Bridge Capital Investors II v

Small, 144 Fed. Appx. 762, 2005 U.S. App. LEXIS 14182 (11th Cir. 2005). Accrual of right of contribution. — When principal obligor, with own funds, pays joint debt due by the obligor and the coprincipal, the right upon implied contract of coprincipal to bear share of common burden arises when payment extinguishes debt of common debtor. Powell v. Powell, 171 Ga. 840, 156 S.E. 677, 1931 Ga. LEXIS 478 (1931). Mere ignorance of facts constituting cause of action does not prevent 9-3-25 running of statute of limitations. Ponder v. Barrett, 46 Ga. App. 757, 169 S.E. 257, 1933 Ga. App. LEXIS 231 (1933). Statute of limitation was not tolled by defective service of process. — Because the defendant was not properly served by the plaintiff, the statute of limitation continued to run even after the action was filed, and the statute of limitation expired without the defendant being properly served. Gamlins, Solicitors & Notaries v. A.E. Roberts & Assocs., Inc., 254 Ga. App. 763, 564 S.E.2d 29, 2002 Ga. App. LEXIS 333 (2002). Fraud necessary to toll statute. — In a legal malpractice action filed subsequent to the running of the four-year statute of limitations, when there was no evidence giving rise to factual merit in the 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 attorneys’ motion for attorney fees. Brown v. Kinser, 218 Ga. App. 385, 461 S.E.2d 564, 1995 Ga. App. LEXIS 737 (1995). Employee’s claims for unjust enrichment and unpaid compensation were partially barred by the statutes of limitations as 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 Ga. App. LEXIS 223 (2005). Four-year statute of limitations applicable to accountant malpractice actions, O.C.G.A. § 9-3-25, was not tolled by fraud 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 informed the client that the tax return was not complete. Bryant v. Golden, 302 Ga. App. 760, 691 S.E.2d 672, 2010 Ga. App. LEXIS 234 (2010). Certain of plaintiff’s claims for fraud, conversion, and breach of oral contract arose outside of the four-year statutes of limitation, and the undisputed facts 199 Running of Limitation (Cont’d) 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 B.R. 612, 2013 Bankr. LEXIS 3374 (Bankr. N.D. Ga. 2013). Accrual of cause with discovery of fraud. — 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 Ga. App. LEXIS 947 (1952). Party’s action was barred since the party failed to bring an action against an employer until more than four years after discovering that the party’s pension payments were lower than what the party believed the employer had orally agreed to since the party would have become aware of any alleged fraud by the employer when the party discovered the true amount of payments. Leathers v. Timex Corp., 174 Ga. App. 430, 330 S.E.2d 102, 1985 Ga. App. LEXIS 1825 (1985). Accrual of right to receive commissions. — Employee was properly granted summary judgment for breach of an oral employment agreement for commission payments; claims for commissions for jobs done before November 1999 were not time-barred because the commissions were not payable until the employee submitted a worksheet calculating them, and no worksheet had been submitted before that time. CPD Plastering, Inc. v. Miller, 284 Ga. App. 172, 643 S.E.2d 392, 2007 Ga. App. LEXIS 272 (2007). Co-tenant’s claim for contribution of amounts paid does not arise until other tenant asserts adverse interest. — In an estate’s claim for partition of property, a co-tenant’s counterclaim for contribution and set-off for sums the cotenant paid in loan and tax payments was not barred by the four-year statute of limitations, O.C.G.A. § 9-3-25, because 9-3-25 under O.C.G.A. § 44-6-122, the statute did not begin to run until the estate filed its complaint. Khimani v. Ruppenthal, 344 Ga. App. 658, 811 S.E.2d 448, 2018 Ga. App. LEXIS 107 (2018), cert. denied, No. S18C0916, 2018 Ga. LEXIS 571 (Ga. Aug. 20, 2018). Statute tolled during pendency of arbitration proceedings. — Limitation of O.C.G.A. § 9-3-25 applicable to an action by a client based on an oral contract with the client’s attorney was tolled during the pendency of proceedings on the client’s petition under the Arbitration of Fees Disputes program of the State Bar. Antinoro v. Browner, 223 Ga. App. 664, 478 S.E.2d 392. Statute not tolled