Larry W. Johnson v. Aprio, LLP

FIRST DIVISION
BROWN, C. J.,
BARNES, P. J., and WATKINS, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

March 9, 2026

In the Court of Appeals of Georgia
A25A1733. JOHNSON v. APRIO, LLP.

WATKINS, Judge.

Larry W. Johnson, plaintiff in the case below, appeals from the trial court’s

order granting the defendant’s motion for summary judgment and denying his cross-

motion. The trial court concluded that all of Johnson’s claims are barred by the

relevant statutes of limitation. As discussed 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. We review the grant of

summary judgment de novo, construing the evidence in favor of the nonmovant.”1

1
White v. Ga. Power Co., 265 Ga. App. 664, 664-65 (595 SE2d 353) (2004)
(citations and punctuation omitted).
So viewed, the record shows that Martin Tanenbaum, a partner at accounting

firm Aprio, LLP, was Johnson’s tax advisor from 2008 until Tanenbaum’s death in

2017. In 2012, Johnson invested $100,000 in a conservation easement as a tax-savings

strategy; Johnson alleges that he did so based on Tanenbaum’s advice. The IRS

subsequently determined that the investment was significantly overvalued and, in

2022, imposed more than $150,000 in back taxes, penalties, and interest charges

against Johnson. On August 15, 2023, Johnson filed a variety of claims against Aprio

and John Doe, the Administrator of Tanenbaum’s Estate.2

Aprio filed a motion to dismiss, arguing, inter alia, that Johnson’s claims

accrued in 2012 and are thus barred by the statutes of limitation. In response, Johnson

argued that his claims are timely because the limitation periods did not begin running

until 2022 when the IRS imposed sanctions. Johnson further asserted that dismissal

of his claims would be improper because there were “unresolved questions” as to

whether the defendants engaged in a “veil of fraudulent concealment” such that the

limitation period was tolled.

2
Johnson first filed suit in May 2023, but after failing to attach an expert
affidavit to support his malpractice claims, see OCGA § 9-11-9.1, he voluntarily
dismissed that action.
2
After Johnson raised the issue of tolling, the trial court converted Aprio’s

motion to dismiss to a motion for summary judgment and allowed the parties to

present further briefing on that issue. Aprio then filed a motion for summary judgment

and brief in support. In response to Aprio’s motion, Johnson reiterated his argument

that the limitation period did not begin to run until 2022. He also argued that the

statute of limitation was tolled because the defendants fraudulently concealed

important aspects of their conservation easement strategy from him.

Two days before the summary judgment hearing, Johnson filed a supplemental

response brief contending that the limitation period was tolled in March 2020 when

a putative class action was filed against Aprio in federal court.3 He asserted, without

elaboration, that his claims were addressed in the class action, and he cited a single

federal case — American Pipe & Construction Co. v. Utah4 — to support his contention

3
Also on March 12, Johnson filed a motion to stay this case in light of the
federal action. He asserted that a motion for class certification was pending in the
federal suit and argued that because he was a putative member of the class, his
individual case should be stayed until the class certification issue was resolved. The
trial court denied the motion, concluding that the federal proceeding did not bar the
state-court case, and noting, moreover, that if the prior pending action rule did apply,
dismissal — rather than abatement — would be the proper remedy.
4
414 US 538 (94 SCt 756, 38 LE2d 713) (1974).
3
that the filing of the class action tolled the limitation period. Notably absent was any

discussion of the applicability of this federal civil procedure case in a Georgia court.

Following the hearing, the trial court entered a thorough order granting the

defendant’s motion for summary judgment and denying Johnson’s motion for partial

summary judgment. The trial court found that most of Johnson’s claims accrued in

2012 at the time of his initial investment and that his RICO claim accrued, at the

latest, in January 2017 when he was informed the IRS had designated the investment

as a “listed” transaction, or tax avoidance scheme. The trial court further found that

Johnson had failed to establish he acted with the due diligence required for fraud-

based tolling, and the court rejected Johnson’s reliance on American Pipe. Ultimately,

the trial court concluded that all of Johnson’s claims were barred by the statutes of

limitation. Johnson then filed this appeal.

“[A] statute of limitation begins to run on the date a cause of action on a claim

accrues.”5 Thus, to determine whether Johnson’s claims are barred by the relevant

statutes of limitation, we must determine both when the claims accrued and whether

the applicable limitation periods were tolled.

