Brammer v. Taylor, No. 16577

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 175 W.Va. 728,338 S.E.2d 207
• Decision Date: 12 December 1985
• Docket Number: No. 16577
• Parties: Joan E. BRAMMER v. Ronald TAYLOR, Geraldine Short, and Gulf National Bank.

Page 207

338 S.E.2d 207 175 W.Va. 728 Joan E. BRAMMER
v.
Ronald TAYLOR, Geraldine Short, and Gulf National Bank. No. 16577. Supreme Court of Appeals of
West Virginia. Dec. 12, 1985.

Page 208

[175 W.Va. 729] Syllabus by the Court

1. Drafting a will for another person, advising another person how to draft a will or supervising its execution are activities which constitute the practice of law.

2. " 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so.' " McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted).

C. Elton Byron, Jr., W.A. Thornhill, III, Beckley, for appellant.

Ashworth & Kirkpatrick, Robert J. Ashworth, H.L. Kirkpatrick, Beckley, for appellee.

McHUGH, Justice.

This case is before this Court upon appeal from a final order of the Circuit Court of Raleigh County, West Virginia [hereinafter, "the trial court"]. In that order the trial court set aside an earlier final order in favor of defendants/appellants.

This case involves a lost legacy under an invalidly attested codicil. "An old proverb warns us to take heed lest we 'walk into a well from looking at the stars.' To show why [this case, although factually unique, is not as legally complicated as the parties and the trial court have viewed it, we] must bring these deliberations down to earth by a [rather] long recital of facts." Terminiello v. City of Chicago, 337 U.S. 1, 14, 69 S.Ct. 894, 900, 93 L.Ed. 1131, 1139 (1949) (Jackson, J., dissenting).

I. Facts

Joan Brammer [hereinafter, "plaintiff"] accompanied her business associate, Howard E. Gillespie [hereinafter, "the decedent"], to the Gulf National Bank [hereinafter, "defendant bank"] at or near the Town of Sophia, Raleigh County, West Virginia, where the decedent was to conduct a banking transaction, specifically, the renewal of a promissory note. The decedent was a very substantial depositor at the bank. About two weeks prior to this, the decedent had informed Ronald Taylor [hereinafter, "defendant Taylor"], the bank's chief executive officer, that he (the decedent) would, at some unspecified time in the near future, be coming to the bank

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to renew the note and, possibly, to amend his will. Defendant Taylor, who is not an attorney, immediately thereafter called the attorney who had prepared the decedent's will. There was testimony, to which no objection was made, that the attorney instructed defendant Taylor to tell the decedent, whenever he decided to amend his will, that it was dangerous to attempt to amend the will and that it would be better for an attorney to revoke the existing, [175 W.Va. 730] short will of the decedent by preparing a new one.

On the day that the decedent renewed the note, he appeared at the bank at closing time. The only persons present at the bank were: the decedent, plaintiff, defendant Taylor, and Geraldine Short, an assistant vice-president of defendant bank (hereinafter, "defendant Short"). After renewing the note, and while sitting in or near defendant Taylor's office, the decedent suddenly asked defendant Short to take some dictation. In an area outside defendant Taylor's office, defendant Short typed a purported codicil to the decedent's will, in which he bequeathed $70,000.00 to plaintiff. After the decedent retrieved the purported codicil from defendant Short, who had typed it verbatim per his dictation, the decedent signed the purported codicil. Defendant Taylor was named therein as executor. Defendant Taylor then relayed to the decedent the message from the attorney that he ought to have a lawyer prepare the codicil. The decedent replied, however, that he did not have time to get a lawyer to prepare the codicil. The decedent then asked defendant Taylor to have the codicil witnessed and immediately left the bank with plaintiff. During all of this transaction, plaintiff remained completely silent, even though the evidence was undisputed that she was present when defendant Taylor cautioned the decedent that he should contact a lawyer to prepare the codicil. This transaction occurred on a Friday, June 5.

Three days later, on Monday, June 8, defendant bank, by defendant Taylor, had two other bank employees subscribe the codicil as purported attesting witnesses. Defendant Short notarized the witnesses' signatures as if they had signed on June 5. The decedent was not present at the bank when the witnesses subscribed the purported codicil.

