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March 4, 2026 Get Citation Alerts Download PDF Add Note

MARCIA ANITA JOHNSON v. JIMMY W. JOHNSON

Court of Appeals of Georgia

• Citations: None known
• Docket Number: A25A1810

• Disposition: Affirmed In Part/Rev In Part/Vac/Remanded

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (18.7K)

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Disposition

Affirmed In Part/Rev In Part/Vac/Remanded

Combined Opinion

FIFTH DIVISION
MCFADDEN, P. J.,
HODGES and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

March 4, 2026

In the Court of Appeals of Georgia
A25A1810. JOHNSON et al. v. JOHNSON et al.

HODGES, Judge.

Marcia Anita Johnson and Rhonda Joy Johnson filed this appeal following a trial

court order granting partial summary judgment to their siblings, Jimmy Johnson and

Patricia Martin. The parties are involved in a family dispute over the trusteeship,

control, and assets of a partnership and trusts established by their late mother, Willie

B. Lusk Johnson.1 Marcia and Joy argue that: (1) the trial court erred in finding that

Jimmy and Patricia’s removal as co-trustees is invalid because the way they were

1
For clarity, the parties will be referred to by their first names, or, in the case
of Rhonda Joy Johnson, by her preferred name, “Joy.” Willie held various roles in the
trusts and partnership at issue here. She will be referred to by her first name or as the
“settlor,” “trustor,” “trustee,” or other designation as appropriate to the trust or
partnership being discussed, as will be outlined in more detail below.
removed did not satisfy a condition precedent in the trust; (2) if they were properly

removed, the trial court erred in finding that the condition precedent was not met or

waived; (3) the trial court erred in determining that their claims are partially time-

barred by statutes of limitation; and (4) the court erred in finding that Joy’s stake in

a partnership is limited rather than general. For the reasons that follow, we affirm in

part, reverse in part, and vacate in part, and remand the case to the trial court.

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law[.]” OCGA § 9–11–56(c).

Summary judgments enjoy no presumption of correctness on appeal, and
an appellate court must satisfy itself de novo that the requirements of
OCGA § 9-11-56(c) have been met. In our de novo review of the grant
[or denial] of a motion for summary judgment, we must view the
evidence, and all reasonable inferences drawn therefrom, in the light
most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1)(a) (697 SE2d 779) (2010) (citations and

punctuation omitted).

2
Viewed in the light most favorable to Marcia and Joy as the nonmovants, the

record shows that Willie and her son, Jimmy, formed East Cherokee Drive Investment

Partners, L. P. (“ECDIP”) in 1998. Willie was named managing general partner,

general partner, and limited partner; Jimmy was general partner. It appears that in

2001, Willie agreed to sell farmland for approximately $3.4 million. In 2004, Willie,

Jimmy, and Patricia established the WBJ Family Trust, in which Willie was the trustor

and Jimmy and Patricia were co-trustees. Willie capitalized ECDIP and the WBJ

Family Trust with funds from the land sale. In 2014, Willie and Patricia became

estranged during a dispute over a driveway easement Willie needed to access her

home after the sale of the farmland. Willie successfully sued Patricia to obtain the

easement over Patricia’s property. Joy deposed that, around this time, Willie lost trust

in Patricia and in Jimmy, because Jimmy supported Patricia in the easement dispute.

As Willie stated in a trust document, Jimmy told her that when she sold the farmland,

she “landlocked” herself; she at least in part blamed Jimmy for this “fraud[.]” Willie

stated in the trust document that because Jimmy is a real estate agent and sold the

property for her, receiving a five percent commission, he had a responsibility to

protect her.

3
Prior to the conclusion of the easement litigation, on May 10, 2016, Willie

established the Willie B. Lusk Johnson Living Trust (the “Living Trust”), in which

she was both the settlor and trustee. That same day, she executed a “Removal of Co-

Trustees and Appointment and Acceptance by Successor Co-Trustees” (the

“Removal Document”), removing Jimmy and Patricia as co-trustees of the WBJ

Family Trust and appointing Joy and Marcia in their stead. The Removal Document,

which was filed in a court of record on May 20, 2016, specifically provides that Willie

had “reasonable cause to remove Jimmy ... because he has acted negligently in

protecting the best interests of the Trustor [Willie] in real estate matters requiring the

Trustor to file legal suit in an attempt to obtain an easement to the Trustor’s

residence[,]” and that Willie had “reasonable cause to remove Patricia ... as the

Trustor and Patricia ... are on opposite sides of a lawsuit[.]”

