IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
_____________
No. 31973
_____________
ROBERT JULIAN WARE, BETTY JEAN WORKMAN,
ALMONTA CREAK AND ROGER WARE,
Petitioners Below, Appellants,
V.
ALMIRA JANE HOWELL, EXECUTRIX OF THE ESTATE OF
BIDDIE L. WARE,
Respondent Below, Appellee.
____________________________________________________________________
Appeal from the Circuit Court of Randolph County
Honorable John Henning, Judge
Civil Action No. 00-C-110
REVERSED
____________________________________________________________________
Submitted: March 23, 2005
Filed: May 10, 2005
Bridgette R. Wilson
David
H. Wilmoth
Busch, Zurbuch & Thompson, PLLC Elkins,
West Virginia
Elkins, West Virginia
Attorney
for Appellee
Attorney for Appellants
The Opinion of the Court
was delivered PER CURIAM.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. When
a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority
to weigh the evidence and consider the credibility of the witnesses. If the trial
judge finds the verdict is against the clear weight of the evidence, is based
on false evidence or will result in a miscarriage of justice, the trial judge
may set aside the verdict, even if supported by substantial evidence, and grant
a new trial. A trial judge's decision to award a new trial is not subject to
appellate review unless the trial judge abuses his or her discretion. Syllabus
point 3, in part,
In re State Public Building Asbestos Litigation, 193
W. Va. 119, 454 S.E.2d 413 (1994).
2. It
takes a stronger case in an appellate court to reverse a judgment awarding a
new trial than one denying it and giving judgment against the party claiming
to have been aggrieved. Syllabus point 1,
The Star Piano Co. v. Brockmeyer,
78 W. Va. 780, 90 S.E. 338 (1916).
3. Although
the ruling of a trial court in granting . . . a motion for a new trial
is entitled to great respect and weight, the trial court's ruling will be reversed
on appeal when it is clear that the trial court has acted under some misapprehension
of the law or the
evidence. Syllabus point 4, in part,
Sanders v. Georgia-Pacific Corp.,
159 W. Va. 621, 225 S.E.2d 218 (1976).
Per Curiam:
Before
this Court, Robert Julian Ware, Betty Jean Workman, Almonta Creak and Roger Ware,
appellants/petitioners below (hereinafter referred to as the Appellants)
appeal from an order of the Circuit Court of Randolph County granting a new trial
to Almira Jane Howell, executrix of the estate of Biddie L. Ware, appellee/respondent
below (hereinafter referred to as Ms. Howell). The Appellants contend
that the circuit court committed error in setting aside the jury's verdict and
granting Ms. Howell a new trial. After a careful review of the briefs and record,
and listening to the arguments of the parties, we reverse.
I.
FACTUAL AND PROCEDURAL HISTORY
Two wills
were created by the decedent Biddie L. Ware (hereinafter referred to as Ms.
Ware). Ms. Ware executed a will in 1990 wherein she left her entire estate
to her daughter, Viola Ware (hereinafter referred to as Viola). However,
the will contained a provision that conveyed the bulk of Ms. Ware's estate equally
to her other children, should Viola die within sixty days of Ms. Ware's death.
In June of 1997, Ms. Ware, who was 100 years old at the time, executed a second
will in which she disinherited Viola. The second will left the bulk of Ms. Ware's
estate to another daughter, Ms. Howell,
(See
footnote 1) who was also
named the executrix of the will.
(See
footnote 2)
On September
26, 1998, Ms. Ware died.
(See
footnote 3) In 1999, Ms. Howell filed Ms. Ware's second will for
probate before the County Commission of Randolph County. The Appellants filed
a Notice of Contest to the will, asserting that the will was invalid because
it was procured by undue influence.
(See
footnote 4) Based upon an agreed order by the parties, the County
Commission entered an order on June 13, 2000, removing the case to circuit court.
After
the case was removed to circuit court, the parties engaged in a period of discovery.
The case was scheduled for a jury trial on November 5, 2001. About a week before
the trial began, the parties learned that Rhonda Lawson, one of the two people
who signed as witnesses to Ms. Ware's 1997 will, could not attend the trial.
