dissenting.
I believe the record thus far established does not entitle defendant to judgment as to sales taxes paid by plaintiff prior to December 16, 1977, for which refunds were not sought. The majority holds that the four-year statute of limitation ran as to these because the wrongful act and damages occurred each time plaintiff paid the tax in reliance on defendant’s erroneous advice.
Plaintiff is not basing its action on wrongful advice which led it to pay, however. That “advice” was silence, in fact, as Jones’ deposition shows that the taxes the company claims it should not have paid, because it was exempt as a common carrier, were the sales taxes it paid on the periodic purchases of equipment such as trucks and replacement parts for trucks. One of the things it contends is that it should have been told by defendant that the company did not have to pay the sales taxes, after it became licensed as a common carrier in 1974. According to Jones, the accountant who began doing plaintiff’s work in 1973 did not tell the client that it no longer had to pay the sales tax. This would be a continuing duty; each time plaintiff paid, it did so unnecessarily. Apparently Jones was correct about this, as refunds were obtained on some of these payments after it was discovered that the taxes had been paid. The accountant did not tell the client that it was not obligated to pay. So the company paid, year after year, until a conversation with a business friend brought the exemption status to plaintiff’s owner’s attention, and the accountant filed for and obtained refunds for the years as far back as the refund statute allowed.
Plaintiff is not basing its claim solely on the obligation to advise that it need not pay. It bases its claim also on the ground that defendant had a legal duty to advise it that it could obtain a refund but did not do so, year after year. This duty, it says, arises from the contractual relationship of the parties, whereby the accountant had continuing supervisory control of plaintiff’s books and records and had all tax preparation functions. Whether or not the defendant had such a duty would depend on the extent of that relationship and on the standard of care required of this particular profession. In neither instance is the record developed, but Jones’ deposition does show the continuing and continuous relationship was more than a sporadic or intermittent one and that the accountant knew from the beginning that plaintiff had secured common carrier certification yet never filed for the re*573fund until the client brought the matter up, and by then some of the refunds were beyond reach. It is those which the client sues for.
The parties stipulated that Georgia tax law gives the payer the right to secure a refund for taxes paid but not owed, if action is taken within three years. OCGA § 48-2-35 (b) (1). The payer lost that right due, it says, to the negligent omission of the accountant in not seeking certain of the refunds while they were available. Thus the real question is whether the accountant had a duty to seek the statutorily-provided refunds. If it did, then the wrongful act was in not initiating each refund claim within the time it would be allowed.
The majority concludes that Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 (273 SE2d 16) (1980) applies so as to disallow the creation of any new duty here to correct a wrongful act and thereby avoid its consequences. I do not believe Jankowski compels that result. There the court was dealing with a law firm’s duty to attend trial and avoid dismissal for want of prosecution. The client did not sue for more than four years after this occurred. In the instant case, the issue does not primarily involve the accountant’s duty to advise the client that it did not have to pay sales taxes but rather its duty to file for a refund when such taxes are inadvertently paid. To say that a lawyer has no separate duty to correct his negligence insofar as the law allows does not foreclose the recognition of a legal duty on the part of an accountant to seek a statutorily-provided refund for his client so long as it is available. It depends on what the duties of that profession are. The accountant may have that duty even if he was not responsible for the client’s having erroneously paid the sales taxes in the first place. He may not even have been the accountant at the time the sales taxes were paid out of ignorance of the law.
The majority’s position creates a paradoxically unfair shield for the negligent accountant: if he sleeps on his client’s rights long enough, the statutory remedy (refund) expires and so does his obligation, carrying with it the right of the client to sue for the negligence. Thus, the more egregious the omission by the accountant, in terms of letting time elapse without action, the greater the chance of his being saved by the litigation statute of limitation from judicial redress to his client. Here the wrongdoer’s delay, rather than the wronged party’s delay, is being allowed to bring into play the statute of limitation.