Willie died in 2020. On April 1, 2021, Jimmy and Patricia filed a complaint for

a declaratory judgment, contending, inter alia, that they had been wrongfully removed

as trustees and seeking a declaration that “they remain [t]rustees of the [t]rust[.]

Marcia and Joy answered and counterclaimed on May 25, 2021, seeking a declaration

that they remained the new co-trustees and raising, inter alia, counterclaims of breach

4
of fiduciary duty, breach of trust, breach of contract, and fraud against their siblings.

Jimmy and Patricia moved for partial summary judgment, arguing that, as a matter of

law, they were improperly removed as co-trustees because they had neither received

60 days’ written notice as required by the terms of the WBJ Family Trust, nor had

they been removed for reasonable cause in contravention of the requirements of the

trust document. The motion also challenged Willie’s conveyance of her ECDIP

interest into the Living Trust, and asserted that Marcia and Joy’s counterclaims were

barred, in part, by statutes of limitation.

The trial court granted partial summary judgment to Jimmy and Patricia,

finding that notice was a condition precedent to the removal of a trustee, and that

Jimmy and Patricia had not been validly removed because they did not receive the

requisite notice. The trial court also determined that Marcia and Joy’s counterclaims

were filed outside the applicable statutes of limitation, partially time-barring some of

their claims, and that Joy held a limited, rather than general, partnership interest in

ECDIP. Marcia and Joy now appeal.

1. Marcia and Joy argue that the trial court erred in finding that the WBJ Family

Trust’s 60-day notice provision was a condition precedent to the valid removal of

5
Jimmy and Patricia as co-trustees. Because the WBJ Family Trust’s terms are not

ambiguous, and clearly indicate that the 60-day notice provision applied to the

removal of trustees only after Willie’s death or incapacity, and not to trustee removals

during Willie’s lifetime, we find that the trial court’s grant of summary judgment on

this issue was in error.

“[T]he cardinal rule in trust law is that the intention of the settlor is to be

followed.” Peterson v. Peterson, 303 Ga. 211, 214 (2) (811 SE2d 309) (2018) (citation

and punctuation omitted). “The construction of a [trust] is a question of law, which

we review de novo.” Buchanan v. Hannon, 366 Ga. App. 769, 771 (883 SE2d 439)

(2023).

Broadly speaking, the terms of a trust are whatever the settlor
intended them to be at the time of the creation of the trust so long as
those terms are permitted by law. As with any contract, we look first to
the language of the trust documents themselves to determine the
settlor’s intent. In construing an express trust, we look first and foremost
to the language therein to effectuate the intent of the settlor, and we turn
to parol evidence only if the trust instrument is ambiguous. The existence
or nonexistence of an ambiguity is a question of law for the court.

6
Ewing v. Scott, 366 Ga. App. 466, 469(1) (883 SE2d 410) (2023) (citations and

punctuation omitted).

When the meaning of the words used in the will [or trust] is so plain and
obvious that it cannot be misunderstood, then the plain and
unambiguous terms must control. If the will [or trust] is ambiguous,
however, the court may apply the rules of construction and consider
parol evidence ... to ascertain the [trustor’s] intent.

Buchanan, 366 Ga. App. at 771 (citations and punctuation omitted);2 see also OCGA

§ 53-12-27 (permitting parol evidence to explain ambiguities). “[T]he entire

document [should] be taken together, and operation should be given to every part of

it.” Buchanan, 366 Ga. App. at 771 (citation and punctuation omitted). With these

standards in mind, we turn to the language of the trust.

Section 9.5 of the WBJ Family Trust, entitled “Removal of Trustee,” provides:

The Trustor shall have the right at any time, and from time to time, to
remove any trustee for reasonable cause and thereafter appoint another.
However, the Trustor cannot under any circumstances designate herself
or any person, firm, or corporation controlled by her to serve as such

2
See generally Mary F. Radford, Georgia Trusts and Trustees § 14:1 (Nov.
2025 update) (noting that an optional provision in the Uniform Trust Code, Art. 1, §
112, provides that the rules of construction applicable to wills should also apply to the
construction of trusts).

