Saunders v. Padovani
| Citation | 375 S.E.2d 853,258 Ga. 866 |
| Decision Date | 15 February 1989 |
| Docket Number | Nos. 46153,46154,s. 46153 |
| Parties | SAUNDERS, et al. v. PADOVANI a/k/a Partain PADOVANI a/k/a Partain v. SAUNDERS, et al. |
| Court | Supreme Court of Georgia |
Pierre Howard, James J. Brissette, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, for Leonard Eugene Saunders et al.
Douglas A. Hill, Custer, Hill & Clark, Marietta, for Norma Padovani, a/k/a Partain.
In August of 1982 Norma Padovani met Joe Clyde Partain at a church dance in Atlanta. He was some 25 years her senior. They maintained a very close relationship and were eventually married in the fall of 1984. In June 1984, Partain suffered a stroke, became partially paralyzed and was confined to a wheelchair. On September 27, 1984, while he was recuperating in a nursing home in Roswell, he was taken by Padovani to a Cobb County magistrate's office and they were married. Following the ceremony she took him to the office of a Marietta attorney who, two days earlier, had prepared a will for him. While sitting in the automobile, Partain executed a will leaving the bulk of his sizeable estate to Padovani and leaving nothing to his blood relatives. Three months later he was dead.
Two brothers and a nephew filed this action to annul the marriage on the ground that Partain was mentally incompetent. The jury, however, after hearing, inter alia, a tape recording made of the conversation between Partain and his lawyer at the time of the preparation of the will, refused to invalidate the marriage. The heirs appeal in case number 46153, challenging only the admissibility of the tape recording. Padavoni's cross-claim, case number 46154, claims error in the denial of her motion for summary judgment on the issue of the heirs' standing to challenge her marriage.
Over the heirs' objection a tape recording of Partain's conversation with his attorney, Ben Moore, regarding the provisions of his will was admitted into evidence. The discussion occurred two days before the marriage and the execution of the will. Moore, who did not know Partain before this meeting, went to the nursing home to interview him. Padavoni was present. Moore testified that Partain, despite his paralysis, knew what he was doing, knew what property he had, and knew what he wanted to do with it. Concerned that there may be a later challenge to this will, Moore brought a small, hand-held microcassette to tape record their conversation. When he returned to his office, his partner transferred the microcassette conversation to a standard tape for preservation. In making the re-recording, the partner made several explanatory remarks on the tape. For example, by way of introduction, he stated the date and the names of the parties to the conversation. He described the fact that, at a certain point, he was turning the microcassette over. He explained the abrupt ending of a statement by Padavoni by stating that the microcassette had run out on both sides at that point. Moore testified that the re-recording was an accurate reflection of the conversation among the three of them as he recalled it, although he conceded that he was hard of hearing and that the tape was in part difficult to understand. The partner testified that he did not listen to the tape other than to make the above stated remarks and to check that the tape recorder was working. He testified that he made no changes, alterations or deletions to the tape. He explained that the original microcassette was no longer available because it had been used again after the standard tape was made and placed in the client's file.
The heirs' objection to the tape's admissibility was on two grounds. First they complained that its existence was not revealed to them until after the pretrial order had been filed and that its proposed use was not included in the pretrial order. Second, they contended it lacked proper authentication under the 7-part test referred to in Steve M. Solomon, Inc. v. Edgar, 92 Ga.App. 207, 211, 88 S.E.2d 167 (1955), adopted with approval by this court in Estes v. State, 232 Ga. 703, 710, 208 S.E.2d 806 (1974), and relaxed a bit in Harris v. State, 237 Ga. 718, 724, 230 S.E.2d 1 (1976).
1. A pretrial order was entered in this case...
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Cook v. State
...v. State, 260 Ga. 197, 200, 391 S.E.2d 406 (1990); Isaacs v. State, 259 Ga. 717, 733, 386 S.E.2d 316 (1989); Saunders v. Padovani, 258 Ga. 866, 868, 375 S.E.2d 853 (1989); Page v. State, 249 Ga. 648, 650, 292 S.E.2d 850 4. See Kyler v. State, 270 Ga. 81, 84, n. 13, 508 S.E.2d 152 (1998); Wa......
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...703, 710, 208 S.E.2d 806 (1974), and relaxed a bit in Harris v. State, 237 Ga. 718, 724, 230 S.E.2d 1 (1976)." Saunders v. Padovani, 258 Ga. 866, 867, 375 S.E.2d 853 (1989). See also Russell, 242 Ga.App. at 897(1),531 S.E.2d 770. As stated by this Court in A proper foundation for their use ......
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