author: Phipps, Chief Judge.

text:
    A13A0445.
    KUEHN v. KEY.
    (754 SE2d 103)
   Phipps, Chief Judge.

In this appeal, we review a child custody ruling and an award of attorney fees. For reasons explained below, we affirm the judgment as it pertains to the child custody ruling, vacate the award of attorney fees, and remand the case for proceedings not inconsistent with this opinion.

When Carrie (Key) Kuehn (the mother) and Michael Key (the father) divorced in October 2007, the mother was awarded primary physical custody of their two young sons; the father was awarded visitation and ordered to pay child support. In November 2011, the father filed a “Petition for Modification”; the boys were then eight and nine years old. The father alleged in the petition that the mother’s new husband (the stepfather) had repeatedly inflicted unnecessary and unreasonable physical and mental punishment upon the boys and that the mother had refused to intervene or to stop the stepfather’s actions, which had seriously injured the children. The father requested that he he awarded primary physical custody, that the mother be granted visitation, and that she pay child support; the father also requested in his petition an award of attorney fees. After a hearing thereon, the trial court granted these requests.

1. The mother contends that the change in custody was not authorized, asserting that there was no evidence of a material change of condition affecting the welfare of the children.

“A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.” “Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case.” “In determining whether or not a material change in circumstances substantially affecting the welfare of a child or children has taken place, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused.” Accordingly, “[t]his court will not interfere with the trial judge’s finding when there is any evidence to support it.”

At the hearing, the father adduced evidence that on November 22, 2011, when the boys’ paternal grandmother picked them up from school, they immediately told her that the older boy, then nine years old, had received a “terrible” whipping from their stepfather several days earlier. The older boy told his grandmother that the stepfather had hit him “so loud” that “it sounded like it hit a table”; the younger boy added, “yes, a metal table.” The grandmother testified that the boys were frightened and complained that their stepfather had been mean to them and that their mother had backed up their stepfather. The grandmother noticed that the older boy appeared to be in pain and was having trouble sitting down. She recounted that she thus checked her grandson’s buttocks, discovering a bruise that “was huge. It almost covered his whole hip. Plus, below the hip, it was swollen. His hip was swollen down to part of his leg, and it was blue, purple, red, had streaks in it.”

The grandmother testified that the stepfather had been in the boys’ lives for approximately five years and that his harsh treatment of the boys had been ongoing. For example, when the older boy had been in the first grade for about two weeks, he forgot and left his notebook at school. The grandmother testified about what she saw happen next: “[The stepfather] got in his face and started screaming at him, What do you mean, forgetting that. You know how important that is. Just yelling at him. [The first grader] just froze.” On another day, at soccer practice, when the older boy’s attention drifted from the sporting activity to his younger brother, who was playing with another little boy, “[the stepfather] kicked the soccer ball as hard as he could — and I saw it — in his stomach. [The older boy] went to the ground in a fetal position. It knocked his breath out. And he couldn’t move, and [the stepfather] said, ‘That’s what happens when you don’t pay attention.’ ” And on another occasion, when the stepfather was paddling the younger boy with a plastic cutting board, the board had broken. The grandmother testified that she had talked to the mother and stepfather about their discipline, but to no avail. As the grandmother saw it: “[The mother] stands with [the stepfather]. It doesn’t matter how the children are treated. She does not standup for the children.”

The grandmother reported to the boys’ father that the older boy had been whipped to the point of bruising. The father testified that the older boy told him that the stepfather had used a wooden paddle made out of a “one-by-four” that was approximately sixteen inches long. His stepfather had given him one lick, then his mother had given him two licks. The father took a photograph of the boy’s buttocks, which photograph was admitted in evidence after the father authenticated it as accurately reflecting the boy’s bruise.

The boys’ father testified that he was concerned about the developing “pattern” of abuse toward his children, referring to the following. Since coming into his boys’ lives shortly after the divorce, the stepfather had once made the younger boy hold a bar of soap in his mouth for about thirty minutes. Also, the stepfather had been paddling the boys with a plastic cutting board, until that paddle broke; after that, the stepfather had made the wooden paddle. The father described another occasion that had been reported to him — the stepfather had once refused to allow the older boy to come into the house. After playing outside, the boy wanted to come back inside; the stepfather admonished him that he had wanted to play outside, so “play outside.” According to the father, the stepfather’s conduct toward his boys had made them fearful of him; the boys were “in great depression and oppression from the abuse that was taking place in [their] house and had lost a considerable amount of weight.” The father testified that he had never paddled either of his boys, that he believed that paddling children was inappropriate, and that he had tried repeatedly to talk to the boys’ mother and stepfather about the stepfather’s physical disciplining tactics, but to no avail.

At the time of the hearing, the father was living at his parents’ residence. He testified that his boys were happy when with him. He testified that he had the means to provide for their support and maintenance. The grandmother testified about her participation in the care of the boys and said that “we all work together.”

The mother testified about the paddling incident in question. She recalled that the older boy had entered a neighbor’s house when no one was home, took candy from the house, then lied to her when she questioned him about it. The mother testified that the stepfather used a paddle to give the boy one lick, then she struck her child two times with the paddle. She had not thought at the time that the three strikes they administered were excessive, nor had she thought so when she saw that bruising had appeared. Furthermore, she testified, the photograph of the boy’s buttocks had “more color in it, more redness” than what she had seen on the boy after the punishment was administered. She added that the father, who was a photographer, often enhanced photographs. Regarding the stepfather’s putting soap in the younger boy’s mouth, the mother recalled that the boy was being punished for using profanity. The mother testified that she had known about the cutting board breaking on her older son, recalling that it had broken when the stepfather was administering “a lick or two” to that child.

The mother acknowledged that the father had expressed to her his disagreement with corporal punishment. But she continued to believe, as of the hearing, that striking her children with a paddle was a permissible form of discipline. And at any rate, neither she nor the stepfather had intended for the paddling in question to result in any bruising.

The boys’ stepfather also testified. He acknowledged that the boys’ father had told him and the mother that he did not want the boys disciplined by corporal punishment; the stepfather recounted that he had responded to the father that, at their own residence, he and his wife would administer whatever discipline they felt was appropriate. The stepfather was a school principal and had administered corporal punishment to middle school students by striking them one or two times with a wooden paddle. He had been reared in a culture of corporal punishment, had thereafter used it to discipline his own children, and had once left a bruise on one of them. The stepfather admitted that he had “paddled or spanked” his older stepson four or five times, and the younger one maybe twice. He admitting breaking the cutting board on one of the boys, but testified that the board was plastic and purchased at “the Dollar Store,” and that the boys immediately laughed about the board breaking. Regarding the “whipping” in question, he admitted striking the older boy “firmly,” but was surprised that the single lick had caused a bruise. Further, he claimed that the bruise he had seen on the boy’s buttocks was not of the same shape, color, or severity as that depicted by the photograph. The stepfather also admitted putting a bar of soap in the younger boy’s mouth.

Nonetheless, the stepfather testified that corporal punishment would no longer be part of any discipline plan at their residence. He testified, “I love the boys. I try to show that with time spent and teaching them things and participating with them in things and hoping to raise them to be fine young men when they grow up.” To that end, he had taught them, for example, how to respect their mother, how to ride a bike, how to play soccer, how to fish, how to camp, and how to study.

In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.

“In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to: [those enumerated in OCGA § 19-9-3 (a) (3), (a) (4)].” Here, the trial court granted the custody change, citing OCGA § 19-9-3 (a) (3) (F), (O), (P) and OCGA § 19-9-3 (a) (4) (A), (B). These Code provisions concern “[t]he home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors,” “[a]ny recommendation by a court appointed custody evaluator or guardian ad litem,” “[a]ny evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent,” “the safety and well-being of the child,” and “the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person.”

On appeal, the mother maintains that the change in custody was not warranted, asserting that the corporal punishment involved merely isolated incidents of short term discomfort that were neither excessive nor unduly severe. She maintains that the photograph of the boy’s bruised buttocks had been color-enhanced and that there was no evidence of an intent to harm either child. Further, she points to the stepfather’s testimony that corporal punishment would no longer be imposed upon the boys.

“In ruling upon [the father’s] petition, however, the trial judge was not limited to evidence that [the mother] believes supported [her] claims.” Rather, the trial judge sat as the finder of fact, and the determination of whether a change in physical custody was warranted involved resolving evidentiary conflicts and issues of witness credibility. The trial judge was not required to believe the testimony given by the mother and the stepfather, nor to reject the evidence adduced by the father. And as the mother concedes in her appellate brief, the guardian ad litem recommended that the father be awarded primary physical custody of the boys. Because the trial court’s change-of-custody ruling is supported under the “any evidence” standard, this court is without authority to overturn it as an abuse of discretion; that portion of the judgment is affirmed.

2. The mother contests the award of attorney fees, pointing out that the trial court included in its order neither a statutory basis for the award nor any findings of fact on that issue. Regarding attorney fees, the order pertinently provided “that the [mother] shall pay $4,000.00 of [the father’s] attorney fees.”

