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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
ELLA J. MONTGOMERY AND MARGARET C. BOWERS,
Plaintiffs Below, Appellees,
WILLIAM H. CALLISON, JR. AND CECIL CALLISON,
Defendants Below, Appellants
Appeal from the Circuit Court of Greenbrier County
Honorable James J. Rowe, Judge
Civil Action No. 98-C-31
REVERSED AND REMANDED
Submitted: April 21, 2010
Filed: June 7, 2010
| A. Andrew MacQueen, III
Timothy N. Barber
Charleston, West Virginia
Attorneys for Appellants
| Barry L. Bruce
Mark J. Jenkins
Lewisburg, West Virginia
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. The appellate standard of review for an order granting or denying a
renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure  is de novo. Syllabus Point 1, Fredeking v.
Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).
2. When this Court reviews a trial court's order granting or denying a
renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West
Virginia Rules of Civil Procedure (1998), it is not the task of this Court to review the facts
to determine how it would have ruled on the evidence presented. Instead, its task is to
determine whether the evidence was such that a reasonable trier of fact might have reached
the decision below. Thus, when considering a ruling on a renewed motion for judgment as
a matter of law after trial, the evidence must be viewed in the light most favorable to the
non-moving party. Syllabus Point 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16
3. In determining whether there is sufficient evidence to support a jury
verdict the court should: (1) consider the evidence most favorable to the prevailing party;
(2) assume that all conflicts in the evidence were resolved by the jury in favor of the
prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends
to prove; and (4) give to the prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved. Syllabus Point 5, Orr v. Crowder, 173 W.
Va. 335, 315 S.E.2d 593 (1983).
4. Although Rule 50(a) of the West Virginia Rules of Civil Procedure expressly provides that a party may introduce evidence upon the refusal of his motion for
a directed verdict made at the close of his opponent's case, introduction of evidence at that
point of the trial constitutes a waiver of the objection to the sufficiency of the evidence
unless the motion for a directed verdict is renewed after all the evidence is in and the parties
have rested. Syllabus Point 1, Chambers v. Smith, 157 W. Va. 77, 198 S.E.2d 806 (1973).
The instant action is before this Court upon the appeal of William H. Callison,
Jr., and his brother, Cecil G. Callison [Appellants], from a February 12, 2008, order of the
Circuit Court of Greenbrier County denying their Motion for a Judgment as a Matter of Law
and for a New Trial which followed an August 27, 2007, jury verdict rendered in favor of
plaintiffs below, Ella Montgomery and Margaret Bowers [Appellees] finding that certain
deeds of real property were not properly delivered and were ineffective to convey the real
estate described therein. In this appeal, Appellants contend that the circuit court committed
error in denying their Motion for Judgment as a Matter of Law and for a New Trial because
the evidence presented at trial demonstrates that the subject deeds were properly delivered
to the Appellants by their father, William H. Callison, Sr. before his death. This Court has
before it the petition for appeal, all matters of record and the briefs and argument of counsel.
For the reasons expressed below, the February 12, 2008, order of the Circuit Court of
Greenbrier County is reversed and remanded with directions.
FACTUAL AND PROCEDURAL HISTORY
The parties to this action are the four children and sole heirs at law of William
H. Callison, Sr. [hereinafter referred to as Senior] and Gladys M. Callison. Senior was
a farmer and businessman in Renick, Greenbrier County, West Virginia. In addition to
operating a mill, Senior accumulated substantial realty and valuable shares of stock. Three
properties are the subject of this action:
1) Home Place - a 142 acre tract along U.S. Route 219 established as
Senior and Gladys' residence. This was the place the four children
were raised and the site of Senior's mill.
2) Robinson Place - a 254 acre farm tract that lies across U.S. 219 from
the Home Place.
3) Taylor Place - a 264 acre farm tract located next to the Greenbrier
River in a different section of Greenbrier County than the other parcels
at issue in this case.
