based on fraud since the very act of hiring a hit man to commit murder was not a separate and distinct fraud to support a finding of fraudulent concealment or actual fraud in and of itself in favor of the administrator of the victim's estate. Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013).
Trial court properly granted summary judgment to an ex-husband as to the ex-wife's and mother's action to set aside or modify a divorce decree because they did not present evidence that the ex-husband committed any act of fraud concealing any act as there was no genuine issue of material fact that the former spouses did not own any real estate at the time of their divorce and that they knowingly remained together even after the divorce. Robertson v. Robertson, 333 Ga. App. 864, 778 S.E.2d 6 (2015).
RESEARCH REFERENCES
Am. Jur. 2d.
- 37 Am. Jur. 2d, Fraud and Deceit, § 342 et seq. 51 Am. Jur. 2d, Limitation of Actions, §§ 179, 183 et seq., 215.
Proving Fraudulent Concealment to Toll Statutory Limitations Periods, 32 POF3d 129.
C.J.S.- 54 C.J.S., Limitation of Actions, §§ 58, 341, 345 et seq.
ALR.
- Applicability of nonclaim statute in case of misappropriation or fraudulent breach of trust by decedent, 41 A.L.R. 169.
When statute of limitations or laches commences to run against action to set aside conveyance or transfer in fraud of creditors, 76 A.L.R. 864; 100 A.L.R.2d 1094.
Fraud of judgment debtor in concealing assets or misrepresenting his financial condition as affecting failure to issue execution or revive judgment within the statutory period or as ground of action for fraud and deceit causing loss of legal remedy on the judgment, 104 A.L.R. 214.
Time when limitation commences to run against action at law or in equity based on fraud inducing execution of contract or conveyance as affected by time when actual damages resulted, 110 A.L.R. 1178.
When action considered to be one on contract rather than one for fraud as regards statute of limitations, 114 A.L.R. 525.
Concealment of fact that party to contract was acting for undisclosed principal as fraud which will toll statute of limitations, 114 A.L.R. 864.
Time when statute of limitation commences to run in favor of indorser of paper upon which prior indorsement was forged, 117 A.L.R. 1164.
Presumption and burden of proof as to discovery of mistake or fraud for purposes of statutory provision or rule that limitation does not begin to run against action based on mistake or fraud, until discovery of the mistake or fraud, 118 A.L.R. 1002.
Expiration of time within which action could have been brought on original cause of action, if not released, as bar to action which seeks to avoid release because of fraud or mistake and recover on original cause or for loss of value of original cause, 120 A.L.R. 1500.
Nonexhaustion of other legal remedies that might obviate, or make certain amount of, actual damage from fraud as suspending running of limitation against action based on fraud, 128 A.L.R. 762.
Public records as notice of facts starting running of statute of limitations against action based on fraud, 137 A.L.R. 268.
When statute of limitations commences to run against action based on fraud in construction, repair, or equipment of building, 150 A.L.R. 778.
Insurer's denial of liability as suspending running of statute of limitation or limitation provision of policy, 171 A.L.R. 577.
Pleading avoidance of delay in discovery of fraud in order to toll statute of limitations, 172 A.L.R. 265.
What constitutes concealment which will prevent running of statute of limitations, 173 A.L.R. 576.
Right of creditor to set aside transfer of property as fraudulent as affected by the fact that his claim is barred by statute of limitation, 14 A.L.R.2d 598.
When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 368; 70 A.L.R.3d 7.
When statute of limitations or laches commences to run against action to set aside fraudulent conveyance or transfer in fraud of creditors, 100 A.L.R.2d 1094.
Application of statute of limitations to damage actions against public accountants for negligence in performance of professional services, 26 A.L.R.3d 1438.
Fraud and deceit: liability in damages for preventing bringing of action before its being barred by statute of limitations, 33 A.L.R.3d 1077.
Fraud, misrepresentation, or deception as estopping reliance on statute of limitations, 43 A.L.R.3d 429.
Agreement of parties as estopping reliance on statute of limitations, 43 A.L.R.3d 756.
Promises to settle or perform as estopping reliance on statute of limitations, 44 A.L.R.3d 482.
Plaintiff's diligence as affecting his right to have defendant estopped from pleading the statute of limitations, 44 A.L.R.3d 760.
When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient's body, 70 A.L.R.3d 7.
Statute of limitations: running of statute of limitations on products liability claim against manufacturer as affected by plaintiff's lack of knowledge of defect allegedly causing personal injury or disease, 91 A.L.R.3d 991.
When statute of limitations begins to run upon action against attorney for malpractice, 32 A.L.R.4th 260.
Application of statute of limitations to actions for breach of duty in performing services of public accountant, 7 A.L.R.5th 852.
When statute of limitations begins to run upon action against attorney for legal malpractice - deliberate wrongful acts or omissions, 67 A.L.R.5th 587.
Attorney malpractice - tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.