Prainito v. SmithPrainito v. Smith
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
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 nоt 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 сlaims 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,
Construed in the light most favorable to the estate, see Parris Properties, supra, the evidencе 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 especiаlly 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 drove Cachia to the bank to open this account and signed documents in cоnnection 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 braggеd 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 questiоned 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,
(b) Likewise, the trial court properly denied Prainitо’s motion for directed verdict on the actual fraud claim. “Actual fraud consists of any kind of artifice by which another is deceived.”
Such circumstances existed here. There was evidence in this case thаt Cachia intended for the money she had placed in the accounts to be divided among 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 accоunts 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. Sеe King v. Brown,
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 Court of Appeals Rule 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,
3. Although Prainito enumerates as error the trial court’s charge to the jury on punitive damagеs, he makes no argument and cites no authority in support of this claim. See Court of Appeals Rule 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 the
4. Although the jury was not charged on attorney fees, it awardеd 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 cоurt 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
The evidence, however, did not support the $40,000 attorney fees award under
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, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
We prеtermit whether the jury was authorized to award fees under
Judgment affirmed in part and reversed in part.