7
successor. After the death or permanent mental disability of Trustor, the
adult beneficiaries and the guardian or guardians of the minor
beneficiaries entitled to the income and principal of the trust or trusts
then in existence, may, by a majority vote at any time and from time to
time, remove any trustee for reasonable cause. Such removal shall be
accomplished by a sixty (60) day written notice to the Trustee to be removed,
stating the grounds for removal and the effective date of such removal. In such
an event, the successor Trustee(s) shall be determined in accordance
with Paragraph 9.1 above.

(Emphasis added.) Jimmy and Patricia contend that they did not receive 60 days’

written notice stating the effective date of their removal. Indeed, the Removal

Document appears to provide for their immediate removal, stating that they “are

removed as Co-Trustees of the Trust.”

The issue before us is whether the 60-day written notice provision is required

only prior to removal of trustees by adult beneficiaries or the guardians of minor

beneficiaries “[a]fter the death or permanent mental disability of Trustor,” or

whether it was also required when the trustor — that is, Willie — removed Jimmy and

Patricia as trustees during her lifetime. The trial court found that the “[s]uch

removal” language is ambiguous regarding whether it applies only to the language that

immediately precedes it (the provisions for removing trustees after the trustor’s death

8
or incapacity) or whether it also applies to the language at the beginning of the

paragraph addressing Willie’s ability to remove trustees during her lifetime. We,

however, find no ambiguity because the language of the trust is clear.

We note at the outset that the phrases “[s]uch removal” and “[i]n such an

event” are cast in the singular, as opposed to in the plural, i.e., “removals” or

“events.” This phrasing, and the fact that these words immediately follow the

sentence that begins “[a]fter the death or permanent mental disability of the

Trustor,” indicates that these phrases and their attendant 60-day notice requirement

apply only to a singular type of removal: a removal occurring after the trustor’s death

or incapacity, when beneficiaries or guardians are initiating the removal. It is also

important to recognize that the “[s]uch removal” and “such an event” phrases are

the only phrases in the paragraph that are not repeated related to each status the

trustor occupies when a trustee is removed. By contrast, the language indicating that

removals may take place “at any time, and from time to time” if they are for

“reasonable cause” is repeated for each type of removal, i.e., those accomplished

during the trustor’s life and after her death or incapacity. Because, as noted above, the

singular “removal” and “event” language is not repeated based upon the trustor’s

9
status, the only logical reading of this language is that it means the 60-day notice

provision is required only when trustees are removed after the trustor’s death or

incapacity — the relevant clause most proximate to the “such removal” language.

Paragraph 9.5 also references another part of the trust. Paragraph 9.5’s final

sentence provides, again in the singular and immediately following the clause

addressing removal after the trustor’s death or incapacity, that “[i]n such an event,

the successor Trustee(s) shall be determined in accordance with Paragraph 9.1 above.

Paragraph 9.1, entitled “Appointment of Successor Trustee,” provides:

Upon the death, incapacity or resignation of either of the original Co-
Trustees, then the Trustor shall designate a successor Co-Trustee, which
may be anyone except herself, or any person, firm, or corporation
controlled by her. If the Trustor is unable or unwilling to appoint a
successor Co-Trustee within ninety (90) days, then the remaining Co-
Trustee shall serve as sole Trustee.

(Emphasis added.) Paragraph 9.1 then shifts immediately to a discussion of subtrusts,

providing:

Notwithstanding the foregoing, the following provisions shall apply to
appointment of the Trustee of each subtrust created under Paragraph

10
5.3(B)3 for the primary benefit of a child of Trustor (said child being
hereafter referred to in this Paragraph as the “beneficiary”). After the
death of the Trustor, each beneficiary shall become the sole trustee of
the respective subtrust created for his or her benefit (and/or for his or
her descendants). Should the beneficiary fail to qualify, or qualify but
subsequently cease to serve, then such person(s) or entity as the
beneficiary shall appoint within thirty (30) days of such vacancy shall
serve as successor Trustee. If the beneficiary is unable or unwilling to
appoint a successor trustee within thirty (30) days, then the successor
trustee otherwise appointed under this Paragraph shall serve in this
capacity.

The paragraph then shifts to a general discussion of both the trust itself and the

subtrusts, providing:

All appointments of successor Trustees (including Co-Trustees)
pursuant to this paragraph shall be made by signed instrument, may be
prospective and contingent, and may designate further successors or the
method for determining such successors. ... All such appointments of
successor Trustees made pursuant to this paragraph shall be effective
without the necessity of court approval. Each successor Trustee shall
have the same rights, duties, discretions and powers as are assumed and
conferred in this Trust Agreement upon the originally named Trustee,

3
Paragraph 5.3(B) addresses administration of the trust after the trustor’s
death.

11
unless relinquished as to the successor Trustee under the provisions of
this Agreement.

