Jordan v. Stephens , 221 Ga. App. 8 ( 1996 )

Blackburn, Judge.

Joyce S. Jordan, individually and as executrix of the estate of Loree A. Veal, Grace A. Ivey, and Ruby Owens (collectively referred to as plaintiffs) appeal the judgment rendered upon the jury’s verdict in the underlying action for damages against Wilbur G. Stephens, Jr.

Prior to her death, Veal executed a general power of attorney in favor of Stephens so that he could invest her assets and provide her with ample funds to live. Thereafter, as payment for his assistance in handling her personal and financial affairs, Veal transferred certain of her assets to Stephens’ name, as a joint tenant with her and with a right of survivorship. Plaintiffs brought the underlying action to recover the property in Stephens’ name alleging fraud, conversion, and breach of fiduciary duty. The jury determined that the asset transfers made to Stephens from Veal were proper with the exception of the transfer of 150 shares of Wisconsin Energy Corporation stock.

1. In several enumerations of error, plaintiffs contend the trial court erred in denying their motion for directed verdict. In their motion for directed verdict, plaintiffs argued that Stephens breached his duty of loyalty to Veal by obtaining a joint tenancy interest in her assets.¹

The law in Georgia is clear that “[slums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). See also Godwin v. Johnson, 197 Ga. App. 829, 830 (1) (399 SE2d 581) (1990) (OCGA § 7-1-813 (a) applied equally to certificates of deposit). In Godwin, we determined that issues of fact precluded summary judgment where defendant jointly owned stock certificates with the decedent with a right of survivorship. Therein, prior to his death, the decedent conveyed assets to the defendant. Although the defendant possessed the decedent’s power of attorney, it was not used to make the conveyance. Id. at 830. The primary issue for consideration was determining the decedent’s intent when he established the accounts. Id. at 831. In the present case, there was no evidence presented that Veal did not intend the assets she transferred to Stephens to belong to him at her death. In fact, the evidence indicated that Veal specifically wanted Stephens to have the assets and that Veal knew a lot of people were going to be surprised after she died.

The cases cited by the dissent are factually distinguishable from the present case, as they address situations where the guardian or trustee made transfers for their own benefit without the knowledge or approval of their ward. It is important to recognize that the present case does not involve the administration of a trust or a guardian and ward relationship. The present case is similar to Wheeless v. Gelzer, 780 FSupp. 1373 (N.D. Ga. 1991), wherein the decedent’s second wife obtained a general power of attorney over her husband, who was in ill health. Thereafter, she transferred the ownership of stock certificates from her husband to herself and to herself and her husband in a joint tenancy with right of survivorship. One transfer was made with the husband’s signature, and the other was accomplished by the wife pursuant to her general power of attorney. While recognizing that the power of attorney created a fiduciary relationship which required a duty of loyalty to the principal, the court determined that absent fraud in obtaining the power of attorney, the stock transfers were proper because an agent is not absolutely prohibited, from making gifts of the principal’s property, the power of attorney expressly conferred the right to transfer stocks, and the evidence indicated that the husband intended the transfer to occur. Id. See also LeCraw v. LeCraw, 261 Ga. 98, 99 (401 SE2d 697) (1991).

The standard of review of the trial court’s denial of the plaintiffs’ motion for directed verdict is the any evidence standard. See Williamson v. Echols, 205 Ga. App. 453, 455 (422 SE2d 329) (1992). In the present case, the evidence indicated that Veal intended that Stephens have the assets at issue upon her death. Therefore, the trial court’s denial of plaintiffs’ motion for directed verdict is affirmed.

2. Although plaintiffs enumerate the trial court’s charge on beneficial ownership as error, their actual argument is based upon the trial court’s failure to charge OCGA § 7-1-814. The trial court charged that clear and convincing evidence of a joint tenants’ intentions was to be considered in determining the beneficial ownership of Veal’s joint accounts. Because this is a correct statement of the law, see Godwin, supra, we do not find that the charge was error.

Pretermitting plaintiffs’ improper attempt to enlarge their enumeration of error by their brief, plaintiffs’ argument is without merit as they failed to request a charge on OCGA § 7-1-814.

3. Plaintiffs contend that the trial court erred in denying their motion for new trial in that the verdict was against the weight of the evidence with respect to the transfer of 100 shares of Marine Midland Bank stock. Plaintiffs contend that Veal’s subsequent transfer of these stocks from herself and Owens as joint tenants with right of survivorship to herself and Stephens as joint tenants with right of survivorship was ineffectual because Owens’ signature was not obtained.

“Both as to a motion for directed verdict and motion for new trial based on the general grounds the proper standard on appellate review is the ‘any evidence’ test. . . . The court construes the evidence most favorably towards the party opposing the motion for directed verdict or new trial.” (Citations omitted.) Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 681 (373 SE2d 849) (1988). In the present case, evidence was introduced to establish Veal’s intention to remain the owner of her stocks until her death. See OCGA § 7-1-812 (a). Therefore, Veal was the only party with the present right to withdraw or change her accounts, and her signature was sufficient to change the terms of the account. See OCGA § 7-1-816.

4. In their final enumeration of error, plaintiffs contend the trial court erred in failing to give their requested charge on the presumption which arises from the failure of a party to produce evidence. Plaintiffs argue that they served Stephens with a notice to produce all bank statements and deposit slips for accounts at Spivey State Bank in Stephens’ and Veal’s names. Plaintiffs contend that as vice president of Spivey State Bank, Stephens had access to such accounts. However, the notice to produce was sent to Stephens as a party to this litigation in his individual capacity as opposed to his capacity as the vice president of the bank. Stephens’ failure to produce documents not under his individual control cannot be the basis of the requested charge. Therefore, as the charge was not supported by the evidence, the trial court did not err in refusing to give it.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J, dissents.

1 By enumerations of error 2, 4, and 6, plaintiffs attempt to expand the basis of their motion for directed verdict. However, the law is clear that “[a] ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal.” (Citations and punctuation omitted.) Leader Nat Ins. Co. v. Kemp & Son, Inc., 189 Ga. App. 115, 116 (375 SE2d 231) (1988). Furthermore, plaintiffs abandoned enumeration of error 5 by failing to support it with argument or citation of authority. See Court of Appeals Rule 27 (c) (2). Therefore, we do not address plaintiffs’ enumerations of error 2, 4, 5, and 6.