Harrison v. Martin

Decision Date27 May 1994
Docket NumberNos. A93A0413,A93A0414,s. A93A0413
Citation444 S.E.2d 618,213 Ga.App. 337
CourtGeorgia Court of Appeals

Geiger & Pierce, James N. Geiger, R. Avon Buice, Perry, for appellant.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, Macon, for appellee.

McMURRAY, Presiding Judge.

Frankie W. Harrison, executrix of the estate of Homer West ("the estate"), filed an action against Ann Wills Martin f/k/a Joan W. Wills, for principal, interest and attorney fees due under seven promissory notes Martin allegedly executed in favor of West. Specifically, Harrison alleges Martin executed a $6,200 promissory note on July 21, 1975, a $25,000 promissory note on January 10, 1977, two $25,000 promissory notes on January 5, 1978, a $25,000 promissory note on December 18, 1978, a $27,500 promissory note on July 8, 1979, and a $75,000 promissory note on January 4, 1980. Harrison also seeks actual and punitive damages, alleging Martin fraudulently converted proceeds of a $9,000 check tendered for estate timber after West's death. 1

Martin admits she executed all seven promissory notes alleged in Harrison's complaint, but asserts failure of consideration, satisfaction, accord and satisfaction and the applicable statute of limitation. Martin alleges "Homer West made a gift to her of and forgave any balance owed on any notes owed by [Martin] to him prior to his death." Martin denies that she fraudulently converted funds from the estate and alleges "that the [$9,000] timber sale check was deposited into a joint account opened by [Harrison] and [Martin] and [that] this money was used to pay the debts of the Homer West Estate and of [Harrison]."

The case was tried before a jury and the undisputed evidence reveals that Martin and Harrison are sisters; that Homer West is their older brother and that West provided generously for many of his relatives, including Harrison and Martin. 2 It is also undisputed that Homer West died on July 18, 1982, and that Harrison was named executrix of West's estate and sole beneficiary under his Last Will and Testament.

At trial, Harrison testified that she discovered the seven promissory notes in her brother's personal effects and that, to her knowledge, Martin never honored her obligation under these promissory notes. Harrison further testified that Martin fraudulently induced her to relinquish a $9,000 check tendered for estate timber after West's death and that Martin tortiously converted the proceeds of this check.

Although Martin admitted executing the seven promissory notes set out in Harrison's complaint, her testimony indicates that she did not receive $208,700 as reflected as total principal balances on the face of the seven notes. Martin testified that West loaned her $6,200 in exchange for her execution of a promissory note dated July 21, 1975; that West loaned her $25,000 in exchange for her execution of a promissory note dated January 10, 1977; that West loaned her $25,000 in exchange for her execution of a promissory note dated January 5, 1978; that West loaned her $25,000 in exchange for her execution of a promissory note dated December 18, 1978; that she executed a $27,500 promissory note on July 8, 1979, in exchange for $2,500 and renewal of one of the earlier (unspecified) $25,000 loans and that she executed a $75,000 promissory note on January 4, 1980, in consideration of renewal of the three earlier $25,000 loans. Martin testified that she executed two $25,000 promissory notes dated January 5, 1978, because she was informed that the first note bearing the same date was defectively drafted. Martin explained that she paid West "$1,000" on April 8, 1977, and that she gave West "$6,500 [on] July 28, 1978." 3 Martin's testimony also indicates that she paid West $7,972 in exchange for satisfaction of the $25,000 promissory note dated January 10, 1977. (Martin introduced a document dated March 20, 1981, executed by Harrison under a general power of attorney for Homer S. West, designating satisfaction of a $25,000 loan secured by a deed to secure debt recorded in the Superior Court of Houston County and dated 1977.) Martin testified that she visited West in the hospital a few weeks before his death and that West then forgave her debts, including any obligation evidenced by the seven promissory notes.

