                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Donald L. Smith and Douglas O. Smith,
Defendants Below, Petitioners                                                     FILED
                                                                              January 5, 2018
vs) No. 17-0107 (Jackson County 14-C-103)                                    EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Dannie L. Smith and Doran R. Smith,
Plaintiffs Below, Respondents


                              MEMORANDUM DECISION
         The parties in this appeal are four brothers. Petitioners Donald L. Smith and Douglas O.
Smith, by counsel Robert R. Waters and Steven M. Wright, appeal the December 29, 2016, order
of the Circuit Court of Jackson County denying their motion for a new trial after a jury found for
respondents on their claims of undue influence, intentional interference with expectancy, and
conversion regarding distribution of their mother’s assets. Respondents Dannie L. Smith and
Doran R. Smith, by counsel Joshua S. Rogers and Haley S. Hillen, filed a response. Petitioners
filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                             Factual and Procedural Background

        The parties are the adult sons of Freda Wylene Smith (“decedent”), who died in 2014 at
the age of 93. The litigation between the two sets of brothers that led to the instant appeal
concerned the transfer of the decedent’s assets prior to and upon her death. Doran R. Smith and
Dannie L. Smith, plaintiffs below and respondents herein (“plaintiffs”), filed suit against Donald
L. Smith and Douglas O. Smith, defendants below and petitioners herein (“defendants”), alleging
that defendants exerted undue influence and manipulated the decedent into giving defendants a
vast majority of her assets.

        The decedent suffered from various ailments and relied on her husband for her care. After
her husband died, the decedent was partially dependent on defendants for her needs. Defendants
lived near the decedent; plaintiffs lived out of state. Prior to her declining health, the decedent
had titled her assets so that her sons would share equally in their distribution upon her death.
During her later years, however, the decedent changed the titling of the majority of her assets so
that they would pass to defendants. Believing that their mother had been manipulated, plaintiffs

                                                1
filed suit in which they claimed that defendants had a confidential or fiduciary relationship with
decedent; that defendants exerted undue influence over the decedent; that defendants interfered
with their expectancy; and that defendants converted assets for their own use. Plaintiffs also
requested punitive damages.

         The matter proceeded to a three-day jury trial in September of 2015.1 The circuit court
utilized the verdict form submitted by plaintiffs, with only minor modifications. Section I.A. of
the verdict form related to Plaintiffs’ claim of undue influence/constructive fraud. Following
initial deliberations, the jury returned its verdict on Section I.A. as follows:

       1.    Do you find that the Plaintiffs have proven that one or both of the
       Defendants had a confidential or fiduciary relationship with Freda Wylene Smith?

               Yes ____X______                       No___________

       If your answer to Question 1 is “no,” please proceed to Question 4 below. If your
       answer is “yes,” please proceed to Question 2.


       2.     Do you find that the Plaintiffs have proven that one or both of the
       Defendants used his confidential or fiduciary relationship with Freda Wylene
       Smith to obtain financial or other benefits from Mrs. Smith’s estate planning?

               Yes ____X____                         No__________

       If your answer to Question 2 is “no,” please proceed to Question 4 below. If your
       answer is “yes,” please proceed to Question 3.

       3.     If your answers to Questions 1 and 2 above were “yes,” do you find that
       the Defendants have met their burden of proving that they did not exercise undue
       influence over Freda Wylene Smith to change her overall estate plan, including
       bank accounts?

               Yes ____X____                         No __________

       If your answer to Question 3 is “no,” you should find in favor of the Plaintiffs on
       the issue of undue influence. Please proceed to Section B below and skip the




       1
          Presumably, because this appeal does not hinge on the sufficiency of the evidence,
neither brief contains a detailed account of the trial evidence. In fact, the appendix submitted by
defendants contains nothing more than the circuit court’s judgment order. Plaintiffs, thereafter,
supplemented the appendix with portions of the transcript, among other documents.

                                                2
       remaining questions in this Section A. If your answer to Question 3 is “yes,”
       please proceed to Question 4.2

       4.      Do you find that the Plaintiffs have proven that one or both of the
       Defendants exerted undue influence over Freda Wylene Smith to change her
       overall estate plan, including bank accounts?

               Yes ____X____                        No ___________

       If your answer to Question 4 is “yes,” you should find in favor of the Plaintiffs on
       the issue of undue influence, and please proceed to Question 5 below. If your
       answer to Question 4 is “no,” please proceed to Question 5 below.