The record before us indicates two plausible statutory bases for the attorney fee award. Our Supreme Court in Viskup v. Viskup held:

When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

OCGA §§ 19-9-3 and 19-6-15, each of which authorizes an award of attorney fees, were at issue in this case. In the “Petition for Modification,” the father alleged that he was entitled to a change in custody, which the trial court granted under OCGA § 19-9-3. That Code section provides that “in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees____” And OCGA § 19-6-15 authorizes a trial court to grant an attorney fee award “[i]n proceedings for the modification of a child support award pursuant to the provisions of this Code section.” In the “Petition for Modification,” the father sought also a modification of “child support in an amount commensurate with the guidelines established by OCGA § 19-6-15.” The trial court modified child support, with a citation to OCGA § 19-6-15.

Although the father has argued that the attorney fee award was authorized under OCGA § 19-9-3, he makes no attempt to demonstrate that OCGA § 19-6-15 (k) (5) was inapplicable. And unlike in Viskup, nothing in the record “eliminate[s] OCGA § 19-6-15 (k) (5) as [a] basis of the award.” Therefore, we vacate that portion of the judgment awarding the father attorney fees and remand the case to the trial court for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

3. Finally, the mother states in a footnote within the “Statement of the Facts and the Case” section of her brief: “It is [the mother’s] position that the [trial court’s judge] should have recused [him]self from this case since [the paternal grandfather] was an employee in that court.” But this statement is unaccompanied by any legal argument, any citation of authority, and any assertion that the mother sought from the trial court any ruling concerning recusal. Thus, the mother’s “position” is unavailing.

Decided January 13, 2014

Horton, Ballard & Pemerton, William H. Horton, for appellant.

Robert L. Stultz, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Ellington, P. J., and Branch, J., concur.

        Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012).

        Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003) (citation omitted).

        Horn v. Shepherd, 292 Ga. 14, 18 (5) (732 SE2d 427) (2012) (citation omitted).

       Id. (citation and punctuation omitted).

       OCGA § 19-9-3 (a) (1).

       OCGA § 19-9-3 (a) (3), (a) (4).

       OCGA § 19-9-3 (a) (3) (F).

       OCGA § 19-9-3 (a) (3) (O).

       OCGA § 19-9-3 (a) (3) (P).

       OCGA § 19-9-3 (a) (4) (A).

       OCGA § 19-9-3 (a) (4) (B).

        Lurry v. McCants, 302 Ga. App. 184, 186 (1) (690 SE2d 496) (2010).

       See generally Smith v. Smith, 281 Ga. 380, 382 (1) (637 SE2d 662) (2006) (explaining that in a bench trial, “the trial court act[s] as finder of fact as well as determiner of the law, and [is] free to ascertain for itself the credibility of the witnesses”).

       See Scott, supra; Smith, supra.

       See Haskell v. Haskell, 286 Ga. 112 (1) (686 SE2d 102) (2009) (“It is the duty of the trial judge to resolve the conflicts in the evidence.”) (citation and punctuation omitted).

       See Flowers v. Robinson, 157 Ga. App. 471, 473 (2) (278 SE2d 38) (1981) (determining that, in post-divorce child custody proceeding, trial court did not abuse its discretion in granting change of custody from mother to father in light of evidence that the child’s new stepfather frequently hit child, that he “spanked” her with both his belt and a flyswatter on occasion, leaving black and blue marks on her body, that she was in fear of him, and that on occasions when she was with her father or her paternal grandparents she resisted being returned to her mother’s home).

        Horn, supra; Flowers, supra.

       Supra.

       Id. at 106 (3) (citations omitted).

       OCGA § 19-9-3 (g) (emphasis supplied).

       OCGA § 19-6-15 (k) (5).

        Viskup, supra at 106 (3) (eliminating OCGA § 19-6-15 (k) (5) as the basis of the award, noting the language employed in the trial court’s order).

       See generally Viskup, supra; Lurry, supra at 190 (2) (b).

       See Chapman v. State, 290 Ga. 631, 633 (2) (724 SE2d 391) (2012) (noting that “claims not pursued by specific legal argument are deemed to have been abandoned”); Felix v. State, 271 Ga. 534, 539, n. 6 (523 SE2d 1) (1999) (explaining that unsupported assertions are deemed abandoned and that “an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors”); Leone v. Green Tree Servicing, 311 Ga. App. 702, 705 (5) (716 SE2d 720) (2011) (declining to consider claims of error “predicated on legal arguments that were not presented to the trial court”). See also Wilcher v. Way Acceptance Co., 305 Ga. App. 868, 871 (5) (700 SE2d 876) (2010) (holding that where party failed to raise recusal issue in the trial court, the issue was not properly before appellate court); Langton v. Dept. of Corrections, 220 Ga. App. 445, 447 (3) (469 SE2d 509) (1996) (concluding that party’s claim of judicial bias was not properly before appellate court, where party failed to raise the issue of judicial bias in the trial court or request recusal); Court of Appeals Rule 25.


source: Caselaw Access Project

license: Public Domain

text:
    A13A1793.
    KIMBROUGH v. THE STATE.
    (754 SE2d 109)
   Phipps, Chief Judge.

Cedric Kimbrough appeals the denial of his motion to “vacate/ correct void sentence.” For reasons set forth below, we vacate the denial of the motion and remand the case for dismissal of Kimbrough’s motion.

After a jury trial held in April 1993, Kimbrough was convicted in Fulton County Superior Court upon charges that: (i) on December 12, 1992, he sold cocaine; and (ii) on December 17, 1992, he was in possession of cocaine with the intent to distribute. On April 28,1993, in connection with those charges, the court imposed upon Kimbrough recidivist punishment of two concurrent terms of life imprisonment. On Kimbrough’s direct appeal, this court determined, inter alia, that the evidence was sufficient to uphold the drug convictions, reciting:

The evidence showed appellant sold crack cocaine to an undercover agent after an informant took the agent to appellant’s house. Search by warrant revealed 12 rocks of crack cocaine in appellant’s bedroom and a 41-gram cocaine “cookie” (69 percent pure cocaine) in the attic.

In 2011, Kimbrough filed a motion in the sentencing court, seeking relief from the life sentences as void. Kimbrough claimed that the court had impermissibly enhanced punishment for the two drug offenses.

“[A] sentence is void if the court imposes punishment that the law does not allow.” In December 1992, when Kimbrough committed the drug offenses in violation of subsection (b) of former OCGA § 16-13-30 (which gave rise to the life sentences at issue), subsection (d) of that Code section provided, “Upon conviction of a second or subsequent offense [in violation of subsection (b)] he shall be imprisoned for life.”

The record of the prosecution against Kimbrough for the December 1992 drug offenses reveals that the state filed notice of its intent to introduce two specified prior convictions in aggravation of punishment. Across the face of the notice was conspicuously handwritten: “Please note that Def has prior conviction for poss. w/intent VGCSA — requiring a mandatory life sentence if he is convicted.” Thus, upon the jury’s return of the guilty verdicts, the state introduced in evidence at the sentencing hearing certified copies of the two specified prior convictions: (i) a 1991 conviction for drug possession with intent to distribute, for which Kimbrough had received a (probated) five-year sentence; and (ii) a 1992 conviction for robbery and possession of a firearm during the commission of that felony, for which Kimbrough had received a (probated) five-year sentence. The prosecutor argued that, given the 1991 drug conviction, “[a conviction upon a drug charge then at issue] would be his second possession with intent conviction and that therefore he should be sentenced to life.”

Kimbrough took the stand at the sentencing hearing and denied the 1992 convictions. But on cross-examination, the prosecutor adduced the following:

Q: . . . [D]o you have a possession with intent conviction?
A: Yes.
Q: From 1991 when you received five years probation?
A: Right.

The prosecutor thereafter argued to the court that “because [Kimbrough] has previously been convicted of possession with intent,. . . there should be a mandatory life sentence, and that is even if the court doesn’t take into account the armed robbery conviction.” The court agreed, expressly citing OCGA § 16-13-30 (d).

In denying Kimbrough’s 2011 motion to “vacate/correct void sentence,” the trial court expressly relied on the former version of OCGA § 16-13-30, noted the 1991 drug conviction, and found that Kimbrough had been properly sentenced in 1993 as a recidivist. In this appeal, Kimbrough maintains that he is entitled to relief from his life sentences as void, attacking the denial of his motion on three grounds.

1. Kimbrough contends that the trial court erred by refusing to declare his life sentences void, maintaining that the recidivist punishment was not supported by a requisite predicate drug conviction. This contention is unavailing for the following reason.

In its recent decision of von Thomas v. State, the Supreme Court of Georgia reiterated:

When a sentencing court has imposed a sentence of imprisonment, its jurisdiction to later modify or vacate that sentence is limited. The sentencing court generally has jurisdiction to modify or vacate such a sentence only for one year following the imposition of the sentence. [] But a sentencing court has jurisdiction to vacate a void sentence at any time.

In this case, Kimbrough filed a motion to vacate his life sentences nearly two decades after they were imposed. Given that time frame, as explained by von Thomas, “[t]he sentencing court . . . had jurisdiction of [Kimbrough’s] motion only to the extent that [he] presented a cognizable claim that [a life] sentence was void.” We conclude that Kimbrough’s motion did not.

In his motion, Kimbrough conceded that former OCGA § 16-13-30 (d) mandated a life sentence upon a second conviction for violating subsection (b), but asserted that his 1991 drug conviction did not constitute a requisite former conviction for a violation of subsection (b). Thereby challenging only the existence or validity of the factual or adjudicative predicate for the 1993 recidivist life sentences, Kimbrough’s motion presented no claim that a sentence was void as constituting “punishment that the law does not allow.” As explained in von Thomas,

Whether a sentence amounts to “punishment that the law does not allow” depends not upon the existence or validity of the factual or adjudicative predicates for the sentence, but whether the sentence imposed is one that legally follows from a finding of such factual or adjudicative predicates.

