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McElmurray v. Augusta-Richmond County7/11/2005
udgment to Augusta-Richmond County on their breach of contract claim.
"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."
"On summary judgment it is inappropriate for this Court to weigh evidence or determine its credibility. Where the facts, as testified to by the parties, create a conflict in the evidence as to a material issue, summary judgment is precluded. [Cit.]" "Nevertheless, a plaintiff may not survive a defendant's motion for summary judgment under OCGA § 9-11-56 if there is no evidence in the record `sufficient to create a genuine issue as to any essential element of plaintiff's claim.' [Cit.]"
(a) The trial court ruled that the McElmurrays' breach of contract claim is governed by the four-year statute of limitation applicable to contracts that are partly oral and partly written; that this statute begins to run from the time the contract is breached; and that the statute has, therefore, run because it is undisputed that the city did not commit any breach of contract after making its last applications of sewage sludge to the McElmurrays' lands in 1990, and the McElmurrays did not bring this suit until 2001.
In awarding summary judgment to Augusta-Richmond County on the McElmurrays' breach of contract claim, the trial court also rejected the McElmurrays' charge that the city committed fraud tolling the running of the statute of limitation under OCGA § 9-3-96. That statute provides: "If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud."
However, "the fraud in question is not that which gives a cause of action, but that which conceals a cause of action. To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent. [Cit.]"
In support of their claim that the city fraudulently concealed the existence of their cause of action from them, the McElmurrays rely on evidence that the city knew from analyses conducted in the early 1980's that the sludge being applied to their lands contained unlawfully high concentrations of metals and toxic constituents; that the city nonetheless terminated its analyzing activity for such constituents and never informed them of the true composition of the sludge or of its hazardous nature; that the city had a duty under the parties' license/easement agreements and under state and federal regulatory laws to monitor, and to keep accurate records of, the volumes of sludge and to report all such information to them; that the city had admitted in its answers to interrogatories in the federal litigation that it had not done so; that field update reports and summaries provided by the city were false and misleading; and that all of this did not become apparent to them until the records of sludge applications were compared to spreadsheets first created by the city in the federal litigation in 1998 and 1999.
But even assuming all of this to be true, it appears without contradiction from the record that although the parties' agreements imposed on the city a duty to provide the McElmurrays with a chemical analysis of the digested sewage slu
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