On March 7, 2000, Cochran Mill Associates hereinafter “Cochran Mill,” “appellant” or the “partnership”, a Georgia general real estate partnership formed to purchase undeveloped land in South Fulton County, sued its former managing partner, John A. Stephens a/k/a Jack Stephens and d/b/a Adanac Properties, alleging various claims including breach of fiduciary duty, fraud, negligence, and conversion, arising from Stephens’s promotion of the land deal and his alleged mismanagement of the partnership from 1989 until he was removed in 1999. With regard to the land deal, Cochran Mill sought to recover part of the purchase price based on its claim that Stephens unlawfully inflated the price. Cochran Mill dismissed that action on May 20, 2003, and filed the instant renewal action on November 18, 2003, asserting similar claims. Cochran Mill filed an amended complaint on February 24, 2005, adding a claim for violation of Georgia’s Racketeer Influenced and Corrupt Organizations RICO Act based on Stephens’s conversion and theft of partnership funds. Stephens moved for summary judgment. The trial court granted Stephens’s motion on Cochran Mill’s RICO claim and all claims related to the land purchase deal, including breach of fiduciary duty, misrepresentation, and fraud, concluding that the claims were barred by the applicable statutes of limitation. As to Cochran Mill’s claims for negligence, conversion and breach of fiduciary duty related to Stephens alleged mismanagement of the partnership, the trial court granted partial summary judgment finding that 1 Cochran Mill’s claims for negligence and conversion based upon Stephens’s actions on or before March 7, 1996, were barred by the applicable statutes of limitation; and 2 that Cochran Mill’s claim for breach of fiduciary duty based upon Stephens’s actions on or before March 7, 1994, was barred by the six-year statute of limitation. Cochran Mill appeals these rulings. For the reasons set forth below, we affirm. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”1 We apply a de novo standard of review to an appeal from a grant of summary judgment, and view the evidence, including all reasonable conclusions and inferences drawn therefrom, in the light most favorable to the nonmovant.2 However, summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where, as in this case, the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.3 So viewed, the record shows that Stephens is a licensed real estate broker with Re/Max Affiliates, Roswell. Beginning in 1986, Stephens formed three partnerships —White Oak Creek Associates, Cedar Grove Associates, and Cedar Grove II Associates —for the purpose of purchasing raw land in South Fulton County, an area Stephens touted as “the next big GROWTH area in metro Atlanta.” Stephens was managing partner of and owned shares in all three partnerships. Sometime in early 1988, Jose Oviedo, M. D., a partner in two of the partnerships, White Oak Creek and Cedar Grove, approached Stephens about investing his retirement money in real estate. Stephens suggested Oviedo invest in a 210-acre plot in south Fulton County on Cochran Mill Road. On August 16, 1988, Oviedo executed a purchase agreement on the property in the amount of $699,543.43, approximately $3,325 per acre. The sale closed on or about November 8, 1988. Stephens represented the J. R. Oviedo, M. D., P. C. Profit Sharing Trust in the transaction and received a commission in conjunction with the sale.
On September 16, 1988, two months before Oviedo purchased the 210-acre tract the “Oviedo tract”, Stephens sent a letter on ReMax letterhead to prospective investors, i.e., partners in White Creek, Cedar Grove, and Cedar Grove II titled “INVESTMENT OPPORTUNITY: 207 ACRES WITH APPROXIMATELY 4500 FEET FRONTAGE ON COCHRAN MILL ROAD IN SOUTH FULTON COUNTY.” The letter provided as follows: As you are aware, the land in this area is rapidly being purchased and this parcel, being in the “HEART” of the Fairburn, Georgia region of WHITE OAK CREEK, CEDAR GROVE AND CEDAR GROVE II should be a very, very good APPRECIATOR. It could even be a potential “COMMERCIAL” property because of its location and road frontage. You, as a current Land Investor with us, are being given the FIRST RIGHT OF REFUSAL. We are purchasing the parcel for $4,500 per acre with 20 down and the balance being carried by the seller on a 30 year amortization with a 5 year call. We WILL sell this land within 5 years. There will only be 19 shares with each share representing 10.89 acres, and the down payment for each share is $9,806. If you are interested in joining COCHRAN MILL ASSOCIATES please send your earnest money check of $1,000 per share payable to ReMax Affiliates in care of me by September 30, 1988. The balance of the down payment, $8,806 will be due at closing scheduled for November 1, 1988. On October 1, 1988, all remaining shares will be made available to others outside the current partnerships. Subsequently, Stephens sent two more letters on ReMax letterhead touting a “NEW OFFERING” or “INVESTMENT OPPORTUNITY” in 105.19 acres or one half of the Oviedo tract on Cochran Mill Road in south Fulton County at a price of $4,500 per acre, with “the intent of putting the property on the market the day after closing for $9,000 per Acre.” Stephens explained to investors that “this is the piece of property I told you about last September but the seller’s CPA told him not to sell until this year.”
