Hines v. Hoover
| Decision Date | 14 November 1972 |
| Docket Number | No. 13134,13134 |
| Citation | 192 S.E.2d 485,156 W.Va. 242 |
| Parties | Taylor E. HINES v. Wendell W. HOOVER et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. 'The summary judgment proceeding provided by Rule 56 of the West Virginia Rules of Civil Procedure is not a substitute for a trial or a trial by jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried.' Point 1 Syllabus, Employers' Liability Assurance Corporation v. Hartford Accident and Indemnity Company, 151 W.Va. 1062 (158 S.E.2d 212).
2. 'A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.' Point 6 Syllabus, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160 (133 S.E.2d 770).
3. A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Point 3 Syllabus, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160 (133 S.E.2d 770).
John R. Dyer, William W. Talbott, Webster Springs, for appellant.
Morton & Garrett, E. V. Morton, Jr., William C. Garrett, Webster Springs, for appellees.
This case is before the Court upon an appeal by the plaintiff, Taylor E. Hines, from a final judgment of the Circuit Court of Webster County entered November 21, 1970, in a civil action instituted by the plaintiff against Wendell W. Hoover, Nelle E. Hoover, Hazel M. Matheny, Paul M. Matheny, John C. Vance, Jean Cochran Vance, Cyrus R. Vance, Grace Sloane Vance and The Sun Lumber Company, a corporation, as defendants, to compel specific performance of an oral contract to convey land or in the alternative to recover damages, with interest, for the breach of the contract, based on the value of the land sought to be conveyed.
The circuit court rendered summary judgment in favor of the defendants on October 24, 1970. The circuit court did not make findings of facts and did not set forth conclusions of law, but wrote a letter to counsel dated September 2, 1970, in which he made certain observations, which letter was made a part of the record of this case, by stipulation of counsel. The pertinent part of this letter is as follows:
'The Court sustains the motion for summary judgment in the above captioned action. Although I will not write an opinion setting forth the findings of fact and conclusions of law, which would be more or less a repetition of contentions and assertations contained in the briefs of counsel, in addition thereto, however, I would make the following observations.
'The Court is of the opinion that if there had in fact been an oral contract as claimed by plaintiff it was one which could have been performed within one year, this in accordance with decided West Virginia cases. Such alleged agreement, if made, had to be between plaintiff and John M. Hoover, now many years deceased. That which plaintiff claims Wendell W. Hoover did and said would at most be binding upon Wendell W. Hoover only, or at most evidence only of the pre-existence of some agreement between plaintiff and John M. Hoover. The 'dead man statute' precludes plaintiff from testifying as to conversations allegedly had with John M. Hoover during his life time. The power of attorney of John W. Davis to John M. Hoover was for a limited purpose, 'to make, execute, acknowledge and deliver an option contract or option contracts for the sale of any interest in x x x'. Considering only admissible testimony in the depositions the plaintiff has failed to establish by a preponderance of the evidence that there was (1) a contract between himself and John M. Hoover for the sale and purchase of the land as contended by plaintiff, (2) that John M. Hoover, acting as agent for John W. Davis, made any agreement with plaintiff for the sale of the one-half interest of John W. Davis, (3) that John M. Hoover, acting as agent for Wendell W. Hoover, or that Wendell W. Hoover in his own right, made such an agreement as contended for by plaintiff, and (4) that plaintiff brings himself within one of the established exceptions to the rule of statute of frauds requiring the agreement to be in writing, or some memorandum thereof, signed by the party to be charged. The Court would further observe that plaintiff is guilty of laches by delaying for, if not 5 years, at least a long period of time in bringing his action, all to the prejudice of the defendants. The one person who could have testified and either admitted or denied the contentions of plaintiff, John M. Hoover, has been dead for many years, and understandably his personal files destroyed, as testified to by his son and the defendant, Wendell W. Hoover. His testimony, presumably to the contrary to that contended for by plaintiff, could have been primarily the entire defense in this action.
'For the foregoing reasons the motion for summary judgment will be sustained as to the relief prayed for by plaintiff for both specific performance and in lieu thereof recovery as damages for the breach of the contract. * * *'
The testimony referred to in this opinion was taken from certain discovery depositions which were, by agreement of counsel, to be considered by the trial court in ruling upon defendants' motion for summary judgment.
In 1944, and apparently prior to that time, John W. Davis and Wendell W. Hoover were the owners of approximately 7,268 acres of land in Webster County, known as the Garvin lands, each having title to a one-half undivided interest in the tract. By a deed dated August 9, 1949, John M. Hoover acquired a one-fourth undivided interest from Wendell W. Hoover and his wife, Nelle Hoover.
The plaintiff alleged in his complaint and testified in his discovery depositions that he entered into an oral executory contract with John M. Hoover and Wendell W. Hoover, in their own right and as agents for John W. Davis, to take care of the tract of land and report trespasses on a certain parcel of timber land. In exchange for the performance of these services, the plaintiff maintains that he was to receive a deed for the surface, including the timber, of a designated part of the tract for which he was to pay the grantors $5 an acre. The parcel of land contained approximately 600 acres, as later determined in a survey.
The plaintiff contends that he entered into his duties as a caretaker sometime in 1944 and continued to serve in that capacity until learning of the sale of the entire tract to The Sun Lumber Company by a deed dated October 28, 1963. This action was filed on October 7, 1968.
John M. Hoover died in 1951 and by will devised his one-fourth undivided interest to his three children, Wendell W. Hoover, Hazel M. Matheny, and Alice Maxwell, share and share alike. By the will each of the three children received a one-twelfth undivided interest in the tract. Wendell W. Hoover purchased the undivided interest of Alice Maxwell by a deed dated May 14, 1954.
The defendants, John C. Vance and Cyrus R. Vance, acquired a jointly held one-half undivided interest in the land by devise by the will of John W. Davis, who died in 1955.
In his deposition, Wendell W. Hoover testified that he did not enter into an oral executory contract with the plaintiff for the care of the land and that, to his knowledge, neither did his father, John M. Hoover. Wendell Hoover contends in his testimony that there was no agency relationship between his father and John W. Davis or himself and the heirs of John W. Davis. Hoover testified that the plaintiff had no connection with the tract except as an employee of The Sun Lumber Company, who acquired periodically the timber rights on certain portions of the tract.
Counsel for the plaintiff introduced as an exhibit a power of attorney executed by John W. Davis, in 1938, to John M. Hoover, authorizing Hoover 'to make, execute, acknowledge and deliver an option contract or option contracts for the sale of my interest in * * * the Garvin lands'. A deed to a portion of the tract made in 1955 by Wendell Hoover and the heirs of John M. Hoover and John W. Davis makes the following reference: 'This deed is...
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