Bryant v

Allstate Ins. Co., 254 Ga. 328, 326 S.E.2d 753, 1985 Ga. LEXIS 627 (1985); Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725, 1985 Ga. App. LEXIS 1875 (1985), superseded by statute as stated in Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265, 1986 Ga. App. LEXIS 2771 (1986). In cause of action seeking $45,000.00 in additional personal injury protection benefits pursuant to Flewellen case (250 Ga. 709, 300 S.E.2d 673 (1983)) for losses incurred prior to date of that decision, six-year statute of limitations provided by O.C.G.A. § 9-3-24 applies and begins to run on the date of the accident. Commercial Union Ins. Co. v. Hawkins, 254 Ga. 331, 328 S.E.2d 532, 1985 Ga. LEXIS 653 (1985). Statute of limitations on a claim for optional personal injury protection (PIP) benefits under the Motor Vehicle Accident Reparations Act begins to run on the date of the accident, not on the date when the insurer received notice of the policyholder’s intent to elect optional PIP coverage by the policyholder’s tender of additional premiums and filing of proof of loss. Georgia Farm Bureau Mut. Ins. Co. v. Musgrove, 254 Ga. 333, 328 S.E.2d 365, 1985 Ga. LEXIS 661 (1985). In a claim for retroactive benefits seeking to extend coverage pursuant to O.C.G.A. § 33-34-5 (since repealed), Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983), the six-year statute of limitations on simple written contracts in O.C.G.A. § 9-3-24 begins to run from the date of the accident. Langley v. Georgia Farm Bureau Mut. Ins. Co., 175 Ga. App. 719, 334 S.E.2d 700, 1985 Ga. App. LEXIS 2166 (1985). Negligence in design and construction of building. — Cause of action arising out of alleged negligent design and construction of building by defendants under contract with plaintiff accrues and statute of limitation starts to run when negligent acts resulting in damage to 187 Running of Limitation (Cont’d) plaintiff are committed and not when defendant’s negligence becomes apparent. Space Leasing Assocs. v. Atlantic Bldg. Sys., 144 Ga. App. 320, 241 S.E.2d 438, 1977 Ga. App. LEXIS 2689 (1977); Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 543 S.E.2d 760, 2000 Ga. App. LEXIS 1432 (2000). Action against builder time barred. — Action against builder of a house based on alleged defective construction of the house was time barred since the homeowner did not acquire title to the house until after the tort and contract statutes of limitation had expired, and the homeowner was not allowed to revive those causes of action; neither the discovery rule nor the continuing tort theory applied to actions involving only damage to real property, and since all representations allegedly made by the builder took place after the statutes of limitation had expired, equitable estoppel did not toll the running. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700, 2004 Ga. App. LEXIS 733 (2004). Because a belated claim filed against an alleged homebuilder’s partner did not relate back to the date of the original complaint, as required by O.C.G.A. § 9-1115(c), summary judgment in favor of the homebuilder was correctly granted, based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v. Lamb, 289 Ga. App. 25, 656 S.E.2d 164, 2007 Ga. App. LEXIS 1317 (2007). Action against contractor. — Statute of limitations in action against contractor following construction of a sewer line commenced to run when the landowner was aware that the construction was substantially completed, and was not tolled by alleged oral promises to remedy breach when there was no allegation of actual fraud in any promises made. Mullins v. Wheatley Grading Contractors, 184 Ga. App. 119, 361 S.E.2d 10, 1987 Ga. App. LEXIS 2165 (1987). Although the franchisees were transferees of a builder’s warranty, they were not third party beneficiaries under O.C.G.A. § 9-2-20(b); nevertheless, because there were material issues of fact as to whether 9-3-24 all repairs were properly made and the franchisees brought suit within the sixyear statute of limitation in O.C.G.A. § 93-24, the trial court erred in granting summary judgment to the contractor. Danjor, Inc. v. Corporate Constr., Inc., 272 Ga. App. 695, 613 S.E.2d 218, 2005 Ga. App. LEXIS 367 (2005). Docks. — Trial court did not err in failing to conclude that neighbors had established that a landowner’s breach of contract claim was filed outside the applicable limitation period, O.C.G.A. § 9-324, because the landowner filed the landowner’s complaint in 2010, and the trial court found, based on photographic evidence, that the landowner’s cause of action accrued sometime in late 2006 or early 2007 when the neighbors moved their dock west of the location where the neighbor’s dock was to be located pursuant to the site plan. Dillon v. Reid, 312 Ga. App. 34, 717 S.E.2d 542, 2011 Ga. App. LEXIS 882 (2011). Municipal warrants. — Statute of limitations begins to run only after demand for payment of municipal warrants is repudiated, or from time when fund out of which warrants can be paid is provided. City of Abbeville v. Eureka Fire Hose Mfg. Co., 177 Ga. 204, 170 S.E. 23, 1933 Ga. LEXIS 149 (1933). Sheriff’s bond. — Cause of action ex contractu for breach of sheriff’s official bond by virtue of unlawful killing was not barred until after expiration of at least six years from date of its accrual. