O.C.G.A. § 9-3-26 (2019)

Annotations

Law reviews. For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 355 (1968).

JUDICIAL DECISIONS This section is residual in nature. Kaufman & Broad Home Systems, Inc. v. International Brotherhood of Firemen & Oilers, 607 F.2d 1104, 1979 U.S. App. LEXIS 9956 (5th Cir. 1979). Complaint in equity. - Suit in equity to enjoin enforcement of a judgment which allegedly has been satisfied by settlement after institution of the litigation and payment of the agreed amount is not barred by the three-year statute of limitations set forth in O.C.G.A. § 9-11-60(f), nor is it barred by the four-year statutes applicable to breach of contract. Wells v. Mullis, 255 Ga. 426, 339 S.E.2d 574, 1986 Ga. LEXIS 532 (1986). Claim for failure to employ cannot

be characterized as contractual in nature because refusal or failure to employ implicitly excludes existence of mutual assent which is necessary for existence of any contract. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974). Claim for services rendered is subject to the four-year statute of limitations contained in this section. Troutman v. Southern Ry., 296 F. Supp. 963, 1968 U.S. Dist. LEXIS 9685 (N.D. Ga. 1968), aff’d, Troutman v. Southern R. Co., 441 F.2d 586, 1971 U.S. App. LEXIS 10678 (5th Cir. 1971). Action for loss of freight was governed by this section. Southern Express

Co. v. Sinclair, 135 Ga. 155, 68 S.E. 1113, 1910 Ga. LEXIS 454 (1910). In an action for unjust enrichment based on improvements to real property, the period of limitations begins to run on the accrual of the right of action; thus, the statute did not begin to run on a tenant’s unjust enrichment action until the landlord refused to honor an alleged oral option to purchase. Engram v. Engram, 265 Ga. 804, 463 S.E.2d 12, 1995 Ga. LEXIS 874 (1995). Unjust enrichment claim survived summary judgment because timeliness could not be determined as a matter of law; fact issues existed as to when an alleged fraud was discovered. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, No. 1:13-CV03035-ELR, 2015 U.S. Dist. LEXIS 189547 (N.D. Ga. Sept. 22, 2015). Failure to show fraud in action for unjust enrichment and failure to pay compensation. - Employee’s claims for unjust enrichment and unpaid compensation were partially barred by the statutes of limitations; 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). Attorney’s malpractice. - This section governed in action by client suing attorney for damages resulting from lack of skill in handling client’s interest. Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583, 1898 Ga. LEXIS 2 (1898). Applicable statute of limitations for legal malpractice is four years, and the statute of limitations begins to run from the attorney’s breach of duty which is the date of the alleged negligent or unskillful act. Ekern v. Westmoreland, 181 Ga. App. 741, 353 S.E.2d 571, 1987 Ga. App. LEXIS 1541 (1987). Breach of contract to carry passenger. - This section was applicable to action for injuries arising from breach of contract to carry passenger. Patterson v. Augusta & S.R.R., 94 Ga. 140, 21 S.E. 283, 1894 Ga. LEXIS 31 (1894). Divorce is not a contract action barred by this section. Mosely v. Mosely, 67 Ga. 92, 1881 Ga. LEXIS 138 (1881).

This section does not apply to specific performance of oral contract to convey land. Jones v. Citizens & S. Nat’l Bank, 231 Ga. 765, 204 S.E.2d 116, 1974 Ga. LEXIS 1228 (1974). In action for recovery of land by equitable owners, by statute, clearly no four-year statute of limitation was applicable. Smith v. Aldridge, 192 Ga. 376, 15 S.E.2d 430, 1941 Ga. LEXIS 463 (1941). When contract is rescinded and one party sues to recover property transferred to another party thereunder, this section does not apply. Eller v. McMillan, 174 Ga. 729, 163 S.E. 910, 1932 Ga. LEXIS 126 (1932). Collective bargaining violation. - Former Code 1933, § 3-705 (see O.C.G.A. § 9-3-24), rather than former Code 1933, § 3-711 (see O.C.G.A. § 9-3-26) applied to action brought by company against union for violation of collective bargaining agreement under section 301 of federal Labor-Management Act. Kaufman & Broad Home Systems, Inc. v. International Brotherhood of Firemen & Oilers, 607 F.2d 1104, 1979 U.S. App. LEXIS 9956 (5th Cir. 1979). Actions by Resolution Trust Corporation. - Georgia’s four-year statute of limitations governed the Resolution Trust Corporation’s actions as receiver; the federal Financial Institutions Reform, Recovery, and Enforcement Act (12 U.S.C. § 1821) does not operate to revive stale state actions. Resolution Trust Corp. v. Artley, 28 F.3d 1099, 1994 U.S. App. LEXIS 21327 (11th Cir. 1994). “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 case when the 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). Mere ignorance of facts constituting cause of action does not prevent running of statute of limitations. Ponder v. Barrett, 46 Ga. App. 757, 169 S.E. 257, 1933 Ga. App. LEXIS 231 (1933).

