Oni v. Oni

BARNES, Presiding Judge,

concurring specially.

While I agree that the trial court must be reversed in this case, I do not agree with all that is said by the majority.3 The majority holds that the six-month time bar imposed by OCGA § 19-8-18 (e) cannot be *471tolled by fraud, and with that much I agree. However, I write separately to point out that under certain limited circumstances, the doctrine of equitable estoppel might preclude a defendant from asserting OCGA § 19-8-18 (e) as a defense.

In my view, OCGA § 19-8-18 (e) is best viewed as a statute of repose.4 A statute of repose, in contrast to a statute of limitation, “stands as an unyielding barrier to a plaintiff’s right of action” and is “absolute.” (Citation omitted.) Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005). Consequently, a statute of repose cannot be tolled for any reason, including fraud. See id. at 380; Balotin v. Simpson, 286 Ga. App. 772, 773 (650 SE2d 253) (2007); Hill v. Fordham, 186 Ga. App. 354, 357-358 (2) (367 SE2d 128) (1988). “This is so because tolling would deprive a defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose.” (Punctuation and footnote omitted.) Balotin, 286 Ga. App. at 773.

Significantly, “[notwithstanding this bright-line rule,” the Supreme Court of Georgia and this Court have “found that, in certain narrow circumstances, a defendant may be equitably estopped from raising the statute of repose as a defense.” Balotin, 286 Ga. App. at 773. See Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (3) (437 SE2d 308) (1993); Wilhelm v. Houston County, 310 Ga. App. 506, 509 (1) (c) (713 SE2d 660) (2011); Esener v. Kinsey, 240 Ga. App. 21, 23 (522 SE2d 522) (1999); Hill, 186 Ga. App. at 358 (2). See also Rosenberg v. Falling Water, Inc., 289 Ga. 57, 60-61 (709 SE2d 227) (2011) (discussing context in which doctrine of equitable estoppel can be applied with respect to statutes of repose).

[A]n equitable estoppel is based on the ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.

*472(Citation omitted.) Hollifield v. Monte Vista Biblical Gardens, Inc., 251 Ga. App. 124, 127 (1) (a) (553 SE2d 662) (2001).

Although fraud will not toll a statute of repose,

if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the [trier of fact] to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose.

Esener, 240 Ga. App. at 23. See Hill, 186 Ga. App. at 358 (2). See also Wilhelm, 310 Ga. App. at 509 (1) (c) (“[A] defendant maybe equitably estopped from raising the defense of the statute of repose if the plaintiff reasonably relied on a fraudulent act or statement by the defendant that occurred after the plaintiff’s injury accrued and, as a result of that fraud, the plaintiff did not file suit until after the repose period expired.”) (emphasis omitted). However, “the plaintiff must have acted diligently for equitable estoppel to be available, after the fraud was first discovered or should have been discovered.” Esener, 240 Ga. App. at 23.

Based on this precedent concerning equitable estoppel in the context of statutes of repose, I believe that a defendant may be equitably estopped from raising the defense of OCGA § 19-8-18 (e) if the plaintiff reasonably relied on a fraudulent act or statement by the defendant that occurred after entry of the adoption decree and, as a result of that fraud, the plaintiff did not file a motion to set aside the decree until after the six-month time period expired, so long as the plaintiff exercised due diligence after the fraud was first discovered or should have been discovered.5 While the majority asserts that the plain and unequivocal language of OCGA § 19-8-18 (e) brooks no exceptions, other statutes of repose have similarly broad language precluding suit after a designated time period.6 The language of OCGA § 19-8-18 (e) therefore is not so unique as to justify treating the statute differently from other statutes of repose. Accordingly, while the time bar imposed by OCGA § 19-8-18 (e) speaks in broad *473terms, I believe that the doctrine of equitable estoppel can still be applied if the circumstances warrant it.

Decided July 15, 2013 Reconsideration denied July 29, 2013 Kessler & Solomiany, Dennis G. Collard, William M. Ordway, David A. Webster, for appellant. Wayne W. Dempsey, Jr., for appellee.

Nevertheless, I must concur with the majority’s decision to reverse the trial court in this case. The legal issue of equitable estoppel was neither raised nor ruled upon in the court below, and “[i]t is axiomatic that we will not resolve issues that were not raised and ruled upon by the trial court.” Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 314 Ga. App. 360, 372 (5), n. 9 (724 SE2d 53) (2012). As we have explained,

[t]o consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.

(Citation, punctuation, and footnote omitted.) Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500 (2) (675 SE2d 249) (2009). For that reason, I concur in the judgment, but with the caveat that equitable estoppel might apply in a future case involving the application of OCGA § 19-8-18 (e). That question remains open for resolution at some later date.

Therefore, the majority opinion decides only the issues in this case and may not he cited as binding precedent. See Court of Appeals Rule 33 (a).

Other statutes of repose have similarly prohibitive language. Compare OCGA § 9-3-51 (a) (“No action to recover damages[ ] . . . shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.”) (emphasis supplied); OCGA § 9-3-71 (b) (“Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”) (emphasis supplied); OCGA § 9-3-73 (c) (“Notwithstanding subsections (a) and (b) of this Code section, in no event may an action for medical malpractice be brought____”) (emphasis supplied).

Our decision in Williams v. Williams, 312 Ga. App. 47 (717 SE2d 553) (2011) did not use the term “equitable estoppel,” but the decision contemplated that the six-month time bar imposed by OCGA § 19-8-18 (e) might not be invoked in cases of active deception by the defendant that prevented the plaintiff from learning of the adoption decree. See id. at 48 (“We note that April Williams did not allege that Jennifer Williams had engaged in any active deception during the six months following the entry of the adoption decree that prohibited April Williams from learning of that decree or bringing a challenge against it.”).

See supra footnote 4.