Prior to their deaths, Senior and Gladys retained C. Al McHale, a local
attorney, to draft a deed dated January 15, 1968, conveying the Home Place to Appellant,
William H. Callison, Jr. [hereinafter referred to as Billy]. That deed was executed and
acknowledged on January 15, 1968. Additionally, prior to their deaths, Senior and Gladys
retained C. Al McHale to draft a deed dated October 15, 1973, conveying the Robinson
Place to Billy. Neither of these deeds was given to the possession of Billy at the time of
On August 15, 1977, Gladys died and Senior administered her estate with the
assistance of the same lawyer, C. Al McHale [Mr. McHale]. (See footnote 1) The Home Place and the
Robinson Place appear on the appraisal of her estate. The next month after Gladys' death,
on September 23, 1987, Senior and Billy went to the Ronceverte National Bank where they
jointly rented a safe deposit box, signed a rental agreement for it and were each issued a key
to the box. Senior placed the deeds to the Home Place and the Robinson Place in the box,
together with other papers. Based on the safe deposit box entry records at Ronceverte
National Bank (See footnote 2) , Senior was the only individual who ever opened the safe deposit box from
the time it was rented in 1977 until his death.
Seven years later, Senior engaged Mr. McHale to draft a deed conveying the
Taylor Place to Appellant, Cecil G. Callison, which was signed and acknowledged on May
11, 1984. On that same day, Senior executed his will, which was also drafted by Mr.
McHale. (See footnote 3) Both documents were later recovered from the safe deposit box. Four months
later, on September 7, 1984, Senior signed a codicil to his will wherein he deleted a
provision giving Ella Montgomery $60,000.00 less the appraised value of the Ronceverte
National Bank stock he had previously devised to her, and placed this stock in the remainder
of his Estate. On that same date, Senior made a gift to Ella by paying $60,000.00 to an
owner of a parcel of property for the sale of the same to Ella. This property became Ella's
home and was the subject of a gift tax return filed by Senior.
On September 19, 1995, Senior and Billy went to the Ronceverte National
Bank together and added Cecil's name to the safe deposit box. At some point prior to
Senior's death, Senior gave his key to the safe deposit box to Cecil which he retained until
the box was closed after Senior's death on February 17, 1997. Following Senior's death,
on February 25, 1997, the parties went to the Ronceverte National Bank together to open
and inventory the contents of the safe deposit box. Two days later, on February 27, 1997,
Billy and Cecil recorded the deeds to the respective parcels with the Greenbrier County
Clerk's Office. The Last Will and Testament of Senior dated May 11, 1984, along with the
codicil dated September 7, 1984, were presented for probate on March 18, 1997. Billy was
named and performed as Executor of Senior's will with the counsel of Mr. McHale.
On February 10, 1998, a year following Senior's death, Appellees instituted
the present action alleging that the above-described deeds should be set aside because they
had never been properly delivered. (See footnote 4) Discovery was had and the parties filed various motions in limine in preparation for trial. (See footnote 5) The trial in this matter was conducted on August 21 and
22, 2007, wherein the jury returned a verdict in favor of the Appellees, finding that the
subject deeds were not properly delivered and were ineffective to convey the real estate
described therein. The Appellants then filed a Motion for Judgment as a Matter of Law and
New Trial, which the circuit court denied by order entered February 12, 2008. It is from that
order that Appellants now appeal.
STANDARD OF REVIEW
Appellants are appealing the circuit court's denial of their Motion for
Judgment as a Matter of Law and New Trial. (See footnote 6)
This Court has held that [t]he appellate
standard of review for an order granting or denying a renewed motion for a judgment as a
matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure
 is de novo
. Syl. Pt. 1, Fredeking v. Tyler
, 224 W. Va. 1, 680 S.E.2d 16 (2009). In
Syllabus Point 2 of Fredeking v. Tyler
, 224 W. Va. 1, 680 S.E.2d 16, we explained that:
When this Court reviews a trial court's order granting or denying a
renewed motion for judgment as a matter of law after trial under Rule
50(b) of the West Virginia Rules of Civil Procedure (1998), it is not the
task of this Court to review the facts to determine how it would have
ruled on the evidence presented. Instead, its task is to determine
whether the evidence was such that a reasonable trier of fact might
have reached the decision below. Thus, when considering a ruling on
a renewed motion for judgment as a matter of law after trial, the
evidence must be viewed in the light most favorable to the non-moving
See also Syl. Pt. 2, Alkire v. First National Bank of Parsons, 197 W. Va. 122, 475 S.E.2d
In determining whether there is sufficient evidence to support a jury verdict
the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in favor of the prevailing party;
(3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable inferences which reasonably may be
drawn from the facts proved. Syl. Pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593
(1983). Mindful of these standards, we proceed forward to consider the arguments
presented by the parties.
