SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
May 4, 2012
In the Court of Appeals of Georgia A12A0211. PRAINITO v. SMITH.
MCFADDEN, Judge.
After the death of Zina Cachia, a dispute arose among her heirs regarding
whether assets in a securities account and a certificate of deposit (“the accounts”)
were part of her estate. Cachia’s grandson, Dean Prainito, had obtained sole
possession of the assets in the accounts as a joint tenant with survivorship rights in
the securities account and as the payable on death beneficiary of the certificate of
deposit. On behalf of the estate, its Administrator CTA, Michael F. Smith, brought
an action in superior court against Prainito, and a jury found that Prainito had exerted
undue influence over Cachia and had engaged in actual fraud in connection with the
accounts. The jury awarded the estate damages in the form of the amount of money
that Cachia had put into the accounts and “all legal fees.” (Emphasis omitted.) The trial court entered a judgment on the verdict that included an attorney fee award of
$40,000.
Prainito appeals from the trial court’s entry of judgment on the jury verdict and
its denial of his motion for new trial. He argues that he was entitled to a directed
verdict on the undue influence and actual fraud claims, that the evidence did not
support a jury charge on either claim or on punitive damages, and that the attorney
fee award was improper. As detailed below, we find that there was evidence to
support the jury’s verdict on undue influence and actual fraud, that it thus was proper
for the court to charge the jury on those claims, and that Prainito’s claim of error
regarding the punitive damages charge lacks merit. We find, however, that the
evidence did not support the attorney fees award. Accordingly, we affirm the
judgment except as to the award of attorney fees, which we reverse.
1. Prainito contends that the trial court erred in denying his motion for directed
verdict on the claims of undue influence and fraud, arguing that the trial evidence on
these claims was insufficient, but he fails to cite any supporting authority for this
enumeration of error in his brief. See Ct. App. R. 25 (a) (3). Moreover, the record
contains evidence supporting the jury’s verdict. See Parris Props. v. Nichols, 305 Ga.
App. 734, 735 (1) (700 SE2d 848) (2010) (standard of review on appeal from denial
2 of a motion for directed verdict is whether there is any evidence to support the jury’s
verdict).
Construed in the light most favorable to the estate, see id., the evidence showed
that in May 1996, Cachia executed a will in which she left “all the money in [her]
banks and [her] investments . . . to [her] five grandchildren” and directed Prainito and
another grandchild to “see to it that all money will be divided equally” to five named
grandchildren. (Misspellings omitted.) Cachia had a sixth grandchild from whom she
was estranged, and who was not mentioned in the will. In a separate proceeding from
this appeal, the probate court determined that the will was valid.
Also in 1996, Cachia moved from Florida to the Atlanta area, close to Prainito
and another of her grandchildren. She stopped driving and depended upon Prainito
to take her to the store, the bank, and on other errands. After her move, and especially
following her 90th birthday, Cachia began to show signs of loneliness and depression,
and frequently she talked with her grandchildren about wanting to die. She also
repeatedly expressed to them the wish that her money be divided among them
equally.
In 2004, Cachia opened and deposited funds into a securities account on which
Prainito was listed with Cachia as a joint tenant with rights of survivorship. Prainito
3 drove Cachia to the bank to open this account and signed documents in connection
therewith. The bank later became Wachovia, and on March 21, 2005, Cachia wrote
a statement “to Wachovia Bank” that “the money on all [her] accounts will go to [her]
5 grandchildren,” naming the same grandchildren listed in her will.
On July 1, 2005, Cachia purchased a certificate of deposit at SunTrust Bank,
on which Prainito was listed as the beneficiary upon her death. One month later, on
August 1, Cachia passed away at the age of 92. After her death, Prainito bragged to
other family members that he had helped Cachia research certificates of deposit and
make investments. When family members discussed Cachia’s will, however, Prainito
did not reveal his interests in the accounts and when questioned about them he acted
irritated, became evasive, and later denied that the accounts existed.
(a) The trial court properly denied Prainito’s motion for directed verdict on the
undue influence claim. Generally, questions of undue influence are for the factfinder,
Mathis v. Hammond, 268 Ga. 158, 160 (3) (486 SE2d 356) (1997), and undue
influence may be shown by a broad range of circumstantial evidence. Schaffer v. Fox,
303 Ga. App. 584, 585 (1) (693 SE2d 852) (2010); Horton v. Hendrix, 291 Ga. App.
416, 420 (2) (a) (662 SE2d 227) (2008). “Where evidence is presented of a
confidential relationship, the grantor being of weaker mentality and the grantee
4 occupying the dominant position, an issue of fact is raised as to undue influence.”