(Emphasis added.) In brief, the language of Paragraph 9.1 applies if a trustee leaves

because of the trustee’s death or resignation. As a result, Paragraph 9.5’s phrasing

regarding the trustor’s ability, during her lifetime, to remove a trustee only for

reasonable cause is inapplicable. The applicable portion of Paragraph 9.1 as it relates

to Paragraph 9.5, rather, involves only the appointment of a new trustee when

beneficiaries and/or guardians are handling the appointment. If the trustor, during her

lifetime, chooses to remove a trustee pursuant to Paragraph 9.5 and its “reasonable

cause” provision, she is then free to appoint a successor trustee so long as she does

not appoint herself or someone she controls, as provided by Paragraph 9.1. The

remainder of Paragraph 9.1 addresses appointments of trustees to the trust and

subtrusts, and the status of beneficiaries after the trustor’s death. Paragraph 9.1’s

language does nothing to indicate that Paragraph 9.5’s 60-day notice provision applies

to the removal of trustees, by the trustor, during the trustor’s lifetime. See Buchanan,

366 Ga. App. at 771; see generally F & F Copiers v. Kroger Co., 194 Ga. App. 737,

738 (1) (391 SE2d 711) (1990) (recognizing, in the context of a contract, that even if its

12
language is difficult to construe, it is not ambiguous unless, even after an application

of the rules of construction, its meaning remains unclear).4

We note that there is a difference, as the trust language recognizes, between the

appointment of successor trustees and the removal of a trustee who is non-performing

or damaging the trust in some way, and who may need to be removed quickly to

preserve the trust assets. Looking at the “four corners” of the trust, see Buchanan,

366 Ga. App. at 771 (citation and punctuation omitted), Paragraph 1.2, entitled

“Purpose of Trust[,]” clearly states that the trustor’s intent in creating the trust is to

accomplish “management” and “conservation” of the assets during her lifetime. This

dovetails with the language of Paragraph 9.5, indicating that Willie’s intent when the

trust was created, see Ewing, 366 Ga. App. at 469(1), was to give herself the ability to

promptly remove trustees if necessary to protect the trust’s assets. We therefore

reverse the trial court’s determination on this point.

4
We note also that the trial court found a “bona fide dispute of material fact
regarding whether [Willie’s stated rationale for removing Jimmy and Patricia as
trustees] constituted ‘reasonable cause’ within Willie’s intention when she
established the WBJ Family Trust.” That finding has not been appealed so we do not
address it further.

13
2. Marcia and Joy also argue that if this Court finds that the removal provision

was indeed a condition precedent, the trial court erred in failing to find that it had not

been met or waived. Because of our determination in Division 1, we need not address

this enumeration of error.

1. Marcia and Joy argue that the trial court erred in finding that their

counterclaims for breaches of trust, fiduciary duty, and contract, as well as their

counterclaim for fraud, were partially barred by statutes of limitation. They contend

that the trial court should have found these limitation periods had been tolled. We

affirm the trial court’s ruling.

Marcia and Joy’s counterclaims allege that despite repeated requests, Jimmy

and Patricia have, inter alia, failed and affirmatively refused to provide them with

“current records” of trust operations and assets, as well as records of partnership

interests in ECDIP; have affirmatively failed to maintain adequate records and

perform annual trust accountings; and have affirmatively disbursed trust and ECDIP

assets in a manner that is self-dealing and in breach of their fiduciary duties. They also

alleged that Jimmy and Patricia breached the terms of the trust by, among other things,

failing to maintain records and provide accountings, and that Jimmy and Patricia

14
breached their fiduciary duties with the intent to defraud their siblings by suppressing

or omitting material facts they were in good faith bound to disclose, such as by failing

to provide annual accountings and access to trust records, engaging in self-dealing,

and failing to disclose disbursements and compensation related to trust assets and

ECDIP.