Martin testified that Harrison gave her a $9,000 check at a closing involving the sale of estate timber rights; that Harrison "told [Martin] she had company at her house[,] she did not want them to know that she received any money[,] to give Jackie, [Martin's] son, $300 or $500 [for helping with the timber sale] and ... to go deposit [the check] into [Martin's] checking account." Martin testified that she "and [Harrison then] went down to the bank[, deposited the proceeds of the $9,000 check] and put [Harrison's] name on [her] checking account with it." Martin explained that Harrison "had power of attorney [and] could use [the checking account] anytime she wanted to cash a check [and that Harrison] did use it many times." Martin also explained that she used this checking account to satisfy several estate debts. 4

Lawana Thompson LaFavor affirmed that she went on "a visit along with Ann Wills [Martin] to her brother Homer's [hospital] room just a few weeks before his death in the summer of 1982" and testified that West then appeared to be of sound mind and that West "told [Martin] that she did not owe him anything at all[,] she did not owe him a dime[,] they had been good to one another and that they had been close and that [Martin] owed him absolutely nothing."

Episcopal Priest Edward Sellers testified that he went to Homer West's hospital room a few weeks before West died; that he then observed Martin and Lawana Thompson LaFavor exit West's hospital room and that "[w]hatever had happened [during West's meeting with Martin, West] felt at peace with what he had done." The Reverend Sellers admitted that he was not present during the conversation between West and Martin, but explained that he knew the conversation "dealt with his property and how he was trying to arrange that [and that Martin] discussed the fact that ... however he had arranged the final disposition of that, he was satisfied that he had done the right thing." The Reverend Sellers testified that Homer West was "clearly aware of the fact that he was in the process of dying...."

Attorney Joneal Lee testified that he was familiar with the sibling relationship between Martin, Harrison and West; that he "always thought it was a very good close relationship"[;] that he prepared West's Last Will and Testament in 1979; that it was then his "impression ... the parties were still close, that there was no argument between them, but that [Homer West] was giving everything in his will to his sister Frankie [Harrison] because [West] felt like he'd already given Ann [Martin] enough." Attorney Lee explained that "from the conversation that [he] had [with Homer West, he] never expected ... the notes [executed by Martin] to be repaid."

The trial court denied Harrison's motion for directed verdict and the jury returned a $41,000 verdict for the estate. Martin filed a motion for judgment n.o.v. and Harrison filed a motion for judgment n.o.v. or, in the alternative, a motion for new trial.

Upon the trial court's denial of the motions of Harrison and Martin, Harrison appealed in Case No. A93A0413 and Martin cross-appealed in Case No. A93A0414.

In the first appearance in this Court of the cases sub judice, this Court (in an unpublished opinion, decided June 29, 1993) affirmed these cases without having considered the merits. The Supreme Court of Georgia granted certiorari in the cases sub judice and remanded these cases to this Court for our consideration on the merits. Consequently, this Court's judgments of June 29, 1993, in the first appearance are vacated. Held:

Case No. A93A0413

1. Harrison contends the trial court erred in denying her motions for directed verdict and for judgment n.o.v., arguing a prima facie case of liability was established via Martin's admission that she executed seven promissory notes in favor of West with principal balances totaling $208,700. Harrison also contends the trial court erred in failing to enter judgment for her based on Martin's admissions that she received $75,000 from West in exchange for the promissory notes dated, January 10, 1977, January 5, 1978, and December 18, 1978, and the $75,000 renewal note dated January 4, 1980.

There is no question that a prima facie case was established via Martin's admission that she executed the seven promissory notes. Nat. Bank of Ga. v. Keriaze, 163 Ga.App. 652, 294 S.E.2d 688; Q.S. King Co. v. Minter, 124 Ga.App. 517, 518(3), 184 S.E.2d 594. However, this does not mean Harrison is automatically entitled to recover the aggregate principal amount ($208,700) of the promissory notes, plus interest and attorney fees. It simply means that Martin assumed the burden of proof at trial. Croxton v. Barrow, 57 Ga.App. 1, 2, 194 S.E. 24.

" 'The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.' Pendley v. Pendley, 251 Ga. 30(1) (302 SE2d 554). If there exists some admissible evidence of record regarding [any defense challenging the prima facie case of Martin's liability under the seven promissory notes,] then there would be no basis for granting directed verdict as to these issues, as the evidence would not demand a verdict in favor of [the estate]." Truck Parts, etc., v. Rutledge, 211 Ga.App. 166(2), 438 S.E.2d 404. See Commonwealth Land Title Ins. Co. v. Miller, 195 Ga.App. 830, 833, 395 S.E.2d 243; Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga.App. 306(1), 358 S.E.2d 884...

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