(Citations omitted.) Fletcher v. Fletcher, 242 Ga. 158, 160 (2) (249 SE2d 530)
(1978). Here, evidence of the elderly Cachia’s depression, loneliness, and increasing
dependency upon Prainito on matters including investing and certificates of deposit
allowed for a finding that the two had a confidential relationship, which is defined by
OCGA § 23-2-58 to include a relationship “where one party is so situated as to
exercise a controlling influence over the will, conduct, and interest of another.” See
White v. Regions Bank, 275 Ga. 38, 39-40 (1) (561 SE2d 806) (2002); Mathis, 268
Ga. at 160 (3). We find no error in the trial court’s denial of the motion for directed
verdict on the undue influence claim. Mathis, supra.
(b) Likewise, the trial court properly denied Prainito’s motion for directed
verdict on the actual fraud claim. “Actual fraud consists of any kind of artifice by
which another is deceived.” OCGA § 23-2-51 (b). The estate argued to the jury that
Prainito committed actual fraud by misrepresenting to Cachia his intent to divide the
money in the accounts between the five grandchildren upon her death. See OCGA §
23-2-52 (misrepresentation of a material fact, made willfully to deceive and acted on
by opposite party, constitutes fraud). Prainito contends that there is no evidence he
made any such representation. But while “[f]raud may not be presumed . . . , being in
5 itself subtle, slight circumstances may be sufficient to carry conviction of its
existence.” OCGA § 23-2-57; see Durrence v. Durrence, 224 Ga. 620, 623 (2) (163
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
May 4, 2012
In the Court of Appeals of Georgia A12A0211. PRAINITO v. SMITH.
MCFADDEN, Judge.
After the death of Zina Cachia, a dispute arose among her heirs regarding
whether assets in a securities account and a certificate of deposit (“the accounts”)
were part of her estate. Cachia’s grandson, Dean Prainito, had obtained sole
possession of the assets in the accounts as a joint tenant with survivorship rights in
the securities account and as the payable on death beneficiary of the certificate of
deposit. On behalf of the estate, its Administrator CTA, Michael F. Smith, brought
an action in superior court against Prainito, and a jury found that Prainito had exerted
undue influence over Cachia and had engaged in actual fraud in connection with the
accounts. The jury awarded the estate damages in the form of the amount of money
that Cachia had put into the accounts and “all legal fees.” (Emphasis omitted.) The trial court entered a judgment on the verdict that included an attorney fee award of
$40,000.
Prainito appeals from the trial court’s entry of judgment on the jury verdict and
its denial of his motion for new trial. He argues that he was entitled to a directed
verdict on the undue influence and actual fraud claims, that the evidence did not
support a jury charge on either claim or on punitive damages, and that the attorney
fee award was improper. As detailed below, we find that there was evidence to
support the jury’s verdict on undue influence and actual fraud, that it thus was proper
for the court to charge the jury on those claims, and that Prainito’s claim of error
regarding the punitive damages charge lacks merit. We find, however, that the
evidence did not support the attorney fees award. Accordingly, we affirm the
judgment except as to the award of attorney fees, which we reverse.
1. Prainito contends that the trial court erred in denying his motion for directed
verdict on the claims of undue influence and fraud, arguing that the trial evidence on
these claims was insufficient, but he fails to cite any supporting authority for this
enumeration of error in his brief. See Ct. App. R. 25 (a) (3). Moreover, the record
contains evidence supporting the jury’s verdict. See Parris Props. v. Nichols, 305 Ga.
App. 734, 735 (1) (700 SE2d 848) (2010) (standard of review on appeal from denial
2 of a motion for directed verdict is whether there is any evidence to support the jury’s
verdict).
Construed in the light most favorable to the estate, see id., the evidence showed
that in May 1996, Cachia executed a will in which she left “all the money in [her]
banks and [her] investments . . . to [her] five grandchildren” and directed Prainito and
another grandchild to “see to it that all money will be divided equally” to five named
grandchildren. (Misspellings omitted.) Cachia had a sixth grandchild from whom she
was estranged, and who was not mentioned in the will. In a separate proceeding from
this appeal, the probate court determined that the will was valid.