Appellants assert seven assignments of error in this appeal. (See footnote 7)
because we find that the circuit court erred in failing to grant a directed verdict in favor of
Appellants on the issue of whether the deeds were properly delivered and to set the jury
verdict aside, we resolve this appeal on the first issue presented and thus find it unnecessary
to address the remaining issues raised by the Appellants herein.
A. Motion for Judgment as a Matter of Law and New Trial
Before turning to the merits of first issue presented, we pause briefly to address
the initial procedural issue of whether the Appellants are precluded from challenging the
circuit court's denial of their motion for directed verdict. Appellees assert that the
Appellants are precluded from challenging the circuit court's denial of their motion for
directed verdict because although Appellants moved twice for a directed verdict, once at the
close of the plaintiffs' case in chief and once post judgment, they did not renew their motion
for a directed verdict after they presented their case in chief. Appellees cite to a previous
decision of this Court, Chambers v. Smith, 157 W. Va. 77, 198 S.E.2d 806 (1973), which
Although Rule 50(a) of the West Virginia Rules of Civil Procedure expressly provides that a party may introduce evidence upon the refusal
of his motion for a directed verdict made at the close of his opponent's
case, introduction of evidence at that point of the trial constitutes a
waiver of the objection to the sufficiency of the evidence unless the
motion for a directed verdict is renewed after all the evidence is in and
the parties have rested. (See footnote 8)
Id., Syl. Pt. 1.
Appellants reply that they did in fact move for a directed verdict at the close
of all the evidence in the case, but that the trial transcript omits this request from the record.
Additionally, Appellants assert that the Appellees never advanced a claim of waiver at the
hearing on the Appellants' Motion for Judgment as a Matter of Law and New Trial
following the trial in this matter.
Indeed, the record reflects that in ruling on these motions, the trial court did in
fact have opportunity to evaluate the sufficiency of the evidence and found that there was
sufficient evidence for the jury to have found for either party. Thus, because the circuit
court had opportunity to evaluate and rule upon the issue of sufficiency of the evidence both
prior to and following the jury verdict, we find that the Appellants are not precluded from
asserting error on the trial court's part in denying their motions. Furthermore, we find that
because the insufficiency of the evidence on the issue of delivery constitutes plain error
apparent on the face of the record, as discussed more fully below, an exception to the long-
standing rule in Chambers v. Smith, 157 W. Va. 77, 198 S.E.2d 806, is warranted in this
case. In Chambers, this Court commented that:
It is well established that the sufficiency of the evidence is not
reviewable on appeal unless a motion for a directed verdict was made
in the trial court. There are sound reasons for this rule. The party who
makes no motion for a directed verdict must be of the view that the
evidence makes a case for the jury and should not be permitted to
impute error to the court for sharing that view. The appellate court,
therefore, is powerless to review the sufficiency of the evidence to
support the verdict if the appellant made no motion for a directed
verdict. The only exception is where the insufficiency of the evidence
constitutes plain error apparent on the face of the record which if not
noticed would result in a manifest miscarriage of justice. Even if a
motion for a new trial is made for insufficiency of the evidence, the
failure to move for a directed verdict forecloses the question on appeal.
A party may not gamble on the verdict and later question the
sufficiency of the evidence.
Id. at 81, 809 (quoting 2 B Barron & Holtzoff, Sec. 1081)(emphasis added). That aside, we
now turn to the merits of the issue of whether the circuit court erred in failing to grant a
directed verdict in favor of Appellants and to set aside the jury verdict.