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196, 1934 Ga. App. LEXIS 119 (1934). Agreement to give note pursuant to property division. — Assuming that instrument wherein the defendant agreed to give the plaintiff a note for a certain sum pursuant to the division of property among heirs was binding and an enforceable contract for payment of money, since no time was specified therein performance was due and a right of action, if any, accrued thereon immediately upon the signing thereof, and a suit filed more than six years later was barred by statute of limitations. Haswell v. Haswell, 84 Ga. App. 651, 67 S.E.2d 148, 1951 Ga. App. LEXIS 759 (1951). 188 Statute of limitations on action by guarantor of student loan against borrower does not begin to run until guarantor pays loan debt to lender. Lewis v. State of N.J. Dep’t of Higher Educ., 165 Ga. App. 574, 302 S.E.2d 128, 1983 Ga. App. LEXIS 1954 (1983). Six-year statute applied to implied promise to perform professionally. — Because an implied promise to perform professionally pursuant to a written agreement for professional services is written into a contract for professional services by the law, an alleged breach of this implied obligation is necessarily governed by the six-year contract statute of limitation of O.C.G.A. § 9-3-24, not the four-year statute applicable to professional malpractice actions under O.C.G.A. § 9-3-25. Saiia Constr., LLC v. Terracon Consultants, Inc., 310 Ga. App. 713, 714 S.E.2d 3, 2011 Ga. App. LEXIS 502 (2011). Breach of tenure contract. — In an action by a teacher against a school for breach of contract in terminating the teacher without cause despite the teacher’s alleged tenure status, since the breach occurred more than six years prior to the filing of the suit and the school board expressly notified the teacher that tenure was no longer part of the faculty’s benefits, the statute of limitations began to run on that date, not the later date of the teacher’s termination when actual damages resulted. Gamble v. Lovett School, 180 Ga. App. 708, 350 S.E.2d 311, 1986 Ga. App. LEXIS 2253 (1986). Legal malpractice. — Plaintiff’s right of action for legal malpractice arose on the date the attorney mistakenly filed a bankruptcy petition, and the attorney’s failure to dismiss the petition did not constitute a subsequent act of malpractice which triggered a new limitation period. Green v. White, 229 Ga. App. 776, 494 S.E.2d 681. Application to class actions. — Breach of contract claim of one named plaintiff in a purported class action was filed after the expiration of the six-year statute of limitations for actions based on 9-3-24 written contracts under Georgia law; thus, the claim was time-barred. In re Tri-State Crematory Litig., 215 F.R.D. 660, 2003 U.S. Dist. LEXIS 4538 (N.D. Ga. 2003). Attorney-client fee contracts. — Parties’ fee contract showed that the attorney was entitled to payment of fees during the progress of the litigation, and, therefore, the attorney’s cause of action for payment of the fees accrued as services were rendered; because the attorney was seeking to recover fees for services rendered as early as April 1992 and because the attorney’s suit was not brought until September 1998, the six-year statute of limitation may have barred the attorney’s recovery of some of the fees sought; thus, summary judgment to the attorney on the former client’s statute of limitation defense was reversed. Burnham v. Cooney, 265 Ga. App. 246, 593 S.E.2d 701, 2004 Ga. App. LEXIS 68 (2004). Agreement between a doctor and a hospital which provided, inter alia, for the doctor to repay to the hospital an ongoing monthly payment of an amount based on the doctor’s monthly practice income, due on a month-to-month basis, was a divisible contract, and claims for amounts due more than six years before suit was filed were time barred; the trial court erred in entering summary judgment for the hospital, and the judgment was reversed. Carswell v. Oconee Reg’l Med. Ctr., Inc., 270 Ga. App. 155, 605 S.E.2d 879, 2004 Ga. App. LEXIS 1375 (2004). District court properly granted summary judgment to a lender with respect to three promissory notes and denied the borrower’s motion for reconsideration because, inter alia, the claim was untimely under Georgia law, the notes all contained a recital in the body of the instrument of an intention to use a seal, and the printed writing immediately adjacent to the word SEAL constituted a signature under Georgia law. Davis v. Daniels, 655 Fed. Appx. 755, 2016 U.S. App. LEXIS 12904 (11th Cir. 2016). 189 9-3-24