Mary Ellen Fleming appeals the trial court's dismissal of part of her complaint. She contends that the trial court erred by finding that she could not proceed against her former husband on claims relating to his conversion of stock certificates owned solely in her name. We agree and reverse.
Mary Ellen Fleming filed a complaint for divorce against John Van Fleming. While the divorce action was pending, she discovered that he had forged her name to certain stock certificates and, without her knowledge or consent, redeemed them, and pocketed the money for himself. 1
She then amended the divorce action to add a second count to recover damages including punitive damages based on John Fleming's purported commission of theft, forgery, and conversion. The trial court ordered the bifurcation of the action and ruled that the divorce action would be tried first. The court reserved deciding whether SunTrust Bank could be added as a party defendant.
After the conclusion of a jury trial on Count 1 and a few days before the scheduled trial on Count 2, Mary Ellen Fleming filed a "trial amendment" in which she added claims for attorney fees and stubborn litigiousness. John Fleming responded by moving to dismiss the remaining count, claiming it was barred by res judicata and collateral estoppel. He argued that the stock ownership issue should have been adjudicated "in the prior trial of this action in which a verdict was entered." He urged that "[p]laintiff is estopped from seeking a retrial of issues that were or could have been presented for trial."
After considering his motion, the trial court ordered the dismissal of Count 2. In so doing, the court primarily relied upon the codification of the crime of conversion under OCGA 16-8-4
(a). The court noted that within the criminal code, the statutory definition of "property of another" does not include "property belonging to the spouse of [the] accused or to them jointly." 2
Relying upon the criminal statute defining conversion, the trial court decided that "as a matter of law, the Defendant could not have converted the Plaintiff's stock." Finding that Mary Ellen Fleming's complaint failed to state a claim for which relief could be granted, the court dismissed Count 2 in its entirety.
Mary Ellen Fleming contends that the trial court erred by finding as a matter of law that she could not bring a claim for conversion based on an allegation that her then husband forged her name to stock certificates held solely in her name. 3
She argues that the trial court failed to distinguish between the preclusive effect of the criminal code sections defining and punishing the crime of conversion and the somewhat less restrictive rules governing civil tort actions between spouses.
Whether John Fleming could be criminally prosecuted for conversion was never at issue. 4
Instead, the question was whether Mary Ellen Fleming could maintain the tort claims within the context of the divorce proceeding. 5
Notwithstanding the trial court's finding to the contrary, that action was not foreclosed. 6
Historically, the Supreme Court of Georgia and the General Assembly have distinguished between those interspousal tort claims involving property rights and those involving personal torts. 7
In Eddleman v. Eddleman, the Supreme Court determined than the doctrine of interspousal immunity created a bar only to the latter claims. 8
Similarly, in Shah v. Shah, the Supreme Court explicitly endorsed a wife's right to amend her complaint for divorce to add a tort claim relating to property, a claim that her husband had fraudulently conveyed certain property to his father. 9
In a recent case, Bearden v. Bearden, this court reached a similar result. 10
We held that when there is no marital harmony to preserve and there exists no possibility of collusion between spouses, interspousal immunity does not automatically bar an action sounding in tort. 11
Here, there was no marital harmony to preserve, and the likelihood of collusion was apparently nonexistent. 12
For these reasons, the doctrine of interspousal immunity did not foreclose these tort claims even assuming the claims had arisen during the marriage. 13
Accordingly, we find that the trial court erred as a matter of law by dismissing the tort claims. 14
Notwithstanding John Fleming's contention to the contrary, the tort claims at issue have not already been litigated. During the hearing on a motion to add SunTrust as a party defendant, apparently on its own initiative, the trial court decided to bifurcate the trial of the two counts and refused to allow the counts to be tried together. 15
The doctrine of collateral estoppel applies when an issue of fact or law is actually litigated, is determined by a valid judgment, and that determination is essential to the judgment. 16
Although John Fleming contends that the issues of forgery and the redemption of the stock were tried at length during the divorce proceedings, he fails to support these assertions with any citations to the record. Because the resolution of the tort claims raised in Count 2 has not as yet occurred, Mary Ellen Fleming is not collaterally estopped from pursuing those claims. 17
Harrison & Harrison, G. Hughel Harrison, for appellee.