B. Evidence of Delivery
Appellants assert that the circuit court erred in refusing to enter judgment as
a matter of law in favor of the Appellants, or in the alternative, grant a new trial because the
evidence was insufficient to support the jury's verdict that there was not effective delivery
of the three deeds at issue in this appeal. Appellants contend that the facts, as recounted
above, were undisputed at trial. They believe that the placing of the three deeds in the
jointly leased safe deposit box constitutes actual or constructive delivery to the Appellants
under West Virginia law. Specifically, Appellants assert that this Court's holding in Walls
, 209 W. Va. 627, 550 S.E.2d 605 (2001) is applicable to the instant case. (See footnote 9)
Conversely, the Appellees contend that the evidence presented at trial
demonstrated that the three deeds were placed in a safe deposit box owned and exclusively
controlled by Senior. In support of this assertion, Appellees point to the fact that Senior was
the only individual who actually opened the safe deposit box, and Senior paid the rental fee
for the safe deposit box throughout his lifetime. Appellees contend that neither Billy nor
Cecil took physical possession of the deeds before their father's death; rather, they only had
opportunity to access the safe deposit box.
Furthermore, Appellees assert that Senior and Gladys continued to act
throughout their lifetimes in a manner consistent with their continued ownership over the
real estate at issue, as both lived on the Home Place until their deaths. Additionally,
following Gladys' death, Mr. Callison listed all three of the tracts of property on the
appraisement for her estate as property in which she held an interest at the time of her death,
even though two of the deeds at issue had already been drafted years prior to her death.
Senior also paid the real estate taxes on all three tracts of property and paid certain expenses
for the upkeep of the Home Place and Robinson property. Additionally, Senior collected rent
for the Taylor Property up until his death in 1997.
Moreover, Appellees assert that Senior's Last Will and Testament, dated May
11, 1984, specifically stated in Paragraph 6 that he wanted all of his children to have a 1/4
undivided interest in his property, real, personal or mixed. Appellees state that Senior
must have believed he owned all three tracts of land at the time his will and codicil were
drafted because these three tracts of land were the only real property that Senior owned.
Lastly, Appellees assert that Walls v. Click
, 209 W. Va. 627, 550 S.E.2d 605, is
distinguishable from the facts of the instant case.
In their reply, Appellants assert that the evidence of joint leasing of the safe
deposit box on September 23, 1977, was not controverted at trial. Rather, the Appellees
repeatedly misstate the record, as the trial testimony and exhibits demonstrate that the safe
deposit box was not exclusively owned and controlled by Senior. Specifically, Appellants
recite the terms of the safe deposit box agreement, which reflect that both Senior and Billy
opened the box together on September 23, 1977. Appellants also point to the only testimony
adduced at trial on the subject of ownership, wherein Billy testified to the following
regarding the September 23, 1977 rental agreement:
Q. Your dad and you both signed that?
Q. At that time when you rented - - you and your dad rented that
box, did the bank issue you some key?
A. Yes, sir, keys, two keys.
On the second day of trial, Billy also testified:
Q. Okay. In 1977 when you went down there, there were not three
deeds but two deeds from you and the 1968 and the 1973 deed
to the Robinson home place, your dad and you opened that box
Q. You're in a position to know that, Sir?
Furthermore, Appellants assert that, in his argument to the jury, Appellees'
own counsel refers to Senior as being one of the lessors of the box. He stated that we
would readily admit that from the very beginning that Billy Callison's name was also on the
deposit box. Likewise, Appellants assert that the testimony is undisputed that Senior and
Billy added Cecil's name to the safe deposit box agreement, and Cecil testified that his
father delivered his only key to him. Senior is never shown to have visited the box after that
date, September 19, 1995.
Upon extensive review of the briefs and arguments of the parties, pertinent
authorities and the record herein, we find that the circuit court committed error in denying
Appellants' motion for judgment as a matter of law, as the evidence presented at trial clearly
establishes a valid delivery of the deeds in question.
In Walls v. Click, 209 W. Va. 627, 550 S.E.2d 605, this Court overturned a
jury verdict where the grantor's intention to deliver the deeds was manifest. In that case,
Ms. Walls, a business partner of Mr. Click, held title to certain parcels of property in joint
tenancy with a right of survivorship with him. Ms. Walls filed a complaint challenging the
validity of a deed executed by Mr. Click that transferred his ownership interest of three of
five parcels of jointly owned real estate to his wife and child. The testimony at trial revealed
that a safe deposit box was opened by Mr. Click's son, at the direction of Mr. Click, and the
deed was placed in it. The box was accessible only by the wife and son. Although Mr.