“Both [the Supreme Court of Georgia and this court] have held that a defendant can waive a claim that the State failed to prove the existence of a prior conviction by admissible evidence.” And as reasoned by von Thomas, “[b]ecause such claim[ ] can be waived, [it] necessarily do[es] not amount to [a] claim [ ] that the sentence imposed was void, inasmuch as a sentence which is not allowed by law is void, and its illegality may not be waived.”

Because Kimbrough’s motion presented no cognizable claim that a sentence was void, the trial court should have dismissed the motion for lack of jurisdiction. In accordance with von Thomas, we must “vacate the decision of the sentencing court and . . . remand to the sentencing court for dismissal of the motion.”

2. Kimbrough’s remaining two attacks are also unavailing.

Decided January 14, 2014.

Cedric Kimbrough, pro se.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

(a) Kimbrough complains that the trial court disposed of his motion to vacate without first conducting a hearing. Kimbrough has failed to cite any authority that he was entitled to a hearing, and we find none.

(b) Kimbrough claims that the record fails to prove that he was on notice that the state would seek recidivist sentencing during the 1993 prosecution. Kimbrough did not claim lack of notice prior to this appeal; and even if he had raised it in his motion to “vacate/correct void sentence,” such a claim was not cognizable as asserting that either life sentence was void.

Judgment vacated and case remanded with direction.

Ellington, P. J., and Branch, J., concur.

        Kimbrough v. State, 215 Ga. App. 303 (450 SE2d 457) (1994).

       Id. at 306 (6).

       Id. at 303.

        von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013) (citations and punctuation omitted).

       See Yates v. State, 263 Ga. App. 29, 30 (2) (587 SE2d 180) (2003) (“Where a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law.”).

       (Providing, in pertinent part, that “it is unlawful for any person to... sell or possess with intent to distribute any controlled substance.”). See Ga. L. 1980, p. 432, § 1.

       See Ga. L. 1980, p. 432, § 1.

       Supra.

       OCGA § 17-10-1 (f).

        von Thomas, supra at 571 (2) (citation and punctuation omitted; emphasis in original).

       Supra.

       Id. at 569 (emphasis supplied).

       See generally Ward v. State, 299 Ga. App. 63, 64 (682 SE2d 128) (2009) (“[I]n determining whether a purported motion to correct or vacate a void sentence is in fact such a motion, we look to the substance of the motion rather than its nomenclature”) (citation, punctuation and footnote omitted).

        von Thomas, supra at 571 (2) (citation omitted).

       Id. at 571-572 (2).

       Id. at 572 (2) (citing such cases).

       Id. at 573 (2) (citations, punctuation and emphasis omitted).

       See id. at 569, 575 (3).

       Id. (explaining that where the appellant failed to present to the sentencing court any claim cognizable as one asserting that the sentence was void, the appellate court should vacate the sentencing court’s denial of the motion and remand the case to the sentencing court for dismissal of the motion for lack of jurisdiction; further cautioning Court of Appeals from reaching merits of claim not cognizable as one asserting that the sentence is void).

       See Division 1, supra; see also Kimbrough, supra (setting forth contentions made by Kimbrough on direct appeal).

       See von Thomas, supra at 572-573 (2) (determining that “a defendant can waive a claim that the State did not give proper notice of prior convictions used in aggravation of sentence,” and that, because such a claim can be waived, it necessarily does not amount to a claim that the sentence was thus void); Ward, supra at 64-65 (“[F]ailure to adhere to [notice] procedures, while subject to timely appellate review as to whether sentence was lawfully imposed, does not render sentences imposed without such procedures ‘void’ so as to secure direct appellate review subsequent to the first appeal.”) (citation, punctuation, footnote and emphasis omitted).


author: Boggs, Judge.

text:
    A13A1667.
    ZACHERY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    (754 SE2d 132)
   Boggs, Judge.

Willie Zachery, Jr., appeals from a writ of possession granted to the Federal National Mortgage Association (“Fannie Mae”) and contends in related enumerations of error that the writ is a nullity because a deceased person was identified as a defendant. We disagree and affirm.

The record shows that following a foreclosure of the property at issue, Fannie Mae filed a dispossessory action against Cassie Mae Zachery as well as “all others.” Willie Zachery, the son of Cassie May Zachery, filed a pro se answer in which he asserted that he moved into the property following his mother’s death and before the foreclosure. Zachery was subsequently notified of a trial date, and the trial court issued a writ of possession following the trial. Zachery appealed, and an amended notice of appeal filed by counsel states: “No transcript to be attached.”

Decided January 15, 2014.

Grady A. Roberts III, for appellant.

Aldridge Connors, Susan A. Thomas, Allison S. Giardina, for appellee.

1. In Robinson v. Ga. Housing & Finance Auth., 244 Ga. App. 653 (536 SE2d 548) (2000), we held that a trial court did not lack jurisdiction over a dispossessory action filed against “William Robinson or persons in possession” even though Robinson was deceased. Id. at 653 (2). We reasoned that “OCGA § 9-11-10 permits the use of any name in the caption where a party’s name is not known. This would include ‘persons in possession.’ ” Id. As in Robinson, if Zachery had “desired to have [his mother]’s name removed, [he] could have made a motion to remove [her] as a party in accordance with OCGA § 9-11-21.” Id. at 653-654 (2). The dispossessory action at issue here was filed against “all others” in addition to a deceased party. We therefore find no merit in Zachery’s contention that the trial court’s grant of a writ of possession was void on this ground.

2. To the extent Zachery asserts the trial court erred by ruling on motions to compel the payment of rent following the filing of his notice of appeal, we cannot consider such an assertion as the record before us does not include the trial court’s order or a notice of appeal from any such order. See Owens v. Green Tree Servicing, 300 Ga. App. 22, 24-25 (2) (684 SE2d 99) (2009) (order granting motion to compel rent issued after notice of appeal from grant of writ of possession directly appealable).

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.


author: Miller, Judge.

text:
    A13A1852.
    A13A1853.
    PORCHE v. NORIEGA et al. PORCHE v. NORIEGA.
    (754 SE2d 112)
   Miller, Judge.

In these consolidated cases, Robert Porche, the tax commissioner for the City of Woodstock (the “City”), appeals from the superior court’s order denying the City’s petitions for ad valorem tax lien foreclosure of adjoining townhomes owned by Juan Pablo Noriega, Emilio Rafael Noriega and Ana Lilian Noriega. Porche contends that the superior court erred in holding that (1) the petitions were not in compliance with OCGA § 48-4-78, and (2) the City’s nuisance ordinance is unenforceable under OCGA § 41-2-9. Discerning no error, we affirm.

When, as here, a question of law is at issue we owe no deference to the superior court’s ruling and apply a de novo standard of review. See Artson, LLC v. Hudson, 322 Ga. App. 859 (747 SE2d 68) (2013).

The record shows that Ana Noriega is the owner of a townhome located at 137 Woodberry Court in Woodstock, Georgia — Lot 17 Woodberry Field Subdivision. Juan and Emilio Noriega own a town-home located at 139 Woodberry Court — Lot 18 Woodberry Field Subdivision. In June 2010, the City filed a municipal court nuisance complaint seeking abatement of a cross-tie retaining wall spanning the back of five lots (Lots 17-21) in the Woodberry Field Subdivision, including the Noriegas’ townhomes.

Following a hearing in August 2010, the municipal court entered an order finding that the retaining wall was a nuisance and should be abated by the owners of the five lots. The municipal court ordered the abatement of the nuisance according to the following time constraints: submission of a plan for remediation to the City for approval within 30 days; commencement of construction pursuant to the remediation plan within 30 days of the City’s approval of the plan; and completion of the remediation plan within 90 days of commencement of the physical construction process.

Approximately ten months later, the municipal court entered a second order (hereinafter the “Final Nuisance Order”) finding that the nuisance had not been abated and again ordered the lot owners to remediate the nuisance within similar time constraints.

After the lot owners failed to comply with the Final Nuisance Order, the City hired a contractor to abate the nuisance. Thereafter, on October 31, 2012, the City recorded abatement liens against the Noriegas’ property (Woodberry Field Subdivision Lots 17-18) in the amount of $66,478.69, including $44,750 paid to abate the nuisance and $21,728.69 in attorney fees and expenses.

On November 15, 2012, Porche filed petitions against the Noriegas in the Superior Court of Cherokee County for in rem ad valorem tax foreclosure of the abatement liens. The petitions named the Noriegas because they were the owners of 137 and 139 Woodberry Court, but did not name the actual properties as respondents. The Noriegas responded to the City’s petitions. Following a hearing, the superior court denied the petitions, finding that they were not brought against the property to be foreclosed as statutorily required.

1. Porche contends that the superior court erred in finding that the petitions were not brought in compliance with OCGA § 48-4-78. We disagree.

OCGA § 48-4-76 et seq. sets forth the statutory procedures for judicial in rem tax foreclosure of delinquent ad valorem taxes. In rem actions are proceedings primarily against the property itself, even though they are subject to the claims of persons owning an interest therein. See Ga. Dept. of Transp. v. Woodard, 254 Ga. 587, 589 (331 SE2d 557) (1985) (condemnation proceedings are in rem, against the property itself, and failure to give notice to true owner of property did not void completed proceeding); Stroupper v. McCauley, 45 Ga. 74, 76 (1872) (in rem judgments are founded on proceedings against the thing or the subject matter itself, not against the person).