during pendency of bankruptcy proceedings. — Debtor’s filing of a bankruptcy petition under Chapter 11 did not toll the running of the statute of limitation during the pendency of the bankruptcy; if the limitation period has expired during a bankruptcy, suit against the debtor must be commenced within 30 days of the automatic stay. J.T. Indus. Contractors v. Hargis Railcar, Inc., 217 Ga. App. 679, 458 S.E.2d 702, 1995 Ga. App. LEXIS 554 (1995). Discovery of bank’s failure to apply proceeds. — After the plaintiff discovered in 1926 that proceeds from the sale of bonds which the plaintiff had intended to be applied to payment of the promissory note had never been accounted for by the bank, but did not bring an action until 1931, such action was barred by the statute of limitations, which ran against the plaintiff from date of discovery of the wrong, whether the action was brought in tort or in contract. Wall v. Middle Ga. Bank, 180 Ga. 431, 179 S.E. 363, 1935 Ga. LEXIS 281 (1935). “Adverse domination” inapplicable. — Federal common law doctrine of “adverse domination” did not toll the state statute of limitations governing Resolution Trust Corporation’s claims in a case when subject loans were made between 1982 and 1985, more than four years prior to the defendant bank’s placement into receivership with the RTC’s predecessor agency. Resolution Trust Corp. v. Artley, 28 F.3d 1099, 1994 U.S. App. LEXIS 21327 (11th Cir. 1994). 200 Accrual of action for attorney’s negligence. — With respect to allegedly defective title examinations and opinions rendered by ab attorney to a client, this section, relating to an oral contract of employment, applies and begins to run from the date of the attorney’s alleged negligent or unskillful act, not from the date of the client’s discovery. Master Mtg. Corp. v. Byers, 130 Ga. App. 97, 202 S.E.2d 566, 1973 Ga. App. LEXIS 1238 (1973). In a legal malpractice action, despite the fact that the trial court held that the client’s failure to prove proximate causation supported an order granting summary judgment to the attorney and the attorney’s law firm, the appeals court nevertheless held that summary judgment was properly granted to the attorney, under the “right for any reason” rule, as the suit was untimely filed. Moreover, the client’s argument that the attorney could have amended the suit to add a damages claim up until the time of a pre-trial order, and that this later failure to act should be considered the triggering date for the malpractice action, was unavailing, as the attorney’s failure to amend constituted a failure to avoid the effect of the earlier breach and a failure to mitigate damages, but was not a failure inflicting a new harm, thus triggering a new limitations period. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75, 653 S.E.2d 791, 2007 Ga. App. LEXIS 1137 (2007), cert. denied, No. S08C0416, 2008 Ga. LEXIS 212 (Ga. Feb. 25, 2008). In a legal malpractice case based on failure to protect an under-insured motorist claim, because the law firm could have served the insurance company, like any other named defendant, until November 2, 2013, the law firm was not subject to a cognizable claim for malpractice for failing to serve the insurance company prior to November 3, 2013, and the four-year statute of limitation for the legal malpractice action did not begin to run until November 3, 2013, at the earliest. Because the client filed a malpractice suit against the law firm on July 21, 2017, within the four-year limitation period, it was not time barred. Armstrong v. Cuffie, 311 Ga. 791, 860 S.E.2d 504, 2021 Ga. LEXIS 477 (2021). 9-3-25 In accountant malpractice cases, the statute of limitations runs from the date of the breach of the duty and not from the time when the extent of the resulting injury is ascertained, not from the date of the client’s discovery of the error. Consolidated Mgt. Servs., Inc. v. Halligan, 186 Ga. App. 621, 368 S.E.2d 148, 1988 Ga. App. LEXIS 449, aff’d, 258 Ga. 471, 369 S.E.2d 745, 1988 Ga. LEXIS 306 (1988). Running of statute against school district from time funds were available. — In action against local school district for money had and received, when there is no condition precedent to bringing such action that demand for payment be made, statute of limitation begins to run from time funds were on hand to discharge obligations. Jasper Sch. Dist. v. Gormley, 57 Ga. App. 537, 196 S.E. 232, 1938 Ga. App. LEXIS 332 (1938). Not applicable to engineering malpractice claim arising out of written contract. — Court of Appeals erred in holding that a professional malpractice claim premised on a written contract between an engineering firm and the firm’s client was governed by the four-year statute of limitations in O.C.G.A. § 9-3-25, rather than the six-year statute of limitations in O.C.G.A. § 9-3-24. Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 288 Ga. 236, 703 S.E.2d 323, 2010 Ga. LEXIS 884 (2010). Accrual of cause between partners after dissolution of firm. — After dissolution of partnership, statute of limitations does not begin to run in favor of one partner against another until partnership affairs relating to debtors and creditors have been wound up and settled, or at least until sufficient time has elapsed since dissolution to raise presumption that such was the fact. Dukes v. Rogers, 67 Ga. App. 661, 21 S.E.2d 295, 1942 Ga. App. LEXIS 496 (1942). When running of limitation period commenced prior to beginning of alleged fraudulent concealment, the statute of limitation does not cease to run. Peppers v. Siefferman, 166 Ga. App. 389, 304 S.E.2d 511, 1983 Ga. App. LEXIS 2181 (1983); Kilby v. Shepherd, 177 Ga. App. 462, 339 S.E.2d 742, 1986 Ga. App. LEXIS 1443 (1986). Rescission of contract action timebarred. — Trial court properly dismissed 201 Running of Limitation (Cont’d) a firefighter’s action against a city, as an employer, and a firefighters pension fund for rescission of an alleged contract and for fraud, as the claims were barred by the four-year limitations period for actions based on mutual mistake or fraud, pursuant to O.C.G.A. §§ 9-3-25, 9-3-26, and 9-3-31, and the firefighter did not show that the firefighter was prevented from bringing the action in a timely manner, rather than nine years after the firefighter’s termination. Bradshaw v. City of Atlanta, 275 Ga. App. 609, 621 S.E.2d 563, 2005 Ga. App. LEXIS 1053 (2005). 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). Accrual of action for repayment of personal loan. — In a suit for repayment of a personal loan, the trial court did not err by denying the debtor’s motion for a directed verdict based on the debtor’s assertion that the statute of limitations set forth in O.C.G.A. § 9-3-25 had expired as the facts showed that the parties intended, either expressly or impliedly, that demand for repayment would not be made until some future time. Therefore, the statute of limitations did not commence to run until the date of demand for repayment. Murphy v. Varner, 292 Ga. App. 747, 666 S.E.2d 53, 2008 Ga. App. LEXIS 749 (2008). No tolling due to fraud of mortgagee. — In response to certified questions from a federal action which arose 9-3-25 with respect to a mortgagee’s charges that included substantial notary fees from a refinancing transaction, it was determined that even if there was actual fraud by the mortgagee, there was no tolling of limitations periods for claims of fraud and money had and received pursuant to O.C.G.A. §§ 9-3-25 and 9-3-31, as the mortgagors could have discovered the impropriety of the notary fees by simple reference to O.C.G.A. § 45-17-11. Anthony v. Am. Gen. Fin. Servs., 287 Ga. 448, 697 S.E.2d 166, 2010 Ga. LEXIS 478 (2010). In an action by borrowers claiming that the lender’s charging of an illegal notary fee gave rise to a “money had and received” claim, the district court did not err in dismissing, on statute of limitations grounds, the 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, 2010 U.S. App. LEXIS 24446 (11th Cir. 2010). Action time-barred in real estate firm’s claims. — Trial court properly dismissed a real estate firm’s counterclaims against a title insurance company as time barred because the firm did not bring the firm’s counterclaims for complaint on account and money had and received until February 8, 2010, more than four years after the claims accrued; thus, those claims were brought outside the statute of limitation and the trial court properly granted summary judgment to the title insurance company on those claims. Dewrell Sacks, LLP v. Chicago Title Insurance Co., 324 Ga. App. 219, 749 S.E.2d 802, 2013 Ga. App. LEXIS 827 (2013).