author: Ruffin, Judge.

text:
    A99A2319.
    A99A2480.
    GLISSON v. FREEMAN. GLISSON v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.
    (532 SE2d 442)
   Ruffin, Judge.

Deloris Glisson sued Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) and Carol Freeman, the executor of her late husband’s estate, asserting numerous claims relating to a joint brokerage account Glisson and her husband maintained at Merrill Lynch. Glisson asserted that Merrill Lynch improperly transferred funds from that account to another account maintained by the estate. The trial court granted summary judgment to Merrill Lynch and Freeman, and Glisson appeals. For reasons discussed below, we affirm in part and reverse in part the grant of summary judgment to Merrill Lynch and reverse the grant of summary judgment to Freeman.

To prevail at summary judgment, the moving party must show that

there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Many of the essential facts in this case are hotly disputed, and for purposes of summary judgment, the facts must be viewed in the light most favorable to appellant. In August 1994, appellant and her husband, Theodore Glisson, established a brokerage account with Merrill Lynch. This account (the Joint Account) was a joint account with right of survivorship. The account opening documents, signed by appellant and her husband, expressly state that “[i]n the event of the death of any of the undersigned, the entire interest in the joint account shall be vested in the survivor/s, and the estate of the deceased shall have no further interest therein.” At the time of Theodore Glisson’s death on January 27, 1997, there was approximately $247,000 in the Joint Account. Craig Miller was the Merrill Lynch broker responsible for servicing the Joint Account.

Theodore Glisson’s will designated Freeman, his daughter from an earlier marriage, as executor of his estate. The will did not mention the Joint Account but directed that substantially all of Theodore Glisson’s assets be placed in a testamentary trust, with appellant, who was 65 years old, as lifetime beneficiary and Freeman and another individual as co-trustees. The trustees were directed to invest the assets with Merrill Lynch, which in turn was required to invest the assets only in government or corporate bonds, certificates of deposit, or money market accounts. The trustees were authorized to withdraw funds from the trust in an amount sufficient for the support of appellant, who was required to submit an annual budget to the trustees. Upon appellant’s death, the trust assets were to be distributed to Freeman, her brother Ted Glisson, and certain other named individuals. Miller testified that, before Theodore Glisson died, he told Miller that he was going to create a trust and place all his assets in it. Miller interpreted that statement to include all assets invested with Merrill Lynch.

On February 4, 1997, Freeman and Ted Glisson met with Miller at Merrill Lynch’s office and showed him a copy of Theodore Glisson’s will. Miller had never met Freeman before this point. Miller testified that he informed them that, because the Joint Account was a joint account with right of survivorship, it was appellant’s property and he could not accept any instructions from the estate regarding transfer of assets from the Joint Account. Freeman, however, denied that Miller mentioned the survivorship features of the Joint Account.

According to Miller, Freeman indicated that appellant desired to transfer the funds from the Joint Account into the estate account and asked what would be necessary to effect such a transfer. Ted Glisson, however, denied that he or Freeman ever asked Miller to transfer funds from the Joint Account to the estate account. Miller testified that he told them he would need appellant’s written authorization for such a transfer and gave Freeman a blank letter of authorization and affidavit of domicile to be filled out by appellant. Freeman and Ted Glisson, on the other hand, testified that Miller simply explained that the two documents were needed to set up the estate account. Freeman testified that she did not understand that the funds in the Joint Account became appellant’s property upon Theodore Glisson’s death. Miller said at the meeting that Theodore Glisson’s intent was for all of his assets to go into the estate trust.

Ted Glisson subsequently returned to Merrill Lynch with the letter of authorization and affidavit of domicile, both purportedly signed by appellant but otherwise blank, and left the documents with a secretary. After he received the documents, Miller had his administrative assistant, Patsy Davis, complete the letter of authorization by writing the relevant account numbers and other information in the blanks above appellant’s signature. When completed, the letter of authorization, which was dated March 26, 1997, purported to authorize the transfer of assets from the Joint Account into an estate account. Miller never contacted appellant, however, to confirm that he had her permission to complete the form in such manner or to transfer the funds into the estate account. Instead, Miller apparently relied upon the alleged representations by Freeman, as well as his own understanding of Theodore Glisson’s intent. Moreover, Miller testified that he did not remember ever seeing the letter after it was completed. Miller also testified that the affidavit of domicile, which was necessary to complete the transfer, was improper because it was not notarized.

In the course of attempting to effectuate the transfer, Davis apparently learned that Merrill Lynch policy precluded the transfer of funds directly from a survivorship account into an estate account. Instead, the funds had to be first transferred into an individual account in the name of the survivor, and then transferred from that account into the estate account. Accordingly, at Miller’s request, Davis prepared two additional letters of authorization — the first authorizing transfer of the funds from the Joint Account into a new account in appellant’s name, and the second authorizing transfer of the funds from that account into the estate account. The first letter bears a typewritten date of April 2, 1997, and the second appears to bear a handwritten date of April 9, 1997. Both documents contain what purports to be appellant’s signature. Merrill Lynch ultimately transferred the funds from the Joint Account into the estate account pursuant to these two documents.

The evidence is conflicting regarding the signing of the various letters of authorization. Freeman and Ted Glisson testified that, at some point after receiving the blank documents from Miller, they went to appellant’s house to obtain her signature. Ted Glisson testified that this occurred the same day as his meeting with Miller — i.e., February 4. Freeman, however, could not remember when this occurred, although she was sure that it was not in January or February. Ted Glisson testified that he believed the purpose of the documents was simply to set up an estate account. He and Freeman testified that appellant signed the documents in the presence of Freeman, Ted Glisson, and appellant’s daughter, Becky Rawlins. According to Freeman,

I told her that I had some paperwork that needed to be signed, that needed her signature, that was to be returned to Merrill Lynch so that I could set up the trust account in the name of the estate for daddy’s estate, to be in compliance with the will.

Freeman did not, however, explain to appellant that the letter of authorization would be used to transfer assets from the Joint Account to the estate account. Freeman testified that, after appellant signed the documents, she gave them to Ted Glisson in an envelope to be delivered to Merrill Lynch. Ted Glisson, however, testified that the documents were not in an envelope when Freeman gave them to him.

Appellant and Rawlins both denied that Freeman and Ted Glisson brought the letter of authorization and affidavit of domicile to be signed by appellant, and appellant testified that she never had any conversations with Freeman or Ted Glisson regarding the letter of authorization. She testified that she never spoke with Freeman about transferring funds from the Joint Account and denied knowingly signing the letter or affidavit. She testified that Freeman and Ted Glisson did bring over a stack of papers for her to sign one day but claimed that Freeman explained they were tax documents. Appellant said that the top document appeared to be some type of tax form. Freeman never informed appellant that any of the documents would be used to transfer funds from the Joint Account or for any purpose other than taxes. Ted Glisson denied that he ever went to appellant’s house to have her sign any tax documents and testified that the only two documents he and Freeman brought to appellant were the letter of authorization and affidavit of domicile.

With respect to the two letters of authorization prepared by Davis in April 1997, the evidence is perhaps even less clear. Although Davis testified that she prepared these two letters of authorization at Miller’s request, there is no evidence that they were actually sent to appellant for her signature, nor is there any evidence as to how they were signed or returned to Merrill Lynch. Davis testified that she did not remember what she did with the documents after preparing them. She did not recall mailing them to appellant or anyone else, nor did she recall giving them to Miller. Although she said that Miller was the one who would have instructed her on where to send the documents, she had no recollection of Miller ever giving her any directions. Miller also did not know what happened to the documents after they were prepared, although he knew that he did not give them to Freeman or Ted Glisson. In fact, he testified that he had never seen the documents prior to this litigation. Merrill Lynch produced no documentation, such as a cover letter, indicating that the documents were ever mailed to appellant or anyone else. Davis said that the documents somehow ended up on her desk and that she effected the transfer of funds pursuant to the documents, but she did not know how the documents came to be on her desk. Appellant denied that she ever signed the two documents and testified that she had not received them in the mail or ever seen them before. Freeman and Ted Glisson both testified that they had never seen the two documents. A handwriting expert retained by appellant testified that, in his opinion, the purported signatures of appellant on the two documents were forgeries. The expert could not be sure whether the signature on the March 26, 1997 letter of authorization was forged, perhaps because Merrill Lynch was unable to locate the original.

In addition to the controversy regarding appellant’s purported signature, there was also evidence that Freeman’s signature was forged on a document. For an unexplained reason, Merrill Lynch prepared an affidavit of domicile which was purportedly signed by Freeman and notarized by Rosalyn Denmark, a Merrill Lynch administrative assistant. Freeman denied that she ever signed the document. Denmark, the notary, admitted in her deposition that she did not see Freeman sign the document. She testified that she notarized it at the request of Davis, who told her that it was needed “for the client’s estate.” Denmark testified that on occasion she notarizes documents for Merrill Lynch even though she has not witnessed the signature. In her deposition, Davis admitted that she had not seen Freeman sign the document.

It is undisputed that Miller never contacted appellant to confirm that she desired to transfer the funds from the Joint Account to the estate account. All parties agree that, at some point after her husband’s death, appellant went to Merrill Lynch’s offices with her daughter, Rawlins, to drop off a death certificate. However, the parties disagree as to what transpired during this visit. According to Miller,

I explained to her that we need to go into my office and review everything that’s been done. And she made the comment to me . . . that that was okay basically, and then I almost insisted that she come in to review everything, and she said Carol [Freeman] is handling it, and that they have to go, or they’re going to lunch or going somewhere.