OCGA § 48-4-78 provides that the petition for in rem ad valorem tax foreclosure shall by filed in the superior court of the county in which the property is located, and the petition “shall have form and content substantially identical to that form as provided in subsection (g) of this Code section.” (Emphasis supplied.) OCGA § 48-4-78 (b). The statute further provides that such petitions “shall be filed against the property for which taxes are delinquent.” (Emphasis supplied.) OCGA § 48-4-78 (c). Finally, the statute provides that in rem ad valorem tax foreclosure petitions shall be brought against the following respondents: “_ACRES OF LAND LYING AND BEING IN LAND LOT_, DISTRICT_,_COUNTY, GEORGIA” and the owner(s) of the property. OCGA § 48-4-78 (g).

Porche argues that the petitions substantially complied with OCGA § 48-4-78 (g) because they were brought against the Noriegas as owners of the properties. Where a statute is plain, unambiguous and susceptible to only one reasonable construction, however, this Court must construe the statute according to its terms and “the legislature’s clear intent will not be thwarted by invocation of the rule of ‘substantial compliance.’ ” (Citations and punctuation omitted.) Cook v. NC Two LP, 289 Ga. 462, 464 (712 SE2d 831) (2011).

Here, OCGA § 48-4-78 clearly and unambiguously requires petitions for in rem ad valorem tax foreclosure to be brought against the property for which the taxes are delinquent. The petitions show on their face that they failed to comply with the clear and unambiguous requirements of OCGA § 48-4-78, because they were filed against the Noriegas as owners of the properties, rather than being filed against the properties for which the taxes were delinquent. Accordingly, the trial court properly found that the petitions were not in compliance with OCGA § 48-4-78.

Decided January 15, 2014.

Moore Ingram Johnson & Steele, Christopher C. Mingledorff, J. Marshall Wehunt, for appellant.

Dyer & Rusbridge, Alicia M. Argo, for appellees.

2. In light of our holding in Division 1, we need not address Porche’s remaining enumerations of error.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The superior court also found that the abatement liens were void because they were based on City Code sections that do not comply with the provisions of OCGA § 41-2-9, which is the only means by which counties and municipalities may place abatement liens against private property.


text:
    A13A2021.
    LOST LAKE DEVELOPMENT CORPORATION, LLC v. COMMUNITY & SOUTHERN BANK.
    (754 SE2d 114)
   Miller, Judge.

This case arises from an application for confirmation of a foreclosure sale filed by Community & Southern Bank (“Community Bank”) against Lost Lake Development Corporation, LLC (“Lost Lake”) and Jeff Matthews. Following the confirmation hearing, the trial court found that the property was sold for at least its true market value and confirmed the foreclosure sale pursuant to OCGA § 44-14-161. Lost Lake appeals, contending that the trial court erred in finding that the property sold for at least its true market value at the foreclosure sale. Discerning no error, we affirm.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

(Citation and punctuation omitted; emphasis supplied.) Greg A. Becker Enterprises, Ltd. v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721 (725 SE2d 841) (2012).

So viewed, the evidence shows that Lost Lake executed a promissory note (“Note”) and Security Deed for a closed end line of credit. Between 1998 and 2009, the Note was extended, renewed and/or modified numerous times for varying principal amounts, culminating in a final renewal of the loan on July 3, 2009 in the principal amount of $1,200,000.

After Lost Lake defaulted on the Note, Community Bank instituted nonjudicial foreclosure proceedings on the secured property in accordance with the power of sale authorized in the Security Deed. Community Bank conducted the initial foreclosure sale in April 2011, bought the property for $300,000 as the high bidder, and subsequently instituted a foreclosure confirmation proceeding in the Superior Court of Carroll County. At the initial confirmation hearing, Community Bank’s appraiser testified that the property was worth $300,000, while Lost Lake’s appraiser testified that the property was worth $530,000 as of April 2011. Accordingly, the trial court ordered a resale of the property.

Community Bank then re-foreclosed on the property on September 4, 2012. The resale resulted in the sale of the property to Community Bank for $530,000 as the highest bidder for cash. Community Bank subsequently instituted a second foreclosure confirmation proceeding.

At the second confirmation hearing, Community Bank’s appraiser testified that the property consisted of a developed subdivision with a four-acre fishing lake and fifty-three lots ranging in size from 5,170 to 20,000 square feet with an average lot size of 9,200 square feet. The appraiser further stated that the property was next to or near an elementary school, middle school, recreational center and senior center, was not too far from 1-20, and would provide nice, affordable homes for first time buyers and senior citizens.

The appraiser based his findings on comparable multi-lot listings and sales between July 2011 and June 2012. The comparable sales and listings ranged from $500 per lot to $9,000 per lot. Based on these comparable sales and listings, the appraiser opined that the true market value of the property on September 4, 2012, the date of the second foreclosure sale, was $150,000. Accordingly the appraiser testified that the property sold for at least its true market value at the foreclosure sale based on Community Bank’s $530,000 bid.

Lost Lake presented the testimony of a local commercial real estate agent at the second confirmation hearing. The agent testified that he was familiar with the property, and he estimated that the property had a reasonable retail value of between $15,000 and $20,000 per lot. The agent further testified, however, that the lots would not sell at that price in a block of two to five lots. Accordingly, the agent opined that the per-lot value of the lots on September 4, 2012 was $12,000, with a total value for the property of $636,000.

In its sole enumeration of error, Lost Lake contends that the trial court erred in finding that the property sold for at least its true market value at the foreclosure sale. We disagree.

OCGA § 44-14-161 sets out the process for obtaining an order of confirmation and approval following a foreclosure sale under powers contained in security deeds, mortgages or other lien contracts, including the requirement of evidence showing that the property sold for its true market value. OCGA § 44-14-161 (b) pertinently provides:

(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

This Court has held that OCGA § 44-14-161 (b) requires “proof of true market value under the usual market conditions for sales of such property.” (Citations, punctuation and emphasis omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (1) (424 SE2d 889) (1992). Because foreclosure sales are forced sales and are conducted under conditions that differ from the ordinary market for the property in question, they “notoriously fail to bring the true market price of the property.” (Citations and punctuation omitted.) Id. Thus, Georgia’s confirmation statute requires evidence of fair market value other than the public sale price. See id. at 259-261 (1).

Here, the evidence showed that the property sold for $530,000 at the second foreclosure sale, which yielded a $10,000 per lot sales price. The evidence also showed that there is a large supply of developed residential lots in Carroll County; comparable lot sales between July 2011 and February 2012 ranged from a low of $800 per lot to a high of $8,500 per lot; and the average retail lot value for the Lost Lake lots was $5,500.

Community Bank also presented evidence of the projected sales price for the lots over the next four years based on the history of the property and the current market conditions. Using that analysis, Community Bank’s appraiser projected that zero lots would sell in the next 12 months; 15 lots would sell in Year 2 for $5,500 per lot; 15 lots would sell in Year 3 for $6,600 per lot; and the final 23 lots would sell in Year 4 at a projected sales price of $6,600 per lot, resulting in a total projected gross sales revenue of $333,300 over four years.

Decided January 15, 2014

Smith Conerly, Charles S. Conerly,R. Cade Parian, for appellant.

Alston & Bird, Christopher A. Riley, Andrew J. Tuck, for appellee.

As set forth above, some evidence showed that the fair market value of the Lost Lake lots ranged from $5,500 to $6,600 per lot, which was considerably less than the actual sales price of $10,000 per lot. Although Lost Lake’s expert opined that the per lot value of the property was $12,000, the agent admitted that he did not look at any comparable sales or apply any appraisal methods in reaching his opinion. The agent also admitted that he could not point to any specific comparables or sales that would support his per-lot valuation of the property, or any sales of lots over the past year that yielded more than $2,800 per lot.

In reviewing the trial court’s decision,

the test is not whether this [Cjourt would have accepted [Lost Lake’s expert’s appraisal and testimony] as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.

(Punctuation and footnote omitted.) Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 181 (1) (622 SE2d 890) (2005). Moreover, where as here, “the appraiser’s opinion was not based on sheer speculation, we will not second guess any methodology utilized to reach the opinion.” (Punctuation and footnote omitted.) Mundy Mill Dev. v. ACR Property Svcs., 306 Ga. App. 730, 734 (703 SE2d 137) (2010); see also Wilson, supra, 276 Ga. App. at 181-182. The record contained sufficient evidence to permit the trial court to find that the sale brought at least the true market value of the property. Atreus Communities of America v. KeyBank Nat. Assn., 307 Ga. App. 716, 720 (706 SE2d 107) (2011); Mundy, supra, 306 Ga. App. at 730. Accordingly, we must affirm the trial court’s order confirming the foreclosure sale.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       In March 2004, Matthews unconditionally guaranteed the Note and Lost Lake’s future debts.

       The Security Deed was assigned to Community Bank by the Federal Deposit Insurance Corporation, in its capacity as receiver for First National Bank of Georgia (“FNBG”). FNBG was the successor in interest to West Georgia National Bank, the original lender.


author: BARNES, Presiding Judge.

text:
    A13A2256.
    SMITH et al. v. SUNTRUST BANK et al.
    (754 SE2d 117)
   BARNES, Presiding Judge.

