PER CURIAM:
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.
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:
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 their execution.
On August 15, 1977, Gladys died and Senior administered her estate with the assistance of the same lawyer, C. Al McHale ["Mr. McHale"].
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.
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
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.
Appellants are appealing the circuit court's denial of their Motion for Judgment as a Matter of Law and New Trial.
See also Syl. Pt. 2, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).
"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.
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 held that:
Id., Syl. Pt. 1.
Appellants reply that they did in fact move for a directed verdict at the close of all the
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:
Id. at 81, 198 S.E.2d at 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.
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 v. Click, 209 W.Va. 627, 550 S.E.2d 605 (2001) is applicable to the instant case.
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
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:
On the second day of trial, Billy also testified:
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
In determining whether delivery had been established, this Court considered the legal requirements for effective delivery of a deed. Therein, we observed that:
Id. at 611-12, 633-34, 550 S.E.2d 605.
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, 550 S.E.2d 605. 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 showing of 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, 550 S.E.2d 605.
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.
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:
(Emphasis added).
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
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. at 615, 637, 550 S.E.2d 605.
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 undisputed facts.
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
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.
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 federal counterpart.
Id. at 615, 637, 197 S.E. 725. 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.