Click did not have access to the box, he retained dominion over the property, including
using it as collateral for a loan and claiming a homestead exemption. The son testified that
his father told him and his mother that he would take care of the properties, for [them]
until his death. Id. at 610, 632.
In determining whether delivery had been established, this Court considered
the legal requirements for effective delivery of a deed. Therein, we observed that:
Established precedent dictates that a deed takes effect from its actual
or constructive delivery. Jones v. Wolfe, 203 W. Va. 613, 509 S.E.2d
894 (1998); Parish v. Pancake, 158 W. Va. 842, 215 S.E.2d 659
(1975). In Jones, this court explained that '[r]ecording of the deed is
not critical and acknowledgment is not essential to its validity.' 203 W.
Va. at 615, 509 S.E.2d at 896. In syllabus point three of Bennett v.
Neff, 130 W. Va. 121, 42 S.E.2d 793 (1947), this Court explained that
'[d]elivery of a deed by the grantor with intent that it take effect as his
deed and its acceptance, either express or implied by the grantee are
essential to its validity.' In Garrett v. Goff, 61 W. Va. 221, 56 S.E. 351
(1907), this Court reiterated its earlier holding that '[t]o constitute a
delivery of a deed, the grantor must by act or word, or both, part with
all right of possession and dominion over the instrument with the intent
that it shall take effect as his deed.' Id. at 230, 56 S.E. at 355 quoting
Gaines v. Keener, 48 W. Va. 56, 35 S.E. 856 (1900).
Thus, effective delivery of a deed must include (1) transfer of
possession of a valid deed satisfying all required formalities, and (2)
intent of the grantor to divest himself of title.
As this Court recognized in Evans v. Bottomlee, 150 W. Va. 609, 148
S.E.2d 712 (1966), '[n]o particular form of delivery is required.' Id. at
623, 148 S.E.2d at 721. 'A deed may be manually given by the grantor
to the grantee, yet this is not necessary. The real test of delivery is, did
the grantor, by his acts or words, or both, intend to divest himself of
title? If so, the deed is delivered. Id.
. . .
In Heck v. Morgan, 88 W. Va. 102, 106 S.E. 413 (1921), this Court
examined the issue of a conveyance of realty and explained the issue
of a conveyance of realty and explained that [p]ossession of an
instrument of this character by the grantee is prima facie evidence that
it was delivered to him with the intention that it should convey the
grantor's title. . . . Id. at 112-13, 106 S.E. at 417. This presumption
based on possession was reiterated in syllabus point two of Evans, as
follows: Possession of a deed executed and acknowledged with all
formalities is prima facie evidence of delivery. 150 W. Va. at 609,
148 S.E.2d at 713.
Id. at 611-12, 633-34.
Applying these legal principles to the facts presented in Click
, this Court found
that the placing of the deed by the grantee in the safe deposit box constituted possession, and
thus concluded that Lewis Click intended to divest himself of his one-half interest in the
three properties at issue and transfer his interest to his wife and son. Id.
at 617, 639. Thus,
this Court held that the circuit court erred in failing to grant the Appellants' motion for
judgment as a matter of law because in viewing the evidence in the light most favorable to
the Appellee, such evidence was inadequate to overcome the prima facie
effective delivery and was legally insufficient to support the jury verdict. Id.
Specifically, this Court found that the condition that Mr. Click attached to the
delivery of the deed, directing that the same not be recorded until after his death, was
without legal significance and did not render the delivery ineffective. Id
. at 613, 635. (See footnote 10)
Court also found that having established the prima facie
evidence of delivery and the
irrelevance of the condition that the deed not be recorded until his death, the burden was
upon those contesting the conveyance to prove facts overcoming the presumption on an
effective deed. However, it was determined that Mr. Click's continued management and
involvement with the properties subsequent to delivering the deed did not evidence a lack
of present intent to transfer the properties at the time of delivery. (See footnote 11)
This Court found that
Mr. Click's intent to divest himself of the property at issue was manifest, and thus, delivery
was completed. Id
In turning to the facts of the case sub judice
, it is undisputed that Senior
engaged the services of Attorney McHale to draft each of the three deeds at issue, all of
which were properly signed and acknowledged. All three of these deeds were placed in the
safe deposit box before Senior's death. It is also undisputed that only two keys were issued
to the safe deposit box by the Bank of Ronceverte when the box was opened on September
23, 1977, shortly after Gladys' death. (See footnote 12)
One key was given to Billy, who kept it until the box
was closed after Senior's death. The other key was kept by Senior until he gave it to Cecil,
subsequent to adding Cecil's name to the safe deposit box title on September 19, 1995. (See footnote 13)
No other keys were ever issued allowing access to the safe deposit box.
