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Goldston v. Bank of Am. Corp.

If proven, the allegations in the plaintiff's complaint were sufficient to show that fraud tolled the 10-year statute of limitation on her claims against a bank involving the bank's management of trust property.

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After consideration of “all the pleadings and briefs filed by the parties,” the Superior Court of Fulton County dismissed the complaint of Lorrie Anne Goldston, nee Zeigler, alleging a breach of fiduciary duty and fraud against the successor in interest to Fulton National Bank of Atlanta, defendant Bank of America Corporation “Bank”, for its failure as trustee to comply with the terms of a trust established by Goldston’s father for the benefit of Goldston and her brother. The superior court found that Goldston’s complaint is time barred by the ten-year statute of limitation applicable to claims of breach of fiduciary duty pursuant to OCGA § 9-3-27. Upon review, and for the reasons that follow, we reverse.

A motion to dismiss is an anomalistic vehicle by which to assert an action as time barred by a statute of limitation.1 “A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.”2 This is the posture in which the instant case comes to us.

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