(See
footnote 5) As a result of Ms. Lawson's inability to attend the trial,
the parties took her deposition on November 3, 2001. During Ms. Lawson's deposition,
she stated that she witnessed Ms. Ware's will, but that she
did not sign it in the presence of Ms. Ware.
(See
footnote 6)
As a
result of Ms. Lawson's deposition testimony, the Appellants filed a motion on
November 5, the day of trial, to amend their Notice of Contest to the will. In
that motion, the Appellants asked the court to permit them to allege that the
will was invalid because it was not executed according to law. Ms. Howell did
not object to the motion, and therefore the trial court granted the motion.
(See
footnote 7)
During
their case-in-chief, the Appellants called Ms. Howell, Ms. Wilmoth and Ms. Harman
as witnesses. The Appellants also had Ms. Lawson's deposition testimony read
to the jury.
(See footnote
8) Ms. Howell was the only witness to testify on her behalf during
her case-in- chief. When the jury retired they were given a verdict form which
asked them to decide whether the will was executed in accordance with the law,
or whether the will was procured by undue influence. The jury returned a verdict
in favor of the Appellants, concluding that the will was not executed in conformity
with the law.
On November
16, 2001, prior to entry of a judgment order on the jury's verdict, Ms. Howell
filed a motion to amend or alter the judgment, or in the alternative, a new trial.
It was not until January 12, 2004, that the trial court entered an order granting
Ms. Howell a new trial. This appeal followed.
II.
STANDARD OF REVIEW
In this
proceeding, we are called upon to determine whether the trial court's ruling
granting Ms. Howell a new trial pursuant to Rule 59 of the West Virginia Rules
of Civil procedure was proper. In
Tennant v. Marion Health Care Foundation,
Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995), we explained:
We
review the rulings of the circuit court concerning a new trial and its conclusion
as to the existence of reversible error under an abuse of discretion standard,
and we review the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.
We have also held that:
When
a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority
to weigh the evidence and consider the credibility of the witnesses. If the trial
judge finds the verdict is against the clear weight of the evidence, is based
on false evidence or will result in a miscarriage of justice, the trial judge
may set aside the verdict, even if supported by substantial evidence, and grant
a new trial. A trial judge's decision to award a new trial is not subject to
appellate review unless the trial judge abuses his or her discretion.
Syl. pt. 3, in part, In re State Public Bldg. Asbestos Litigation, 193
W. Va. 119, 454 S.E.2d 413 (1994). Additionally, we have long held that [i]t
takes a stronger case in an appellate court to reverse a judgment awarding
a new trial than one denying it and giving judgment against the party claiming
to have been aggrieved. Syl. pt. 1, The Star Piano Co. v. Brockmeyer,
78 W. Va. 780, 90 S.E. 338 (1916). See Syl. pt. 1, In re State
Public Bldg. Asbestos Litig., 193 W. Va. 119, 454 S.E.2d 413 (1994).
That is, [a]n appellate court is more disposed to affirm the action of
a trial court in setting aside a verdict and granting a new trial than when
such action results in a final judgment denying a new trial. Syl. pt.
4, Young v. Duffield, 152 W. Va. 283, 162 S.E.2d 285 (1968), overruled
on other grounds by Tennant v. Marion Health Care Found. Inc., 194 W. Va.
97, 459 S.E.2d 374 (1995). Even so, we have made clear that [a]lthough
the ruling of a trial court in granting . . . a motion for a new
trial is entitled to great respect and weight, the trial court's ruling will
be reversed on
appeal when it is clear that the trial court has acted under some misapprehension
of the law or the evidence. Syl. pt. 4, in part, Sanders v. Georgia-Pacific
Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).
III.
DISCUSSION
The dispositive
issue in this case is whether the circuit court abused its discretion in granting
Ms. Howell a new trial. The circuit court's order set out essentially two grounds
for granting the new trial:
(1) it was concerned about the credibility of Ms.
Lawson and (2) the opportunity to investigate and inquire into Ms. Lawson's credibility. (See
footnote 9) We will examine both grounds separately.
A. Ms. Lawson's Credibility
The circuit
court's order indicated that it was granting Ms. Howell a new trial, in part,
because the court had doubts about Ms. Lawson's credibility.
(See
footnote 10) This Court has held
that in reviewing a Rule 59 motion for new trial a circuit court has authority
to . . . consider the credibility of the witnesses.