In her deposition, however, appellant said that she did not recall ever saying that Freeman was taking care of anything. She testified that Miller simply invited her and her daughter to sit down but denied that he asked if she would like to “[t]alk about things.” In a subsequent affidavit, appellant specifically denied saying words to the effect of “Carol’s handling all that,” stating that “[n]o subject came up in conversation to which I would have said that.” Rawlins testified in her affidavit that the meeting was brief and that the parties “merely exchanged pleasantries.” She stated that

[n]o mention was made of an account nor did Mr. Miller mention or even hint that he desired to confer with [appellant] about any “matters” or “things,” and there was no mention of estate matters, joint accounts, or any other discussion. He merely asked us if we would like to have a seat. We declined as we did not have an appointment and had come only to drop off the death certificates.

Appellant’s attorney, Raymond Dickey, testified that he contacted Miller about the Joint Account after appellant showed him an account statement she had received with the initials “JTWROS.” Dickey spoke with Miller, who told him that the funds in the Joint Account had been transferred to another account. Dickey said Miller told him that appellant had come into his office on March 26 and signed a document authorizing the transfer. When Dickey asked where the funds had been transferred to, Miller told him he would need to speak to the legal department. Dickey then spoke with appellant, who became very upset and denied signing any such document. Miller testified that Dickey asked him to reverse the transfer and that he told Dickey he could not do that.

Because Dickey had also represented the estate, he withdrew from any further representation of appellant. On April 25, 1997, appellant’s new attorney wrote a letter to Merrill Lynch stating that the Joint Account became appellant’s property upon her husband’s death and demanding a record of all transactions relating to the account. On September 5, 1997, after Merrill Lynch refused to reverse the transfer, appellant filed suit against Merrill Lynch, Freeman, and others. The complaint was later amended to add additional counts. In the amended complaint, appellant asserted claims of conversion and breach of fiduciary duty against Merrill Lynch and asserted claims of fraud, theft by deception, breach of fiduciary duty, and negligent misrepresentation against Freeman. In addition, she asserted a claim of conspiracy to defraud against Merrill Lynch and Freeman. She also sought punitive damages and attorney fees and expenses from all defendants. In its answer, and in two separate pleadings accompanying the answer, Merrill Lynch sought to inter-plead the funds that were maintained in the estate account.

On January 26, 1998, the trial court entered a consent order requiring Merrill Lynch to transfer the funds from the estate account into a new cash management account, with no withdrawals permitted except by order of the court. On May 20, 1999, the trial court granted summary judgment to Merrill Lynch and Freeman. The court also entered an order granting Merrill Lynch’s interpleader motion and discharging it from liabilities relating to the cash management account upon the same being deposited with the court.

Case No. A99A2480

1. Appellant contends that the trial court erred in granting summary judgment to Merrill Lynch on her claims of negligence and breach of fiduciary duty. For reasons discussed below, we agree.

Appellant’s fiduciary duty and negligence claims are both based in part on Merrill Lynch’s failure to take proper steps to ensure that it had appellant’s authorization to transfer funds from the Joint Account into the estate account. We have held that

[a] stockbroker’s duty to account to its customer is fiduciary in nature, so that the broker is obligated to exercise the utmost good faith. Requirements of good faith demand that in the principal’s interest it is the agent’s duty to make known to the principal all material facts which concern the transactions and subject matter of his agency.

In considering the extent of a broker’s duty to its client, federal cases have drawn a distinction between discretionary and nondiscretionary accounts. In a discretionary account, the broker is authorized to cárry out transactions on behalf of its client without prior authorization, while in a nondiscretionary account the broker is only authorized to transact business after receiving authorization from the client. With respect to a nondiscretionary account, such as the Joint Account, the broker owes a number of duties to the client, including the duty to transact business only after receiving prior authorization from the client and the duty not to misrepresent any fact material to the transaction.

In granting summary judgment to Merrill Lynch, the trial court reasoned that (1) because Freeman was executor of Theodore Glisson’s estate, Merrill Lynch was justified in relying on her representations, (2) Merrill Lynch was justified in relying on the transfer documents because there is no evidence it had knowledge of any alleged forgeries, (3) Miller was justified in relying on appellant’s alleged statement that “Carol is handling all of that,” and (4) Merrill Lynch immediately interpleaded the funds in its possession as soon as it learned of the controversy. The trial court erred with respect to each of these grounds for its decision.

Although Freeman was the executor of Theodore Glisson’s estate, Miller admits that the funds in the Joint Account became appellant’s property upon her husband’s death pursuant to the account’s survivorship provisions. If the estate had no interest in the account, we fail to see how Miller would be justified in relying on Freeman’s statements simply because she was executor. Indeed, Freeman’s interest as executor of the estate and as co-trustee and residual beneficiary of the testamentary trust is clearly antagonistic to appellant’s interests. Freeman would personally benefit from having the funds transferred into the estate account, since she could control the disbursements under the trust and would be entitled to a portion of the trust funds upon appellant’s death. Thus, Freeman’s status as executor and co-trustee should have given Miller less, not more, reason to believe her self-serving representations as to appellant’s intent. Miller himself admitted in his deposition that appellant was his client, not the estate. Gloria Padgett, a Merrill Lynch service manager, testified that it is Merrill Lynch policy “to deal with strictly the client in question,” and not to generate a letter of authorization based on a representation by a third party. The self-evident reason for such a policy is to avoid the situation presented in this case.

With respect to the second basis for the trial court’s decision, Merrill Lynch did not receive from appellant or anyone else a signed document authorizing transfer of the assets. What it received was a completely blank form with appellant’s purported signature, which Miller proceeded to have filled out without ever contacting his client. Davis testified that, in her 11 years at Merrill Lynch, she had never before seen an authorization letter signed in blank. When delivered to Merrill Lynch, the form was not accompanied by any letter or other document instructing Merrill Lynch as to how the blanks should be completed. The document was not even delivered to Merrill Lynch by appellant, but by Ted Glisson, who like Freeman had a clear interest in seeing that the funds were transferred out of appellant’s sole possession and into the estate account. No one at Merrill Lynch ever spoke with appellant to confirm that she had signed the document or to obtain her authorization to fill in the blanks so as to effectuate a transfer into the estate account. Miller simply filled out the form according to either (1) the alleged instructions of someone who was admittedly not his client, or (2) his own understanding of the decedent’s intent. Clearly, a jury could conclude that this was not a reasonable effort to ensure that Merrill Lynch had its client’s authorization to transfer a quarter of a million dollars out of her account.

Moreover, after discovering that the initial letter of authorization was insufficient to effect the transfer, Miller had two additional authorization letters prepared, although he claims not to have seen them after they were finalized. There is absolutely no evidence as to how appellant’s purported signature came to appear on these documents, and abundant evidence that the signatures were forged. Miller denied giving these documents to Freeman or Ted Glisson, and they denied ever seeing them. Thus, the jury could conclude that they did not forge appellant’s signature. As appellant correctly points out, there is no evidence that the documents ever actually left Merrill Lynch’s possession. Although the trial court found that the documents “were mailed directly to [appellant] by Merrill Lynch . . . [and] were signed and returned to Merrill Lynch,” there is no evidence whatsoever of such mailing, much less evidence that would demand such a finding, and appellant expressly denied ever receiving the documents in the mail. We also note that, in his conversation with Dickey, Miller never mentioned that appellant had signed the two subsequent authorization letters but simply said that appellant had come into his office on March 26 to sign the initial authorization letter. In addition to casting doubt on the signing of the two subsequent letters, this statement was patently false, as all parties agree that the initial authorization letter was delivered to Merrill Lynch by Ted Glisson and was not signed at Merrill Lynch’s office.

With respect to the two subsequent authorization letters, therefore, the evidence is simply that (1) Davis prepared them at Miller’s request, (2) they subsequently appeared on Davis’ desk containing forged signatures of appellant, and (3) neither Merrill Lynch nor anyone else has any idea how the documents came to be signed. In light of Merrill Lynch’s failure to provide any evidence as to how it obtained the signatures, and the positive evidence that the signatures were forged and that the documents were never sent to appellant or anyone else, we think the jury could reasonably infer that someone at Merrill Lynch forged appellant’s signature. Although Merrill Lynch disclaims any motive to commit forgery, its motive could simply have been a desire to shortcut the transfer process, which it believed had been authorized by the first letter of authorization. In this regard, we note that a Merrill Lynch administrative assistant, Denmark, admitted falsely notarizing a document at the request of Davis, when neither Davis nor Denmark saw the document being signed. Such false notarizing of documents was apparently not unusual at Merrill Lynch, according to Denmark.

With respect to the third basis for its decision, the trial court apparently accepted without question Miller’s self-serving account of his brief encounter with appellant and Rawlins. According to Rawlins, however, the parties merely “exchanged pleasantries,” and Miller did not even hint that he wanted to discuss other matters. For summary judgment purposes, of course, the trial court should have construed the evidence in the light most favorable to appellant, not to Merrill Lynch. In any event, there is nothing in Miller’s account to show that appellant was even made aware of the transfer, much less that she authorized it. Miller simply claims he told appellant that “we need to . . . review everything that’s been done” and that appellant replied that “Carol is handling it.” There is no indication that appellant was even aware Miller was referring to transfers from the Joint Account, as opposed to establishment of a trust account, for example. Clearly, a jury could conclude that this brief and ambiguous conversation did not constitute a reasonable effort by Miller to ensure that he had appellant’s authority to transfer her personal assets to the estate account.