Although the safe deposit box records reflect that Senior was the only
individual that actually physically accessed the box during his lifetime, Senior did not
maintain exclusive control of the safe deposit box. Indeed, notations made on agreement
in September 1995 indicated joint. More importantly, the rental agreement on the safe
deposit box signed by both Senior and Billy contained the following language:
A rental contract, signed by two or more lessees, constitutes a separate
rental to each, and either of them shall have access, free from liability
on the part of the lessor for misappropriating any of the contents
thereof. Either may appoint a deputy to have access to or surrender the
box. In all cases of joint lessees it is hereby declared that each of them
has such interest in the entire contents of said box as to entitle him or
her to possession thereof, without liability to the lessor for
misappropriating same, and lessor is not bound to take notice of the
content of said box or insolvency of either of lessees.
While Senior initially retained a key to the box after placing the deeds therein,
the testimony is undisputed that prior to his death, Senior gave Cecil his only key to the box,
thereby demonstrating his intent to relinquish any control and right to possession of the
contents of the box. Cecil kept this key until after his father's death, when he gave the key
to Billy to turn in to the bank. The bank records are consistent with Cecil's testimony,
showing that Senior did not access the box at any point after 1995. In fact, the last time
Senior actually accessed the contents of the box was September 15, 1987.
Thus, although the deeds at issue in the instant case were originally placed in
a safe deposit box that was jointly leased by the grantor and grantee, instead of being placed
in the grantee's own safe deposit box, as done in Walls v. Click, the facts here demonstrate
that the overall effect is nevertheless the same. Through the act of giving his key to Cecil,
Senior denied himself access to the safe deposit box, and Billy and Cecil thereby obtained
the exclusive ability to access the safe deposit box for a year and five months prior to
Senior's death. We find this demonstrates Senior's intent to part with all right of
possession and dominion over the deeds in question and divest himself of title as required
by West Virginia law. See Garrett v. Goff, 61 W. Va. at 230, 56 S.E. at 355('[t]o constitute
a delivery of a deed, the grantor must by act or word, or both, part with all right of
possession and dominion over the instrument with the intent that it shall take effect as his
deed.'); Evans v. Bottomlee, 150 W. Va. 609, 148 S.E.2d 712). Possession of the deeds at
issue was therefore prima facie evidence of delivery.
Furthermore, we are not convinced by Appellees' assertion that the actions of
Senior during his lifetime, including listing the properties on the appraisement of Gladys'
estate, paying taxes and collecting rent on the properties, disproved his intent to convey the
properties. Because we find that Senior clearly did not maintain possession of the deeds at
issue herein, any such subsequent actions by Senior, at most, only constitute evidence that
Senior wanted to continue to manage these properties until his death, after which time he
intended for the deeds to be recorded. As we stated in Walls v. Click
, such conditions of
delivery do not invalidate the immediate and effective delivery of the deeds in 1995. Id
615, 637. (See footnote 14)
This Court has acknowledged that the issue of [w]hether a particular set of
facts constitutes an effective delivery has been held to be a question of law even though
the question of whether there has, in fact, been a delivery is a question which must be
decided by the trier of fact. Walls v. Click, 209 W. Va. at 638, 550 S.E.2d at 616. Thus, the
resolution of this case requires this Court to apply legal principles to established and
Upon thorough review of the briefs, arguments of counsel, the record and
applicable precedent, we conclude that the lower court erred in failing to grant the
Appellants' motion for judgment as a matter of law. Viewing the evidence in a light most
favorable to the Appellees, as our standard of review requires, we find no evidence
sufficient to overcome the prima facie showing of effective delivery and that the evidence
was legally insufficient to support the jury verdict. The evidence presented at the trial in this
matter clearly and unequivocally establishes that Senior intended to divest himself of the
three tracts of property at issue and transfer his interest in the same as set forth in the
provisions of the respective deeds.
