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Allen v. Columbus Bank & Trust Co.5/31/2000
As amended July 24, 2000
JO -038
This case involves the alleged mismanagement of a trust. The record shows that Sally Allen's father died on July 20, 1968. His will provided for a trust for his wife and children. It further provided that his wife and Columbus Bank & Trust Company ("CB&T;) were to be co-trustees of the trust. Allen's mother and CB&T;acted as co-trustees of the trust from July 1968 until September 15, 1972, when CB&T;became the sole trustee of the trust. CB&T;managed the trust from 1972 until the trust terminated by its own terms at the death of Allen's mother on July 26, 1985. Ten years and two months later, on September 22, 1995, Sally Allen filed the present lawsuit against CB&T; alleging that CB&T; as trustee for her father's trust, breached the trust and its fiduciary duty to her as a beneficiary of the trust.
Allen maintains that CB&T;negligently or intentionally mismanaged the trust, causing it to lose from $1 million to $2 million over the life of the trust. CB&T;maintains that Allen's suit is barred because it was untimely filed. The trial court agreed with CB&T;and granted its motion for summary judgment. Allen appeals from this ruling.
1. It is undisputed that Allen's claims, if any, accrued prior to July 1, 1991, the date upon which a new six-year statute of limitation for breach of trust became effective. As such, the timeliness of her action is governed by OCGA ยง 9-3-27, which provides that all actions against fiduciaries must be brought within ten years after the right of action accrues. The question we must first address is when Allen's right of action accrued.
Allen claims that mismanagement of a trust is a continuing tort and that the ten-year statute of limitation did not begin to run until the trust corpus was disbursed on June 26, 1986, approximately one year after the trust terminated by its own terms. This argument is without merit, inasmuch as the Supreme Court has ruled that the continuing tort theory is applicable only to cases involving personal injury .
A cause of action for breach of fiduciary duty in the management of a trust, as we have here, begins to run at the time the wrongful act accompanied by any appreciable damage occurs. Applying this principle to the present case, it is clear that each time CB&T;made an investment which Allen deems to have constituted mismanagement, the trust was detrimentally affected, a cause of action accrued in favor of Allen, and the ten-year statute of limitation began to run. Thus, we must look to Allen's specific claims of acts of mismanagement to determine when her causes of action accrued.
In her complaint, Allen lists eight examples of alleged mismanagement. These purported acts of mismanagement occurred between the time CB&T;began managing the trust in 1968 and August 23, 1985. Since all these acts of mismanagement occurred more than ten years before Allen filed her complaint on September 22, 1995, Allen's action is barred by the statute of limitation unless she can show that the statute was tolled.
In her appellate brief, Allen claims she was excused from filing her suit within the statute of limitation period because CB&T;intentionally withheld information from her which would have allowed her to discover her causes of action. However, this statement is belied by her own deposition testimony. Allen admitted she regularly received account statements and investment review statements the entire time CB&T;managed the trust. She further admits that during the life of the trust, she never read the statements. Most importantly, Allen admits that these very statements formed
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