Appellants Rob Smith, Don Smith, Roy Smith, Jr., and Christie Romano are income beneficiaries of a trust created in 1969, and they claim that the trustees breached their fiduciary duties in several respects. Specifically, the appellants claim that the trustees sold the primary asset of the trust to one of the co-trustees and her husband for inadequate consideration in an alleged straw man transaction; that the corporate trustee distributed all of the income in a sub-trust to the same co-trustee in violation of the means-of-support test applicable to the sub-trust; and that the trustees failed to provide them with an annual accounting of the sub-trust as required by the terms of the trust. The trial court held that these claims were barred by the applicable statute of limitation and granted summary judgment to the trustees. On appeal, the appellants argue that the trial court erred in granting summary judgment to the trustees because a genuine issue of material fact exists as to whether the trustees fraudulently concealed their breaches of fiduciary duty, creating a jury issue as to whether the limitation period had been tolled. For the reasons discussed below, we affirm in part, vacate in part, and remand with instruction.

Summary judgment is proper if the pleadings and evidence “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). “Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation omitted.) Gayle v. Frank Callen Boys and Girls Club, 322 Ga. App. 412 (745 SE2d 695) (2013).

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010). Guided by these principles, we turn to the record in this case.

The Fisher Family Trust. T. Orr Fisher created the Fisher Family Trust (the “Trust”) in 1969 for the benefit of his only child, Emily Fisher Crum, and seventeen other relatives and their lineal descendants. Mr. Fisher named three trustees: Ms. Crum and S. Spencer Linder as the individual trustees and Trust Company of Georgia n/k/a SunTrust Bank (“SunTrust”) as the corporate trustee (collectively, the “Trustees”).

The original corpus of the Trust was a 15 percent interest in real estate located along Clairmont Road and Interstate 85 in DeKalb County, Georgia, known as Century Center (the “Century Center Property”). The Century Center Property is under a 90-year ground lease to an office park developer that was signed in 1968 and expires in 2058. The Century Center Property is comprised of approximately 88 acres of land and now contains a large office park development.

Mr. Fisher specifically provided in the Trust that it was his “wish that the trustees retain the interest in the [Century Center Property],” but that he was “imposing] no requirement that the same be retained if the trustees determine that it is wise in view of the purposes of the trust that said interest be disposed of.” The Trust further provided that during the lifetime of Mr. Fisher and his wife, Bessie Fisher, the interest of the Trust in the Century Center Property could not be disposed of by the Trustees “without the permission of those living of [Mr. Fisher] and his wife.”

The Trust established three sub-trusts, referred to by the parties as Trusts A, B, and C. Ten percent of the Trust’s interest in the Century Center Property was allocated to Trust A, with the income to be distributed to Mr. Fisher’s daughter, Trustee Crum, during her lifetime. Trust A is not at issue in this case. Sixty percent was allocated to Trust B, with the income to be distributed equally among 17 named beneficiaries or their descendants per stirpes. The remaining 30 percent was allocated to Trust C, which had the same beneficiaries as Trust B, but also included Trustee Crum as a beneficiary and was to be administered by the corporate trustee, SunTrust. All or a portion of the income from Trust C was to be distributed

among any one or more of a group consisting of the beneficiaries of [Trust C] as [SunTrust] shall determine necessary for the maintenance, health, support and education of each member of such group, taking into consideration any means of support which any such member is known by [SunTrust] to have, and accumulating any income not so paid.

The Trust further provided that the Trustees “shall each year render an account of their administration of each trust under this instrument to [Mr. Fisher], and if he is not living, to the beneficiaries of a present beneficial interest in each trust hereunder.”

Lastly, the Trust contained a termination provision for Trusts B and C stating that “any trust established by this instrument shall terminate, if it has not previously terminated, twenty-one (21) years after the death of the survivor of the [seventeen named beneficiaries of Trust B] living on the date that this instrument is executed.” The Trust stated that upon termination, the Trustees were to pay “the then remaining principal and undistributed income” of Trusts B and C to the Fisher Foundation, Inc. or to an alternative remainder beneficiary if the foundation was no longer in existence.

Mr. Fisher died in August 1969, only a few months after creating the Trust. He was survived by his wife, Bessie Fisher, and by his daughter, Trustee Crum. The four appellants are descendants of one of the original seventeen named beneficiaries of Trusts B and C (collectively, the “Appellant Beneficiaries”).

Sale of the Century Center Property. The Appellant Beneficiaries contend that a decade after the death of Mr. Fisher, on October 1, 1979, the Trustees, unbeknownst to them, conveyed the Trust’s ownership interest in the Century Center Property to Trustee Crum and her husband in a straw man transaction. On that date, the Trustees first conveyed the Trust’s 15 percent interest in the Century Center Property to Mr. Fisher’s widow, Bessie Fisher, in exchange for $300,000. Deed records reflect that Mrs. Fisher then immediately conveyed her interest in the Century Center Property to Trustee Crum and her husband. The deeds for the two conveyances were signed the same day, had the same witnesses for the signatures of Mrs. Fisher and Trustee Crum, and were recorded within minutes of one another.

The price paid to the Trust for the Century Center Property was the amount of an appraisal the Trustees had obtained five months earlier. There is no indication in the record that the Century Center Property was otherwise exposed to the market, or that any judicial proceeding was conducted to approve the sale of the Trust’s primary asset. The Appellant Beneficiaries presented the affidavit of an expert appraiser who opined that the methodology of the Trust’s appraisal was improper and that the Century Center Property had been substantially undervalued at $300,000. The record also includes a letter later written by Trustee Crum and her husband in which they estimated that the income generated from the property upon the expiration of the 90-year ground lease would “be an astronomical figure and could even be great enough to finance the entire operation of a reasonably sized college.”

The trust account statements for Trusts A, B, and C for the fourth quarter of 1979 contain a notation under “Principal Cash Balance” stating that the Century Center Property had been “Sold to Bessie A. Fisher on 10-1-79.” The Trustees allege that the fourth quarter trust account statements were sent to all then-current beneficiaries of Trusts B and C in 1979, including Appellant Beneficiary Rob Smith and Roy Smith, Sr., the father of the remaining three Appellant Beneficiaries. However, Rob Smith testified that he never received copies of the 1979 account statements and did not learn of the alleged straw man conveyance of the Century Center Property until this litigation commenced in 2011. The Roy Smith Beneficiaries do not deny that their father received the 1979 account statements, but they testified that their father never mentioned the sale of the Century Center Property to them, that they never saw the 1979 account statements themselves, and that they too did not learn of the alleged straw man conveyance until this litigation.

Income Distributions from Trust C. As previously noted, under the terms of the Trust, SunTrust as corporate trustee was to pay all or a portion of the income from Trust C to one or more of the beneficiaries for their maintenance, health, support, and education, taking into consideration their other means of support. Despite the means test applicable to distributions from Trust C, Trustee Crum requested from SunTrust that she be paid all of the net income from Trust C to the exclusion of the remaining seventeen beneficiaries because she had advanced funds to help pay the state and federal taxes levied on the estate of her father, Mr. Fisher, following his death in 1969. SunTrust granted her request and distributed the net income from Trust C solely to Trustee Crum on a semiannual basis from the Trust’s inception until 1989 without any regard for the means test set forth in the Trust. According to the Appellant Beneficiaries, SunTrust never informed them that it was paying all of the income to Trustee Crum during this time period.

In 1989, SunTrust assigned a new trust officer to handle the administration of the Trust. After reviewing the Trust instrument and determining that it required application of a means test, the new officer discontinued the automatic income distributions from Trust C to Trustee Crum and requested that she provide financial information showing that she needed continued distributions for her support. Trustee Crum refused to provide the requested financial information and contended that she was entitled to receive the total net income from Trust C for the remainder of her lifetime. After a series of correspondence, the trust officer ultimately capitulated and resumed semiannual distributions of all of the net income from Trust C to Trustee Crum in June 1990 even though she had not provided the financial information necessary for applying the means test.

The trust officer drafted a letter dated June 5,1990 addressed to the current beneficiaries of Trust C in which she described how income distributions were being handled by the bank. The letter stated that

Mrs. Emily Fisher Crum has requested that she continue to receive the net income from Trust C for the remainder of her lifetime— As we have not received a request from any of the remaining beneficiaries to receive income from Trust C, we, as Corporate Trustee, are exercising our discretion to continue the distribution of net income to Mrs. Crum. If presently or in the future, any of you have need of additional income and would like to make a request for the Trustee to consider an income distribution to you, please contact us at [a designated phone number] or at the address indicated below.

SunTrust asserts that the June 5, 1990 letter was sent to all of the beneficiaries of Trust C, including the Appellant Beneficiaries, and that none of the beneficiaries ever complained about the ongoing distribution of the income from Trust C to Trustee Crum. While Beneficiary Ron Smith testified that he never received the June 5, 1990 letter, the Roy Smith Beneficiaries admit that they received it.

SunTrust continued to pay all income from Trust C to Trustee Crum from 1990 onward. In 1998, a subsequent trust officer assigned by SunTrust to administer the Trust reviewed how the issue of income distribution from Trust C had been handled by the bank, described it as a “debacle... well documented in the file,” and noted that “it is best to leave this issue as is.”