The sisters raised these counterclaims on May 25, 2021. The trial court

determined that they were seeking damages dating back to 2003. Based upon the

statutes of limitation it applied, the trial court determined that the limitations on

counterclaims for breaches of trust, contract, and fiduciary duty were six years,

meaning that any causes of action accruing prior to May 25, 2015 were time-barred.5

5
See OCGA § 53-12-307(a) (setting a six-year statute of limitation on claims
resulting when a beneficiary did not receive a report that adequately disclosed the
existence of a claim against the trustee for a breach of trust, and running from the time
the beneficiary “discovered, or reasonably should have discovered, the subject of such
claim”); Godwin v. Mizpah Farms, 330 Ga. App. 31, 38-39 (3)(b) (766 SE2d 497) (2014)
(applying a six-year statute of limitation for breach of simple contracts under OCGA
§ 9-3-24 to breach of fiduciary duty claims related to a partnership agreement); see
Rollins v. LOR, Inc., 345 Ga. App. 832, 841(1) (815 SE2d 169) (2018) (recognizing that
Georgia has “no specific statute of limitation for breach of fiduciary duty claims, and
instead, we examine the injury alleged and the conduct giving rise to the claim to
determine the appropriate statute of limitation”) (citation and punctuation omitted).
Because Marcia and Joy have not argued that the trial court erred in its determination
of the applicable statutes of limitation, “we need not address the propriety of the trial
court’s ruling in this regard.” Id.

15
The trial court further found that the statute of limitation for fraud was four years, and

that the fraud counterclaims were limited to those accruing on or after May 25, 2017.6

In deciding the extent to which these claims were time-barred, the trial court found

that Marcia and Joy had been on notice of problems and red flags as early as the spring

of 2009, when, as they alleged both in their statement of additional disputed material

facts and in their response to their siblings’ motion for summary judgment, that they

requested records and were met with “an emotional outburst from Jimmy Johnson.”

Marcia and Joy do not allege an actual date when they discovered or were put

on notice of the alleged fraud prior to asserting their counterclaims. They argue that,

because of their siblings’ fraud, concealment, and failure or refusal to disclose

information, they received no financial records until after Jimmy and Patricia sued

them in April 2021, meaning they “timely” filed their counterclaims in May 2021.

The trial court, on this point, found without explanation that Marcia and Joy’s

contentions that their siblings engaged in fraudulent concealment by failing to

6
See Coe v. Proskauer Rose, LLP, 314 Ga. 519, 524-25 (2) (878 SE2d 235) (2022)
(recognizing that the statute of limitation for fraud is four years pursuant to OCGA
§ 9-3-31).

16
affirmatively disclose mismanagement and self-dealing was “legally inadequate” to

toll the statute of limitation.

The cornerstone of Marcia and Joy’s argument, as a result, is that a fiduciary’s

silence or failure to disclose fraud can alone toll the statute of limitation. They assert

that they were not required to show that Jimmy and Patricia engaged in an affirmative

act, trick, or artifice that prevented them from discovering the fraud; they also argue,

however, that they have shown actual fraud involving moral turpitude and a trick or

artifice used to deceive.

OCGA § 9-3-96 provides that “[i]f the defendant[s] ... 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.”7 To

toll the statute of limitation under this statute, a plaintiff must show that: “(1) a

defendant committed actual fraud;8 (2) the fraud concealed the cause of action from

7
In this case, as counterclaimants, Marcia and Joy essentially occupy the role
of the plaintiffs to which our statutes and case law on this issue refer, and Jimmy and
Patricia occupy the role of defendants.
8
See Lehman v. Keller, 297 Ga. App. 371, 372-73 (1) (677 SE2d 415) (2009)
(“The tort of fraud has five elements: (1) a false representation or omission of a
material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or
refrain from acting; (4) justifiable reliance; and (5) damages.”) (punctuation omitted).

17
the plaintiff; and (3) the plaintiff exercised reasonable diligence to discover the cause

of action despite her failure to do so within the statute of limitation.” Rollins v. LOR,

345 Ga. App. 832, 842(1) (815 SE2d 169) (2018) (citation and punctuation omitted).

A plaintiff bringing an action for fraud bears “the burden of showing the existence of

facts that would toll the statute of limitation.” Rollins, 345 Ga. App. at 842-43(1)

(citation and punctuation omitted).

