Marcus Miller v. Sarita Wilcoxson

FOURTH DIVISION
DILLARD, P. J.,
MERCIER, J., and SENIOR JUDGE FULLER

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

February 6, 2026

In the Court of Appeals of Georgia
A25A1950. MILLER v. WILCOXSON.

FULLER, Senior Judge.

In this action for breach of fiduciary duty and related claims, plaintiff Marcus

Miller appeals from the dismissal of his complaint as time-barred, contending that the

trial court erred when it determined that his claims are subject to a four-year statute

of limitation. For the reasons that follow, we disagree and affirm.

By way of background, and as we recounted in a prior related appeal between

the parties, defendant Sarita Wilcoxson’s minor daughter Sariah was shot and killed

on an approach to a housing complex in January 2016. Miller v. Wilcoxson, 372 Ga.

App. 686, 686 (905 SE2d 889) (2024). In November 2016, Wilcoxson sued the owners

and operators of the complex, asserting claims for wrongful death and for Sariah’s
personal injuries. Id. Multiple law firms, including Thomas Kennedy Sampson &

Tompkins LLP (“TKST”), represented Wilcoxson in that proceeding. In connection

with that lawsuit, a TKST attorney tried unsuccessfully to contact Miller — Sariah’s

father — who did not participate in the litigation. That case settled in April 2019. Id.

“Half of the net settlement proceeds [of approximately $7 million] were disbursed to

Wilcoxson, while the other half were placed in escrow pending court determination

as to the rightful recipient.” Id. at 686–87.

Wilcoxson later voluntarily dismissed the wrongful death action with prejudice

in May 2019. Miller, 372 Ga. App. at 687. After a representative of Sariah’s estate

informed Miller that he may be entitled to a portion of the settlement, Wilcoxson filed

a motion in the wrongful death proceeding to apportion the settlement proceeds

pursuant to OCGA § 19-7-1(c)1 in November 2019. See id. Wilcoxson asserted in her

motion that she had prosecuted the wrongful death claim (in which, as discussed

above, Miller did not participate) in accordance with OCGA § 19-7-1(c)(2)(C) and

that one-half of the net settlement proceeds had been held in trust pending court

determinations as to whether Miller was Sariah’s father and what percentage, if any,

1
As discussed in more detail below, OCGA § 19-7-1 governs parents’ rights to
share in recoveries for the wrongful deaths of certain children.
2
of the proceeds he was entitled to collect.2 Following a hearing regarding each parent’s

relationship with Sariah, the trial court granted the apportionment motion and

directed that three percent of the settlement proceeds be disbursed to Miller. Id. at

688. Miller appealed, and we reversed, holding that Wilcoxson’s voluntary dismissal

of the action divested the trial court of jurisdiction to rule on the subsequently filed

apportionment motion. Id. at 689(1).

On November 20, 2024, Miller initiated the current action against Wilcoxson,

asserting claims for, as relevant here, breach of fiduciary duty and an accounting

(Count I), and fraud, deceit, and conversion (Count II).3 In Count I, Miller asserted

that Wilcoxson owed him a fiduciary duty that arose when she contracted with TKST

to represent her in the wrongful death action pursuant to OCGA § 19-7-1(c)(2)(C).

And he claimed that Wilcoxson breached that duty when she failed to inform him that

she had done so, failed to provide him with an accounting and pay him one-half of the

2
DNA testing established Miller’s paternity in 2021.
3
Miller also asserted a claim for OCGA § 13-6-11 attorney fees, but he does not
address the dismissal of that claim on appeal. See generally United Cos. Lending Corp.
v. Peacock, 267 Ga. 145, 147(2) (475 SE2d 601) (1996) (“A prerequisite to any award
of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the
underlying claim[s].”).
3
settlement proceeds, improperly disbursed the proceeds, and converted funds

belonging to him. Count II relied on many of the same allegations, as well as claims

that Wilcoxson misrepresented and failed to disclose to Miller facts about the

wrongful death action. As relief, Miller sought, among other things, an accounting,

monetary damages, and attorney fees.

Contemporaneously with her answer, Wilcoxson moved to dismiss Miller’s

complaint as time-barred and for failure to state a claim. In its order granting the

motion, the trial court concluded that Miller’s claims: (i) accrued no later than 2019,

when, among other things, he responded to Wilcoxson’s motion for apportionment

in the wrongful death action4; and (ii) were untimely asserted more than four years

after they accrued. This appeal followed.