The Appellant Beneficiaries testified that despite the fact that the Trust requires a yearly accounting be provided “to the beneficiaries of a present beneficial interest in each trust hereunder,” they have never received accounting statements for Trust C reflecting the income distributions to Trustee Crum to the exclusion of all other beneficiaries. Indeed, they testified that they were never provided a copy of the Trust instrument from SunTrust or any other source until this litigation. The Appellant Beneficiaries also testified that they have never received any income distributions from Trust C since the time that they became beneficiaries.

The Present Litigation. In August 2011, the current Trustees filed a Petition for Trust Modification and Termination of the Trust, which they served on the current beneficiaries, including the Appellant Beneficiaries. The Trustees noted in their petition that the Trust had been in existence for over 40 years, and based on the termination provision, Trusts B and C would continue for at least 21 more years. According to the Trustees, the current market value of the Trust B corpus was approximately $305,000 and of Trust C was approximately $79,200. The Trustees further alleged that the list of Trust beneficiaries, “lengthy at the inception of the Trust,” had become more so as named beneficiaries died and multiple lineal descendants have been substituted as beneficiaries, resulting in a “dramatic increase in administrative costs and burdens of the Trust as compared to the size of the Trust corpus.” Consequently, the Trustees contended that “the most pragmatic way to accomplish [Mr. Fisher’s] purpose [for the Trust would be] to terminate the Trust and distribute the Trust assets among the current beneficiaries to conform to [Mr. Fisher’s] intent as nearly as practicable” pursuant to the trial court’s equitable powers.

In March 2012, the Appellant Beneficiaries filed their objection to the Trustees’ petition, alleging that the Trustees had breached their fiduciary duty when they conveyed the Century Center Property to Trustee Crum in the alleged straw man transaction for below fair market value. They further alleged that SunTrust had breached its fiduciary duty by distributing all of the income from Trust C to Trustee Crum to the exclusion of the other beneficiaries without applying the means test required by the Trust, and by failing to provide them with a yearly accounting of Trust C. The Appellant Beneficiaries sought equitable relief, including that Trustee Crum be required to transfer the 15 percent ownership interest in the Century Center Property back to the Trust, and that SunTrust be required to reimburse Trust C for the fees it paid itself and for the income distributions made to Trustee Crum.

The Trustees thereafter moved for summary judgment on several grounds, including that the breach of fiduciary duty claims raised by the Appellant Beneficiaries were barred by the applicable statute of limitation. The Appellant Beneficiaries opposed the motion, contending that there were genuine issues of material fact as to whether the Trustees had fraudulently concealed their breaches of fiduciary duty and thus as to whether the limitation period had been tolled. Following a hearing, the trial court granted the Trustees’ motion for summary judgment, concluding that the statute of limitation barred the breach of fiduciary duty claims as a matter of law. The trial court did not address the Trustees’ remaining arguments for why summary judgment should be granted. The Appellant Beneficiaries now appeal from the trial court’s summary judgment order.

1. The Appellant Beneficiaries first contend that the trial court erred in concluding that the statute of limitation barred the claim that the Trustees breached their fiduciary duty when they conveyed the Century Center Property to Trustee Crum and her husband in the alleged straw man transaction for below fair market value. The Appellant Beneficiaries contend that there is evidence from which a jury could find that the Trustees fraudulently concealed their breach of fiduciary duty, thereby tolling the limitation period until the breach was discovered. We agree.

Under the Revised Georgia Trust Code of 2010, a beneficiary must bring his or her breach of trust claim against a trustee “within six years after the beneficiary discovered, or reasonably should have discovered, the subject of such claim.” OCGA § 53-12-307 (a). The statute of limitation is shortened to two years “if a beneficiary has received a written report that adequately discloses the existence of a claim against the trustee for a breach of trust.” Id. See Hasty v. Castleberry, 293 Ga. 727, 730 (2) (749 SE2d 676) (2013).

The limitation period, however, may be tolled by a trustee’s fraudulent conduct. OCGA § 9-3-96 provides that “[i]f 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 plaintiffs discovery of the fraud.”

[T]o establish fraudulent concealment under this statute sufficient to toll the statute of limitation, a plaintiff must prove that: (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff, and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his failure to do so within the applicable statute of limitation. However, when a confidential relationship exists, such as between [the trustee and beneficiaries of a trust], the plaintiffs duty to investigate is decreased, and the defendant’s duty to disclose is increased. In such situations, 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.

(Punctuation and footnotes omitted.) Cochran Mill Assoc. v. Stephens, 286 Ga. App. 241, 245 (1) (648 SE2d 764) (2007). See Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 848-849 (1) (507 SE2d 411) (1998); Goldston v. Bank of America Corp., 259 Ga. App. 690, 693-696 (577 SE2d 864) (2003).

On motion for summary judgment, “the movant has only the burden of proof as to [the] affirmative defense of the running of the statute of limitation and not to establish the absence of facts showing a tolling.” (Punctuation and footnote omitted.) Mayfield v. Heiman, 317 Ga. App. 322, 328 (2) (730 SE2d 685) (2012). The burden of persuasion then shifts to the nonmovant “to present some evidence showing that an issue exists that the statute has not run but has been tolled.” (Punctuation and footnote omitted.) Id. Generally speaking, the question of whether there was fraudulent concealment justifying the tolling of the limitation period “is a proper question for determination by a jury under proper instructions from the court.” Brown v. Brown, 209 Ga. 620, 622 (7) (75 SE2d 13) (1953).

Mindful of these principles, we conclude that the Appellant Beneficiaries came forward with evidence that the Trustees fraudulently concealed their breach of fiduciary duty, and thus presented some evidence showing that a genuine issue of material fact exists concerning whether the limitation period had been tolled. As a fiduciary, a trustee is required to act for the benefit of the beneficiaries “on all matters within the scope of their relationship” and owes to them “the duties of good faith, trust, confidence, and candor.” Black’s Law Dictionary (9th ed. 2009) (defining “fiduciary”). See OCGA § 53-12-246 (“A trustee shall administer the trust solely in the interests of the beneficiaries.”); Perdue v. McKenzie, 194 Ga. 356, 368 (3) (21 SE2d 705) (1942) (trustee “owes an undivided duty to the beneficiary”).

Consequently, trustees are “accountable to the beneficiarles] for the trust property,” OCGA § 53-12-300, and must “exercise the highest degree of good faith as to all matters connected with the property committed to their care.” Oliver v. Oliver, 118 Ga. 362, 369-370 (45 SE 232) (1903). It follows that, as a general rule, a trustee cannot purchase the property belonging to the trust estate, see Edwards v. Collins, 207 Ga. 204, 205 (1) (60 SE2d 337) (1950), and certainly cannot “make a personal profit in dealing with trust property.” Fine v. Saul, 183 Ga. 309, 314 (3) (188 SE 439) (1936). See Restatement (Third) of Trusts § 78, cmt. d (noting that “it is a breach of trust for the trustee personally to buy property held in the trust”); George Gleason Bogert et al., The Law of Trusts and Trustees § 543 (A) (3rd ed.) (updated Sept. 2013) (“The trustee owes a duty to the beneficiary not to buy trust property for himself, at his own sale, whether public or private. If he does assume the position of such a buyer, he becomes disloyal to the beneficiary in that he may be seeking private advantage at a time when his sole effort should be the enhancement of the interests of the beneficiary.”) (emphasis omitted).

Here, the evidence as discussed above would authorize a jury to find that the Trustees breached their fiduciary duty by conveying the Century Center Property to Trustee Crum and her husband at a price below fair market value. The evidence would further authorize the jury to find that the Trustees fraudulently concealed their breach of fiduciary duty from the beneficiaries by conveying the Century Center Property to Trustee Crum and her husband through a “straw man” (i.e., Bessie Fisher). A “straw man” is “[a] third party used in some transactions as a temporary transferee to allow the principal parties to accomplish something that is otherwise impermissible.” Black’s Law Dictionary (9th ed. 2009). See Houston v. Bryan, 78 Ga. 181, 185 (1 SE 252) (1886) (trustee’s purchase of trust property cannot be accomplished indirectly “through the interposition of another person”). See also The Law of Trusts and Trustees, supra, § 543 (A) (condemning use of straw man and noting that “[i]f the third party appears to have been used as a dummy or straw man, the beneficiary will have the same rights as if the sale had been direct to the trustee”). By using a straw man for the conveyance, the Trustees violated their “duty to give full and fair disclosure in a timely manner of all known things adversely affecting the . . . beneficiaries’ rights in the subject matter of the dealings,” Liner v. North, 188 Ga. App. 677, 679 (2) (373 SE2d 846) (1988), and “to disclose . . . the true state of the transaction,” Brown, 209 Ga. at 621 (6). Accordingly, we conclude that the Trustees’ use of a straw man created a jury issue on the question of fraudulent concealment. See id. at 620-621 (2) (limitation period tolled where “the plaintiffs had a right to expect a full revelation of all pertinent facts which might jeopardize their rights in the property entrusted to the defendant,” and the defendant failed to reveal those facts to them); Goldston, 259 Ga. App. at 692-696 (limitation period tolled where there was evidence that trustee bank sold assets of the trust to an interested third party for less than fair market value and then failed to disclose the transaction to the beneficiaries).