Finally, the fact that Merrill Lynch ultimately sought to inter-plead the funds maintained in the estate account does not insulate it from liability for its actions in wrongfully transferring the funds in the first place. In Thompson v. Bank of the South, we discussed the concept of interpleader and the protection from liability afforded by that doctrine:

The right to interpleader under OCGA § 9-11-22 depends upon the stakeholder’s good-faith fear of adverse claims. The adverse claims which authorize interpleader are those which might be brought against the stakeholder by the various claimants to the fund which he holds. Thus, where the adverse claims on a fund have in fact been interpleaded, it is proper to dismiss the holder of the disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary. This is true because, if no direct personal liability is being sought and the only claims being asserted are to the fund that a party holds, his capacity in the action is that of merely a stakeholder. Under such circumstances, the mere stakeholder’s successful invocation of the interpleader procedure serves to discharge him from the threat of potential liability to the adverse claimants of the disputed funds.

In Thompson, a bank successfully interpleaded funds in certain accounts it held. In its original order granting the interpleader motion, the trial court stated that the bank was “released from any and all liability with respect to claims arising from or relating to its receipt, payment, delivery or other handling of the funds.” The court subsequently amended its order to remove this broad release language, however, stating that such language had the unintended effect of settling issues not raised in the case. We held that the court properly removed the broad release language, stating that

[t]he Bank was not . . . entitled to a general release from any and all liability regarding the . . . accounts. Assuming the existence of claims predicated upon the Bank’s existing personal liability to [whoever\ was the rightful claimant of the . . . accounts, such claims would not be based upon the Bank’s capacity as the “mere stakeholder” of the disputed accounts, and the authorization of its interpleader action in the instant case would not resolve those claims. To give but one example, payment into court of an existing bank account fund pursuant to interpleader would not necessarily serve to extinguish any existing personal liability to the rightful claimant under OCGA § 11-3-419 for the holder’s previous conversion of the funds in that account. The trial court correctly recognized that the language of its previous order afforded the Bank unwarranted protection from potential claims premised upon its personal liability with regard to the . . . accounts, rather than limiting that protection merely to its potential liability as against the “adverse claims” of [the two claimants to the accounts].

The claims being asserted against Merrill Lynch in the present case are not based on its status as a mere stakeholder of the funds in question but are based on its allegedly improper actions in transferring such funds out of appellant’s account without her permission. Accordingly, the mere fact that Merrill Lynch, after creating the controversy, disclaimed any personal interest in the funds and sought to interplead the funds in its possession does not relieve it from liability for its allegedly wrongful actions in transferring the funds without appellant’s permission.

In this case, a jury could conclude that Merrill Lynch breached its duty to appellant in numerous ways, including by (1) providing a blank letter of authorization to Freeman, (2) relying on Freeman’s self-serving claim that appellant desired to have the funds transferred to the estate account, (3) filling in the blanks of the letter of authorization over appellant’s purported signature based solely upon Freeman’s representation as to appellant’s intent or Miller’s own belief as to the decedent’s wishes, (4) failing to contact appellant to confirm that she authorized the transfer of funds into the estate account, and (5) forging or allowing to be forged appellant’s signature on the two subsequent letters of authorization. Although Merrill Lynch claims that appellant has not been harmed because the funds are still on deposit, we cannot say that a person suffers no harm when her funds are improperly transferred to a third party, she is denied access to the funds for an extended period of time, and she may be forced to resort to protracted litigation to recover the funds. Accordingly, the trial court erred in granting summary judgment to Merrill Lynch on appellant’s claims for negligence and breach of fiduciary duty.

2. Appellant also appeals the grant of summary judgment to Merrill Lynch on her claim for conversion. As the Supreme Court has recognized,

[conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion.

Although Merrill Lynch argues that a defendant cannot be held liable for conversion unless it converts the property to its own use, the Supreme Court hás squarely rejected this proposition:

It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other’s use. . . . [I]n order to be chargeable with conversion, technically it is not necessary that the defendant assert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right.

Moreover, the Supreme Court has held that “[i]t is immaterial that such dominion was exercised in good faith, for [w]hoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith.”

With respect to brokers, it has been stated that,

[a]s a general rule, if a broker wrongfully misappropriates ... or otherwise exercises unauthorized acts of dominion or ownership over funds, stocks, or other property belonging to a customer, in denial of, or inconsistently with, the customer’s rights therein, it constitutes a conversion for which he is liable in damages to the customer.

Regardless of whether Merrill Lynch thought that appellant had actually signed the initial blank letter of authorization, it is undisputed that Merrill Lynch never contacted appellant to ask how she wanted the blanks to be filled in. Instead, Merrill Lynch simply filled in the blanks itself. Although Miller claims that Freeman told him appellant wanted to transfer the funds into the estate account, Miller’s testimony is contradicted by Freeman and Ted Glisson, who denied that Miller told them the authorization letter would be used for that purpose. There is evidence that Miller believed Theodore Glisson wanted the funds in the Joint Account to pass to the testamentary trust upon his death. A reasonable inference is that Miller simply filled in the blanks in accordance with his understanding as to the decedent’s intent, without having sought appellant’s authorization for the transfer. Of course, if the funds in the Joint Account passed to appellant pursuant to the right of survivorship, then the decedent’s intent would not be relevant.

After the initial authorization letter was deemed to be deficient, Miller had two additional letters prepared, although again he did not seek appellant’s authorization. There is no evidence that these two letters were ever sent to appellant or even left Merrill Lynch’s possession, and there is abundant evidence that appellant’s signatures on these documents were forged. Pursuant to these two documents, Merrill Lynch transferred the funds from the Joint Account into an account in appellant’s name, and then transferred the funds from appellant’s account into the estate account, all without obtaining or even seeking to obtain appellant’s authorization.

Under all of these circumstances, we believe the evidence would authorize a jury to conclude that Merrill Lynch wrongfully exercised dominion over appellant’s property in a manner inconsistent with her ownership rights. It is immaterial that Merrill Lynch did not convert the property to its own use or that it might have believed the end result was proper. Although, several months after the transfer, Merrill Lynch sought to interplead the funds in the estate account, any conversion occurred when Merrill Lynch wrongfully transferred the funds to the estate account and refused to reverse the transfer, thus depriving appellant of her property. Accordingly, the trial court erred in granting summary judgment to Merrill Lynch on this claim.

3. Appellant contends that the trial court erred in awarding summary judgment to Merrill Lynch on her claim for attorney fees and litigation expenses. Under OCGA § 13-6-11, such fees and expenses may be awarded “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” The “bad faith” contemplated by the statute refers to bad faith in the transaction giving rise to the lawsuit. We believe there was ample evidence from which a jury could find bad faith on the part of Merrill Lynch. For example, if the jury concluded that Merrill Lynch was responsible for the forgery of appellant’s signature on the two letters of authorization, this would constitute an obvious example of bad faith. The jury could also conclude that Merrill Lynch exercised bad faith in filling out the initial letter of authorization without having received any instructions from appellant to do so. Accordingly, the trial court erred in granting summary judgment to Merrill Lynch on this claim.

4. In two enumerations, appellant contends that the trial court erred in granting summary judgment to Merrill Lynch on her claims for emotional and punitive damages. In neither of these enumerations, however, does she provide any legal argument or citation to relevant case law, nor does she provide any analysis of or citation to the evidence. Instead, she simply asserts conclusorily that, if Merrill Lynch is responsible for the forgeries, then it could be held liable for emotional and punitive damages. These conclusory assertions, in the absence of any analysis or legal argument, do not constitute the type of argument necessary to preserve an enumeration for appellate review.

Case No. A99A2319

In her complaint, appellant asserted claims against Freeman for fraud, theft by deception, breach of fiduciary duty, and negligent misrepresentation. Freeman moved for summary judgment on two grounds. First, she argued that no action on her part was the proximate cause of any damage to appellant, since the transfer of funds was not effected pursuant to the initial letter of authorization Freeman gave to Merrill Lynch but pursuant to the two subsequent letters of authorization prepared by Merrill Lynch. Second, with respect to the fraud claim only, Freeman argued that there was no evidence she made any misrepresentation to appellant. In Freeman’s view, because appellant denied signing the original letter of authorization, Freeman could not have made any misrepresentation to obtain her signature. The trial court granted summary judgment to Freeman based on both theories.

5. Appellant argues that the trial court erred in holding that Freeman’s actions could not have been the proximate cause of any damage to appellant. We agree.

As we have previously held, “[wjhen an injury can be traced directly to a wrongful act, and but for such wrongful act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the proximate cause of the injury.” Proximate cause “does not necessarily mean that which is nearest, but refers rather to the efficient cause,” Moreover,

there may be more than one proximate cause of an injury; the proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently; and where two concurrent acts of negligence operate in bringing about an injury, the person injured may recover from either or both of the persons responsible. The mere fact that the plaintiff’s injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.