Miller challenges the trial court’s ruling that a four-year statue of limitation

applies to his claim for breach of fiduciary duty. We discern no error.

Whether a statute of limitation bars an action generally is a mixed question of

law and fact, but the question is one of law where, as here, the pertinent facts appear

4
Wilcoxson attached filings from several other proceedings as exhibits to her
motion to dismiss Miller’s complaint. On appeal, Miller does not challenge the trial
court’s reliance on any such documents; to the contrary, he relies on some of them in
his appellate brief.
4
to be undisputed. Harrison v. McAfee, 338 Ga. App. 393, 395(2) (788 SE2d 872)

(2016). Accord Fleming v. Lee Eng’g & Constr. Co., 184 Ga. App. 275, 275–76 (361

SE2d 258) (1987). Our review, therefore, is de novo. See, e.g., Spruell v. Spruell, 356

Ga. App. 722, 724 (848 SE2d 896) (2020). “Georgia has no specific statute of

limitation for breach of fiduciary duty claims. Instead, we examine the injury alleged

and the conduct giving rise to the claim to determine the appropriate statute of

limitation.” Niloy & Rohan, LLC v. Sechler, 335 Ga. App. 507, 512(2) (782 SE2d 293)

(2016) (quotation marks omitted). The statute of limitation for fraud is four years,

pursuant to OCGA § 9-3-31. Copeland v. Miller, 347 Ga. App. 123, 125(1) (817 SE2d

692) (2018). Accord Majeed v. Randall, 279 Ga. App. 679, 681(3) (632 SE2d 413)

(2006). Thus, where a claim for breach of fiduciary duty is premised on allegations of

fraud, a four-year limitation period applies. See Antley v. Small, 360 Ga. App. 617,

623–24(5) (859 SE2d 881) (2021); Godwin v. Mizpah Farms, 330 Ga. App. 31, 39(3)(b)

n.8, 42(3)(c) (766 SE2d 497) (2014); Kothari v. Patel, 262 Ga. App. 168, 174(3) (585

SE2d 97) (2003).

In contrast, “[u]nder OCGA § 9-3-24, an action for breach of a written contract

must be brought within six years of the breach.” Godwin, 330 Ga. App. at 38(3)(b)

5
(quotation marks omitted). Accord S. States Chem. v. Tampa Tank & Welding, 359 Ga.

App. 731, 738(2)(a) (858 SE2d 72) (2021). “[T]he six-year statute of limitation applies

to claims involving the breach of a written contract, including claims for . . . breach of

duty arising from the same factual basis as the breach of a written contract claim.” Old

Republic Nat’l Title Ins. Co. v. Darryl J. Panella, LLC, 319 Ga. App. 274, 276(1) (734

SE2d 523) (2012).

Miller’s claims against Wilcoxson are premised on the statutory scheme

governing surviving parents’ rights to share in the recovery for the wrongful death of

a child who is not survived by a spouse or children. The relevant statute provides that,

where, as here, “the deceased child does not leave a spouse or child,” the right of

recovery for the full value of the child’s life lies in the child’s parent or parents.

OCGA § 19-7-1(c)(1)–(2). As also is the case here,

if the parents are . . . living apart and one parent refuses to proceed or
cannot be located to proceed to recover for the wrongful death of a child,
the other parent shall have the right to contract for representation on
behalf of both parents, thereby binding both parents, and the right to
proceed on behalf of both parents to recover for the homicide of the child
with any ultimate recovery to be shared by the parents as provided in this
subsection. Unless a motion is filed as provided in paragraph (6) of this

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subsection, such a judgment shall be divided equally between the parents
by the judgment . . . .

OCGA § 19-7-1(c)(2)(C).

Paragraph (6) of the statute provides that a motion may be filed by either parent

before trial asking the trial court “to apportion fairly any judgment amounts awarded

in the case.” OCGA § 19-7-1(c)(6). The court must then conduct a hearing to

“determine the percentage of the judgment to be awarded to each parent.” Id. Thus,

under the statutory scheme, where, as here, “one parent undertakes to prosecute the

cause, the other is nevertheless bound by such action and the law provides for

equitably apportioning any proceeds.” Blanton v. Moshev, 262 Ga. 254, 255(1) (416

SE2d 506) (1992).