The Trustees argue, however, that their conveyance of the Century Center Property was adequately disclosed to the Appellant Beneficiaries in the trust account statements for Trusts B and C for the fourth quarter of 1979, which contained a notation under “Principal Cash Balance” noting that the Century Center Property had been “Sold to Bessie A. Fisher on 10-1-79.” According to the Trustees, the fourth quarter account statements constituted a written “report” that adequately disclosed the existence of a claim to beneficiaries, thereby triggering the running of the shortened two-year limitation period set forth in OCGA § 53-12-307 (a). The Trustees further argue that the Appellant Beneficiaries failed to exercise due diligence as a matter of law when they did not investigate the conveyance any further in response to the fourth quarter account statements. We are unpersuaded.

First, the fourth quarter account statements were not a “report” that adequately disclosed the existence of a claim to beneficiaries under OCGA § 53-12-307 (a). Our Supreme Court recently held that a “report” under this statutory provision should be construed to mean a report from a trustee to a beneficiary containing “detailed information” that includes “the assets, liabilities, receipts, and disbursements of the trust, the acts of the trustee, and the particulars relating to the administration of the trust, including the trust provisions that describe or affect such beneficiary’s interest.” Hasty, 293 Ga. at 731-732 (2). See OCGA § 53-12-243 (a). The excerpts from the fourth quarter statements contained in the record, with their incomplete disclosure of the nature of the conveyance of the Century Center Property, “[do] not contain the type of detailed information contemplated by Legislature” so as to qualify as a “report” sufficient to trigger the running of the shortened two-year limitation period. See Hasty, 293 Ga. at 732 (2).

Second, in light of the limited scope of the disclosure in the fourth quarter accounting statements, there is a genuine issue of material fact concerning whether the Appellant Beneficiaries exercised due diligence to discover that the Trustees had fraudulently conveyed the Century Center Property to Trustee Crum and her husband. “Whether a [party] exercised reasonable care in discovering the fraud is generally a jury question.” Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 243 (2) (590 SE2d 224) (2003). And in the context of a fiduciary relationship, there is “a greater duty on the parties to reveal what should be revealed and a lessened duty to discover independently what could have been discovered through the exercise of ordinary care.” Yarbrough v. Kirkland, 249 Ga. App. 523, 526 (2) (548 SE2d 670) (2001).

The fourth quarter account statements disclosed only the sale to the straw buyer, Bessie Fisher, and thus was not a complete disclosure of all material facts relating to the conveyance of the Century Center Property. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud.” OCGA § 23-2-53. Furthermore, “[d]ue to the fiduciary relationship [,] the beneficiary may rely implicitly, not only on what is said, but also on the supposition that nothing important will be left unsaid by the [trustee].” (Citation and punctuation omitted.) Gen. Information Processing Systems v. Sweeney, 176 Ga. App. 315, 316 (335 SE2d 722) (1985). See Oliver, 118 Ga. at 371. Furthermore, a jury could find that the incomplete disclosure was inherently deceptive because the Trust authorized the Trustees to sell the Century Center Property if they determined that it was wise to do so “in view of the purposes of this trust” and if they obtained the permission “of those living of [Mr. Fisher] and his wife,” namely, Bessie Fisher. By only disclosing that the conveyance was to Bessie Fisher and thus was done with her permission, the account statements suggested that the Trustees were complying with the provisions of the Trust for the conveyance of the Century Center Property and that the transaction was open and above-board. Under these circumstances, we conclude that a jury must resolve whether the Appellant Beneficiaries exercised due diligence in discovering the alleged fraudulent conveyance of the Century Center Property to Trustee Crum and her husband. See Miller v. Lomax, 266 Ga. App. 93, 98 (2) (b) (596 SE2d 232) (2004) (genuine issue of material fact existed regarding whether plaintiff should have discovered fraudulent transfer of funds, where notation on check mischaracterized an improper gift to a third party as “loan proceeds”); Fed. Ins. Co., 264 Ga. App. at 244-245 (2) (whether defendants “engaged in trickery and artifice” that delayed plaintiff from discovering the fraud was a jury question).

For these combined reasons, we conclude that the trial court erred in granting summary judgment to the Trustees on the ground that the Appellant Beneficiaries’ breach of fiduciary duty claim pertaining to the conveyance of the Century Center Property was barred by the statute of limitation. Genuine issues of material fact exist concerning whether the Trustees fraudulently concealed their breach of fiduciary duty and whether the Appellant Beneficiaries exercised due diligence in discovering the fraud.

2. The Appellant Beneficiaries next contend that the trial court erred in concluding that the statute of limitation barred their claim that SunTrust breached its fiduciary duty by distributing all of the net income from Trust C to Trustee Crum to the exclusion of the other beneficiaries without applying the means test required by the Trust. According to the Appellant Beneficiaries, they presented evidence from which a jury could find that SunTrust fraudulently concealed its improper distribution of the income from Trust C, thereby tolling the limitation period until they first discovered the fraud.

(a) We agree with Beneficiary Rob Smith that he presented some evidence that SunTrust fraudulently concealed from him the alleged improper distribution of income from Trust C to Trustee Crum to the exclusion of all of the other beneficiaries. Specifically, he testified that SunTrust never provided him with a copy of the Trust instrument so that he would know his rights to disbursement with respect to Trust C, never informed him that he was potentially entitled to distributions as a beneficiary of Trust C, and never provided him with an annual accounting of the disbursements from Trust C despite being required to do so by the Trust. Beneficiary Rob Smith further pointed out that in 1998, a trust officer with SunTrust reviewed how the issue of income distribution from Trust C had been handled by the bank, described it as a “debacle,” and determined that “it is best to leave this issue as is.”

Based on this combined evidence, a jury could find that SunTrust fraudulently concealed from Beneficiary Rob Smith its improper distribution of the income from Trust C, thereby tolling the limitation period until he first discovered the misconduct. See Goldston, 259 Ga. App. at 692-696 (limitation period tolled where, among other things, there was evidence that trustee bank failed to even tell beneficiaries of existence of trust and never provided accounting or annual reports to beneficiaries as required by terms of the trust). And while Sun-Trust claims that its June 5, 1990 letter to beneficiaries put Beneficiary Rob Smith on notice of the alleged improper distributions and thus showed that he failed to exercise due diligence to discover the misconduct, Smith testified that he never saw or received the letter, creating a genuine issue of material fact over the issue. Accordingly, the trial court erred in concluding that Beneficiary Rob Smith’s breach of fiduciary duty claim was barred by the statute of limitation as a matter of law.

(b) We reach a different result with regard to the Roy Smith Beneficiaries. Their breach of fiduciary duty claims pertaining to the income distributions from Trust C were not tolled because, as a matter of law, they failed to exercise due diligence to discover the alleged improper disbursements. Significantly, in contrast to Beneficiary Rob Smith, the Roy Smith Beneficiaries admitted that they received the June 5, 1990 letter from SunTrust. As previously noted, the June 5,1990 letter stated that Trustee Crum had “requested that she continue to receive net income from Trust C for the remainder of her lifetime” and that no other beneficiaries had requested any income distributions from Trust C. The letter further stated that as a result, SunTrust was “exercising [its] discretion” to continue the distribution of the net income to Trustee Crum. The letter also invited any of the beneficiaries to make a request to be considered for an income distribution if needed at any time in the future.

“Though the level of diligence required by the plaintiff in investigating the fraud is lessened where a confidential relationship exists, it is not entirely extinguished.” Cochran Mill Assoc., 286 Ga. App. at 247 (2). Hence, while “issues concerning a plaintiff’s diligence in discovering fraud usually must be resolved by the trier of fact, this is not always the case. A party may fail to exercise due diligence as a matter of law.” (Citation and punctuation omitted.) Nash v. Ohio Nat. Life Ins. Co., 266 Ga. App. 416, 418 (1) (597 SE2d 512) (2004).

The June 5, 1990 letter specifically informed the Roy Smith Beneficiaries that Trustee Crum had been receiving the distributions of net income from Trust C and would continue to receive them on an ongoing basis. Thus, the very mismanagement of Trust C now alleged by the Roy Smith Beneficiaries was revealed to them in a document provided by SunTrust over 20 years before they asserted any claims based on that mismanagement in this litigation. Under these circumstances, the Roy Smith Beneficiaries failed to exercise due diligence as a matter of law and thus could not establish fraudulent concealment. It follows that the trial court committed no error in concluding that their breach of fiduciary duty claims pertaining to the distributions from Trust C had not been tolled. See Mayfield, 317 Ga. App. at 325-329 (2)-(4) (a) (limitation period not tolled by fraud, despite allegation that trustee misled beneficiaries about loan transaction entered into on behalf of the trust, where evidence showed that beneficiaries had acquisition agreements in their possession that provided them with the material terms of the loan); Hendry v. Wells, 286 Ga. App. 774, 780-781 (1) (650 SE2d 338) (2007) (limitation period not tolled by fraud, despite fact that defendant partners sent several communications to the plaintiff partners that contained misleading information about contents of partnership agreement, where plaintiffs had in their possession the partnership agreement and thus were on notice of its true contents); Allen v. Columbus Bank & Trust Co., 244 Ga. App. 271, 273-274(1) (534 SE2d 917) (2000) (limitation period not tolled by fraud, even if defendant bank’s trust officer sent letter to plaintiff containing false and misleading statements about the trust’s yields, where plaintiff regularly received account statements from bank showing the actual yields of the trust).

