Paul R. Cranston
Andrew G. Fusco
Cranston, Edwards & Rollo, PLLC Jeffrey A. Ray
Morgantown, West Virginia The Fusco Legal Group, L.C.
Attorney for Appellant Morgantown, West Virginia
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision in this case. JUDGE FRED RISOVICH II and JUDGE HERMAN G. CANADY, JR., sitting by temporary assignment. JUSTICE SCOTT did not participate.
In reviewing a trial court's denial of a motion for judgment notwithstanding
the verdict, it is not the task of the appellate court reviewing facts to determine how it would
have ruled on the evidence presented. Its task is to determine whether the evidence was such
that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a
denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed
in the light most favorable to the nonmoving party. If on review, the evidence is shown to
be legally insufficient to sustain the verdict, it is the obligation of the appellate court to
reverse the circuit court and to order judgment for the appellant. Syl. Pt. 1, in part, Alkire
v. First Nat'l Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).
Appellant Westover Realty Company (Westover) appeals from adverse
rulings entered by the Circuit Court of Monongalia County on July 15, 1998, in a case which
centers on the validity of a $435,000 promissory note.See footnote 1
Finding the promissory note to be
valid and not the subject of economic duress, the jury entered its verdict in favor of
Appellees John Wassick III (Appellee Wassick) and the estate of John Wassick, Jr.
Westover challenges the trial court's denial of its motions, both pre- and post-trial,
concerning the effect of a disputed release on the promissory note in issue and also the trial
court's quashing of a subpoena duces tecum. Upon a full review of these issues, we find no
error and accordingly, affirm the lower court's rulings.
John Wassick, Jr., assigned his interest in the four promissory notes and
corresponding deeds of trust securing those notes to his son, John Wassick III, on February
28, 1994. This assignment was prompted by the fact that John Wassick, Jr., was diagnosed
in 1994 with Alzheimer's disease.See footnote 5
On May 1, 1995, Westover entered into a promissory
note (hereinafter referred to as consolidated note) with John Wassick III for the amount
of $435,000 at the annual rate of 14% interest. On the face of this consolidated note is
language which states that Westover had defaulted on the four notes previously guaranteed
to John Wassick, Jr.; that the four notes had been assigned to John Wassick III; that John
Wassick III had agreed to forego foreclosure with respect to the respective deeds of trust
securing those four notes; and that this new note represented a consolidation of the four
The consolidated note provided for monthly payments of $5,075;
set forth a pay off date of May 1, 1997; and expressly anticipated a principal payment in the
amount of $100,000 that would reduce monthly payments to $3908.33. On May 17, 1995,
Westover made a $100,000 payment on the consolidated note.See footnote 6
Following receipt of this
payment, John Wassick III provided Westover with a release for the property which had been
pledged as security for the first note.
On February 27, 1996, Westover filed suit in circuit court against the estate of John Wassick, Jr., and John Wassick III, seeking to have the consolidated note declared void and unenforceable. Westover alleged that it executed the consolidated note under duress as a result of John Wassick III threatening to foreclose on property that was pledged as security for the four promissory notes that it had guaranteed to John Wassick, Jr. In addition, Westover argued that the necessary consideration for the consolidated note was lacking given that John Wassick, Jr., had signed a release on December 6, 1993, relative to the first note and the property securing that $100,000 debt.See footnote 7 7
The validity of the December 1993 release was disputed based on the
circumstances of its execution. At trial, Appellee Wassick called into question whether the
release was actually signed on the date it indicates, since the notary public who dated and
verified the release was an employee of Westover. Appellee Wassick suggested that
Westover may have wrongfully induced John Wassick, Jr., to sign the release, given that
John Wassick, Jr., was not in full control of his mental faculties due to his Alzheimer's
diagnosis in the Spring of 1994.See footnote 8
Additional evidence that Appellee Wassick introduced at
trial to refute the validity of the December 1993 release was the fact that Westover did not
attempt to have the release recordedSee footnote 9
until more than seven months after its stated date of
execution, and then, only after Westover had received notice that Appellee Wassick intended
to sell the real property that was pledged as security for the notes.
Following a two-day jury trial, a verdict was entered in favor of John Wassick
III and his father's estate. The jury concluded that the consolidated note had not been
entered into as a result of economic duress and further, that the consolidated note was fully
enforceable. In addition,
the jury found that Westover waived its right to collect any rent
from Defendants [the Wassicks] by executing the May 1, 1995, consolidated note.
Westover appeals from the trial judge's failure to grant it a directed verdict based on the
existence of the December 1993 release and subsequent failure to grant it post-trial relief on
this same basis. Secondarily, Westover seeks a ruling from this Court finding that the lower
court abused its discretion in quashing Westover's subpoena duces tecum
.See footnote 10
With regard to the evidentiary rulings that are raised in this appeal, it is axiomatic that such rulings are governed by an abuse of discretion standard. See Gentry v. Magnum, 195 W.Va. 512, 518, 466 S.E.2d 171, 177 (1995). Thus, we review Westover's contention that the lower court erred in failing to take judicial notice of certain evidence and in deciding to quash Westover's subpoena duces tecum by determining whether such rulings were an abuse of the circuit court's substantial discretion. Id. at 521, 466 S.E.2d at 180.