Any right to restrain threatened breach of alleged oral contract could not accrue until such threat occurred. Gaskins v. Vickery, 234 Ga. 833, 218 S.E.2d 617, 1975 Ga. LEXIS 1299 (1975). Rescission of contract action timebarred. - Trial court properly dismissed 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). Contract action not time barred. - One-year statute of limitations in § 13 of the Securities Act, 15 U.S.C. § 77m, did not bar an equity receiver of an investment company from suing sales agents who participated in a billboard sale-and-

leaseback Ponzi scheme to force the agents to disgorge sales commissions and bonuses because the receiver did not sue under federal securities law but alleged only a state law claim for unjust enrichment/constructive trust, which fell under the four-year limitations period in O.C.G.A. § 9-3-26. Hays v. Adam, 512 F. Supp. 2d 1330, 2007 U.S. Dist. LEXIS 25321 (N.D. Ga. 2007). Trustees failed to exercise minimal degree of due diligence to discover claims. - Dismissal of the trustees’ claims as time barred was upheld because the trustees conceded that, despite signing numerous documents as trustees of the marital trust, the trustees made no attempt at all to obtain information the trustees were legally entitled to in that capacity; thus, the trustees failed to exercise even a minimal degree of due diligence to discover their claims as a matter of law. Rollins v. LOR, Inc., 345 Ga. App. 832, 815 S.E.2d 169, 2018 Ga. App. LEXIS 291 (2018), cert. denied, No. S18C1362, 2019 Ga. LEXIS 49 (Ga. Jan. 7, 2019).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, §§ 112 et seq., 140 et seq. C.J.S. 54 C.J.S., Limitations of Actions, § 91 et seq. ALR. Statutes of limitations or laches as bar to suit by heirs or next of kin to set aside conveyance or transfer by ancestor, 2 A.L.R. 447. Implied contract to reimburse one for expense of trip taken at request of relative, 24 A.L.R. 973. When statute of limitations commences to run against action against one who has misrepresented or exceeded his authority to contract for another, 64 A.L.R. 1194. Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360. Bar of statute of limitations against action to recover principal of obligation as affecting right to recover interest, 115 A.L.R. 728.

Statutory or contractual limitation where presumption of death of the insured from seven years’ absence is relied upon, 119 A.L.R. 1308. Ratification of unauthorized credit on debt or obligation as tolling, or removing bar of, statute of limitations, 124 A.L.R. 234. Statute of limitations or doctrine of laches in relation to declaratory actions, 151 A.L.R. 1076. Running of statute of limitations against claim for services rendered over extended period under indefinite employment not fixing time of payment, 7 A.L.R.2d 198. When statute of limitations begins to run on contractual obligation to pay for minor’s support, 52 A.L.R.2d 1125. When statute of limitations begins to run against action by attorney, not employed on contingent fee basis, for compensation for services, 60 A.L.R.2d 1008. Limitation of action against liability insurer for failure to settle claim or action against insured, 68 A.L.R.2d 892.

When statute of limitations starts to run against depositor’s cause of action against bank to recover funds paid out on check bearing forged indorsement, 82 A.L.R.2d 933. Statute of limitations applicable in action to enforce, or recover damages for breach of, contract to make a will, 94 A.L.R.2d 810. When statute of limitations starts to run against action for breach of covenant of warranty or of seisin, 95 A.L.R.2d 913. Time period for bringing action on standard form fire insurance policy provided for by statute, as running from time of fire (when loss occurs) or from time loss is payable, 95 A.L.R.2d 1023. Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874. What statute of limitations applies to action for contribution against joint tortfeasor, 57 A.L.R.3d 927. Limitation of action against insurer for breach of contract to defend, 96 A.L.R.3d 1193. What statutes of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284. When statute of limitations begins to run against action based on unwritten promise to pay money where there is no condition or definite time for repayment, 14 A.L.R.4th 1385. When statute of limitations begins to run upon action against attorney for malpractice, 32 A.L.R.4th 260. Computer sales and leases: time when cause of action for failure of performance accrues, 90 A.L.R.4th 298. Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1. When statute of limitations begins to run upon action against attorney for legal malpractice - deliberate wrongful acts or omissions, 67 A.L.R.5th 587. When statute of limitations begins to run on action against attorney for mal-

practice based upon negligence - View that statute begins to run from time of occurrence of negligent act or omission, 11 A.L.R.6th 1. When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time of occurrence of sustaining damage or injury and other theories, 12 A.L.R.6th 1. When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise, 13 A.L.R.6th 1. When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to conduct of litigation and delay or inaction in conducting client’s affairs, 14 A.L.R.6th 1. When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to property, estate, corporate, and document cases, 15 A.L.R.6th 427. When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence, 16 A.L.R.6th 653. Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - construction cases, 104 A.L.R.6th 1. Application of doctrine of adverse domination, 13 A.L.R.7th 3.