Accordingly, for the foregoing reasons, the February 12, 2008, order of the
Circuit Court of Greenbrier County denying Appellants' Motion for Judgment as a Matter
of Law and for a New Trial is hereby reversed and remanded with directions to order
judgment for the Appellants.
Reversed and remanded with directions.
It is not clear from the facts presented by the parties whether Gladys died intestate
or with a will. Regardless, this fact is not central to our disposition of this case.
Attendant to the rental of the safe deposit box, the bank opened a form that
disclosed each time a specific renter opened the box for any purpose. The form also notes
changes in the rental agreement by the addition of other persons authorized by the original
renters to enter the box.
Senior's last will and testament provided that:
SIXTH: I give, devise and bequeath all of the remainder of my property, real, personal
or mixed, wherever situate, to my four (4) children, namely, CECIL G.
CALLISON, WILLIAM H. CALLISON, JR., ELLA JANE MONTGOMERY
and MARGARET ANN BOWERS in equal proportions, share and share alike.
The case was originally assigned to Judge Rowe. However, Judge Rowe reassigned
the case to Judge Joliffe because of his previous association with the then counsel for
defendants below. Following Judge Joliffe's retirement, the case was re-assigned back to
Judge Rowe, upon his assurance that the impediment that led to his original disqualification
had been cured by the retention of new counsel by defendants below.
Although the Appellants recite a lengthy procedural history regarding various
motions in limine
filed by the parties for purposes of supporting the numerous assignments
of error presented in this appeal, it is not necessary for this Court to recount such facts, as we
resolve this case on the sole issue of whether sufficient evidence was presented
demonstrating that the deeds were delivered to the Appellants.
Because we base our opinion upon the conclusion that the lower court erred in
failing to enter judgment as a matter of law, we proceed forward under the standard of review
applicable to such denial rather than the denial of the motion for a new trial.
Appellants allege the following errors by the circuit court:
(1) The circuit court erred by its failure to grant a directed verdict in
favor of appellants (defendants below) and to set aside the jury verdict
(and judgment upon which it was predicated) and thereby allowing a
judgment in favor of defendants below reflecting that a delivery of the
three deeds to Appellants respectively had been accomplished prior to
the death of Senior.
(2) The trial court erred by prohibiting (under the auspices of the Dead
Man's Statute) the testimony of Appellants as to the displayed and overt
intent of Senior and Gladys in delivering the respective deeds.
(3) The trial court erred in denying the Appellants' motion to allow
testimony it perceived to be barred by the Dead Man's Statute after
appellees waived any such rights at trial.
(4) The trial court erred by refusing to allow the testimony of Gene
Turner in behalf of Appellants.
(5) The trial court erred by refusing to allow the testimony of Vane
Warner in behalf of the Appellants.
(6) The trial court erred by not granting Appellants' motion in limine
to exclude testimony concerning the listing of the three properties in the
estate documents of Gladys and Senior as well as the claim of a
homestead exemption of the Home Place tract.
(7) The court erred in not giving an instruction to the jury allowing it
to consider aspects of dominion and control of the respective deeds
during Senior's lifetime.
Rule 50(a)(2) provides, in part, that [m]otions for judgment as a matter of law may
be made at any time before submission of the case to the jury. W. Va. R.Civ.P. 50(a)(1998).
However, Rule 50(b) of the West Virginia Rules of Civil Procedure
provides that: If, for
any reason, the court does not grant a motion for a judgment as a matter of law made at the
close of all the evidence
, the court is considered to have submitted the action to the jury
subject to the court's later deciding the legal questions raised by the motion. W. Va.
R.Civ.P. 50(b)(1998)(emphasis added). West Virginia's Rule 50, as currently drafted,
differs from Rule 50 of the Federal Rules of Civil Procedure
, which were amended in 2006.
9 Moore's Federal Practice, Sec. 50.20 (2010) provides that:
Prior to 2006, Rule 50(b)stated that if the court did not grant
a motion for judgment as a matter of law made at the close of all the
evidence, the court was considered to have submitted the action to the
jury subject to the court's later decided legal questions raised by the
motion. Most courts interpreted this language to require movants to
make pre-verdict motions for judgment at the close of all evidence as
a prerequisite to filing a renewed motion for judgment under Rule
50(b). As a result, a party who made a motion for judgment after an
opponent's opening statement or at the close of the opponent's
evidence, was required to reassert the motion at the close of all the
evidence or risk waiving the right to appellate review.