       5.     Do you find that the Defendant, Douglas O. Smith, exerted undue
       influence over Freda Wylene Smith in the execution of the deed dated January 17,
       2013, conveying certain mineral rights owned by Freda Wylene Smith to Douglas
       O. Smith and his spouse, Patricia A. Smith?

               Yes ___X____                         No ___________

        The jury then completed Sections I.B. and I.C. of the verdict form, which related to
plaintiffs’ claims of tortious interference with expectancy and conversion, respectively. The jury
found for plaintiffs on both of these claims. Under the next section of the verdict form, entitled
“Section II. Verdict,” the jury found in favor of plaintiffs on each of their three claims. As for
damages, the jury awarded plaintiffs collectively $169,000 in compensatory damages and
collectively $150,000 in punitive damages.

        After the jury returned the verdict form, the circuit court conferred with counsel
regarding the jury’s answer to Question 3, as it was inconsistent with the jury’s other findings
and ultimate verdict. After conferring with counsel, the circuit court sent the jury back into
deliberation to answer the following special interrogatory:

       Do you find that the Defendants have met their burden of proving that they did
       not exercise undue influence over Freda Wylene Smith to change her overall
       estate plan, including bank accounts?

       The jury returned the verdict form after marking “no.” The jury then allocated damages
equally among the two defendants and unanimously confirmed their verdict. The circuit court
memorialized the verdict by Judgment Order entered on February 19, 2016.

      Defendants moved for a new trial under Rule 59 of the West Virginia Rules of Civil
Procedure arguing, among other claims, that the verdict form was confusing and that the circuit



       2
        On the original handwritten verdict form, which is included in plaintiffs’ supplemental
appendix, the jury initially marked “no,” then crossed it out and marked “yes.”
                                                3
court’s special interrogatory was improper. The circuit court denied defendant’s motion by order
entered on December 29, 2016. In relevant part, the court found that

       although the jury was arguably confused as to how to proceed through sections of
       the verdict form, it was not error to use the verdict form as proposed by the
       Plaintiffs, particularly in light of the fact that Defendants did not offer an
       alternative verdict form for the Court’s consideration. Moreover, any error in the
       verdict form was harmless error, as it was clear the jury intended to find for the
       Plaintiffs and award Plaintiffs both compensatory and punitive damages.

Defendants now appeal to this Court.

                                            Discussion

       With respect to a motion for a new trial, this Court has held that

       [a] motion for a new trial is governed by a different standard than a motion for a
       directed verdict. 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
       re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413
       (1994), cert. denied, W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115
       S.Ct. 2614, 132 L.Ed.2d 857 (1995).

Syl., Morrison v. Sharma, 200 W. Va. 192, 488 S.E.2d 467 (1997). Furthermore, under Rule 61
of the West Virginia Rules of Civil Procedure,

       [n]o error in either the admission or the exclusion of evidence and no error or
       defect in any ruling or order or in anything done or omitted by the court or by any
       of the parties is ground for granting a new trial . . . unless refusal to take such
       action appears to the court inconsistent with substantial justice. The court at every
       stage of the proceeding must disregard any error or defect in the proceeding
       which does not affect the substantial rights of the parties.

       With these standards in mind, we turn to defendants’ arguments on appeal. They raise
two assignments of error, the first of which they present as follows:

       The circuit court erred in adopting jury instructions for the trial that are internally
       inconsistent such that they are adverse to West Virginia law in that the
       instructions directed the jury to make determinations of damages even if the jury



                                                 4
       finds that the defendants have met their burden in proving that did not exert undue
       influence over the decedent.

        Initially, we are compelled to note, as plaintiffs do, that defendants incorrectly frame the
issue as one of instructional error. It is not. The record reflects that the parties submitted
proposed jury instructions, the content of which accurately instructed the jury on the applicable
law. The only objection raised by defendants related to the instructions involved the circuit
court’s judgment as a matter of law regarding one of the decedent’s checking accounts, which is
not at issue in this appeal. Rather, this case involves a review of the circuit court’s handling of a
mistake on a verdict form, which is governed by an abuse of discretion standard. We have held
that

       “[g]enerally, this Court will apply an abuse of discretion standard when reviewing
       a trial court’s decision regarding a verdict form.” Syl. pt. 4, Perrine v. E.I. du
       Pont de Nemours & Co., 225 W.Va. 482, 694 S.E.2d 815 (2010). Likewise, “[a]s
       a general rule, a trial court has considerable discretion in determining whether to
       give special verdicts and interrogatories to a jury unless it is mandated to do so by
       statute.” Syl. pt. 8, Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457
       S.E.2d 152 (1995).