Asbestos
Litigation, 193 W. Va. at 126, 454 S.E.2d at 420. Ordinarily, this
Court will defer to credibility determinations made by a trial court because [a]
reviewing court cannot assess witness credibility through a record.
Michael
D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).
However, this deference evaporates when a credibility determination is made
from testimony presented in a deposition. This is because in reviewing evidence
presented through deposition testimony, all impressions of . . .
credibility are drawn from the contents of the evidence, and not from the appearance
of witnesses and oral testimony at trial.
Wells v. Tennessee Board
of Regents, 9 S.W.3d 779, 783-84 (Tenn.1999). That is, when evidence is
presented by deposition, the reviewing court may draw its own conclusions about
the . . . credibility of the . . . testimony since
it is in the same position as the trial judge for evaluating such evidence.
(See
footnote 11) Richards v. Liberty Mut. Ins. Co., 70 S.W.3d
729, 732 (Tenn. 2002).
(See
footnote 12)
Consequently, when deposition testimony is presented as evidence during a trial,
in lieu of live testimony by the deponent, this Court may draw its own conclusions
about the credibility of the deponent's testimony and need not defer to the
trial court's credibility ruling.
As previously
noted, Ms. Lawson moved out of the state and was unable to attend the trial.
Consequently, her deposition was taken via telephone (See
footnote 13) and introduced during
the trial. (See footnote
14) During redirect examination of Ms. Lawson at her deposition,
by counsel for the Appellants, the following exchange occurred:
Q.
Where did you sign the Will _ when you took the Will to sign your name where
did you do that?
A.
Inside the office.
Q.
So you did not sign it out in the parking lot?
A.
No.
Q.
So you did not sign the Will in front of Biddie Ware?
A.
It was inside.
Q.
And Biddie Ware never came inside and saw you sign the will?
A.
No.
. . . .
Q.
Have you ever taken the opportunity when you executed a Will to read the paragraph
that you're basically attesting to in the Will?
A.
I have never read a Will except mine.
Q.
And where you signed your name there is a paragraph and I won't read the whole
paragraph but its says _ and I'll just tell you portions of it _
That
the Will was signed and acknowledged by the Testatrix as for her Last Will and
Testament in the presence of both of them that they subscribed their names to
the Will as
attesting witnesses in the presence of the Testatrix and in the presence of
each other.
So I think what you're telling
me now is you did not sign your name i[n] the presence of the Testatrix which
was Biddie Ware?
A.
No. I didn't.
. . . .
Appellants'
Counsel: I have no other questions.
Ms.
Howell's Counsel: I don't have any other questions.
Ms. Lawson's
testimony indicated that she did not sign the will in the presence of Ms. Ware,
although the attestation clause of the will indicated differently. (See
footnote 15) Thus, the factual issue for the jury to determine was
whether Ms. Lawson was telling the truth when she stated in her deposition that
she did not sign the will in the presence of Ms. Ware, even though the attestation
clause of the will indicated that she did sign the will in the presence of Ms.
Ware. The jury resolved this factual issue by finding that Ms. Lawson was telling
the
truth in her deposition testimony. (See
footnote 16) The circuit court disagreed with the jury because
it doubted the credibility of Ms. Lawson's deposition testimony on this issue.
However, in our review of Ms. Lawson's deposition we do not find any credibility
conflict that would warrant substituting the circuit court's opinion for that
of the jury. Ms. Lawson explained the inconsistency between her deposition
testimony and the attestation clause by stating that she did not read the attestation
clause_she simply signed her name to the will. Insofar as [t]he testimony
of [Ms. Lawson] not being inherently incredible, the jury had the right to
believe her, and we think it [was] improper for th[e] [c]ourt to substitute
its opinion for that of the jury[.] State v. Beacraft, 126 W.