Nevertheless, although the limitation period was not tolled on their claims, the statute of limitation does not bar the Roy Smith Beneficiaries from asserting their breach of fiduciary duty claims for the alleged improper income distributions to Trustee Crum that occurred within six years of the filing of their claims in this case. Each act of alleged mismanagement by a trustee that detrimentally affects a beneficiary creates a new cause of action for that specific act of mismanagement. See Allen, 244 Ga. App. at 272 (cause of action accrued for beneficiary each time trustee made an investment that constituted mismanagement detrimentally affecting the beneficiary). See also Mayfield, 317 Ga. App. at 329 (4) (b) (court must “look[ ] to each of the beneficiary’s specific claims of acts of mismanagement to determine when her causes of action accrued”); Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 387 (2), n. 19 (649 SE2d 779) (2007) (noting that a new “cause of action for breach of fiduciary duty accrues each time defendant commits a wrongful act thatcauses appreciable damage”). Thus, each alleged improper income distribution by SunTrust to Trustee Crum that harmed the Roy Smith Beneficiaries constituted a separate cause of action for breach of fiduciary duty. See Allen, 244 Ga. App. at 272. As such, given that the applicable statute of limitation in this case is six years, the Roy Smith Beneficiaries were not barred from asserting their breach-of-fiduciary duty claims predicated on alleged improper distributions by SunTrust that occurred within six years of the filing of their claims in this litigation, and the trial court erred in concluding otherwise. See id.

3. Lastly, the Appellant Beneficiaries contend that the trial court erred in concluding that the statute of limitation barred their claim that SunTrust breached its fiduciary duty by failing to provide them with an annual accounting of Trust C despite being required to do so by the Trust instrument. According to the Appellant Beneficiaries, there was evidence that SunTrust fraudulently concealed from them that the bank was breaching its duty to provide all of the beneficiaries an annual accounting of the income distributions from Trust C, thereby tolling the limitation period on this claim.

(a) The same evidence discussed supra in Division 2 (a) with respect to Beneficiary Rob Smith would support a finding by the jury that SunTrust fraudulently concealed from him that the bank was breaching its duty to provide him with an annual accounting. Consequently, the trial court erred in concluding that his claim was barredby the statute of limitation because a genuine issue of material fact exists regarding whether the limitation period was tolled on the ground of fraudulent concealment.

(b) Again, we reach a different result with regard to the Roy Smith Beneficiaries. The June 5,1990 letter put them on notice that they were current beneficiaries with certain rights to disbursement under Trust C, but they nevertheless took no steps to obtain a copy of the Trust instrument to ascertain the exact parameters of those rights (including the right to an annual accounting) until this litigation. Consequently, for the same reasons discussed supra in Division 2 (b), the Roy Smith Beneficiaries failed to exercise due diligence. Nevertheless, the statute of limitation did not bar their claims for the failure of SunTrust to provide them with an annual accounting within the six years of their filing of their claims in this case, given that, as previously explained, each act of alleged mismanagement by a trustee that detrimentally affects the beneficiary creates a new cause of action for that specific act of mismanagement. See Allen, 244 Ga.App. at 272.

4. In their brief, the Trustees request this Court to rule on additional grounds for summary judgment that they raised below, but were not ruled upon by the trial court in its order. Pursuant to City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002), we decline to address the additional grounds not ruled upon by the trial court and which have not been adequately briefed by the parties before this Court. See Zurich American Ins. Co. v. Heard, 321 Ga. App. 325, 333 (5) (740 SE2d 429) (2013). On remand, the trial court can consider in the first instance the additional grounds raised by the Trustees in support of their motion for summary judgment.

In sum, we conclude that the trial court erred in ruling that the applicable statute of limitation barred, as matter of law, the following claims: the Appellant Beneficiaries’ claim that the Trustees breached their fiduciary duty when they conveyed the Century Center Property to Trustee Crum and her husband through an alleged straw man transaction for below fair market value; Beneficiary Rob Smith’s claim that SunTrust breached its fiduciary duty by improperly distributing all of the net income from Trust C to Trustee Crum and by failing to provide him with annual accountings of Trust C; and the Roy Smith Beneficiaries’ claims relating to Trust C predicated on acts of alleged misconduct by SunTrust that occurred within six years of the filing of their claims in this litigation. These rulings by the trial court are vacated, and the case is remanded with the instruction that the court consider in the first instance the additional grounds for summary judgment asserted by the Trustees. In contrast, we conclude that the trial court committed no error in ruling that the applicable statute of limitation barred, as a matter of law, the Roy Smith Beneficiaries’ claims relating to Trust C predicated on acts of alleged misconduct by SunTrust that occurred more than six years before the filing of their claims in this litigation. The trial court’s ruling in that respect is, therefore, affirmed.

Decided January 15, 2014

Aitkens & Aitkens, Robert G. Aitkens, Teresa T. Aitkens, Caldwell & Watson, Harry W. MacDougald, for appellants.

Cohen Pollock Merlin & Small, Kevin T. O’Sullivan, Leslie S. Kehoe, Elizabeth B. Hodges, for appellees.

Judgment affirmed in part and vacated in part, and case remanded with instruction.

Miller and Ray, JJ., concur.

       Trust A contained a separate termination provision under which “the principal and any undistributed income” of the trust would be paid to the Fisher Foundation, Inc. upon the death of Trustee Crum.

       There are now 23 total beneficiaries.

       Trustee Linder testified in his deposition that in 1979, there was concern among the Trustees that the developer would “walk away” from the 90-year ground lease because “[t]here had been no development for a series of years” and that, as a result, the income to the Trust generated from the lease “would drop substantially” and the beneficiaries would he harmed. Trustee Linder testified that the conveyance of the Trust’s interest in the Century Center Property was done to reduce the risk posed to the Trust by a potential default on the ground lease and was not intended simply as a straw man transaction to enrich Trustee Crum and her husband. Of course, for purposes of summary judgment, all evidence and inferences drawn from it must be construed in the light most favorable to Appellant Beneficiaries as the nonmovants, and neither this Court nor the trial court is authorized to assess the credibility of the various witnesses. See First Nat. Bank of Gainesville v. Loggins, 207 Ga. App. 814, 816-817 (429 SE2d 278) (1993).

       The father of Appellant Beneficiaries Don Smith, Roy Smith, Jr., and Christie Romano died in 1985. As his lineal descendants, they were not substituted as income beneficiaries of Trusts B and C until that time. They will be referred to hereinafter as the “Roy Smith Beneficiaries” for ease of reference.

       The record also contains a March 1, 1990 letter from the trust officer addressed to the beneficiaries discussing Trust C and how the income distributions had been handled by SunTrust. SunTrust asserts that the March 1,1990 letter was sent to all beneficiaries of Trust C, including the Appellant Beneficiaries, but each of them testified that they never received the letter.

       Trustee Crum, then 96 years old, no longer served as a co-trustee of the Trust by the time the petition was filed. Evelyn Ayers Hull now serves as a co-trustee of the Trust.

       The Appellant Beneficiaries were provided an extension of time to respond to the Trustee’s petition.

       While the Revised Georgia Trust Code became effective July 1,2010, its provisions apply to any trust irrespective of the date the trust was created, with two exceptions: “to the extent it would impair vested rights” and “except as otherwise provided by law.” OCGA § 53-12-1 (b). See McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (a) (705 SE2d 314) (2011). The parties have not shown that either exception applies here. “There is no vested right in a statute of limitation.” (Punctuation and footnote omitted.) Huggins v. Powell, 315 Ga. App. 599, 602 (1) (726 SE2d 730) (2012). See Vaughn v. Vulcan Material Co., 266 Ga. 163, 164 (1) (465 SE2d 661) (1996); Hunter v. Johnson, 259 Ga. 21,22 (1), (2) (376 SE2d 371) (1989). Moreover, neither party has pointed to any other law that would preclude the application of OCGA § 53-12-307 (a) in the present case. Accordingly, we will apply the statute of limitation found in the Revised Georgia Trust Code.

       To the extent that Mayfield v. Heiman, 317 Ga. App. 322, 326 (2) (730 SE2d 685) (2012) suggests that OCGA § 53-12-307 (a) does not apply retroactively, that suggestion is nonhinding dicta. In Mayfield, the question at issue was whether the plaintiffs, as a matter of law, had failed to exercise due diligence to discover the alleged fraudulent concealment by the defendants. See id. at 326-328 (2). This Court answered in the affirmative and affirmed the grant of summary judgment to the defendants on the ground that the limitation period had not been tolled. See id. Hence, the issue in Mayfield was not the length of the applicable limitation period, hut whether that period had been tolled by fraudulent concealment.

       As previously noted, the Appellant Beneficiaries contend that they never saw or received the fourth quarter account statements. As to the Roy Smith Beneficiaries, whose father was the beneficiary of the Trust in 1979, the Trustees argue that the father’s receipt of the account statements also served as notice of the conveyance to his children under the doctrine of “virtual representation.” The Roy Smith Beneficiaries argue in response that “virtual representation” does not apply in Georgia outside the limited context of a judicial proceeding. We need not resolve this issue in light of our decision that the scope of the disclosure contained in the fourth quarter accounts statements was insufficient to entitle the Trustees to judgment as a matter of law on the tolling issue.

       As noted above, Mr. Fisher died in 1969 shortly after creating the Trust.

       See OCGA § 53-12-307 (a). See also supra note 8. We note that the June 5, 1990 letter did “not contain the type of detailed information contemplated by Legislature” so as to qualify as a written “report” sufficient to trigger the running of the shorter two-year limitation period. See Hasty, 293 Ga. at 732 (2).