314 Ga. App. 230
Ga. Ct. App.2012Background
- Appellants and others contracted to buy lots in Turners Cove and have townhomes built; earnest money of $5,000 paid; closing deadline of January 1, 2003; closings did not occur; lots sold to a third party in June 2005; plaintiffs filed suit July 22, 2010; asserted fraud and ILSA claims.
- Plaintiffs allege Young commingled funds and sold properties without disclosure; ILSA violations include failure to provide property reports, record a Statement of Record, or provide a plat.
- Trial court dismissed fraud and ILSA claims as time-barred by statutes of limitation; court held fraud accrual deadlines and ILSA three-year limitations apply.
- Court discusses tolling for fraud based on discovery rule and reasonable diligence, and whether concealment by Young prevented discovery.
- Court ultimately affirmed dismissal of both fraud claims and ILSA claims as time-barred, with judgment for Young.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud tolling due to discovery of fraud. | Falms claim—discovery tolling applies. | No tolling; plaintiffs had notice by 2003 and 2006. | No tolling; not proven by evidence. |
| ILSA limitations and tolling. | ILSA claims should be tolled by concealment and discovery of violations. | No tolling; plaintiffs failed to show concealment or diligence. | ILSA claims barred by three-year limitations. |
Key Cases Cited
- Falanga v. Kirschner & Venker, P.C., 286 Ga.App. 92 (2007) (fraud tolling requires discovery or reasonable diligence)
- Weinstock v. Novare Group, 309 Ga.App. 351 (2011) (actual fraud tolling rules; burden on plaintiff to show tolling)
- Miller v. Kitchens, 251 Ga.App. 225 (2001) (three-factor test for fraudulent concealment tolling)
- Anthony v. American Gen. Financial Svcs., 287 Ga. 448 (2010) (records readily available; not prevented from discovery)