In this case, if the jury believes that Freeman either forged or wrongfully procured appellant’s signature on the initial letter of authorization and that she affirmatively misled Merrill Lynch into believing that appellant consented to the transfer, she would not be relieved from liability simply because the initial authorization letter was not itself sufficient to effect the transfer. If the jury believes that Merrill Lynch forged the two subsequent authorization letters, it could conclude that it did so in reliance on Freeman’s misrepresentation as to appellant’s intent. Alternatively, the jury could conclude that Freeman’s misrepresentation caused Merrill Lynch to be less than diligent in ensuring that appellant’s signature on the two subsequent authorization letters was genuine. Regardless of the nature of Merrill Lynch’s alleged misfeasance, the jury could conclude that Freeman’s actions directly contributed to the improper transfer. Accordingly, the trial court erred in holding that Freeman’s actions could not have been the proximate cause of any damage to appellant.

Decided March 24, 2000.

Jerrell T. Hendrix, Carl M. Nelson, Jr., for appellant.

Brennan, Harris & Rominger, Richard A. Rominger, Lisa R. Richardson, for appellee (case no. A99A2319).

6. Appellant also contends that the trial court erred in finding that there was no evidence of a misrepresentation by Freeman. We agree.

The trial court held that, because appellant denied signing the initial letter of authorization, she' could not have signed it based on any misrepresentation by Freeman. This reasoning is flawed, however, as the fact that appellant did not recall signing the letter of authorization is not inconsistent with a finding that she signed the document unknowingly. Freeman and Ted Glisson both testified that appellant signed the document in their presence, so there is certainly evidence that appellant in fact signed the document. The question is whether there is evidence that she signed it unknowingly pursuant to any misrepresentation by Freeman. Ted Glisson testified that there was only one occasion on which he went to appellant’s house to have her sign documents. Appellant also testified that there was only one occasion where Freeman and Ted Glisson brought documents for her signature. Clearly, therefore, the jury could find that, if appellant signed the authorization letter, it was at that one meeting. Appellant and Rawlins both testified that Freeman never showed appellant the letter of authorization. Appellant stated that Freeman showed her a stack of documents and explained that they were tax documents appellant needed to sign. Viewed in the light most favorable to appellant, the jury could infer that, if appellant in fact signed the authorization letter, she did so unknowingly based on Freeman’s representation that the stack of documents were simply tax documents. Accordingly, the trial court erred in holding that there was no evidence of misrepresentation by Freeman.

Judgment affirmed in part and reversed in part in Case No. A99A2480. Judgment reversed in Case No. A99A2319.

Andrews, P. J., and Ellington, J., concur.

Long, Aldridge & Norman, Terry R. Weiss, M. Graham Loomis, for appellee (case no. A99A2480).

       Glisson also asserted claims against several other defendants, but these claims are not at issue on appeal.

       (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The blank letter of authorization was addressed to Merrill Lynch and read as follows: “Dear Sir or Madam: This is your authority to transfer [blank] from account number(s) [blank] in the name of [blank] to account number(s) [blank] in the name of [blank]. Very truly yours, [blank].”

       Miller stated that the affidavit of domicile, which identified the states where the deceased filed his last tax return and died, was required by Merrill Lynch policy, although he did not know why.

       Davis testified that she did not recall whether the letter of authorization had already been signed when she filled in the account information. However, Miller testified that he provided a blank form to Freeman and Ted Glisson, and they testified that the document was blank at the time it was signed. The record contains a copy of a blank letter of authorization purportedly signed by appellant, and the signature appears to correspond exactly to that on the document filled in by Davis.

       Miller suggested that the document should have been signed by appellant.

       In his affidavit, Miller claimed that this visit occurred “shortly” after his February 4 meeting with Freeman. In his deposition, however, Miller testified that it was about a month after Theodore Glisson’s death on January 27.

       Appellant’s amended complaint did not specifically assert a negligence claim against Merrill Lynch, although it did allege that its employee, Miller, was negligent in failing to obtain appellant’s authorization. Merrill Lynch does not argue that the complaint failed to properly state a claim for negligence against it and indeed concedes that the complaint stated such a claim.

       Merrill Lynch’s motion to strike appellant’s brief for using an improper font is hereby denied.

       (Citations and punctuation omitted.) Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 647 (3) (409 SE2d 262) (1991). See also E. F. Hutton & Co. v. Weeks, 166 Ga. App. 443, 445 (1) (304 SE2d 420) (1983).

       See Merrill Lynch &c. v. Cheng, 901 F2d 1124, 1127-1128 (D.C. Cir. 1990); Leib v. Merrill Lynch &c., 461 FSupp. 951, 952-953 (E.D. Mich. 1978).

       See Cheng, supra; Leib, supra.

       Contractual survivorship provisions are enforceable under Georgia law. Commercial Banking Co. v. Spurlock, 238 Ga. 123, 125 (231 SE2d 748) (1977); see also OCGA § 44-6-190 (a). In addition, OCGA § 7-1-813 (a) provides 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.” This provision applies to all joint accounts held by a “financial institution,” regardless of whether the account documents refer to a right of survivorship. OCGA § 7-1-810 (1), (3), (4). Although the record does not reflect whether Merrill Lynch qualifies as a “financial institution,” the trial court concluded in a separate order that OCGA § 7-1-813 (a) applies and that the survivorship provisions of the Joint Account could therefore be overridden by clear and convincing evidence that Theodore Glisson did not intend for such provisions to apply. Although that particular ruling has not been challenged on appeal, even if OCGA § 7-1-813 (a) applies, we must view the evidence in the light most favorable to appellant. So viewed, the evidence does not show that Theodore Glisson had a contrary intent at the time the Joint Account was opened, since he in fact signed a document clearly providing for rights of survivorship.

       Merrill Lynch asserts that appellant’s and Rawlins’ affidavits were untimely filed and thus were not considered by the trial court. These affidavits were filed on August 7, 1998, 29 days after Merrill Lynch filed its summary judgment motion and more than nine months before the trial court ruled on the motion. Although the affidavits were filed within the time period set forth in OCGA § 9-11-56, Merrill Lynch notes that, in an order dated April 23, 1998, the trial court stated that “[t]he response time for [summary judgment motions] shall be shortened to twenty days.” However, there is no indication that Merrill Lynch objected to consideration of the affidavits on the basis of timeliness or that the trial court refused to consider the affidavits. See Pruitt v. Tyler, 181 Ga. App. 174, 175 (1) (351 SE2d 539) (1986). Because Rawlins’ affidavit contradicts Miller’s account of the meeting, we need not consider whether appellant’s affidavit contradicts her deposition testimony that she did not recall making the alleged statement.

       172 Ga. App. 579 (323 SE2d 877) (1984).

       (Citations and punctuation omitted; emphasis in original and omitted.) Id. at 582 (2).

       (Punctuation omitted.) Id. at 580-581.

       (Emphasis in original.) Id. at 582-583 (2).

       Although not raised by either party, we note that the trial court’s order granting the interpleader motion did not contain the broad release language in the original Thompson order and did not purport to release Merrill Lynch from liability for its own wrongful actions in transferring the funds. The order simply purported to discharge Merrill Lynch from any liability relating to the cash management account created in the court’s January 26, 1998 order.

       (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (356 SE2d 877) (1987).

       (Citations and punctuation omitted.) Id.

       (Punctuation omitted.) Id.

       12 CJS, Brokers, § 66, p. 198. See also id. at § 78, p. 231 (“[t]he principal may sue for conversion, where the broker . . . disposes of or misappropriates funds or securities belonging to the principal”).

       In granting summary judgment to Merrill Lynch, the trial court stated that “the first element of the tort of conversion, ownership of the property by the plaintiff, is absent.” The only way appellant would not have had ownership of the Joint Account prior to the transfer is if the survivorship provisions of the account were unenforceable and the funds passed into the decedent’s estate as a matter of law. As discussed above, however, for summary judgment purposes it must be assumed that the survivorship provisions are enforceable.

        Brown v. Baker, 197 Ga. App. 466, 467 (3) (398 SE2d 797) (1990).

       See Crawford v. Crump, 223 Ga. App. 119, 122 (1) (b) (476 SE2d 855) (1996) (upholding award of attorney fees where defendants used “sham documents” in transaction).

       See Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999) (mere conclusory statements are “not the kind of argument required to preserve an enumeration for appellate review”); Green v. State, 208 Ga. App. 1, 2 (2) (429 SE2d 694) (1993) (“ ‘principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error’ ”); Jenkins v. State, 240 Ga. App. 102 (1) (522 SE2d 678) (1999) (“[m]ere conclusory statements . . . are not the type of meaningful argument contemplated by” Court of Appeals Rule 27 (c) (2)); Pickens v. State, 225 Ga. App. 792, 800 (7) (484 SE2d 731) (1997); Martin v. State, 179 Ga. App. 551, 555 (8) (347 SE2d 247) (1986).

       (Punctuation omitted.) Parris v. Pledger Ins. Agency, 180 Ga. App. 437, 439 (2) (348 SE2d 924) (1986).

       (Punctuation omitted.) Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 695 (1) (51 SE2d 705) (1949).

       Id.

       Even Freeman admits that she told appellant the blank authorization letter would simply be used to open up the estate account, not that it would be used to transfer funds out of the Joint Account.

       In her summary judgment motion, Freeman did not raise the issue of whether such reliance would be reasonable, except to assert that there can be no reliance on a nonexistent representation.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A2335.
    WILEY v. LIBERTY SOUTHERN, INC.
    (532 SE2d 456)
   Pope, Presiding Judge.

Plaintiff Debra Wiley filed a complaint seeking damages for personal injuries against defendant Liberty Southern, Inc. f/k/a Carroll-ton Convention Center after she slipped and fell at Day’s InnCarrollton, which is managed by Liberty Southern. The trial court granted Liberty Southern’s motion for summary judgment, and Wiley filed the present appeal. We reverse.

Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. McCoy v. Winn Dixie Stores, 238 Ga. App. 543 (519 SE2d 689) (1999). Viewed in this light, the evidence shows that Wiley, her husband and son began renting lodging at the motel on or about September 23, 1995. Wiley’s room was on the second floor, and she used the stairs located near her room about four times a day. On October 13, 1995, at about 6:30 p.m., Wiley and her son left their room to go to the laundry room on the first floor. Wiley’s son was walking ahead of her with the laundry basket and was descending the stairs when Wiley slipped at the top of the stairs and fell down almost to the bottom of the steps. Wiley testified that she did not notice anything on the floor near or on the steps before her fall but that after she fell her shoes were wet and she had a slimy, dark, thick substance on her clothes. Wiley testified she fell because of a wet spot “close to the air conditioner where the stairs were,” and after she fell, a janitor mopped the floor and placed a wet floor sign in the area. Wiley also testified that she thought the water had been on the floor for days because it had mildew or algae “or something” growing in it. However, Wiley also testified that she had never noticed the spot before the day she fell.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

For purposes of its motion for summary judgment, Liberty Southern conceded it had actual or constructive knowledge of the hazard. Relying on the line of cases holding that a person who has previously negotiated a dangerous condition is presumed to have knowledge of the condition and cannot recover for a subsequent injury resulting from it, Liberty Southern argued and the trial court found that Wiley’s testimony that the substance had been on the floor for days and that she traversed the area several times a day established her constructive knowledge of the condition and that she intentionally and unreasonably exposed herself to the hazard. It is true that

[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [But] [i]n cases where this rule has been applied, . . . the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety.

(Citations and punctuation omitted.) Anderson v. Reynolds, 232 Ga. App. 868, 870 (502 SE2d 782) (1998). “A static condition, by definition, is simply one that does not change. Such a condition ‘is not dangerous unless someone fails to observe it and steps into it. (Cit.)’ MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996).” Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 306 (3) (494 SE2d 76) (1997).

The evidence here did not establish a static condition readily discernible by the plaintiff. There was no evidence that the floor near the steps always appeared wet or slimy, that the air conditioner always leaked or that a person traversing the area should have noticed it was always wet. And there was no evidence that Wiley had previously traversed a wet floor to gain access to the steps. To the contrary, the only evidence was that Wiley -traversed the steps six to eight times a day and that she had never before noticed a wet spot in the area. And contrary to the trial court’s holding, Wiley’s testimony that the substance had been there for days was merely an assumption on her part based on the nature of the substance on her clothes and should not have been construed against her to establish the amount of time the floor had been wet. In sum,

Decided March 24, 2000.

James M. Allison, Jr., for appellant.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Kenneth B. Crawford, for appellee.

the evidence does not support a finding on summary judgment that the [wet spot] was or should have been readily discernible to [Wiley] prior to [her] fall. . . . [And] a presumption relating to slip-and-fall plaintiffs who re-encounter static, readily discernible conditions has no application under the facts of this case.

McCoy v. Winn Dixie, 238 Ga. App. at 544. Cf. Mechanical Equip. Co. v. Hoose, 241 Ga. App. 412, 413 (523 SE2d 575) (1999) (steps on which plaintiff fell had been in place for eight years); Johnson v. J. H. Harvey Co., 240 Ga. App. 265 (523 SE2d 95) (1999) (ramp on which plaintiff fell had been in place “for years”); Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998) (steps on which plaintiff fell had been in place for 14 years).

At its root, “the issue (in this case) is whether taking into account all the circumstances existing at the time and place of [Wiley’s] fall, [Wiley]' exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, [268 Ga.] at 735. Because the facts in this case are far from being plain, palpable, and undisputed, this issue is one a jury must resolve.

McCoy v. Winn Dixie, 238 Ga. App. at 545.

The trial court thus erred in granting summary judgment to Liberty Southern under the facts of this case.

Judgment reversed.

Smith and Miller, JJ, concur.


author: Smith, Judge.

text:
    A99A2462.
    ROBINSON v. STAR GAS OF HAWKINSVILLE, INC.
    (533 SE2d 97)
   Smith, Judge.

We granted interlocutory appeal in this case to consider an unusual application of the principle of “vanishing venue.” This longstanding rule arose from the construction of two provisions of the Georgia Constitution: first, that a defendant is entitled to be sued in the county of his residence, Ga. Const. 1983, Art. VI, Sec. II, Par, VI, and second, that joint tortfeasor residents of different Georgia counties may be sued in either county. Ga. Const. 1983, Art. VI, Sec. II, Par. IV. Two basic principles have been established by the case law. “Where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident codefendant is liable in the action.” (Citation, punctuation and emphasis omitted.) Collipp v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995). In addition, the trial court loses venue as to the nonresident defendant if no judgment is taken against the resident defendant, whether the resident is found not liable or dismissed with prejudice. And where the resident is found not liable, the trial court has no jurisdiction to enter a judgment against nonresident defendants even if they are found liable. Id. at 675-676.

But the defense of improper venue may be waived by a nonresident defendant, and such a waiver may be express or implied. Empire Forest Products v. Gillis, 184 Ga. App. 542, 543 (1) (362 SE2d 77) (1987). In this case, we are called upon to determine the scope and extent of an express waiver made by Star Gas of Hawkinsville, the nonresident defendant. After considering the terms of the originally proposed waiver and the amended waiver ultimately accepted by the trial court, as well as the conduct of the parties, we conclude that Star Gas expressly waived its venue defense and could not limit the effect of that waiver to an earlier appeal in this case. Accordingly, we find that the trial court abused its discretion in ordering a transfer due to “vanishing venue,” and we reverse.

This litigation arose from a 1989 incident in which the wife of Eddie Lee Robinson died and Robinson and his children were injured by carbon monoxide gas from a propane heater. Robinson brought this action against Star Gas, the supplier of the propane, and against a hospital and physicians for failing to diagnose the poisoning. Star Gas &c. v. Robinson, 225 Ga. App. 594 (484 SE2d.266) (1997) (Star Gas I). The action was brought in DeKalb County, the residence of one defendant physician. Star Gas answered and asserted a venue defense.

The first trial, in 1994, ended in a mistrial when the jury found no liability as to one physician but was unable to reach a verdict as to the remaining defendants. Star Gas I, supra. At the second trial, in 1995, the jury was again unable to reach a verdict as to the remaining physician and the hospital but did reach a verdict in favor of Robinson and against Star Gas. The jury determined, however, that the Robinsons were 49 percent negligent and awarded a relatively small amount of damages. Id.

Star Gas acknowledges in its brief that it was aware of the venue problems caused by the jury’s failure to reach a verdict as to the resident defendant but “was pleased with the verdict as a whole.” Accordingly, on June 7, 1995, Star Gas filed a pleading styled “Conditional Withdrawal of Certain Defenses,” stating:

Comes now, Star Gas of Hawkinsville, Inc., and withdraws jurisdictional and venue defenses previously raised for the limited purpose of allowing the court to enter judgment on the jury verdict dated May 23, 1995 within thirty (30) [days] of the date hereof. Defendant Star Gas of Hawkinsville, Inc., however, fully reserves all venue and jurisdictional defenses for all other purposes, specifically including any circumstance whereby the court determines not to enter judgment on the jury verdict dated May 23, 1995 within thirty (30) days of the date hereof. In other words, if the court does not enter judgment on such jury verdict within 30 days of the date hereof, all jurisdictional and venue defenses are fully preserved.

The trial court, however, apparently refused to accept this pleading as worded, and on the following day Star Gas offered an “Amended Conditional Withdrawal of Certain Defenses,” as follows:

Comes now, Star Gas of Hawkinsville, Inc., and withdraws the jurisdictional and venue defenses previously raised for the limited purpose of allowing the court to enter judgment on the jury verdict dated May 23, 1995 within thirty (30) [days] of the date hereof. Defendant Star Gas of Hawkins-ville, Inc., however, conditions this withdrawal of all venue and jurisdictional defenses on the entry of this judgment on such verdict within thirty (30) days of the date hereof. In other words, if the court does not enter judgment on such jury verdict within 30 days of the date hereof, all jurisdictional and venue defenses are fully preserved.

The judgment entered on the jury verdict contained the following language: “Star Gas of Hawkinsville, Inc. has waived its jurisdictional and/or venue defenses, but fully reserved all other defenses including the right of appeal.” After this judgment was entered, Robinson settled with the medical defendants, including the resident defendant, and dismissed them with prejudice on March 21,1996. On April 5, 1996, Robinson’s motion for new trial was denied. Notice of appeal from the denial was filed on April 25, 1996.

In Star Gas I, supra, this court affirmed both the judgment against Star Gas and the trial court’s denial of Robinson’s motion for new trial. On certiorari, the Supreme Court of Georgia reversed and remanded, holding that the issue of inadequacy of comparative negligence awards is no longer shielded from judicial review. Robinson v. Star Gas &c., 269 Ga. 102 (498 SE2d 524) (1998). This court in its turn remanded the case to the trial court for reconsideration of Robinson’s motion for new trial in light of the Supreme Court’s decision. Star Gas &c. v. Robinson, 232 Ga. App. 407 (501 SE2d 598) (1998).

