Wilson v. Tara Ford, Inc.

• Decision Date: 20 June 1991
• Docket Number: Nos. A91A0001,A91A0002,s. A91A0001
• Citation: Wilson v. Tara Ford, Inc., 406 S.E.2d 807, 200 Ga.App. 98 (Ga. App. 1991)
• Parties: WILSON v. TARA FORD, INC. et al. FICKLING et al. v. WILSON.
• Court: Georgia Court of Appeals

Page 807

406 S.E.2d 807

200 Ga.App. 98

WILSON v. TARA FORD, INC. et al.

FICKLING et al. v. WILSON.

Nos. A91A0001, A91A0002.

Court of Appeals of Georgia.

June 20, 1991.

Martin D. Chitwood & Associates, Martin D. Chitwood, Craig G. Harley, Atlanta, for Wilson.

Hall, Block, Garland & Meyer, Benjamin M. Garland, J. Steven Stewart, Macon, for Fickling, Tara, Inc. et al.

SOGNIER, Chief Judge.

Merle Wilson, as executor of the estate of Robert Wilson, filed suit on March 27, 1990 against Tara Ford, Inc., William Fickling, Sr., William Fickling, Jr., and the other three directors of Southlake Ford, Inc., alleging, inter alia, breach of fiduciary duty and conspiracy arising out of the March 6, 1985 transfer of assets from Southlake Ford, a corporation in which her decedent owned stock, to Tara Ford, a corporation controlled by the Ficklings. The Ficklings answered and counterclaimed against Wilson, in her capacity as executor of the estate, seeking recoupment of over $200,000 allegedly misappropriated by Wilson's decedent from Southlake Ford. On cross motions for summary judgment the trial court held that all claims were barred by the statute of limitation. These appeals ensued.

The basic facts are not in dispute. The transfer of the stock in issue occurred on March 6, 1985, and the parties stipulated that the causes of action asserted in Wilson's complaint accrued on that date. Wilson's decedent died on January 6, 1986, and it is agreed that as to claims on behalf of the decedent, the statute of limitation was tolled by the provisions of OCGA § 9-3-92 until January 17, 1986 (11 days later), when Wilson was appointed the legal representative of the decedent's estate. After administering the estate for 24 months, Wilson petitioned the probate court asking to be discharged as executor of the estate. Letters of dismission were issued to Wilson by the probate court on March 7, 1988. In June 1989 Wilson petitioned the probate court to reopen the estate stating she had discovered 28,000 shares of common stock after the estate closed, and seeking to have the estate reopened so that the stock "may be properly endorsed and transferred to the beneficiaries of the estate." That petition was granted on June 6, 1989. As noted above, Wilson filed the instant suit on March 27, 1990 asserting causes of action which the parties stipulate expired in March 1989 unless the statute of limitation on them was tolled.

1. In Case No. A91A0001, Wilson contends the trial court erred by granting the motion for summary judgment made by Tara Ford and the individual defendants (hereinafter referred to collectively as "Tara Ford") because the trial court erroneously interpreted OCGA § 9-3-92 as not tolling the running of the statute of limitation during the 15 month period between March 7, 1988, the day the estate closed, and June 6, 1989, the day the estate was reopened, so as to render timely the filing of her complaint.

We affirm. Wilson was dismissed as executor of her decedent's estate pursuant to OCGA § 53-7-145, which required her to file with the probate court "a verified petition for discharge, setting forth that [she] has fully administered the estate and fully executed the will." OCGA § 53-7-145(b). The grant of Wilson's petition in this case resulted in an adjudication not only that Wilson's administration was completed, but also that nothing remained in the estate to be administered. OCGA § 9-3-92 provides: "The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years." An examination of the statutes in Article 6 of Title 53, Chapter 7 (OCGA § 53-7-140 et seq.), which sets forth the procedure by which administrators and executors can be discharged or executors dismissed, reveals that letters of discharge or dismission are not granted in contemplation of "the commencement of another" administration as referenced in OCGA § 9-3-92, but are granted when no further administration of the estate is required. Accordingly, we agree with the trial court that the language in OCGA § 9-3-92 tolling the running of the statute of limitation "between the termination of one administration and the commencement of another" is not addressed to those estates which have been adjudicated "fully administered," see, e.g., OCGA §§ 53-7-145(b); 53-7-140, but instead applies in situations where one administration has come to an end--is terminated--but the estate has not been fully administered due, e.g., to the death, removal, substitution, or renunciation of the administrator or executor.

Therefore, we find the trial court properly interpreted OCGA § 9-3-92 as not tolling the statute of limitation of Wilson's claim between March 7, 1988 and June 6, 1989.

2. Wilson also contends questions of fact exist whether fraud tolled the running of the statute of limitation under OCGA § 9-3-96, which provides that "[i]f the defendant ... [is] 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." In her complaint Wilson alleged that the individual defendants wrongfully found Southlake Ford to be insolvent and breached their fiduciary duties by transferring or influencing the transfer of Southlake Ford's assets to Tara Ford. Although Wilson asserts that the asset transfer constituted fraud because the Ficklings, who control Tara Ford, were on Southlake Ford's board, her own complaint reveals that the Ficklings' presence on the Southlake Ford board was a matter of public information and that the Ficklings did not deliberate or vote on the asset transfer. However, appellant does not rely exclusively on this allegation as the fraud which "debarred or deterred" her from bringing her action. See generally Middleton v. Pruden, 57 Ga.App. 555, 196 S.E. 259 (1938). Rather, it appears that the fraud on which Wilson relies for purposes of OCGA § 9-3-96 is the alleged fraudulent concealment of the asset transfer based on the fact that it was accomplished without notice to her or her decedent, and that without such notice due diligence on her part would not have discovered the asset transfer.

" 'To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.' [Cit.]" Middleton, supra at 560, 196 S.E. 259. In its answer to Wilson's complaint, Tara Ford responded that no fraudulent concealment of the asset transfer occurred because the sale of ...