In Case No. A03A1394, appellant-defendant William Singleton, the surviving partner of appellant-defendant United Tower Company, the partnership collectively “United Tower” or “partnership”, appeal from the order of the Oconee County Superior Court granting in part and denying in part United Tower’s motion for summary judgment as to the claims of appellee-plaintiff Sharon D. Terry, in her representative capacities as executor of the estate of her mother, Carol Walker Graziosi, and as administrator of the estate of her father, Angelo Augusto Graziosi, Jr. collectively “Ms. Terry”, seeking an accounting of United Tower and damages arising out of Mr. Singleton’s failure to wind up the partnership upon the death of his decedent partner, Ms. Terry’s father. United Tower timely filed its answers denying the material allegations of the amended complaint and a counterclaim seeking, among other things, a declaratory judgment as to its ownership of the partnership’s place of business, real property and a building located at 740 Adamson Drive, Monroe the “property”. The record shows that the superior court granted United Tower summary judgment upon Ms. Terry’s prayer for an accounting of the partnership —this as time-barred in the absence of fraud by the running of the four-year statute of limitation under OCGA § 9-3-25, but denied it summary judgment upon Ms. Terry’s claims for breach of fiduciary duty. These sought damages for the value of Mr. Graziosi’s interest in United Tower at the time of his death and for his share of the partnership’s profits after his death.
United Tower challenges the partial denial of its motion for summary judgment, arguing that Ms. Terry’s sole cause of action against the partnership was for a time-barred accounting; that Ms. Terry was estopped to assert any claim for breach of fiduciary duty for failure to plead such a duty; and that the ten-year statute of limitation for actions against fiduciaries, OCGA § 9-3-27, was inapplicable. Further, United Tower contends that the superior court erred in denying its motion to dismiss Ms. Terry’s breach of fiduciary duty claims, again as not pled; and, at trial, erred in denying its motion for directed verdict, for want of any claim for breach of fiduciary duty; and erred in charging the jury on a partner’s right to an accounting rather than for breach of fiduciary duty.
