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Vincent v. Bunch9/10/1999
Vincent. Kendrick v. Funderburk, 230 Ga. App. 860, 863 (1) (498 SE2d 147) (1998). When considered from that perspective, the evidence showed that on May 30, 1991, Gary Bunch represented to the superior court at the TRO hearing, in the presence of Lola Vincent, that the Vincents owed between $15,000 and $20,000 to the law firm for multiple bills incurred in the personal injury action. At that time, Lola Vincent had sole responsibility for the Vincents' finances including the payment of all bills. The agreement with the law firm required Vincent to reimburse or pay the out-of-pocket expenses associated with the litigation. After the court released part of the money in June, Lola Vincent wrote several checks totaling about $1,878.48 payable directly to six service providers. Later, on July 8, she wrote a $650 check to a medical expert.
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 & Constr. Co., 184 Ga. App. 275 (361 SE2d 258) (1987) (whether a cause of action is barred by statute of limitations is generally a mixed question of fact and law). When Lola Vincent wrote the $10,000 check in August, in light of Gary Bunch's representations to the court about the Vincents' indebtedness to the law firm for litigation expenses, a jury could find that Charles Vincent could reasonably have believed that a substantial amount of money remained owed to the law firm even had the $10,000 check been duly credited. In fact, Vincent offered evidence showing that when the $2,938 payment was made to a Mr. Johnson in September 1991, another expert was owed more than $5,281, an amount still not paid as of January 1996. Compare Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 64 (1) (473 SE2d 501) (1996). Moreover, Bunch did not offer any billing documentation relating to Vincent's law firm account which would establish that Vincent should have realized that the $10,000 check had not been credited to the R & A litigation expenses amassed with the firm.
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, 229 Ga. App. 776, 779 (1) (b) (494 SE2d 681) (1997) (relationship of trust imposes duty of complete disclosure). If the jury finds that the true use of the $10,000 check was fraudulently concealed, then the statute of limitations did not begin to run until Vincent discovered or could have reasonably discovered the fraud within the meaning of Frame, supra. See Green, 229 Ga. App. at 778-779 (1) (b). Because material issues of disputed fact remain unresolved, summary judgment was improper. Arnall, Golden & Gregory v. Health Svc. Centers, Inc., 197 Ga. App. 791, 793 (2) (399 SE2d 565) (1990). 2. In light of our holding in Division 1, we need not reach the remaining enumeration of error.
Judgment reversed. Pope, P. J., and Eldridge, J., concur.
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