Charles Vincent sued attorney Gary Bunch and Gary Bunch, P.C. (“law firm”) for fraud relating to a $10,000 check written to the law firm. Finding that the four-year statute of limitation had run, the trial court granted summary judgment to the defendants. Vincent appeals.
After sustaining catastrophic burns over 80 percent of his body, Vincent retained Bunch and the law firm to represent him in a personal injury lawsuit against Richards & Associates (“R & A”). On May 17, 1991, while the jury was deliberating, the parties reached a $250,000 settlement from which the law firm would receive $50,000.
Nearly immediately, Bunch’s former wife, Wilma L. Bunch, sued Gary Bunch, Denise S. Bunch, the law firm, R & A, and Charles and Lola Vincent. She sought a temporary restraining order (“TRO”) to prevent the disbursement of the settlement proceeds and requested that the funds be paid into the registry of the court. Wilma Bunch asserted that as of the May 30, 1991 hearing date, Gary Bunch owed an accrued arrearage of more than $100,000 for alimony, child support, attorney fees and post-judgment interest. At the hearing on the TRO, Gary Bunch represented the Vincents and himself, notwithstanding the court’s stated concern that his interests and those of the Vincents might be adverse.
In opposing the TRO, Gary Bunch informed the court that the law firm
has $20,000.00 or $15,000.00 worth of bills for the Vincents for instance. The law firm contracted with the experts. I didn’t contract with the experts. The law firm has those obligations right now to pay the experts in the Vincents’ case for instance. We had the deposition costs of the doctors, we had the costs of getting the exhibits, for instance. 1
Bunch told the court that he was uncertain about the total fee and how much the Vincents needed to reimburse the firm. He stated “some discount” might be given, but “we’ve got a lot of bills that need to be paid which the Vincents are kind of ultimately responsible for but we were contracting for them.” Although the court refused to grant the TRO, it granted R & A’s request that the entire $250,000 settlement be deposited into the registry of the court.
Until June 1994, Bunch continued to act as Charles Vincent’s attorney for various legal matters. But in August 1995, nearly four years after the issuance of the $10,000 check, Charles Vincent learned for the first time that Gary Bunch considered this check as a personal gift from the Vincents and not as payment to the law firm for legal expenses. A few months after that discovery, Vincent sued Bunch and the law firm for receiving money through false pretenses, for using the money for their own benefit, and for engaging in fraudulent conduct. Vincent alleged that Bunch and the law firm misled and deceived him and his wife that the $10,000 payment had been for litigation costs and expert fees.
On summary judgment, the parties offered conflicting evidence regarding the $10,000 check. Nevertheless, it is undisputed that this check was drawn on the Vincents’ joint checking account and was made payable to “Gary Bunch, P.C.” The endorsement on the back of the check recited: “FOR DEPOSIT ONLY GARY BUNCH, P.C. [account number].”
In a 1996 deposition, Gary Bunch averred that the $10,000 had been “purely a gift” from the Vincents and was not solicited. Bunch testified:
Mrs. Vincent came to a — my home, when I wasn’t home, and gave the check, that’s Exhibit G, the ten thousand dollar ($10,000.00) check to Mrs. Bunch. She gave it to us unexpectedly. There was no coercion, no influence, no anything with regard to that. And the action was voluntary and unsolicited.
More than six years after she had written the check, at her deposition, Lola Vincent was unable to recall exactly what the payment had been for. Mrs. Vincent explained, “[t]hey kept the $50,000 in the court. Then we gave $10,000 for the bills.” She testified, “[a]nd what [the $10,000] was for, who it was for, if it was for several people, I don’t know. I just know we had to pay that much.” She testified that she thought the $10,000 was owed because she trusted Gary Bunch and there were “oodles and oodles of depositions,” an expert witness in California, and photographs. She testified that she did not know how many people were owed and “[t]here was [sic] all sorts of bills coming in right and left.” According to Lola Vincent, “[a]ll I know is I gave [Gary Bunch] a $10,000 check to pay bills. That’s all I know.”
In granting summary judgment, the trial court determined that the allegedly fraudulent act, the receipt and retention of the $10,000 check, occurred in August 1991. The court further found: “after writing the requested check to Defendants on August 14, 1991, to cover such expenses, Mrs. Vincent, on September 9, 1991, paid $2,938.00 to a Robert Johnson from California for his services as an expert in the case.” The trial court concluded that Mrs. Vincent’s direct payment to this expert, “after such obligation had been assumed by Defendants with the request for the $10,000 . . . reasonably should have put her on notice of an irregularity” but yet the lawsuit was not filed until January 8, 1996. 2 Finding no evidence that Vincent had been debarred or deterred by the defendants from bringing suit sooner, the court granted summary judgment.
1. Vincent contends that material issues of disputed fact precluded the grant of summary judgment. He claims that a jury must resolve whether the statute of limitation was tolled until his discovery of the fraud in August 1995.
Under certain circumstances, fraud can toll the statute of limitation, but it must be such as to prevent or deter the plaintiff from bringing suit. OCGA § 9-3-96;
Charter Peachford Behavioral Health System v. Kohout,
When a confidential relationship exists, as here, such relationship lessens the plaintiff’s obligation to discover the fraud and also heightens the duty of the defendant to disclose what should be revealed.
Frame,
On summary judgment, the evidence and all reasonable infer
enees therefrom must be viewed in a light most favorable to the nonmovant, here, Vincent.
Kendrick v. Funderburk,
Although Bunch contends that Lola Vincent’s September 9, 1991 payment to an expert put Charles Vincent on notice as a matter of law concerning any alleged fraud involving the $10,000 check, we disagree. See
Fleming v. Lee Engineering &c. Co.,
In these circumstances, a jury must determine whether Bunch and the law firm breached a duty to disclose that the $10,000 check was being treated as an unsolicited gift and not as payment on Vincent’s account.
Green v. White,
2. In light of our holding in Division 1, we need not reach the remaining enumeration of error.
Judgment reversed.