“The statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought. ‘When the question is raised as to whether an action is barred by a statute of limitation, the true test to determine when the cause of action accrued is “to ascertain the time when the plaintiff could first have maintained his action to a successful result.” ’ Mobley v. Murray County, 178 Ga. 388 (1) (173 SE 680) *574(1934).” Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978), quoted and applied recently in Bryant v. Allstate Ins. Co., 254 Ga. 328 (326 SE2d 753) (1985).
Since a refund was obtainable until the statutory cut-off date, the duty (if there was one) to advise that a refund was available would have continued from the time a refund first became obtainable at least to the date the right to a refund expired. At that latter date a cause of action would accrue because it is then that damages, i.e., the lost refund, could be awarded. Before that, what would be the measure of damages?
Thus, it would not be an actionable wrongful omission to act until the refund became unavailable, i.e., at the end of each three-year period. The four-year statute would begin to run when “there is a violation of a specific duty accompanied with damage. Code Ann. § 105-104 [now OCGA § 51-1-8]. . . . [B]oth the wrongful act and the damage must exist in order for there to be a cause of action.” Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805, supra. Plaintiff could not, in the words of Jankowski, “have successfully maintained the action” for failure to seek the refund until there was damage to the taxpayer. The principle was repeated in Shessel v. Stroup, 253 Ga. 56, 58 (316 SE2d 155) (1984): “Just as a wrongful death action may not be brought until death occurs, a personal injury claim may not be brought until there is injury.”
The same would apply to this tort. Loss was not sustained until the refund could no longer be obtained. Plaintiffs lawsuit would have been subject to a perfunctory motion to dismiss, had it brought such lawsuit for damages while the refund right was still extant, because it would have suffered no legally cognizable harm from the accountant’s failure to file for a refund at that point. Loss of use of money is recoverable in the form of interest when interest is provided for, but that would not obtain here. Filing for the refund would have been the remedy.
In Jankowski, moreover, the measure of damages would have been difficult if not practically impossible. That case involved failure to revive a shareholders derivative suit. How would the law assess damages for failure to pursue it? Here, on the other hand, the damages claimed are simply the mathematically-calculable tax refunds, plus interest, for those several years for which the taxing authority would no longer pay them.
As the court quoted in Shessel, supra at 59: “ ‘Statutes of limitation . . . are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until *575evidence has been lost, memories have faded, and witnesses have disappeared.’ ” Here it appears that the statute is being used by the professional who slept on its client’s rights, to shield it from responsibility for its inaction, an omission which closed the door to a refund.
Decided July 9, 1985 Rehearing denied July 31, 1985 William H. Major, William B. Brown, for appellant. Sidney R. Barrett, Jr., J. Alexander Porter, for appellee.The terms of the contract between the accountant and the trucking company have not been shown to be other than what Jones testified to, which was that the accountant set up the books, periodically reviewed and corrected them, provided ledgers and record-keeping forms and instructions, prepared and filed all the tax returns. Whether the nature of the contractual relationship included a duty to advise regarding refund rights based in the unnecessary payment of sales taxes has not been established. But there is some evidence of such a duty, as the accountant did undertake to prepare and pursue the refunds still obtainable when plaintiff brought the matter to its attention. If it did not acknowledge such a duty, it has not explained why it assumed that duty’s burdens. In addition, expert professional testimony as to the standard of care required of an accountant in such circumstances may be indicated. Defendant does not show that, as a matter of law, it had no such legal duty.
“ ‘To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence [cits.] and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.’ [Cit.]” (Emphasis supplied.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (2) (271 SE2d 1) (1980). This was quoted and applied in Jordan v. Atlanta Neighborhood Housing Svc., 171 Ga. App. 467, 468 (1) (320 SE2d 215) (1984), where the court went on to say: “On motion for summary judgment made by the defendant, all evidence most favorable to the [plaintiff’s] position, including [its] own testimony, will be taken as true.” Genuine issues of material fact remain as the duty of an accountant in circumstances such as existed here, and I would reverse the grant of partial summary judgment to defendant.
I am authorized to state that Chief Judge Banke, Presiding Judge Deen and Presiding Judge Birdsong join in this dissent.