On remand, the trial court granted Robinson’s motion for new trial, expressly reserving the issue of venue for a later ruling. After the parties briefed the issue, the trial court granted Star Gas’s motion to transfer the case to Sumter County. The trial court rejected Star Gas’s argument that its amended withdrawal of defenses amounted to a limited waiver for purposes of that appeal only and no longer applied, because the jury’s verdict was altered when Robinson’s motion for new trial was granted. The trial court found that Star Gas’s waiver was unconditional, but it also found the waiver void and of no effect because it was premature, since the resident defendant had not yet been dismissed when the waiver was made. We agree with the trial court that Star Gas expressly and unconditionally waived its venue defense, but we do not agree that the waiver was premature.

Pleadings are to be construed to do substantial justice. OCGA § 9-11-8 (f). However, justice is not obtained when a pleading is so liberally construed as to circumvent its true intent, especially when the opposing party is thereby deprived of a significant statutory right. . . . Averments in a pleading are required to be “simple, concise, and direct.” OCGA § 9-11-8 (e) (1). A principal purpose of this requirement is to minimize the risk that an opposing party will be misled either as to the nature or scope of the pleading.

(Citation omitted.) McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 678 (504 SE2d 747) (1998). Robinson’s counsel testified by affidavit that he relied upon the terms of Star Gas’s withdrawal of its venue defense in settling with the resident defendants. We will therefore construe the language of the pleading according to its literal meaning and giving its words their usual and ordinary significanee, as though construing an agreement between parties. See generally Puccini v. Thomas & Howard Co., 228 Ga. App. 537 (492 SE2d 297) (1997).

It is .particularly significant that Star Gas deleted from this pleading language expressly providing that it “fully reserves all venue and jurisdictional defenses for all other purposes, specifically including” failure to enter judgment on the verdict within 30 days. It cannot now complain that the language it deleted expressed its actual’ intent to limit the waiver. The only limitation remaining in the pleading after its modification was that judgment on the verdict be entered,within 30 days, and that event took place. The waiver created by Star Gas’s withdrawal was not otherwise limited by its terms. •

This conclusion is further supported by the fact that the judgment',, itself contained the statement that Star Gas “has waived its jurisdictional and/or venue defenses, but fully reserved all other defenses including the right of appeal.” Star Gas did not challenge this ruling below and did not enumerate it as error in its earlier appeal. It therefore became the law of the case. William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 634 (2) (466 SE2d 872) (1995). We agree with the trial court, therefore, that Star Gas’s waiver of its yenu.e defense was not limited to the appeal of the judgment in the 1995 trial. .

But we cannot agree with the trial court that Star Gas’s waiver was premature. As noted above, a venue defense may be triggered by a number of events during the course of litigation. While in most cases the' defense arises when the resident defendant is dismissed from the case or obtains a verdict in its favor, it may also arise when a jury verdict is returned against the nonresident defendant but not against the resident. In the latter case, the venue defense operates to deprive the trial court of jurisdiction to enter judgment against the nonresident defendant. Collipp v. Newman, supra at 675. As Star Gas acknowledges, the latter circumstance occurred here and created the necessity for a waiver in order to obtain an appealable judgment. Star Gas’s venue defense therefore arose long before the dismissal was filed; it was operative as soon as Star Gas sought to have a judgment entered in the absence of a verdict against the resident defendant. And Star Gas acknowledged the existence of the defense by its waiver, giving the trial court jurisdiction it did not otherwise have: to enter judgment without a finding of liability against the resident defendant.

Decided March 24, 2000.

W. McMillan Walker, for appellant.

Carr, Tabb & Pope, Jan R. Kastanakis, Render C. Freeman, Eric N. Van De Water, for appellee.

In contrast, Nadew v. Alemu, 217 Ga. App. 438 (457 SE2d 709) (1995), relied upon by the trial court, is an example of the more common trigger for a venue defense. In Nadew, the resident defendant obtained a directed verdict in his favor at trial. The nonresident defendant immediately moved for a transfer. Id. at 439. We observed that an answer by a nonresident defendant admitting an allegation that venue was proper would not operate as a waiver while the resident defendant remained a party to the case, since venue remained proper at that time. Id. Here, in contrast, Star Gas expressly waived its venue defense in order to obtain a judgment that it could not otherwise have obtained due to lack of venue.

Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. And once a right is waived the waiver cannot be withdrawn without the consent of the other party, even if subsequent events prove the right waived to have been more valuable than was anticipated.

(Citation and punctuation omitted; emphasis in original.) Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370) (1991). Star Gas, satisfied with the jury’s verdict and calculating the chances of affirmance upon appeal, made an informed and deliberate decision to avoid a third jury trial and therefore waived its existing venue defense to facilitate entry of judgment. It could not withdraw that waiver because its expectations, although fleetingly fulfilled in this court, were disappointed on certiorari. The trial court therefore erred in granting Star Gas’s motion to transfer.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       We note that the principle of “vanishing venue” has lost much of its force in future cases as a result of the amendment of OCGA § 9-10-31, effective July 1, 1999. See Ga. L. 1999, p. 734, § 2, stating the intent of the General Assembly “to provide for a fairer and more predictable rule of venue ... [and] to eliminate the waste of time and resources to courts and parties under the vanishing venue doctrine.”

       We also noté that the trial court was incorrect in its assertion that the dismissal occurred “during pendency of that appeal.” Over one month passed between the filing of the dismissal and the filing of the notice of appeal. Star Gas therefore had ample opportunity to reassert its venue defense in the trial court, or enumerate it as error on appeal, had it intended to treat its waiver as anything other than unconditional.

       This observation was not necessary to our decision, however, because in Nadew the defendant admitted in judicio that he resided in the county of the trial court, and we noted that this admission established venue regardless of the presence of any other resident defendant.


text:
    A99A2490.
    ARNOLD v. THE STATE.
    (532 SE2d 458)
   Ruffin, Judge.

A Douglas County jury found appellant Willie Joseph Arnold guilty of two counts of armed robbery and one count of aggravated assault. Appellant challenges the sufficiency of the evidence and contends that the trial court should have granted a mistrial due to juror misconduct. Finding no error, we affirm.

1. The standard of review for a challenge to the sufficiency of the evidence is well established:

[W]e view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

Viewed in this light, the evidence at trial showed that, in the early morning hours of December 17, 1994, armed men entered the home of Bernard Harper to rob the occupants. Harper had four guests in his home at the time: John Lindley, Rudolph Spence, Taylor Cook, and Mike Lindley. Harper and John Lindley were watching television in the living room while Spence, Cook, and Mike Lindley played craps in the kitchen. Harper, who is legally blind, testified that he heard a knock at the front, door and said, “[c]ome in.” The door opened, and a man walked into the living room and said, “This is a robbery, get down on the floor.” Harper told the robber that he could not comply because he had recently been in an accident. The man walked past Harper toward the kitchen, where he “made all those guys get down on the floor,” then he returned to the front door where a second man, who had a rifle, came in. The two men then searched Harper and his guests for money. Harper handed one of the men $5 from his sock. The man with the handgun, apparently irritated that no one had any money, said he was “going to make an example out of somebody.” Shortly thereafter, Harper heard gunshots coming from the kitchen. According to Harper, the man with the rifle stayed at the front door the whole time while the man with the handgun went through the house. After the shots were fired, both men left the house through the front door.

John Lindley, who was in the living room with Harper, testified that he lay down on the floor as the men directed. Lindley described the first man who entered the house as about 5' 7" and wearing dark coveralls and a ski mask, but Lindley did not see the man with the rifle. Lindley soon noticed that the men were not watching him, so he crawled out of the living room into the adjoining kitchen and warned Spence, Cook, and Mike Lindley that a robbery was in progress. John Lindley then left through the back door and ran to the home of a neighbor, who called the police. While at the neighbor’s house, he heard two shots ring out from the back of Harper’s house.

Spence testified that he heard John Lindley’s warning about the robbery but paid no attention. After John Lindley passed through the kitchen, Spence went out onto the patio to smoke. As he lit his cigarette, a short man wearing a dark ski mask pressed the barrel of a gun against his neck and told him to go back inside the kitchen and lie down on the floor. Spence and the man walked into the kitchen, and Spence got on the floor next to Cook and Mike Lindley, who were already lying down. Spence heard a second man back in the bedroom “tearing drawers open . . . and stuff like that,” but he never saw that man. The man in the kitchen asked Spence, Cook, and Mike Lindley for money, but they told him that they had none. The man said, “I’m going to make an example out of somebody if nobody don’t come up with some money,” then he hit Spence in the back of the head with the gun. Spence heard the second robber say that one of the victims had left the house, after which “they got kind of panicked” and started “moving around a little faster.” As the man in the kitchen was leaving, he shot Spence in the leg.

Cook testified that he was standing in the kitchen playing craps when he looked toward the front door and saw a man with a rifle standing there. The man was tall and wore a tan jacket with a white collar and a ski mask. Cook turned to run out the back door but saw another man come in the back door. This man, who had a pistol and wore a black ski mask and blue jumpsuit, yelled at Spence, Cook, and Mike Lindley to lie down on the floor, then demanded their money. The man reached into Cook’s pocket and removed his wallet, which had no money. Cook heard the man talking with a third robber in the back of the kitchen. The man in the blue jumpsuit then said, “If we don’t find the money, we going to have to make a believer out of. . . somebody.” Cook then heard two shots fired in the kitchen.

