Prainito v. Smith

728 S.E.2d 309, 315 Ga. App. 791, 2012 Fulton County D. Rep. 1648, 2012 WL 1559749, 2012 Ga. App. LEXIS 438
CourtCourt of Appeals of Georgia
DecidedMay 4, 2012
DocketA12A0211
StatusPublished
Cited by5 cases

This text of 728 S.E.2d 309 (Prainito v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prainito v. Smith, 728 S.E.2d 309, 315 Ga. App. 791, 2012 Fulton County D. Rep. 1648, 2012 WL 1559749, 2012 Ga. App. LEXIS 438 (Ga. Ct. App. 2012).

Opinion

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 [792]*792awarded the estate damages in the form of the amount of money that Cachia had put into the accounts and “all legal fees.” 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 Court of Appeals Rule 25 (a) (3). Moreover, the record contains evidence supporting the jury’s verdict. See Parris Properties v. Nichols, 305 Ga. App. 734, 735 (1) (700 SE2d 848) (2010) (standard of review on appeal from denial 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 Parris Properties, supra, 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. 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 [793]*793with rights of survivorship. Prainito 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 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 wilfully to deceive and acted on by opposite party, constitutes fraud). Prainito contends that there is no evidence he made any such representation. [794]*794But while “[f]raud may not be presumed . . . , being in 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 North America, 295 Ga. App. 312, 315 (1) (672 SE2d 405) (2008).

Such circumstances existed here.

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Bluebook (online)
728 S.E.2d 309, 315 Ga. App. 791, 2012 Fulton County D. Rep. 1648, 2012 WL 1559749, 2012 Ga. App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prainito-v-smith-gactapp-2012.