In considering which actions toll the running of statutes of limitation, our

Supreme Court has “distinguished between cases where the underlying claim is actual

fraud, and cases where the underlying claim is something other than fraud.” Hunter,

Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 846-47 (1) (507 SE2d 411) (1998). If the

gravamen of the underlying complaint is actual fraud, “the limitation period is tolled

until such fraud is discovered, or could have been discovered by the exercise of

ordinary care and diligence.” Id. at 847 (1) (citation and punctuation omitted). If,

however, the gravamen of the underlying action is not a claim of fraud, the statute of

limitation is tolled only upon a showing of “a separate independent actual fraud

involving moral turpitude which deters a plaintiff from filing suit.” Id. (citation and

punctuation omitted).

18
The Supreme Court’s opinion in Frame directly addresses the issue Marcia and

Joy raise; that is, whether a confidential or fiduciary relationship, standing alone, is

sufficient to toll statutes of limitation. The Supreme Court determined that:

In such cases, before the running of the limitation period will toll, it must
be shown that the defendant concealed information by an intentional
act—something more than a mere failure, with fraudulent intent, to
disclose such conduct, unless there is on the party committing such
wrong a duty to make a disclosure thereof by reason of facts and
circumstances, or the existence between the parties of a confidential[9]
relationship.

Frame, 269 Ga. at 847 (1) (citation and punctuation omitted). The Frame Court found

that the Court of Appeals erred in relying on “this last phrase—‘the existence ... of a

confidential relationship’” to find that a limitation period had tolled. Id. The Supreme

Court went on to explain its reasoning:

Because the existence of a confidential relationship between the parties,
such as existed here, does not affect the existence of fraud—that is, the
intention to conceal or deceive—a confidential relationship cannot, standing
alone, toll the running of the statute. Rather, a confidential relationship

9
See King v. King, 316 Ga. 354, 357 (2) (888 SE2d 166) (2023) (finding that “all
fiduciary relationships are confidential in nature,” although not all confidential
relationships are fiduciary relationships).

19
means only that the plaintiff has cause to rely upon, and place confidence
in, the defendant. Thus, it affects only the extent of (a) the defendant’s
duty to reveal fraud, and (b) the plaintiff’s corresponding obligation to
discover the fraud for herself. Where a confidential relationship exists,
a plaintiff does not have to exercise the degree of care to discover fraud
that would otherwise be required, and a defendant is under a heightened
duty to reveal fraud where it is known to exist. Put another way, a
confidential relationship imposes a greater duty on a defendant to reveal
what should be revealed, and a lessened duty on the part of a plaintiff to
discover what should be discoverable through the exercise of ordinary care. But
the fraud itself—the defendant’s intention to conceal or deceive—still
must be established, as must the deterrence of a plaintiff from bringing
suit.

Frame, 269 Ga. at 847-48 (1) (emphasis added).

Pertinent to the instant appeal, the counterclaimants still have a “duty to

exercise ordinary care and diligence to discover the fraud, even though a confidential

relationship exists.” Id. at 848 (1). The Court went on to say that, “[i]t follows that the

existence between the parties of a confidential relationship is not a separate and

independent basis for tolling, but rather it is an important factor affecting the duty to

disclose and the duty of ordinary diligence, to be considered in the fraud analysis

itself.” Id. Thus, even in the context of the fiduciary relationship, Marcia and Joy still

20
must show their siblings’ intent to conceal or deceive and must establish that they

were deterred from bringing suit by something other than simple reliance on the

fiduciary relationship. Id. at 849 (1); Rollins, 345 Ga. App. at 844(1).

Marcia and Joy do allege actual fraud in their counterclaims. They also argue

that their siblings intentionally withheld, concealed, suppressed, or affirmatively

denied them access to crucial trust and ECDIP reports, accountings, and assets.

Further, they allege self-dealing, that their siblings failed to maintain trust and ECDIP

assets in good and marketable condition, and that they were damaged by all of these

actions or inactions. See Rollins, 345 Ga. App. at 846(1)(a) (even where there is a

fiduciary relationship, “silence when one should speak, or failure to disclose what

ought to be disclosed, is as much a fraud in law as is an actual false representation”)

(citation and punctuation omitted); accord Hendry v. Wells, 286 Ga. App. 774, 779 (1)

(650 SE2d 338) (2007) (finding that the statute of limitation for breach of fiduciary

duty is triggered by a wrongful act accompanied by appreciable damage); OCGA § 23-

2-53.