5
Armstrong v. Cuffie, 311 Ga. 791, 794 (2) (860 SE2d 504) (2021) (citation and
punctuation omitted).
4
1. Johnson contends the trial court erred in determining when his claims

accrued. The trial court found that, except for his Georgia RICO claim (Count 8), all

of Johnson’s claims accrued in 2012 when the defendants advised him to invest in the

conservation easement and he did so. Johnson insists that these claims did not accrue

until 2022, when the IRS sanctioned him.6 We disagree.

In Counts 1, 2, and 3 of his complaint, Johnson raises claims for breach of

fiduciary duties, aiding and abetting fiduciary breaches, and conspiracy to do the same.

“The statute of limitation for a cause of action for breach of fiduciary duty is triggered

by a wrongful act accompanied by any appreciable damage.”7 Johnson’s complaint

alleges that the defendants breached their fiduciary duties when they recommended

the conservation easement strategy, failed to disclose the associated risks, and failed

to disclose they were receiving commissions or other financial benefits from third

parties. The complaint further alleges that Johnson’s damages include the loss of his

6
As to Johnson’s Georgia RICO claim, the trial court found that this claim
accrued by January 2017 at the latest, when Johnson was informed that the IRS had
designed the investment as a “listed transaction.” On appeal, Johnson does not
challenge this finding; instead, he contends, as discussed below, that the limitation
period was tolled.
7
Hendry v. Wells, 286 Ga. App. 774, 779(1) (650 SE2d 338) (2007).
5
initial investment.8 Both the defendants’ recommendation and Johnson’s initial

investment occurred in 2012, so the trial court correctly found that Johnson’s

fiduciary duty claims accrued in 2012.9

In Counts 4 and 5, Johnson alleges that the defendants breached their contract

with him and breached the covenant of good faith and fair dealing when they

recommended the conservation easement strategy and failed to disclose the associated

risks and their financial incentives. Breach of contract claims accrue when the contract

is broken,10 so the trial court correctly found that these claims accrued in 2012.

8
Johnson indicated, at the summary judgment hearing, that he was willing to
withdraw his allegation that his damages included his $100,000 initial investment.
Specifically, Johnson stated: “[T]o the extent, Your Honor, if my request for
$100,000 refund for the advice [a]s given is going to stand in the way from my lawsuit
going forward, then I’ll withdraw that particular request of damages[.]” As the trial
court observed in its summary judgment order, Johnson’s statement at the hearing
was not an unequivocal abandonment of that allegation of damages, and he never
actually amended his complaint to remove this allegation. Under these circumstances,
the trial court did not err by considering this allegation of damages as part of its
analysis.
9
See Hendry, 286 Ga. App. at 779(1).
10
Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 38(3)(b) (766 SE2d 497)
(2014).
6
In Counts 6, 7, and 9, Johnson raises claims for negligence, aiding and abetting

negligence, and professional malpractice. As facts supporting these claims, Johnson

alleges that he hired the defendants to serve as his tax advisors and that, by

recommending the conservation easement strategy and failing to disclose the

associated risks and their own financial incentives, the defendants failed to exercise

the requisite level of care. In malpractice claims, “a right of action arises immediately

upon the wrongful act having been committed, even [where] there are no special

damages.”11 Here, the defendants’ allegedly wrongful act occurred in 2012, so the trial

court correctly found that these claims accrued in 2012.

2. Johnson contends the trial court erred in rejecting his contentions that the

limitation periods were tolled. We disagree.

On motion for summary judgment, the movant has only the burden of
proof as to the affirmative defense of the running of the statute of
limitation and not to establish the absence of facts showing a tolling.
Once the movant has presented evidence that the claim is time-barred,
the burden of persuasion then shifts to the nonmovant to present some

11
Green v. White, 229 Ga. App. 776, 778(1)(a) (494 SE2d 681) (1997) (citation
and punctuation omitted).
7
evidence showing that an issue exists that the statute has not run but has
been tolled.12

Here, the trial court found and the parties agree that the statutory limitation periods

applicable to Johnson’s claims are four to six years, depending on the claim. Johnson

filed his complaint in August 2023. Thus, by establishing that Johnson’s claims

accrued in 2012 or by January 2017, the defendants met their burden of presenting

evidence that the claims are untimely. The burden then shifted to Johnson to present

evidence that the statutes were tolled.13

While reviewing the trial court’s decision on whether Johnson carried his

burden, we are mindful of several well-established legal principles. First, “it is the

duty of each party at the hearing on the motion for summary judgment to present his

case in full.”14 Second, because our appellate courts are for the correction of errors,