The 2006 amendments to Rule 50(b) deleted the phrase at the
close of all the evidence to clarify that it is not a requirement that the
motion be made specifically at the close of all the evidence. The
amendment was intended to reflect the fact that many courts permitted
post-verdict motions for judgment despite the movant's failure to
reassert a previously made Rule 50(a) motion at the literal close of all
the evidence. Nevertheless, many judges expressly invite motions at
the close of all the evidence, and the amendment was not intended to
'discourage this useful practice.' Fed. R. Civ. P. 50(b), Committee
Note of 2006.
We take this opportunity to observe that Rule 50(b) of the West Virginia Rules
of Civil Procedure
may need to be revised to comport with the amended provisions of its
Walls v. Click
, 209 W. Va. 627, 550 S.E.2d 605, is discussed in detail below.
. at 613, 635 (citing Dorr v. Middleburg
, 65 W. Va. 778, 65 S.E. 97 (1909),
which held that where a deed executed and delivered by the grantor to the grantee is to take
effect upon any condition, the condition is void and the deed becomes absolute, and the title
passes immediately on the delivery thereof, and the condition cannot be shown by parol
evidence so as to defeat the deed.)
Similar to the facts in the present case, the Appellants in Click
that Mr. Click continued to manage the properties in question after the 1993 deed, collecting
rent on the properties, paying bills for the properties, and obtaining a loan on the basis of
ownership of the properties. Mr. Click also received a homestead exemption for his interest
in the property upon which he resided and continued to declare the income and expenses
generated from the properties on his personal income tax returns.
The rental agreement for the safe deposit box in fact indicates that only two keys
were given at the time the box was opened. We agree with the Appellants' that there is no
evidence in this case that Senior opened the safe deposit box prior to making Billy a joint
Appellees attempted to create an alleged dispute of fact at oral argument regarding
the issue of whether Cecil had a key by pointing to the cross-examination of Billy at trial.
Our review of the record indicates that although Billy was indeed cross-examined on the
issue of whether he was personally aware that Cecil had a key, and a small conflict in his
testimony may have existed, we believe it is not so material to permit more than one finding
from the evidence on the whole adduced at trial. Indeed, Cecil, the only individual who
would have had first-hand knowledge of this issue, testified at trial that his father gave him
a key to the safe deposit box in 1995. The Appellees did not conduct any further cross-
examination of Cecil on this issue.
This Court has indeed acknowledged that subsequent events may in some
circumstances illuminate issues of prior intent. However, in Walls v. Click, this Court stated
In the syllabus of French v. Dillon, 120 W. Va. 268, 197 S.E.725
(1938), this Court explained as follows:
To constitute legal delivery of a deed, the grantor
must intend that it presently vest in the grantee the
estate purportedly conveyed. The handing of the
deed to the grantee without that intent is not
delivery. The purpose of the manual delivery may
be shown by circumstances. Among the
circumstances admissible are the subsequent
control of the property described in the deed, and
the subsequent conduct of the parties.
Of extreme distinguishing import, however, is the fact that the grantor
in French maintained possession of the actual deed instrument. The
deed was found with other papers of the grantor after his death.
Id. at 615, 637. Based upon the fact that Ms. Walls presented no evidence that Mr. Click's
wife and son had distorted the truth in any manner or did not have possession of the deed
from 1993 until Mr. Click's death, and that such actions were not inconsistent with idea that
Mr. Click wanted to continue to manage the properties for his wife and son while he was
living, this Court found that such actions and conditions upon delivery were extraneous to
the primary issue posed: Did Mr. Click intend to convey his interest in the properties? Id.
Furthermore, in reviewing the record in the case sub judice, we observe that
some of these conditional actions allegedly taken by Senior during his lifetime have little
significance to the issue of intent because they occurred prior to 1995, the point at which
Senior accomplished delivery by giving his key to the safe deposit box to Cecil. For
example, Senior listed these properties on the appraisement of Gladys' estate following her
death in 1977.