(a) On appeal, Miller does not challenge the trial court’s ruling that his Count

II claims for fraud, deceit, and conversion are time-barred, and we therefore express

no opinion on this issue, which we deem waived. See Gresham v. Harris, 349 Ga. App.

134, 138(1) n.10 (825 SE2d 516) (2019) (concluding that the appellant waived any

claim that the trial court erred in making a certain finding “by failing to enumerate it

as an error and provide any supporting argument” on appeal); Karlsberg v. Hoover, 142

7
Ga. App. 590, 594 (236 SE2d 520) (1977) (“[A]n appellant is required in its initial

brief to file an argument which supports any enumerations of error it does not wish to

waive.”).

(b) Turning to Miller’s Count I claim, even assuming that Wilcoxson owed him

a fiduciary duty, it did not arise from a written contract. In that regard, Miller does not

allege that Wilcoxson violated any contractual duties set forth in any agreement she

may have had with her attorneys in the wrongful death action.5 See generally

UWork.com v. Paragon Techs., 321 Ga. App. 584, 590(1) (740 SE2d 887) (2013) (“The

elements for a breach of contract claim in Georgia are the (1) breach and the

(2) resultant damages (3) to the party who has the right to complain about the contract

being broken.” (quotation marks omitted)). And contrary to Miller’s suggestion, on

the facts of this case, any potential fiduciary duty that Wilcoxson may have owed to

him necessarily flowed directly from OCGA § 19-7-1 and the maintenance of her

wrongful death lawsuit, not from any contract she may have had with her attorneys in

that proceeding; any such duty therefore was statutory, not contractual. See OCGA

§ 19-7-1(c)(2)(C). Put another way, any such duty arose from “the same factual basis”

5
Indeed, Miller does not identify any record evidence purporting to describe
the contents of any such agreement.
8
as the wrongful death action, not the “factual basis” of any potential fee arrangement

Wilcoxson may have had with her counsel. Old Republic Nat’l Title Ins. Co., 319 Ga.

App. at 276(1).

Moreover, Miller’s claim that Wilcoxson violated such a duty is premised

primarily — if not entirely — on his claim that she committed fraud in various ways

associated with the settlement of that action and distribution of the proceeds thereof.

Consequently, the trial court correctly ruled that the four-year statute of limitation for

fraud applies to Miller’s breach-of-fiduciary-duty claim. Compare Antley, 360 Ga.

App. at 623–24(5) (concluding that a four-year statute of limitation applied to a claim

for breach of fiduciary duty because the plaintiffs’ “primary allegations [were]

fraud-based claims, and because [the plaintiffs] did not allege a specific violation of

[an] LLC agreement” underlying the fiduciary relationship), and Godwin, 330 Ga.

App. at 42(3)(c) (applying the OCGA § 9-3-31 four-year statute of limitation to a claim

for breach of fiduciary duty seeking to recover for damage to one’s personal property

“arising from the breach of common law and statutory duties” (emphasis added)), with

id. at 38(3)(b) (concluding that a cause of action for breach of fiduciary duty, premised

on claims that various parties to a partnership agreement violated the agreement, was

9
subject to the OCGA § 9-3-24 six-year statute of limitation for actions on contracts),

and Crosby v. Kendall, 247 Ga. App. 843, 849(2)(c) (545 SE2d 385) (2001) (holding

that the appellees’ claims for breach of fiduciary duty arising out of the breach of an

escrow agreement were subject to the OCGA § 9-3-24 six-year statute of limitation).

Finally, Miller has waived, by failing to raise on appeal, any challenge he may

have to the trial court’s ruling that his breach-of-fiduciary-duty claim accrued no later

than 2019. See Gresham, 349 Ga. App. at 138(1) n.10; Karlsberg, 142 Ga. App. at 594.

Consequently, because we affirm the trial court’s ruling that a four-year statute of

limitation applies to Miller’s breach-of-fiduciary-duty claim, we likewise affirm the

court’s ruling that the claim was time-barred.

Judgment affirmed. Dillard, P. J., and Mercier, J., concur.

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