Mike Lindley testified that while he was in the kitchen playing craps, he saw a man with a handgun enter the kitchen from the back door. The man was approximately 5' 8" or 9" and wore blue jeans, a denim jacket, a white hood, and a dark face mask. The man said “get down and nobody move,” and Mike Lindley complied. The man reached into Mike Lindley’s pocket and removed $2. As he was lying on the kitchen floor, Mike Lindley heard a knock at the front door and saw the door open and “the AK-7 [sic] come in,” but he could not see who had the gun. The man in the kitchen then fired two shots, one of which hit Mike Lindley in the leg.

Police arrived minutes after the robbers left the house. Shortly thereafter, Tracy Allen and Timothy Arnold were arrested while walking down a street close to Harper’s house. Allen was wearing blue coveralls, and Arnold was wearing blue pants, ajean jacket, and a hooded sweatshirt. On the ground nearby, police found a handgun, a loaded clip for the handgun, a loaded automatic rifle, and a black ski mask. Allen claimed that he had been only a lookout during the crime and that appellant had also participated in the robbery. Two days later, appellant was arrested, and all three men were charged with (1) armed robbery of Harper, (2) armed robbery of Mike Lindley, and (3) aggravated assault of Cook. Allen also was charged with aggravated assault by shooting Spence and Mike Lindley. The men were tried separately. Allen was convicted on all counts, and Arnold was acquitted.

Both Allen and Arnold testified at appellant’s trial. Arnold testified that on the night of the robbery, he, Allen, and appellant parked appellant’s car at some apartments near Harper’s house, then sat in the car and drank beer. Appellant had gone to Harper’s house earlier that night to buy marijuana, and Arnold had accompanied him but had not gone inside. According to Arnold, appellant suggested robbing Harper. Appellant, Allen, and Arnold began walking through the woods toward Harper’s house, but Arnold stopped before they reached the house and refused to continue. Arnold waited outside until he saw John Lindley run out the back door, then Arnold fled toward appellant’s car. Allen caught up with him, and then the two were arrested. Arnold said he did not see appellant again that night.

Allen, on the other hand, testified that it was Arnold’s, rather than appellant’s, idea to rob Harper and that appellant did not participate. According to Allen, appellant gave him and Arnold a ride to the apartments near Harper’s house, then Allen and Arnold walked to Harper’s to commit the robbery. Allen went in the front door with the rifle, while Arnold went in the back door with the handgun. Allen admitted that his trial testimony flatly contradicted his previous testimony at Arnold’s trial and his statements to police, in which he said that appellant had masterminded the robbery and had stood at Harper’s front door with the rifle. Allen acknowledged telling police that appellant had said, “[w]e’re going to go up there and armed rob some young dope punks.” At appellant’s trial, however, Allen claimed that his previous statements were lies.

Detective James Miller of the Douglasville Police Department testified that he spoke with appellant two days after the robbery. At first, appellant said that he had seen Allen and Arnold near Harper’s house on the evening of the robbery but could not remember if they had been in his car. Appellant later changed his story and said that he had dropped Allen and Arnold off near Harper’s house that night. Appellant said that Arnold was wearing a black skull cap, but appellant did not see any guns. Appellant also admitted that he had been to Harper’s house earlier that evening to buy marijuana.

Although appellant contends that there was insufficient evidence linking him to the robbery, we find that ample evidence tied him to the crimes. Most significantly, Arnold testified that the robbery was appellant’s idea and that appellant went to Harper’s house with a rifle. Appellant contends that Arnold’s testimony cannot be credited because it is the uncorroborated testimony of an accomplice. We disagree. Pretermitting whether Allen’s acquittal precludes him from being an accomplice, there was sufficient evidence to corroborate his testimony. We have held that,

although OCGA § 24-4-8 prevents the conviction of a defendant in felony cases where the only witness testimony is the uncorroborated testimony of an accomplice, slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. The necessary corroboration may be by circumstantial evidence. Moreover, an accomplice’s testimony may be corroborated by the testimony of another accomplice.

Here, Allen’s out-of-court statements corroborate Arnold’s testimony. Although at trial Allen claimed that appellant did not participate in the robbery, he previously told police — and he testified at Arnold’s trial — that appellant masterminded the robbery and stood at Harper’s front door with the rifle. These prior inconsistent statements, which constitute substantive evidence, are sufficient to corroborate Arnold’s testimony.

In addition to Arnold’s testimony, appellant admitted to facts consistent with his participation in the robbery. He told police that he visited Harper’s house earlier that night to buy marijuana, thus putting him in a position to develop the idea for the robbery. He also admitted that he drove Allen and Arnold to a spot within walking distance of the crime scene and that Arnold was wearing a black face mask. Moreover, appellant changed his story while talking to Detective Miller, thereby casting doubt on his credibility.

Finally, the testimony of the victims supports appellant’s conviction. According to the victims, at least two men entered the house, one with a handgun and one with a rifle. Cook, the only victim able to describe the man with the rifle, testified that he was tall and wore a face mask and a tan jacket with a white sheepskin-type collar. This description does not fit Allen, who is 5' 6" and wore blue coveralls when he was arrested minutes after the robbery. Nor does it fit Arnold, who wore light jogging pants, a black jacket, and a hooded sweatshirt at the time of his arrest. Thus, the jury could have concluded that a third person wielded the rifle at Harper’s front door and that the third person must have been appellant. In sum, the evidence was ample to support appellant’s conviction.

2. Appellant also contends that the trial court should have granted a mistrial based on juror misconduct. Before the close of evidence, appellant overheard some jurors discussing the case during a break. His attorney requested a curative instruction, and the trial judge complied, reminding the jurors not to discuss the case until it was submitted to them. Defense counsel later moved for a mistrial, and appellant took the stand to relate what he had overheard. According to appellant, one juror said, “it was like three people in the house. . . . I’m still puzzled about the guy at the front door”; another juror asked, “how could Tracy catch up with Tim when Tim’s supposed to have shot him and ran out the back”; a third juror said, “Jo-Jo was at the front door and Tim was back there”; and a fourth juror said “they didn’t believe nothing that Tracy had said anything [sic] anyway.” Appellant also testified that he did not hear any juror say that he was guilty.

The judge then individually asked all jurors whether they had heard any other jurors discussing the case. The jurors admitted to hearing such discussions but said that they had not reached any conclusions about appellant’s guilt or innocence and could listen to the evidence with an open mind. Based on these responses, the judge denied the motion for mistrial but further admonished the jury to keep an open mind and refrain from deliberating until all the evidence had been presented.

When an irregularity occurs in the conduct of the jury, “[t]here is a presumption of prejudice to the defendant [,] . . . and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” We will not set aside a jury verdict based on such an irregularity, however, unless “the conduct was so prejudicial that the verdict is inherently lacking in due process.” Moreover, “[w]here the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.”

Decided March 24, 2000.

Victor A. Cuvo, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

The conduct of the jurors in this case was clearly improper, but we cannot conclude that it was so prejudicial as to deny due process to appellant. Although the jurors prematurely discussed the testimony of the witnesses, no juror expressed an opinion that appellant was guilty, and there was no evidence that any juror presented extrajudicial information to other jurors or tried to persuade other jurors as to any issue or testimony. Defense counsel promptly brought the misconduct to the judge’s attention, and the judge immediately gave a curative instruction. Shortly thereafter, the judge individually questioned the jurors, all of whom stated that they had not formed an opinion regarding appellant’s guilt or innocence and could keep an open mind as to the evidence. The judge then further admonished the jury not to deliberate prematurely. Under these circumstances, we find that the juror misconduct “was not so prejudicial as to have contributed to the conviction.”

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       Timothy Arnold is appellant’s cousin and has the same last name. For clarity, we will refer to him as “Arnold” and to appellant as “appellant.”

       Harper likewise testified that appellant had visited his house earlier on the night of the robbery.

       (Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 729 (2) (478 SE2d 905) (1996).

       See Woods v. State, 209 Ga. App. 604, 605-606 (1) (434 SE2d 146) (1993); Smith v. State, 222 Ga. App. 366, 367 (2) (474 SE2d 272) (1996).

       (Punctuation omitted.) Huff v. State, 239 Ga. App. 83, 87 (3) (519 SE2d 263) (1999).

       (Punctuation omitted.) Turtle v. State, 271 Ga. 440, 445 (5) (520 SE2d 211) (1999).

       (Punctuation omitted.) Huff, supra.

       Compare Mullins v. State, 241 Ga. App. 553 (525 SE2d 770) (1999) (reversing conviction where, during a recess, one juror agreed with statement of acquaintance that “the defendants would not be [here] if they were not guilty”).

       Compare Bobo v. State, 254 Ga. 146-148 (1) (327 SE2d 208) (1985) (reversing conviction where two jurors went to crime scene to determine whether lighting conditions were adequate — a key issue in the case — and reported their conclusions to other jurors).

        Sims v. State, 266 Ga. 417, 420 (3) (467 SE2d 574) (1996).


text:
    A99A2510.
    HILL v. THE STATE.
    (532 SE2d 491)
   Smith, Judge.

Appellant J. I. Terrell “Pete” Hill was indicted by a Madison County grand jury for malice murder, but a jury convicted him of involuntary manslaughter only. His motion for a new trial was denied, and he appeals. Finding no error, we affirm.

