Kessel v. Leavitt

Citation204 W.Va. 95,511 S.E.2d 720
Decision Date22 July 1998
Docket NumberNo. 23557.,23557.
CourtSupreme Court of West Virginia
PartiesJohn Woodruff KESSEL and Ray Miller Kessel, Plaintiffs Below, Appellees, v. David Keene LEAVITT, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and Brian P. Conaty, Defendants Below, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty and Brian P. Conaty, Defendants Below, Appellants.

Marvin W. Masters, Paula L. Wilson, Masters & Taylor, Charleston, West Virginia, Attorneys for the Appellees.

Lonnie C. Simmons, DiTrapano & Jackson, Charleston, West Virginia, Attorney for the Appellants.

Janis K. Stocks, San Diego, California, Attorney for Amicus Curiae, Academy of California Adoption Lawyers.

Brendon C. O'Shea, Gleason, Dunn, Walsh & O'Shea, Albany, New York, Attorney for Amicus Curiae, The National Council for Adoption.

Mitchell Wendell, The American Public Welfare Association, Washington, DC, Legal Consultant for Office of Secretariat of Amicus Curiae, Association of Administrators of the Interstate Compact on the Placement of Children.

Jon R. Ryan, Punta Gorda, Florida, President of Amicus Curiae, National Organization for Birthfathers and Adoption Reform.

DAVIS, Chief Justice:1

The appellants herein, and defendants below, David Keene Leavitt, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and Brian P. Conaty,2 appeal from a December 4, 1995, jury verdict in the Circuit Court of Cabell County returned in favor of the appellee herein, and plaintiff below, John Woodruff Kessel. Claiming that the defendants had acted fraudulently in placing the child of Anne Conaty and John Kessel for adoption and that they had tortiously interfered with John Kessel's parental rights in his son, the jury awarded John compensatory damages of $2 million and punitive damages of $5.85 million. The defendants appeal these verdicts citing, among other errors, the circuit court's lack of personal jurisdiction over defendant Leavitt; the failure of the plaintiff to state a claim for fraud or tortious interference upon which relief can be granted; the inappropriateness of certain jury instructions; and the excessiveness of the damages awards. In addition, the appellee herein, and plaintiff below, Ray Miller Kessel cross-appeals the circuit court's decision to direct a verdict in favor of the defendants with respect to his claims alleging that the defendants interfered with his grandparental relationship with the child of Anne Conaty and John Kessel. Upon a review of the parties' arguments, the record evidence, and the relevant authorities, we affirm the decision of the Circuit Court of Cabell County.


The evidence presented to the jury reveals the following facts. Defendant Anne Gilmore Conaty [hereinafter Anne] and plaintiff John Woodruff Kessel [hereinafter John] were romantically involved for a number of years. In November, 1990, they broke off their tumultuous romance. Shortly after the break-up, Anne discovered she was pregnant, with an approximate date of conception of October 12, 1990. She informed John of the pregnancy in December, 1990.3 They were briefly engaged in January, 1991. While John opposed any adoption of their unborn child, Anne wanted either to raise their unborn child, by herself or with John's help, or to place their unborn child for adoption.

Anne testified that, in January, 1991, she became afraid of John and feared for her safety after the deterioration of their relationship. She decided to leave her residence in Huntington, West Virginia, and take a leave of absence from her job.4 Anne visited with a friend in Iowa for approximately two weeks, stayed with her brothers in Tennessee for about six weeks, and traveled to her relatives' home in North Carolina, where she remained for approximately five weeks. Anne's parents, defendant Eleanor Wolfe Conaty [hereinafter Mrs. Conaty] and defendant Thomas J. Conaty [hereinafter Dr. Conaty] visited her in North Carolina, and discussed the possibility of placing the unborn child for adoption. While the Conatys were in North Carolina in April, 1991, Mrs. Conaty saw a newspaper advertisement for a California adoption attorney. Upon contacting this attorney's office, Mrs. Conaty was referred to another California adoption attorney, defendant David Keene Leavitt [hereinafter Leavitt]. Mrs. Conaty then telephoned Leavitt and either Leavitt, himself, or his wife, informed Mrs. Conaty that an adoption of Anne's unborn child could be accomplished in California without having to notify John or obtain his signature. Shortly thereafter, Anne spoke with Leavitt regarding the possibility of placing her unborn child for adoption.5

In May, 1991, Anne journeyed to Minnesota to stay with her aunt. On May 20, 1991, Anne informed Leavitt that she wished to place her unborn child for adoption. Leavitt informed Anne she could deliver her child in any place of her choosing. Anne decided to travel to California, where her attorney was located, and to deliver her child in that state. In early June, 1991, Anne traveled to West Hollywood, California, where she and her mother, Mrs. Conaty, remained until the birth of Anne's child in July, 1991.