Also in 1996, Cachia moved from Florida to the Atlanta area, close to Prainito
and another of her grandchildren. She stopped driving and depended upon Prainito
to take her to the store, the bank, and on other errands. After her move, and especially
following her 90th birthday, Cachia began to show signs of loneliness and depression,
and frequently she talked with her grandchildren about wanting to die. She also
repeatedly expressed to them the wish that her money be divided among them
equally.
In 2004, Cachia opened and deposited funds into a securities account on which
Prainito was listed with Cachia as a joint tenant with rights of survivorship. Prainito
3 drove Cachia to the bank to open this account and signed documents in connection
therewith. The bank later became Wachovia, and on March 21, 2005, Cachia wrote
a statement “to Wachovia Bank” that “the money on all [her] accounts will go to [her]
5 grandchildren,” naming the same grandchildren listed in her will.
On July 1, 2005, Cachia purchased a certificate of deposit at SunTrust Bank,
on which Prainito was listed as the beneficiary upon her death. One month later, on
August 1, Cachia passed away at the age of 92. After her death, Prainito bragged to
other family members that he had helped Cachia research certificates of deposit and
make investments. When family members discussed Cachia’s will, however, Prainito
did not reveal his interests in the accounts and when questioned about them he acted
irritated, became evasive, and later denied that the accounts existed.
(a) The trial court properly denied Prainito’s motion for directed verdict on the
undue influence claim. Generally, questions of undue influence are for the factfinder,
Mathis v. Hammond, 268 Ga. 158, 160 (3) (486 SE2d 356) (1997), and undue
influence may be shown by a broad range of circumstantial evidence. Schaffer v. Fox,
303 Ga. App. 584, 585 (1) (693 SE2d 852) (2010); Horton v. Hendrix, 291 Ga. App.
416, 420 (2) (a) (662 SE2d 227) (2008). “Where evidence is presented of a
confidential relationship, the grantor being of weaker mentality and the grantee
4 occupying the dominant position, an issue of fact is raised as to undue influence.”
(Citations omitted.) Fletcher v. Fletcher, 242 Ga. 158, 160 (2) (249 SE2d 530)
(1978). Here, evidence of the elderly Cachia’s depression, loneliness, and increasing
dependency upon Prainito on matters including investing and certificates of deposit
allowed for a finding that the two had a confidential relationship, which is defined by
OCGA § 23-2-58 to include a relationship “where one party is so situated as to
exercise a controlling influence over the will, conduct, and interest of another.” See
White v. Regions Bank, 275 Ga. 38, 39-40 (1) (561 SE2d 806) (2002); Mathis, 268
Ga. at 160 (3). We find no error in the trial court’s denial of the motion for directed
verdict on the undue influence claim. Mathis, supra.
(b) Likewise, the trial court properly denied Prainito’s motion for directed
verdict on the actual fraud claim. “Actual fraud consists of any kind of artifice by
which another is deceived.” OCGA § 23-2-51 (b). The estate argued to the jury that
Prainito committed actual fraud by misrepresenting to Cachia his intent to divide the
money in the accounts between the five grandchildren upon her death. See OCGA §
23-2-52 (misrepresentation of a material fact, made willfully to deceive and acted on
by opposite party, constitutes fraud). Prainito contends that there is no evidence he
made any such representation. But while “[f]raud may not be presumed . . . , being in
5 itself subtle, slight circumstances may be sufficient to carry conviction of its
existence.” OCGA § 23-2-57; see Durrence v. Durrence, 224 Ga. 620, 623 (2) (163
SE2d 740) (1968). “Therefore circumstances, almost inconclusive if separately
considered, may by their number and joint operation be sufficient to constitute proof.”
(Citation omitted.) Lumpkin v. Deventer N. Am., 295 Ga. App. 312, 315 (1) (672
SE2d 405) (2008).