The decedent died on June 13. When the probate court (in North Carolina where the decedent resided at the time of his death) learned of the true facts of the execution of the will, by way of affidavits of the subscribing witnesses, the purported codicil was denied probate. ¹

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Thereafter, plaintiff brought this tort action against defendant bank, defendant Taylor, and, by amended complaint, also [175 W.Va. 731] against defendant Short, to recover the value of the lost legacy. Defendant Short was dismissed before trial as a defendant on the grounds that she was a mere scribe and, as a notary, did not back-date the attestation with malicious, impure or corrupt motives. The estate of the decedent or his personal representative was not made a party as a defendant.

II. Trial Court Proceedings

There were two theories of recovery: (1) the unauthorized practice of law by defendants and (2) negligence of defendants in handling the execution of the purported codicil. Denying defendant bank's and defendant Taylor's motions for directed verdict, the trial court submitted the case to the jury on both theories of recovery. The predominant emphasis at trial was, however, on the theory of the alleged unauthorized practice of law.

During colloquy with counsel on the directed verdict motions, the trial court stated to counsel that he would not allow the question of plaintiff's own contributory negligence to go to the jury, but he believed that plaintiff's case as intended beneficiary "must rise and fall on what her testator did" and "the jury must consider his actions and not hers." The jury was instructed to consider and determine the amount of any negligence of the decedent, as well as that of defendants. The trial court, over defendant bank's objection, refused to instruct the jury that the negligence of plaintiff was to be considered and determined.

In its special verdict, the jury found the decedent guilty of 70% of the fault and defendants guilty of 30% of the fault. The trial court subsequently entered a judgment order for defendants.

Thereafter, in what may fairly be described as a continuation of unnecessary confusion, plaintiff moved for a new trial or, alternatively, under W.Va.R.Civ.P. 60(b)(1), to set aside the judgment due to mistake. The ground principally relied upon was that plaintiff herself had not been found guilty of any negligence by the jury and, therefore, under the comparative negligence rule announced in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), was the prevailing party vis-a-vis the defendants, who had been found guilty of 30% of the fault, which was more than plaintiff's own share of the fault (zero).

The trial court agreed and granted plaintiff's Rule 60(b)(1) motion to set aside the judgment and for entry of judgment for plaintiff on the reasoning that the jury's verdict was, under Bradley, actually for plaintiff. The trial court, in its opinion letter accompanying its final order stated that it had not submitted the case to the jury with the decedent's negligence being imputed to plaintiff.

III. Assignments of Error

On this appeal, defendants/appellants assign as error:

(1) the trial court's setting aside the original judgment for defendants based upon its subsequent interpretation of the jury verdict in light of Bradley; and

(2) the trial court's ruling that plaintiff's comparative negligence was not a defense. We hold that this assignment of error has merit. Accordingly, we reverse the final order of the trial court and remand for a new trial.

Appellants rely upon wrongful death cases to support imputation of the decedent's comparative negligence to the

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intended beneficiary. ² Appellants also assert[175 W.Va. 732] that the lawyers argued to the jury on the basis of imputed contributory negligence and contend that the jury was instructed on that basis. To allow the trial court to disregard a theory included in the instructions to the jury would, they urge, violate the principle of not giving misleading or confusing instructions. ³

Plaintiff/appellee cross-assigns as error:

(1) the trial court's exclusion of evidence of prior wills of the decedent and of plaintiff having been executed (signed and attested) at the bank; ⁴

(2) the trial court's refusal to give certain instructions; ⁵

(3) the trial court's refusal to submit the case to the jury on a negligence per se basis for the alleged unauthorized practice of law; ⁶ and

(4) the trial court's dismissal before trial of the notary public, defendant Short, who typed the purported codicil. This cross-assignment of error has some merit. As discussed below, merely typing another person's will or attempted will is clearly not practicing law. Like defendant Taylor, however, defendant Short may have assumed a duty to supervise the execution of the codicil or to contact a lawyer about the same. The jury is to consider and determine her negligence, if any, on remand. Defendant bank, as her employer, would be responsible, under respondeat superior, for any negligence on her part found by the jury.

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The issue of the trial court's dismissal of defendant Short is not before us. She was not represented by counsel for defendant bank, either at trial or on this appeal, but was represented by her own counsel who did not participate in this appeal.

IV. The practice of law

The first...