What Marcia and Joy fail to do, however, is make any showing or argument, or

cite to any part of the record, to demonstrate that they satisfied their “duty to exercise

21
ordinary care and diligence to discover the fraud[.]” Frame, 269 Ga. at 848 (1). “Fraud

will toll the limitation period only until the fraud is discovered or by reasonable diligence

should have been discovered.” Doe v. St. Joseph’s Catholic Church, 313 Ga. 558, 568 (2)(c)

(870 SE2d 365) (2022) (citation and punctuation omitted; emphasis added). Marcia

and Joy simply contend that “the due diligence and its reasonableness is always for

a jury to determine.” It is true that “questions of reasonable diligence must often be

resolved by the trier of fact.” Scully v. First Magnolia Homes, 279 Ga. 336, 339 (2) n. 11

(614 SE2d 43) (2005). It is also true, however, that “[a] party may fail to exercise due

diligence as a matter of law.” Mayfield v. Heiman, 317 Ga. App. 322, 326 (2) (730 SE2d

685) (2012) (citation and punctuation omitted).

Here, even though under our standard of review we consider the evidence and

inferences in the light most favorable to Marcia and Joy, the sisters have failed to point

us to any evidence or inference of diligence prior to 2009.10 This is the year the trial

10
We note that, in their counterclaims, Marcia and Joy allege that, “[s]ince the
date of the formation of the Trust [in 2004, they] have never received a report or
accounting of income and principal of the Trust from [Jimmy and Patricia] as required
under Section 8.2 of the Trust Document.” (Emphasis added.) See generally Antley
v. Small, 360 Ga. App. 617, 626(8) (859 SE2d 881) (2021) (“Mere ignorance of facts
constituting a cause of action does not prevent the running of a statute of limitations.
We have held that knowledge of a ‘potential problem,’ that ‘something was amiss’
and facts which ‘should have raised a red flag’ are sufficient to begin the running of

22
court found that tolling ceased because the sisters were put on notice that something

was amiss. Specifically, the trial court recognized in its order that the sisters’

Statement of Additional Material facts asserted that their requests for records were

met by Jimmy’s “‘emotional outburst[s]’ ... ‘[a]s early as Spring, 2009.’” Because

Marcia and Joy have provided no evidence or inference of diligence they exercised in

response to this resistance from Jimmy that could have served to further toll the

limitations period, we must affirm the trial court’s grant of partial summary judgment

to Jimmy and Patricia on this issue, albeit under a different rationale than that

employed by the trial court. See City of Gainesville v. Dodd, 275 Ga. 834, 835 (573

SE2d 369) (2002) (recognizing the appellate courts may apply the right for any reason

rule when reviewing grants of summary judgment).

1. Finally, the trial court’s order referenced a pending probate court case,

stating that if the probate court determined that Joy could inherit under the Living

Trust, her interest in it would be that of a limited partner. On appeal, Marcia and Joy

the statute of limitation as it put a claimant on notice of his cause of action.”)
(citations and punctuation omitted).

23
contend that this was error. They argue that under the terms of the ECDIP and the

Living Trust, Joy should inherit a general partnership interest.11

It is unclear from the parties’ citations to the record exactly what issues are

presently under consideration by the probate court. In any event, prior to a decision

by the probate court regarding Joy’s inheritance, if any, a determination of Joy’s

purported interest in the ECDIP is not just premature — it could possibly encroach

upon matters under consideration by the probate court.12 As a result, we vacate the

trial court’s order to the extent that it pre-determines Joy’s interest in ECDIP.

Judgment affirmed in part, reversed in part, and vacated in part, and case

remanded. Pipkin, J., concurs; and McFadden, P.J., concurs as to Divisions 1, 2, and 4

and dissents as to Division 3.

11
Jimmy and Patricia’s appellees’ brief notes that “this issue appears to have
become somewhat confused.” Indeed, Jimmy and Patricia’s motion for partial
summary judgment does not even raise the issue of whether Joy’s interest in the
ECDIP is that of a general or limited partner. Rather, the motion sought a declaratory
judgment stating that any purported transfer by Willie of her interest in ECDIP to Joy
via the Living Trust was void for lack of unanimous written consent of all the general
partners. See generally Berlin v. City of Atlanta, 368 Ga. App. 335, 338-39(1) (890
SE2d 68) (2023) (discussing permissible and impermissible sua sponte trial court
actions on summary judgment).
12
See OCGA § 15-9-30(a) (outlining probate courts’ exclusive jurisdiction over
certain subject matters).