12
Godwin, 330 Ga. App. at 40(3)(b) (citations and punctuation omitted).
13
See Godwin, 333 Ga. App. at 40.
14
Summer-Minter & Assocs., Inc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173)
(1973).
8
an issue must be raised in the trial court to be considered on appeal.15 As this Court

recently reiterated,

[f]airness to the trial court and to the parties demands that legal issues be
asserted in the trial court. If the rule were otherwise, a party opposing a
motion for summary judgment need not raise any legal issue, spend the
next year thinking up and researching additional issues for the appellate
court to address, and require the opposing party to address those issues
within the narrow time frame of appellate practice rules.16

Third, an appellant “has the burden to show error from the record[,]”17 “mere

conclusory statements are not the type of meaningful argument contemplated by our

rules[,]”18 and we do not consider arguments that are raised for the first time in a reply

brief.19 In this vein, we have held that where an appellant’s principal brief merely

refers to papers contained in the record, such reference “does not satisfy our

15
See Wakefield v. Kiser, 371 Ga. App. 113, 114(1) (899 SE2d 757) (2024).
16
Id. at 114-15(1) (citations and punctuation omitted).
17
Majeed v. Randall, 279 Ga. App. 679, 680(2) (632 SE2d 413)(2006) (citation
and punctuation omitted).
18
Brittain v. State, 329 Ga. App. 689, 691 n.4 (766 SE2d 106) (2014) (citations
and punctuation omitted).
19
See Hart v. Redmond Regional Med. Center, 300 Ga. App. 641, 641 n.2 (686
SE2d 130) (2009).
9
requirement that the briefs on appeal contain reasoned argument in support of each

claim of error[.]”20

(a) Johnson contends the trial court erred in rejecting his argument that the

limitation periods were tolled in 2020, when a putative class action was filed against

Aprio in federal court. As support for this argument, Johnson pointed the trial court

to a single 50-year-old case from the United States Supreme Court: American Pipe,

wherein the Court held that “consistent with federal class action procedure . . . the

commencement of a class action suspends the applicable statute of limitations as to

all asserted members of the class who would have been parties had the suit been

permitted to continue as a class action.”21 We are not persuaded that the trial court

erred.

As the trial court noted in its summary judgment order, there are important

distinctions between this case and American Pipe — including that the instant case

20
Vann v. Finley, 313 Ga. App. 153, 154 n.2 (721 SE2d 156) (2011) (appellant
abandoned his claim that the trial court erred in excluding particular expert opinions;
although his reply brief included “some reasoned argument” in support of this claim,
his principal brief on appeal contained no such reasoned argument and, instead,
merely referred to the pertinent documents).
21
414 US at 554(II).
10
would require cross-jurisdictional tolling. The trial court clearly identified several

reasons for its ruling, stating:

In [his] sur-reply response brief filed without leave of Court, Plaintiff
included a single sentence argument on page 2 of his brief asserting that
the statute of limitations has been tolled by a federal class action, filed in
2020, in which Plaintiff is a putative member. See American Pipe and
Construction Co. v. Utah, 414 U.S. 538 (1974). American Pipe involved an
antitrust claim brought under the Sherman Act and considered whether
a prior class action had tolled the statute of limitations. While the Court
held that the statute of limitations under the Sherman Act had been
tolled, Plaintiff has cited to no Georgia case which has interpreted
OCGA § 9-11-23 in the same manner. Further, the American Pipe case
did not present a question of Due Process such that the holding would
be binding upon a state court interpreting a question of state law. See
Michigan v. Long, 463 U.S. 1032 (1983) (A federal appellate court does
not have jurisdiction to review a state court decision premised upon
adequate and independent state law grounds.). Moreover, American Pipe
did not concern a state court action pending simultaneously with a
federal class action — as here.

While Johnson enumerates this ruling as error on appeal, his initial brief does

not squarely address the trial court’s stated rationale. Instead, his brief notes that

American Pipe has been cited by nearly 3,000 opinions, quotes precedent holding that

Federal Rule of Civil Procedure 23 can be instructive when interpreting OCGA § 9-11-

11
23, and identifies several opinions in which our Court quoted American Pipe. But none

of our prior cases concerned cross-jurisdictional tolling, and Johnson does not offer

any meaningful argument on that issue until his reply brief — where he implicitly

acknowledges that this is an issue of first impression in Georgia and that other courts

are divided on the question.

Under these circumstances, we cannot conclude that the trial court erred in

rejecting Johnson’s claim of tolling on this ground. For all of the reasons outlined

above, including that a party must present his case in full at the summary judgment

proceeding before the trial court22 and that we do not consider arguments raised for

the first time in a reply brief,23 we discern no reversible error on this issue.