Responding to Westover's argument that the release is valid based on its proper form, Appellee Wassick asserts that the trial court was correct in concluding that the release is not absolute proof of payment of the debt associated with the first note, nor is it proof of entitlement to an offset.See footnote 12 12 As the trial court observed, during the June 18, 1998, hearing on Westover's post-trial motions,
[A] release of a deed of trust does not necessarily mean that the
underlying debt is paid. . . . For whatever reason a person can
decide to release the security on a note and it doesn't mean the
note is paid. That's why I said this before at a couple [of]
hearings. You can go to a bank and get a note paid in full and
get it handed to you by the bank so there is no question about it.
Moreover, the trial court noted the December 1993 release did not contain language typically inserted in documents intended to release a debt which indicates that the release is being granted in consideration of the payment in full of the debt. As further evidence of his position that the December 1993 release is a document of dubious origin and consequence, Appellee Wassick argued that Westover did not receive the first note with a designation that it was paid in part or in full in connection with the December 1993 release.See footnote 13 13
Directly refuting Westover's contention that Appellees failed to introduce
evidence at trial disputing the validity of the December 1993 release, Appellee Wassick
identified numerous factual discrepancies that were brought to the jury's attention with
regard to this document. The jury was apprised that the date written on the release is in the
handwriting of the notary public--a Westover employee--rather than in the handwriting of
John Wassick, Jr. Appellee Wassick also informed the jury that Westover never attempted
to record the release until more than seven months after its execution. Significantly, the jury
learned that the release was stamped by the clerk of the county commission as Not
Released. Releasor Differs. The jury heard evidence that Westover's attempted recordation
of the release occurred immediately after notices of intent to sell were sent to the respective
trustees for the property pledged as security for the original four promissory notes.See footnote 14
Additional information presented to the jury included the fact that Westover first informed
Appellee Wassick of the existence of the December 1993 release in September 1995--
fourteen months after the document had been executed. The jury heard evidence that the
consolidated note expressly referred to the debt represented by the first note as a current
debt. Perhaps the most significant evidence on this point however, was the fact that
Westover continued to make interest payments on the first note from December 1993 until
May 1995 when the consolidated note was executed.See footnote 15
Having reviewed the evidence presented to the jury on the issue of the
December 1993 release, we conclude that the evidence clearly permitted the jury to reach the
decision it made. The record is replete with facts that call into question the validity of the
release. Moreover, Westover's own actions, in continuing to make interest payments on the
first note up to the point in time when the consolidated note was signed, combined with its
dilatory conduct in attempting to record the release or bringing the document's existence to
the attention of Appellee Wassick, certainly permitted the jury to conclude that the December
1993 release was not dispositive with regard to the issue of whether the consolidated note
was enforceable. After hearing all the evidence, the jury determined that Westover entered
into the consolidated note voluntarily without duress. Threatening to do something that you
have a legal right to do--foreclosure--does not amount to duress. See 6B Michie's
Jurisprudence Duress § 3 (1998) (stating that authorities are in accord that the threatened
act must be wrongful to constitute duress and that a threat to do what one has the legal
right to do, such as to foreclose . . . , is not such duress as to justify rescission of a
transaction induced thereby). Furthermore, the trial court correctly concluded that the
release was not determinative on the issue of whether the first note had actually been paid.
Concerning the issue of the trial court's refusal to take judicial notice of the
December 1993 release, Appellee Wassick argues that Westover never properly presented
the issue of judicial notice to the lower court.
The only reference to judicial notice of the
release was made by Westover's counsel during an objection raised while Appellee Wassick
was cross-examining Mr. Scotchel. The trial court indicated that it would not consider a
request for judicial notice during the objection and Westover's counsel never renewed its
judicial notice request. We agree with Appellee Wassick that the issue of judicial notice
was never properly brought to the lower court's attention and, as a result, no actual ruling
was made on this issue. Consequently, Westover waived its right to appeal this issue by not
properly preserving the issue below. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va.
522, 102 S.E.2d 733 (1958) (holding that [t]his Court will not
pass on a
question which has not been decided by the trial court in the first instance); accord
tlow v. Board of Educ., 190
W. Va. 223, 226, 438 S.E.2d 15, 18 (1993) (stating that
failure to raise nonjurisdictional issues below precludes appellate consideration of such
Appellee Wassick correctly observes that the circuit court's quashing of the
subpoena did not limit in any fashion Westover's ability to inquire of Mr. Ray on cross-
examination concerning matters of bias, interest, or motive. While Westover's counsel had
free reign to pose a litany of inquiries to Attorney Ray on the subject matter of billing and
fee arrangements, he opted not to pose even one question to Mr. Ray concerning this area.See footnote 16
By failing to inquire into this issue at trial, Westover has waived its right to assert error with
regard to this issue.See footnote 17
See generally 1 Franklin D. Cleckley, Handbook on Evidence for West
Virginia Lawyers, § 1-7(B)(6)(e) (3rd ed. 1994) (discussing invited error doctrine); State v.
Bosley, 159 W.Va. 67, 218 S.E.2d 894 (1975) (holding that judgment will not be reversed
for any error in the record introduced by or invited by party asking for reversal).
Based upon the foregoing, the decision of the Circuit Court of Monongalia
County is hereby affirmed.
Wassicks for storage of entertainment equipment on property owned by Westover. This contention, however, is seemingly contravened by the fact that Westover sent John Wassick III a bill for rent in the amount of $77,681 on September 1, 1995. This bill indicated that it related back to 1985 when the Wassicks' equipment was first stored on Westover's property.