24
In the Court of Appeals of Georgia

A25A1810. JOHNSON et al. v. JOHNSON et al.

MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

I respectfully dissent to Division 3. I concur in the remainder of the opinion.

I agree with the majority’s restatement, in Division 3, of the applicable law

regarding tolling of statutes of limitation, fraud debarring and deterring the bringing

of an action, fiduciary duties, and reasonable diligence. I also agree that appellants’

contention that “due diligence and its reasonableness is always for a jury to

determine” is flat wrong. And I agree that the issue comes down to whether appellants

have made a showing sufficient to authorize a jury to conclude that appellants

“satisfied their ‘duty to exercise ordinary care and diligence to discover the fraud[.]’”
And I agree that the record before us on that point is thin. Nevertheless I would

hold that there is enough evidence before us to preclude summary judgment — at least

for now. That evidence boils down to a single interrogatory response, to which the

appellants’ brief directs us:

[R]epeated requests were made over the years by Defendants [appellants
Marcia Johnson and Joy Johnson] and by Mrs. W.B. Johnson [Willie B.
Lusk Johnson]. Defendants repeatedly asked Jimmy [Johnson] for
records and told Jimmy that Mother [Willie B. Lusk Johnson] and
Defendants had a right to know what was going on with the business and
we want to see the records. Defendants do not recall the date of each
such discussion. However, these conversations started as far back as
Spring, 2002, at Marcia’s house in Dalton, and Jimmy told her the Trust
was not a Trust but was a contract between Jimmy and Mother, and said
it was “none of their damn business.” As early as Spring, 2009,
Defendants each had verbal discussions with Jimmy Johnson at their
Mother’s property concerning the family business: the Partnership, the
Trust, and Jimmy and Patricia’s treatment of Mother concerning the
driveway and her rights and needs for personal income, including a
request to see the records, and Mother wants to see the bank records and
has a right to see them. Each discussion resulted in Jimmy engaging in a
tirade of hostile and vulgar obscenities, he said the Partnership was
“nobody’s damn business, except his and Mother’s!”, he engaged in
hostile actions, such as pulling up to the garden in his truck, and just

2
staring at Joy working in the garden, saying nothing, but staring for
periods of 15 minutes or more. This was a form of intimidation.

Defendants also heard Mrs. W.B. Johnson specifically ask for bank
statements, asking for cancelled checks so she could see what the money
was being spent on, including on occasions when he was asking her to
sign stacks of blank checks.

Jimmy Johnson never had a civil conversation with either Marcia
nor Joy or even his own mother regarding requests for books and
records; because of Jimmy’s aggressive behavior and actions, no records
were ever provided to Defendants as requested.

A jury might conclude that Jimmy Johnson’s emotional responses and

intimidating behavior”defeated [the appellants’] efforts to exercise due diligence

under the circumstances of this case.” Cistola v. Daniel, 266 Ga. App. 891, 896 (598

SE2d 535) (2004) (citation and punctuation omitted). See Brookshire v. Digby, 224 Ga.

App. 512, 517 (481 SE2d 250) (1997) (questions about defects were met with false,

deceptive, or reckless answers, which defeated efforts to exercise diligence).

“A jury might also conclude that [Jimmy Johnson] was actively attempting to

conceal [his and Patricia Johnson’s alleged self-dealing and breaches of their fiduciary

duties] and that further inquiry by [the appellants] would not have provided

3
information about those [actions].” Nebo Ventures v. NovaPro Risk Solutions, 324 Ga.

App. 836, 842 (1) (d) (752 SE2d 18) (2013). So, it was for the jury to say whether

Jimmy Johnson and Patricia Johnson were attempting to conceal material information

and whether further inquiry would have revealed the information. See Northwest Plaza

v. Northeast Enterprises, 305 Ga. App. 182, 190-191 (3) (a) (699 SE2d 410) (2010).

In Rollins v. LOR, Inc., 345 Ga. App. 832 (815 SE2d 169) (2018), we rejected a

tolling argument brought by parties who were asserting a claim similar to the one

before us today. There, it was key to our analysis that those parties were trustees; they

had been given a copy of the original trust documents and had a legal right to obtain

additional materials. Id. at 846–47 (1)(a). Not so here. These appellants had no such

powers.

I would hold that the record before us does not authorize us to determine as a

matter of law whether or when appellants exercised the requisite ordinary care and

diligence.

4