Realcorp, Inc. v. Gillespie

Citation193 W.Va. 99,454 S.E.2d 393
Decision Date15 December 1994
Docket NumberNo. 21985,21985
CourtWest Virginia Supreme Court
PartiesREALCORP, INC., Plaintiff Below, Appellant, v. Shirley O. GILLESPIE, Defendant Below, Appellee.

Syllabus by the Court

1. " 'A court, though asked, is not bound to instruct a jury generally as to the law of the case. Instructions as to specific law points ought to be asked. A court may, without request, if it think[s] the interest of justice and a fair trial call for it, instruct the jury in matter of law, the instruction being sound in law and relevant to the evidence; but it is not bound to do so unless asked; but, if asked to give such proper specific instructions, it must do so.' Syl. pt. 5, State v. Cobbs, 40 W.Va. 718, 22 S.E. 310 (1895), overruled on other grounds, 117 W.Va. 605, 186 S.E. 607 (1936)." Syl. Pt. 1, Berkeley Homes, Inc., v. Radosh, 172 W.Va. 683, 310 S.E.2d 201 (1983).

2. "If a party fails to offer an instruction regarding a particular point of law upon which he relies, he cannot later complain of the absence of such an instruction, there being no duty upon the court to so instruct the jury except when the error is so plain and the result so outrageous that the trial court must intervene to do substantial justice." Syl. Pt. 2, Berkeley Homes, Inc., v. Radosh, 172 W.Va. 683, 310 S.E.2d 201 (1983).

3. "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), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

4. "In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally sufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant." Syl. Pt. 1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994).

James F. Brown, IV, Charleston, for appellant.

Charles E. Hurt, Charleston, for appellee.

PER CURIAM:

This case is before the Court upon the appeal of Realcorp, Inc., from the March 2, 1993, final order of the Circuit Court of Kanawha County upholding the January 13, 1993, jury verdict wherein the Appellant, Realcorp, Inc., was awarded $1,000 on its complaint and the Appellee, Shirley O. Gillespie, was awarded $30,000 plus interest on her counterclaim. Finding no reversible error we affirm the judgment of the trial court.

I.

The Appellant is a real estate brokerage firm in Charleston, West Virginia. The Appellee is a licensed real estate broker who became associated with the Appellant in October, 1988. At the time of their association, the parties established an oral agreement that the Appellee would be a commissioned salesperson entitled to a thirty percent listing commission and a thirty percent sales commission.

While associated with the Appellant, the Appellee obtained a listing for an apartment complex in the Huntington, West Virginia, area by the name of Westmoreland Estates. The Appellee was able to obtain an original contract for the sale of the apartment complex to Drs. Sam and Scott Henson for $2,000,000. Under that contract, the broker's commission was set at five percent of the gross selling price (or $100,000), to which the Appellee was entitled to sixty percent (or $60,000). The contract provided that the commission was payable by the owners of the complex ("Sellers") when the sale was consummated. This original contract of purchase and sale was subject to and contingent upon the Hensons obtaining a new loan for $1.6 million, which they were unable to do. After substantial modification of the financing terms, the sale of the property was consummated on February 8, 1989. The modified financing arrangement entered into in order for the closing to occur was set forth in a settlement statement and provided as follows: The Hensons substituted a newly formed corporation, named Medrecon Corporation ("Buyer"), as the Buyer. The corporation then assumed the existing first mortgage of $1,217,869.54. The Buyer received further owner financing of an additional $480,000, secured by a second deed of trust. The Sellers received cash in the amount of $194,233.30. The Buyer also received an additional $50,000 credit for a third deed of trust lien in favor of the Appellant. The consequence of this final term was that the real estate commission of 5 percent would be payable in two halves, $50,000 by check at closing and $50,000 by a note payable to the Appellant by Medrecon, which was due in two years and was secured by the third deed of trust against the property purchased.

Medrecon took title to the property and the Appellant paid the Appellee $30,000 from the $50,0000 commission the Appellant received at closing. Before the end of two years, Medrecon defaulted on the payment of the first and second deeds of trust. Medrecon conveyed the property back to the Sellers by deed in lieu of foreclosure. This extinguished the second deed of trust made by the Buyer to the Sellers to secure part of the purchase price, leaving only the original deed of trust that had been obtained by the Sellers when they originally purchased the property, and the $50,000 note held by the Appellant. At the Sellers' request, the Appellant released its deed of trust lien to allow this transaction to proceed. 1 Nothing more was paid to the Appellant other than the amount received at the closing.

On June 13, 1991, the Appellant filed a complaint against the Appellee to collect on a separate note for $5,500. In her amended answer and counterclaim, the Appellee alleged in count three of her counterclaim that she was owed a balance of $30,000 in commission from the Appellant as a result of the above-related transaction. 2 At the conclusion of a jury trial, the Appellant was awarded $1,000 on its complaint and the Appellee was awarded $30,000 plus interest on count three of her counterclaim. Appellant's motion for a directed verdict on count three of the Appellee's counterclaim was denied by the trial court. Appellant's motion for a judgment notwithstanding the verdict and motion to set aside the verdict and be awarded a new trial were also denied.

It is from the final order entered March 2, 1993, that the Appellant appeals, raising the following grounds for relief:

1. The circuit court erred by denying the Appellant's motion for a new trial. As a basis for this assignment of error, the Appellant contends the trial court erred (a) in rejecting all of the instructions offered by the parties and submitting the case to the jury on a general charge alone and (b) in submitting the case to a jury when neither party had made a demand for a jury in their pleadings.

2. The circuit court erred in failing to grant the Appellant's motion for a directed verdict on the Appellee's counterclaim number three since the Appellee failed to present sufficient evidence to establish a valid claim for the $30,000 commission.

3. The circuit court erred by denying the Appellant's motion for a judgment notwithstanding the verdict or reducing the verdict since the verdict for the Appellee on her counterclaim was clearly not supported by the evidence and was unconscionable and excessive.

II.

It was undisputed at trial that prior to the closing, there was a meeting between the Sellers, the Buyer, John Cavendish, Mike Thompson, and the Appellee. Mr. Cavendish was the President of Realcorp. Mr. Thompson was a broker with Realcorp and co-owner of Realcorp with Mr. Cavendish at the time of trial. Both of these individuals assisted in working out financial arrangements to enable this real estate transaction to occur. There were factual disputes, however, regarding whether or not the parties at that meeting discussed the modified terms subsequently included in the settlement statement with regard to postponement of the commission and whether the Appellee agreed to the modified terms of commission.

The Appellee testified that the first time she heard she was not going to get full commission on this sale was on the way to the closing when she was riding with John Cavendish. She further testified that she did not agree to this arrangement and had no input into it whatsoever. Mr. Cavendish testified to the contrary that the Appellee was at the meeting where modified financing was discussed and that the Appellee not only heard his proposition for the Appellant to take a note for half the commission, but agreed to it. He testified, additionally, that although standard language in the real estate contracts used by the Appellant provides that commission is due and payable in full on the date of closing, the conditions were altered in this case as a result of his "last ditch effort to salvage the deal."

At trial, the Appellant advanced the position that the sale in this case was not consummated under the terms of the original standard contract, but was ultimately consummated under terms of the settlement agreement which materially modified the financing terms. The Appellant argued that the Appellee agreed to the terms of the settlement agreement and that...

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