Manor Care, Inc. v. Douglas, 234 W. Va. 57, 67, 763 S.E.2d 73, 83 (2014).

        The verdict form in the present case was perhaps more complex than a typical verdict
form because it reflected the potential shift in the burden of proof because of the nature of
plaintiffs’ claims. See Syl., Kanawha Valley Bank v. Friend, 162 W. Va. 925, 253 S.E.2d 528
(1979)(“A presumption of constructive fraud may arise in connection with joint bank accounts
with survivorship, if the parties to the joint account occupy a fiduciary or confidential
relationship. This presumption requires the person who benefits from the creation of the account
to bear the burden of proving that the funds were, in fact, a Bona fide gift.”). As plaintiffs
correctly note, there is no complaint about the order of the questions or the questions themselves
on the verdict form; rather, the issue is the direction to the jury that followed Question 3 in
Section I.A.

        Defendants argue that the verdict form requires a new trial because it inevitably led to an
adverse verdict. However, we do not agree that a new trial is warranted. First, the error on the
form only related to one of plaintiffs’ claims, and the jury still could have found in favor of
defendants on Question 4 if it desired to do so. Second, the jury’s answers to every other
question on the verdict form clearly evidence its intent to find in favor of plaintiffs on all of their
claims, rendering any possible error harmless. And, third, despite being instructed to do so,
defendants failed to submit a proposed verdict form of their own, and lodged no objection to the
plaintiffs’ proposed form at the time it was offered. The parties did not notice the mistake on the
form until after the jury returned its initial verdict; so, defendants should not be heard to
complain now on appeal. See Syl. Pt. 1, Maples v. W. Virginia Dep't of Commerce, Div. of Parks
& Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996)(“A litigant may not silently acquiesce to
an alleged error, or actively contribute to such error, and then raise that error as a reason for
reversal on appeal.”).

                                                  5
        In their second assignment of error, defendants challenge the circuit court’s decision to
send the jury back into deliberation to answer the single interrogatory. The parties generally
agree that, after the jury’s initial deliberation, it was clear that the jury made inconsistent
findings; they appeared to find that defendants met their burden of proving no undue influence
existed, but still awarded plaintiff damages on that claim. However, defendants contend that
instructing the jury to answer only one question clearly communicated to the jury that they
needed to change their answer to that question. Defendants argue that the circuit court should
have declared a mistrial instead.

       Rule 49(b) of the West Virginia Rules of Civil Procedure provides as follows:

       (b) General verdict accompanied by answer to interrogatories. - The court may
       submit to the jury, together with appropriate forms for a general verdict, written
       interrogatories upon one or more issues of fact the decision of which is necessary
       to a verdict. The court shall give such explanation or instruction as may be
       necessary to enable the jury both to make answers to the interrogatories and to
       render a general verdict, and the court shall direct the jury both to make written
       answers and to render a general verdict. When the general verdict and the answers
       are harmonious, the court shall direct the entry of the appropriate judgment upon
       the verdict and answers. When the answers are consistent with each other but one
       or more is inconsistent with the general verdict, the court may direct the entry of
       judgment in accordance with the answers, notwithstanding the general verdict or
       may return the jury for further consideration of its answers and verdict or may
       order a new trial. When the answers are inconsistent with each other and one or
       more is likewise inconsistent with the general verdict, the court shall not direct the
       entry of judgment but may return the jury for further consideration of its answers
       and verdict or may order a new trial.

Additionally, the circuit court has “considerable discretion” in determining whether to give
special interrogatories to the jury. See Syl. Pt. 8, Barefoot v. Sundale Nursing Home, 193 W. Va.
475, 457 S.E.2d 152 (1995).

       Upon our review, we find no abuse of discretion in the present case. First, the
conversation with counsel regarding the inconsistent verdict took place outside of the jury’s
presence, so we believe it unlikely that the circuit court somehow swayed the jury to change its
answer. The jury appears to have become confused by the error in the verdict form, as evidenced
by the fact that their answers to every other question on the verdict form, and their award of
damages, clearly indicated their intention to find in favor of plaintiffs. There is nothing about
being presented with only one question that would have swayed the jury to change its answer.
The jury was free to answer the question any way it chose. It chose to answer it in a way that was
consistent with its overall verdict. Accordingly, we find no abuse of discretion and no basis upon
which the circuit court should have declared a mistrial.

       For the foregoing reasons, we affirm the Circuit Court of Jackson County’s December 29,
2016, order denying defendants’ motion for a new trial.



                                                 6
                                        Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                    7