During Anne's absence from West Virginia, John sought legal advice regarding his parental rights as the biological father of Anne's unborn child. On May 1, 1991, John's attorney sent a letter to David Lockwood [hereinafter Lockwood], a Huntington, West Virginia, attorney who John's counsel believed represented Anne. This letter indicated John's desire to reconcile with Anne and his intention to withhold his consent from, or otherwise oppose, any attempt by Anne to place their unborn child for adoption. Lockwood, who claimed that he was not representing Anne at this time, gave the letter to defendant Brian P. Conaty [hereinafter Brian], Anne's brother, who is also a Huntington, West Virginia, attorney. Brian then forwarded this letter to Leavitt.

On June 3, 1991, John filed an inverse paternity action6 in the Circuit Court of Cabell County, West Virginia [hereinafter "West Virginia case 1"], in which he requested a court determination of paternity and an injunction order to prohibit Anne from placing their unborn child for adoption until paternity had been established. John attempted to serve Anne with a copy of this petition at Brian's home, her last residence in West Virginia; her parents' home; and Lockwood's office. Finally, on June 21, 1991, Lockwood faxed a copy of John's inverse paternity petition to Leavitt.

The circuit court held an ex parte hearing on June 26, 1991, to consider John's request for injunctive relief. Lockwood attended the hearing to inform the circuit judge that he did not represent Anne. The circuit judge excused Lockwood from the proceedings, leaving only John and his counsel present at the hearing. Following John's testimony, the circuit judge entered an ex parte temporary injunction order, dated June 26, 1991, "prohibiting [Anne] from placing her unborn child for adoption by anyone through any agency, church, group, attorney, or private household until the paternity of [John] can be established or refuted." The judge also decreed that Anne should be served with the inverse paternity petition and temporary injunction order by publication. Brian was personally served with the inverse paternity petition and temporary injunction order on June 28, 1991. However, on July 16, 1991, Brian filed an affidavit rejecting service on behalf of Anne because she no longer lived at his residence and because he was not her attorney.

At approximately the same time as John was pursuing his inverse paternity action in West Virginia, Anne was continuing with her plans to place her unborn child for adoption. In June, 1991, Leavitt informed Anne that he had located an Oregon couple who wished to adopt her child at birth.7 Anne executed numerous documents requisite to the contemplated interstate placement, including an interstate compact placement request. On June 10, 1991, Leavitt sent these papers to the state placement coordinator for the state of California who then forwarded the documents to the state of Oregon requesting permission to consummate the placement.

After receiving a copy of John's inverse paternity petition, Leavitt, on approximately July 1, 1991, faxed a copy of the petition to counsel for the prospective adoptive parents in Oregon. Upon learning of the West Virginia litigation, the Oregon couple's attorney suggested that pursuit of this adoption may be risky based upon laws in the state of Oregon concerning adoptions and the registration of biological fathers.8 Consequently, the Oregon couple withdrew their interstate application to adopt Anne's child. Following this obstacle to the placement of Anne's unborn child, Leavitt subsequently located a couple in Alberta, Canada, whom he felt would be suitable prospective adoptive parents. Accordingly, Anne executed the appropriate documents to effectuate this proposed placement.

On July 24, 1991, Anne delivered a baby boy [hereinafter Baby Boy Conaty] at Cedars-Sinai Medical Center in Los Angeles, California.9 On July 25, 1991, Anne executed the remaining documents necessary for placement of her child with the Canadian couple. Due to medical complications, the baby was not released from the hospital until July 26, 1991. On that date, the Canadian couple returned to Canada with Baby Boy Conaty. Also, on July 26, 1991, the last published notice of the ex parte temporary injunction order was published in a Huntington, West Virginia, newspaper, thereby completing service by publication on Anne of both the temporary injunction order and the inverse paternity petition, which was published in conjunction with the injunction order. Following the child's birth, Anne traveled to England where she visited with her sister until she returned to Huntington, West Virginia, in ...

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