Va. 895, 900, 30 S.E.2d 541, 544 (1944), overruled on other grounds by State
v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). See Toler
v. Hager, 205 W.Va. 468, 475, 519 S.E.2d 166, 173 (1999) (The judge
cannot substitute his opinion for that of the jury merely because he disagrees.); Laney
v. State Farm Mut. Auto. Ins. Co., 198 W. Va. 241, 249, 479 S.E.2d
902, 910 (1996) (per curiam) ([A] jury verdict is accorded great deference,
especially when it involves the weighing of conflicting
evidence.). Moreover, [w]hile it may be that the appellate court
may judge the credibility of a witness testifying by deposition as well as
the jury, the question of the proper inference to be drawn from circumstances
which support more than one fact conclusion is for the jury alone[.] Independence
Indem. Co. v. Kell, 58 S.W.2d 1032 (Tex. Civ. App. 1933) (citation
omitted). Consequently, the trial court committed error in granting a new trial
on the grounds that Ms. Lawson's testimony lacked credibility.
B. Opportunity to Investigate and Inquire into Ms.
Lawson's Credibility
In addition
to having doubts about Ms. Lawson's credibility, the circuit court's order also
expressed concern about the opportunity to investigate and inquire into her credibility.
Based upon our review of the record in this case, we find this issue was also
not a basis for granting a new trial.
It has
been correctly observed that when depositions are submitted in place of
live testimony, the trial judge is denied the opportunity to question the witness. Franklin
D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil Procedure, § 32
(2000).
(See footnote 17) For
this and other reasons, it is incumbent upon the parties to thoroughly question
a deponent when it is known that the deposition will be used in lieu of live
testimony. Failure to do so, when not caused by an impediment by the adversary
or deponent, is a tactical decision with which a party must live. Indeed, it
has been correctly noted that as a general rule, a party's decision to
limit cross-examination in a . . . deposition is a strategic choice
and does not preclude his adversary's use of the deposition at a subsequent
proceeding.
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492,
1506 (11th Cir. 1985).
See Henkel v. XIM Products, Inc., 133
F.R.D. 556, 557 (D. Minn. 1991) (A party who makes the tactical
decision during a deposition to refrain from examining a witness who is beyond
the subpoena power of the court, takes the risk that the testimony could be
admitted at trial if the witness will not or cannot appear voluntarily.).
During
Ms. Lawson's deposition, both parties had an opportunity to question her. Counsel
for the Appellants initiated direct examination of Ms. Lawson. When the direct
examination ended, counsel for Ms. Howell conducted cross examination of Ms.
Lawson. Thereafter, counsel for the Appellants conducted redirect examination.
It was during redirect examination that Ms. Lawson stated that she had signed
the will outside the presence of Ms. Ware. At the conclusion of redirect, counsel
for Ms. Howell had an opportunity to conduct recross examination, but chose not
to do so. To the extent that a credibility issue was raised
by the inconsistency in Ms. Lawson's deposition testimony and the attestation
clause of the will, counsel for Ms. Howell had the duty to explore that issue
on recross examination.
(See
footnote 18) Nothing in the record demonstrated that counsel for
Ms. Howell was impeded in any manner from questioning Ms. Lawson further.
(See
footnote 19) Ms. Howell's counsel was accorded what was essentially
a full and fair opportunity to [re]cross-examine the witness to ensure that
she was telling the truth.
Cury v. Philip Morris USA, 1995 WL
594856, *2 (S.D.N.Y.). Ms. Howell's counsel did not, indeed could not,
contend that his [re]cross was limited in any way except by his own choice.
Wright
Root Beer Co. of New Orleans v. Dr. Pepper Co., 414 F.2d 887, 890 (5th
Cir. 1969). Consequently [a]ny harm resulting from [counsel's] decision
not to [re]cross-examine at that time, is due solely to [counsel's] own refusal
to act.
Mark IV Properties, Inc. v. Club Development & Management Corp.,
12 B.R. 854, 860 (S.D. Cal. 1981).
See State ex rel. Cooper
v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (The
rule in West Virginia is that . . . if [parties] forget their lines, they
will likely be bound forever to hold their peace.). Thus, the trial court
erred in granting a new trial on the grounds that there was insufficient opportunity
to investigate and inquire into Ms. Lawson's credibility.
(See
footnote 20)
IV.
CONCLUSION
The circuit
court's order granting Ms. Howell a new trial is reversed, and the jury's verdict
in favor of the Appellants is reinstated.
The Appellants also made
an assignment of error involving the long delay that occurred between Ms. Howell's
motion for a new trial and entry of the order granting a new trial. We need
not address this assignment of error in view of our resolution of the credibility
issues.