Such circumstances existed here. There was evidence in this case that Cachia
intended for the money she had placed in the accounts to be divided between the five
grandchildren identified in her will, notwithstanding that Prainito had been named
joint tenant or beneficiary of the accounts. There also was evidence that Prainito had
advised Cachia with regard to the accounts. And there was evidence that, upon
Cachia’s death, Prainito was evasive in response to the other grandchildren’s
questions about the accounts and attempted to deny their existence. This evidence
allowed for the jury to find that Prainito misrepresented to Cachia that he would
divide the money in the accounts among the grandchildren in accordance with her
wishes. See King v. Brown, 280 Ga. 747, 748-749 (2) (b) (632 SE2d 638) (2006)
(circumstantial evidence permitted inference that defendant had made alleged
misrepresentation to decedent, despite defendant’s denial of statement). This evidence
6 also allowed for findings that Prainito did not intend to fulfill this promise and that
the promise induced Cachia to name him as the joint tenant and the beneficiary of the
respective accounts. See Lumpkin, 295 Ga. App. at 315-316 (1). We find no error in
the trial court’s denial of the motion for directed verdict on the actual fraud claim.
2. Prainito contends that the trial court erred in charging the jury on actual
fraud and undue influence. He argues that no evidence was presented at trial to
support either cause of action. Again, Prainito cites no supporting authority for this
enumeration of error. See Ct. App. R. 25 (a) (3). Furthermore, as detailed above in
Division 1, there was evidence of both actual fraud and undue influence.
Accordingly, the court did not err in charging the jury on these causes of action. See
Smithson v. Parker, 242 Ga. App. 133, 136 (2) (528 SE2d 886) (2000) (charge must
be given if any evidence in case supports the giving of it).
3. Although Prainito enumerates as error the trial court’s charge to the jury on
punitive damages, he makes no argument and cites no authority in support of this
claim. See Ct. App. R. 25 (c) (2) (any enumeration of error which is not supported in
the brief by citation of authority or argument may be deemed abandoned). Moreover,
the record shows that he did not object to this charge at trial and that, notwithstanding
7 the charge, the jury did not award any punitive damages. We find no ground for
reversal.
4. Although the jury was not charged on attorney fees, it awarded the estate
“ALL Legal Fees.” Over Prainito’s objection, the trial court entered a judgment on
this verdict in which it awarded, among other things, $40,000 in attorney fees.
Prainito argues that the attorney fees award was illegal and that the trial court instead
should have remitted the verdict to the jury with further instructions, stricken the
illegal portions of the verdict, or granted him a new trial. The estate argues in
response that the court did not err in entering judgment on the verdict because the
estate sought attorney fees in its complaint, the jury’s verdict reflected its desire to
award attorney fees, the evidence supported an award of $40,000 in attorney fees
under OCGA § 13-6-11, and the trial court was authorized to conform the jury’s
verdict to the evidence.
The evidence, however, did not support the $40,000 attorney fees award under
OCGA § 13-6-11. That Code section provides: “The expenses of litigation generally
shall not be allowed as a part of the damages; but where the plaintiff has specially
pleaded and has made prayer therefor and where the defendant has acted in bad faith,
8 has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.”
We pretermit whether the jury was authorized to award fees under OCGA § 13-
6-11 in this case despite the lack of a charge on them. See Ring v. Williams, 192 Ga.
App. 329, 331 (3) (384 SE2d 914) (1989). We hold that the trial court erred in
entering a judgment on the award because no evidence was presented of the actual
costs of the estate’s attorneys in prosecuting this action or the reasonableness of those
costs. See Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 96 (1) (663
SE2d 797) (2008) (award of attorney fees under OCGA § 13-6-11 “cannot stand
where the plaintiff fails to prove the actual costs of his attorneys and the
reasonableness of those costs”) (citation omitted). The record does not support the
trial court’s finding that “[t]he evidence before the jury regarding attorney[ ] fees was
that $40,000 had been incurred by the Estate in attempting to recover the sums in the
[accounts],” The estate administrator (whose law firm also represented the estate in
the litigation) testified that he was “not certain” of the total amount of fees his firm
had billed to the estate. He agreed that the total amount of fees was over $40,000, but
he emphasized that these fees were “not all relative to this case. Don’t leave that
impression. There were other things that were done in this estate.” In addition, the
9 estate presented no evidence of the reasonableness of the attorney fees incurred by
the estate. Because the estate failed to prove the actual costs of the work performed
by its attorneys in connection with this case (as opposed to the general administration
of the estate) or the reasonableness of those costs, the award of attorney fees must be
reversed. Hughes v. Great S. Midway, 265 Ga. 94, 95 (1) (454 SE2d 130) (1995).
Judgment affirmed in part and reversed in part. Barnes, P. J., and Adams, J.,
concur.