Limoli v. First Georgia Bank

• Decision Date: 30 October 1978
• Docket Number: No. 56103,56103
• Citation: Limoli v. First Georgia Bank, 250 S.E.2d 155, 147 Ga.App. 755 (Ga. App. 1978)
• Parties: LIMOLI v. FIRST GEORGIA BANK.
• Court: Georgia Court of Appeals

Page 155

250 S.E.2d 155

147 Ga.App. 755

LIMOLI v. FIRST GEORGIA BANK.

No. 56103.

Court of Appeals of Georgia.

Argued June 26, 1978.

Decided Sept. 12, 1978.

Rehearing Denied Oct. 30, 1978.

Paul R. Koehler, Atlanta, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Donald J. Ellis, Atlanta, for appellee.

BIRDSONG, Judge.

Limoli brings this appeal from the grant of summary judgment to the appellee, First Georgia Bank. The facts necessary to this appeal show that Limoli is a practicing dentist. In accordance with common practice, he accepted cash or promissory notes from his patients for services rendered. Where he accepted notes, he routinely discounted those notes with a discount company, Baker & Co. If the patient was financially accountable, the note was discounted without guaranty by Limoli but if there was any doubt by Baker, Limoli would guaranty the note. Practice also established that if a patient became 90 days delinquent in payment, Baker would look to Limoli to bring the note current. Though Limoli paid many if not all of these delinquent payments by personal check, there were times that he did not have ready assets, in which case he would execute a personal note to Baker to bring all then-delinquent notes current. These patient notes, during the time which Limoli discounted notes, amounted perhaps to several hundred thousands of dollars.

Baker also engaged in financial transactions with the appellee, First Georgia Bank. The bank extended large sums of money to Baker to support Baker's discount business. As collateral therefor, Baker pledged notes it had discounted. Prior to October, 1970, Baker came into default on its obligations to the bank and the bank enforced its security interest in Baker's collateral. One of Baker's debtors was Limoli. The bank contacted Limoli and made demand for payment of a sum of $6,840. Limoli executed a note in that amount and paid the note in full to the bank. The note was paid in 36 equal installments. Limoli requested from the bank the underlying notes from his patients which he believed he had redeemed by his personal note. In spite of assurances that the notes would be delivered, Limoli did not obtain the notes. Three months after executing his note, Limoli was advised that the evidence of indebtedness would be surrendered upon full satisfaction of the $6,840 note. Subsequently, after the note had been satisfied, Limoli was informed that the bank had no such patient notes. Limoli, in October, 1975, instituted this action in two counts, the first alleged that the bank had defrauded him by suing on a non-existent indebtedness and the second, in trover demanded the return of the notes, which were valuable property rights enabling him to recoup losses from defaulting patients. The bank moved for summary judgment on the ground that the statute of limitations had run on both counts. The trial court granted the summary judgment and this appeal followed. Held :

Both parties agree that four years is the applicable statutory limitation, based upon a complaint alleging fraudulent misrepresentation involving personalty. Code Ann. § 3-1002; Worrill v. Pitney-Bowes, Inc., 128 Ga.App. 741, 743(1), 197 S.E.2d 848. The bank established in the trial court that the limitations began to run on October 7, 1970, the date of the $6,840 note, and expired on October 6, 1974. Inasmuch as suit was not filed until October 31, 1975, the trial court held that the action was barred. Appellant urges, however, that the bank fraudulently lulled him into believing that he would get his choses in action after he paid the note in October, 1973, or more positively that the bank made a binding agreement to return the notes in October, 1973. It is Limoli's position that the statute did not commence until October, 1973, a date less than four years from the date of the filing of his complaint in October, 1975.

We find appellant's argument to be strained. Appellant was informed that he owed $6,840, based upon notes devolving from Baker to the bank. Though he was understandably upset, he did not contest the indebtedness and made immediate arrangements to pay it. Limoli asked to see the "paper" held by the bank and also asked to have it returned. However, at no time did Limoli go to the bank or make other legal demand to see evidence of the indebtedness. Thus, he voluntarily made full repayment without ever exercising the slightest degree of caution or care to protect his own rights. There is no evidence that the bank refused to show Limoli any documents, only that it refused to return any documents to his custody pending payment of his own note executed to the bank in October, 1970.

The statute of limitations begins to run on a cause of action on the date that suit on the claim can first be successfully maintained. Mobley v. Murray County, 178 Ga. 388(1), 173 S.E. 680; see Hoffman v. Ins....