(b) Johnson contends the trial court erred in rejecting his contention that the

limitation periods were tolled in light of fraudulent concealment by the defendants.

This principle is codified at OCGA § 9-3-96, which provides that “[i]f the defendant

[is] guilty of a fraud by which the plaintiff has been debarred or deterred from bringing

22
See Summer-Minter, 231 Ga. at 604.
23
See Vann, 313 Ga. App. at 154 n.2.
12
an action, the period of limitation shall run only from the time of the plaintiff’s

discovery of the fraud.”

[T]o toll a limitation period under this statute, a plaintiff must make
three showings: first, that the defendant committed actual fraud; second,
that the fraud concealed the cause of action from the plaintiff, such that
the plaintiff was debarred or deterred from bringing an action; and third,
that the plaintiff exercised reasonable diligence to discover his cause of
action despite his failure to do so within the statute of limitation.24

“Whether a party exercised reasonable care in discovering the fraud is generally

a jury question.”25 However, “this is not always the case. A party may fail to exercise

due diligence as a matter of law.”26

Here, the trial court found that Johnson did not establish a dispute of fact as to

whether he exercised reasonable diligence to discover his causes of action against the

defendants. Specifically, the court found that Johnson “was in receipt of sufficient

24
Coe v. Proskauer Rose, LLP, 314 Ga. 519, 529(3) (878 SE2d 235) (2022)
(citation and punctuation omitted).
25
Smith v. SunTrust Bank, 325 Ga. App. 531, 541(1) (754 SE2d 117) (2014)
(citation and punctuation omitted).
26
Id. at 544(2)(b) (citation and punctuation omitted).
13
‘storm warnings’ to trigger a duty to inquire[,]” and that he failed to show he made

reasonable efforts to explore potential claims after he received those warnings.

On appeal, Johnson contends the trial court’s finding is erroneous because, in

2019, he reached out to a “standard of care” expert who provided an expert opinion

on the defendants’ actions. We agree with Aprio, however, that Johnson has failed to

preserve this issue for appellate review.

Before the trial court, Johnson did not argue that his 2019 consultation with the

standard of care expert satisfied the reasonable diligence requirement. Aprio even

discussed that consultation in its summary judgment brief, arguing (in anticipation of

what Johnson might argue) that because Johnson consulted the expert “in April 2019,

more than four years before he filed suit and more than three years after he learned

that the IRS had initiated audit proceedings [on the property at issue],” the

consultation did not constitute “a diligent investigation under any reasonable

interpretation of that requirement.”

But despite Aprio’s preemptive discussion, Johnson did not squarely address

the 2019 consultation, or even the due diligence requirement for fraud-based tolling,

in his brief in response to Aprio’s motion for summary judgment. Instead, he quoted

14
a federal case for the principle that “even ‘non-diligent’ plaintiffs are protected if

there is a ‘veil of fraudulent concealment,’”27 argued that the defendants had wrongly

failed to disclose important information to him, and reiterated his contention that his

claims did not accrue until 2022. Aprio pointed out Johnson’s misstatement of law in

its reply brief, and Aprio also argued, again, that Johnson had wholly failed to allege

or argue that he met the reasonable diligence requirement under Georgia law. Still,

even though Johnson filed a “supplemental response” brief, he failed to address this

issue. Johnson also did not address the diligence requirement during the trial court’s

hearing on the motions; there again, he argued that there was “concealment by a

fiduciary” and that this was sufficient to bring the issue of fraud-based tolling to a jury.

Under these circumstances, we agree with Aprio that Johnson has failed to

preserve this argument. Because Johnson did not argue before the trial court that his

2019 consultation with a “standard of care expert” satisfied the requirement that he

exercise reasonable diligence to discover any possible claims against the defendants,

27
Johnson’s position is not the law in Georgia. Our Supreme Court has clearly
held that even where the defendant has a fiduciary duty to the plaintiff, that
relationship “is not a separate and independent basis for [fraud-based] tolling, but
rather it is an important factor affecting the duty to disclose and the duty of ordinary
diligence[.]” Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 848(1) (507
SE2d 411) (1998).
15
he cannot now contend that the trial court committed reversible error by failing to

recognize that consultation as satisfying the requirement.28

For the foregoing reasons, we discern no reversible error in the trial court’s

summary judgment order.

Judgment affirmed. Brown, C. J., and Barnes, P. J., concur.

28
See Wakefield, 371 Ga. App. at 114-15(1).
16