1. Hill enumerates the general grounds. Construed to support the verdict, the evidence shows that on January 14, 1997, the five-month-old son of Hill and his live-in girlfriend was taken to Egleston Children’s Hospital in Atlanta, where he died five days later. Because physicians were concerned about the suspicious nature of the child’s injuries, they consulted a pediatrician trained in injury and child abuse evaluation. The pediatrician ordered an autopsy performed, and both she and a physician from the Georgia State Crime Lab concluded that the cause of death was “Shaken Baby Syndrome.” The doctors displayed for the jury CT scans showing the brain injury.

The baby’s mother testified that on the night of the incident, the baby had been crying continuously and would not stop. When the baby would not take his bottle, Hill picked him up and shook him before placing him on the cold floor. The mother testified that she remained in another room while this happened because she feared that Hill would beat her. Hill then bounced the baby on his knee and shook him until the child lost consciousness and “went limp.” Hill later threatened the baby’s mother, saying that if she ever said anything, he would “beat the hell out of” her.

The State also presented testimony from a child care provider who lived with Hill and the mother immediately after the birth of the child. This witness testified to an incident that occurred when the infant was three weeks old. According to her testimony, the baby was colicky and often cried. The witness heard the baby continually crying during the night and then heard cursing and movement. She entered the bedroom and found Hill grasping the baby around the body and pushing him down onto the bed “real hard.” When she protested to Hill, he responded, ‘You better take the little S.O.B. before I kill him.”

“A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” OCGA § 16-5-3 (a). The trial court instructed the jury that a person commits “involuntary manslaughter when that person causes the death of another human being without any intention to do so by the commission of simple battery.” It is uncontroverted that Hill was bouncing and shaking the child on his knee immediately before the child lost consciousness and went limp. The causal relationship between Hill’s physical contact with his son and the child’s death was supported by the testimony of the pediatrician and the medical examiner that the child’s death resulted from “Shaken Baby Syndrome.” While Hill contends the witnesses against him gave inconsistent statements or qualified their opinions, “[w]hen reviewing the sufficiency of evidence on appeal, this Court does not weigh the evidence presented or determine the credibility of witnesses. [Cit.]” Burnett v. State, 239 Ga. App. 592, 593 (521 SE2d 629) (1999). A rational trier of fact, relying on the evidence at trial, could have found Hill guilty of involuntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Powell v. State, 271 Ga. 575 (1) (522 SE2d 656) (1999).

2. Hill also asserts that the trial court erred in giving a “similar transaction” instruction to the jury regarding the testimony of. the child care provider that did not sufficiently limit the pürpose for which that testimony could be considered. He contends the charge was overbroad because the trial court instructed the jury that, if it believed a similar transaction had been proved, “you are strictly limited in your consideration of the evidence as to the identity* -state of mind and conduct of the defendant in connection with the offense charged in the indictment.”

The child care provider’s testimony was not evidencie of a similar transaction, as contended by Hill, but of a “prior difficulty” between the defendant and the victim. The more limited jury instruction regarding similar transactions therefore was not necessary for the jury’s consideration of the testimony of prior difficulty.

“Unlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus.” (Citations and punctuation omitted.) Temple v. State, 238 Ga. App. 146, 147 (2) (517 SE2d 850) (1999). Evidence of a defendant’s prior act toward the same victim, whether an assault, a quarrel, or a threat, is admissible as “evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted. [Cits.]” Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998).

As evidence of a prior difficulty, this testimony may be considered more broadly than evidence of a similar transaction. Prior difficulties are relevant in construing the defendant’s current state of mind or conduct in light of his previous actions toward the same victim. “Evidence of previous difficulties between a defendant and a victim is admissible to show the defendant’s intent, bent of mind, and course of conduct” (Citations omitted; emphasis supplied.) Kettman v. State, 257 Ga. 603, 606 (7) (362 SE2d 342) (1987). Such evidence may be admitted to show a continuing pattern of conduct in committing battery upon the victim. Sutton v. State, 236 Ga. App. 363, 364-365 (511 SE2d 888) (1999).

The earlier incident between Hill and his infant son was virtually identical to the events that took place shortly before the child’s death. The fact that Hill, on a previous occasion, responded to his son’s continual crying by physically attacking him and acknowledging that he might kill the child was highly probative of Hill’s state of mind and course of conduct on the later occasion.

Because testimony of prior difficulties has considerably more relevance than evidence of similar transactions, the appropriate jury instruction is correspondingly broader in scope. The trial court may instruct the jury that such evidence may be considered “for a limited purpose on the question of the defendant’s conduct, bent of mind, motive, scheme, purpose, or intent to commit the crime with which he was charged.” O’Toole v. State, 258 Ga. 614, 617 (6) (373 SE2d 12) (1988); Wall, supra at 509. We find no error in the jury instruction regarding the testimony as to prior difficulties between Hill and his infant son.

3. Finally, Hill enumerates as error the admission of a previous conviction as impermissible character evidence. During the defense’s case and after three witnesses testified for Hill, the State requested a hearing outside the presence of the jury. At the hearing, the prosecutor requested that the State be allowed to introduce Hill’s prior conviction for statutory rape, contending that Hill had placed his character in evidence through the testimony of the witnesses on his behalf and through cross-examination of the State’s witnesses. The trial court agreed that Hill had offered evidence showing his good character and permitted the State to introduce a certified copy of Hill’s conviction. We agree that Hill repeatedly offered evidence tending to show his good character and thereby “opened the door” for rebuttal by the State.

In general, evidence of a criminal defendant’s bad character or prior convictions is not admissible unless he first puts his character in issue. OCGA § 24-9-20 (b). The presumption that one is of good character is part of or accompanies the presumption of innocence, and “the State cannot rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence of other witnesses or by his own testimony. [Cits.]” (Punctuation omitted.) Morrison v. State, 232 Ga. App. 846 (502 SE2d 470) (1998). “To open the door to such evidence, a defendant must intentionally elect to place his good character in issue. [Cit.]” Stinson v. State, 221 Ga. App. 758, 759 (1) (472 SE2d 538) (1996). Once the defendant is found to have intentionally opened the door, the prosecutor may respond with evidence of the defendant’s bad character in the form of prior convictions or other testimony. Morrison, supra at 847.

Here, the trial record indicates that, at several points during the trial, Hill offered evidence tending to show his good character. Hill argues in his brief that in each case the evidence was offered for other noncharacter reasons, “only to specifically rebut or preempt allegations that had previously been raised by the State.” He contends that the references to character were merely inadvertent and tangential to the main purpose of rebuttal.

Whether a statement making reference to the defendant’s good character is merely inadvertent or manifests a conscious election is a question of fact, determined primarily upon the trial court’s assessment of the intent of the accused and his counsel. Such factual and credibility determinations are generally accorded great deference by a reviewing court. [Cits.]

King v. State, 209 Ga. App. 529, 532 (3) (433 SE2d 722) (1993).

During his cross-examination of the child’s mother, defense counsel asked about Hill’s generosity to others. He also repeatedly asked the child care provider, also a State’s witness, about the good deeds Hill had done for the witness and for several other people. These inquiries were not limited to any particular transaction, and they were certainly broad enough to be aimed at bolstering Hill’s character. Hill’s argument that the testimony was offered to rebut earlier allegations is without merit, as the evidence clearly exceeded the bounds of rebuttal and sought to establish a general appearance of good character. In its case-in-chief, the State never referred to Hill’s financial generosity, and questions about Hill’s kindness or generous nature were not immediately relevant to any material issue.

Decided March 24, 2000.

Billy I. Daughtry, Jr., for appellant.

Robert W. Lavender, District Attorney, for appellee.

Hill also opened the door to his character in his presentation of direct evidence using his own witnesses. While questioning Hill’s niece on direct examination, defense counsel asked questions relating to the witness’s conduct around her and the infant victim. These inquiries also were attempts to admit evidence of Hill’s character. Finally, during direct examination of Hill’s sister, defense counsel asked her, “[h]ow was Pete around the baby?” and she responded, “[h]e was a great father.” This amounts to evidence of good character that may be rebutted by a prior conviction. Jackson v. State, 198 Ga. App. 447, 448 (2) (402 SE2d 279) (1991).

With these numerous questions to the State’s and his own witnesses, Hill opened the door to his character, and the State was permitted to respond with evidence of the prior conviction. Morrison, supra; Campbell v. State, 221 Ga. App. 105, 106 (1) (470 SE2d 503) (1996) (no error in admission of defendant’s prior convictions for traffic offenses after defendant testified to participation in various volunteer organizations).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       This witness lived with the couple for two months after the mother’s difficult childbirth and subsequent inability to care for the newborn.

       Both parties and the trial court treated this evidence as a similar transaction. This error did not work any prejudice to Hill, however, but rather benefitted him. While prior difficulties are admissible to show that past actions may be indicative of the defendant’s actions at the time of the offense charged, similar transaction evidence is inadmissible for such a broad purpose. Temple v. State, 238 Ga. App. 146 (517 SE2d 850) (1999). Moreover, a Uniform Superior Court Rule 31.3 hearing is required for similar transactions but not required for evidence of prior difficulties. Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998).

       Throughout cross-examination of the State’s witnesses, defense counsel asked many questions relating to Hill’s kindness and generous nature: “Pete always helped people out if they needed money didn’t he?” “Pete helped you out some financially, didn’t he? ... Pete was always helping people out financially, wasn’t he?”

       Defense counsel asked Hill’s nine-year-old niece, “Was Uncle Pete ever mean to [the victim] that you ever saw? . . . Was Uncle Pete nice to [the victim]? . . . Has Uncle Pete always been nice to you? .. . Has he ever cursed at you or cursed around you or anything?”