Sandy M. v. Donald M.
| Docket Number | 22-0036 |
| Decision Date | 26 October 2023 |
| Parties | SANDY M. AND SANTANA M., Co-Guardians and Co-Conservators of DONALD M., Defendants Below, Petitioners, v. DONALD M., Plaintiff Below, Respondent. |
| Court | West Virginia Supreme Court |
Submitted: September 26, 2023
Appeal from the Circuit Court of Wayne County The Honorable James H Young, Jr., Judge Civil Action No. 19-C-66
Michael S. Bailey, Esq. Bailey Legal Services, PLLC Barboursville, West Virginia Counsel for Petitioners.
Cayman M. Jarrell, Esq. Jarrell Law Office Wayne, West Virginia Counsel for Respondent.
1. Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat'l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).
2. "To establish title to land under an alleged lost deed on parol testimony, proof that it existed, and of its contents, must be clear and conclusive." Syl. Pt. 1, Lucas v. Hensley, 81 W.Va. 239, 94 S.E. 138 (1917).
3. "The proponent of a lost or missing instrument must prove its existence and contents with clear and conclusive evidence." Syl. Pt. 2, Estate of Bossio v. Bossio, 237 W.Va. 130, 785 S.E.2d 836 (2016).
Sandy M. and Santana M. (collectively "the petitioners")[1] are the guardians and conservators of the father.[2] They appeal the December 14, 2021, order entered by the Circuit Court of Wayne County, West Virginia, declaring the respondent Donald Gene M. as the owner in fee of all of the property and all the appurtenances of the property in dispute ("the disputed property") after conducting a bench trial.[3] The court determined that the respondent by "clear and strong" evidence had established all the required elements necessary to prove that the disputed property had been conveyed by the father to the respondent in a deed that had been signed by the father but thereafter was lost or stolen, and that the petitioners "did not present any witnesses or evidence to contradict" the respondent's evidence. The court also found that the respondent had established that he was entitled to title to the disputed property under a theory of adverse possession. The petitioners argue[4] that the circuit court erred in its findings of fact and conclusions of law relative to lost documents, the statute of frauds, and adverse possession, claiming that the findings of fact were contrary to the weight of the evidence and the legal conclusions were based on a misapplication of law. After considering the parties' briefs and oral arguments, the appendix record, the applicable law, and all other matters before the Court, we find that the circuit court did not err in granting title of the disputed property to the respondent, as the evidence established that the deed conveying the disputed property from the father to the respondent was lost or stolen.[5] Accordingly, we affirm the circuit court's decision.
On February 9, 1989, the respondent acquired land adjoining the father's property; however, the respondent's property did not provide access to any improved roadway. The respondent testified that the father told him that he (the father) would give the respondent the land adjacent to the respondent's property ("the disputed property"). Based on the father's assurances, the respondent testified that he made (and paid for) improvements to the disputed property, including building a road, which involved clearing trees, setting off dynamite, and filling in with extensive amounts of gravel. The respondent testified that in or about 1990 he fenced in the disputed property and installed three gates, which restricted access to the road he had constructed. The respondent also testified that he installed relay stations so that city water could be pumped onto the property and cleared trees along each side of the road so that electricity could be run to the property. The respondent further testified that in or about 2008 he paid approximately $110,000 to have a home built on the disputed property for his daughter.[6] In 2012, the father and the respondent decided to formalize the father's gift of the disputed property to the respondent by executing a deed conveying the property. The father walked the disputed property with the respondent, driving stakes into the ground delineating the property boundaries. The respondent testified that the father then hired True Line Surveying, Inc., to survey the disputed property using the stakes that the father and the respondent had placed in the ground. In March 2012, Wayne County Surveyor Randy Thompson prepared a survey and plat of the boundaries of the disputed property. Mr. Thompson revised the survey on October 22, 2012, to reflect the parcels contained within the disputed property boundaries that were to be conveyed to the respondent's daughter and son.[7]
The respondent testified that after the father looked over the survey and accompanying plat, the father told him to go have a deed prepared memorializing a conveyance of the disputed property to the respondent, but reserving a life estate in the property for the father.[8] The respondent had attorney Don Jarrell prepare a deed conveying the disputed property from the father to the respondent, and the respondent paid attorney Jarrell for the preparation of this deed. The respondent picked the deed up when it was ready and took it to the father, who was not at home. The respondent stated that his sister, Sandy M., was at the father's home and he showed the deed to her. When she saw that the deed had been prepared by attorney Jarrell, she told the respondent: "we want one from Mr. [Lycan]," who also was an attorney. Thus, this first deed was never executed.
The respondent testified that he went to attorney David Lycan and asked him to prepare a deed identical to the one that had been prepared by attorney Jarrell. The respondent also paid for the preparation of this deed. When the second deed was ready, the respondent testified that he accompanied his father to attorney Lycan's office. The respondent stated that he and his father picked up the deed and took it to the car so that the father could read it "and go over the plat and everything step-by-step, which we did." The father told him, "It's perfect." The two went back into attorney Lycan's office, where the respondent watched the father sign the deed. The father's signature was notarized by attorney Lycan's secretary, Pilar Harrison, who put her seal on the document. Ms. Harrison then told the respondent that she could have the deed recorded, and that it would cost seventy-eight dollars for that service. The respondent testified that he paid attorney Lycan in cash for preparing the deed, and for the costs and fees associated with recording the deed; he was given a receipt for the services rendered, but did not retain the receipt. Neither the respondent nor the father was given a copy of the executed deed.
The deed was not recorded. The respondent testified that shortly thereafter he called attorney Lycan's office to confirm that the deed had been recorded, and was informed by Ms. Harrison that it had not been. The respondent testified that he was told his sisters had picked up the deed and took it with them. He asked: "How could you give my deed away to somebody else?" and was told, "Well, they said that they would take care of it, and I thought it would be all right." The respondent then went to the father's home and asked his sister, Sandy M., "Where's my deed at?" and was told that she had put the deed with their father's will. When the respondent asked the father if this is was what he wanted, the father responded, "they got it with my will," adding Finally, the father told him, "At my death, they will give it to you."
Cherry S. testified that her sister Sandy M. was friends with Ms. Harrison. According to Cherry S., Ms. Harrison called Sandy M. and told her that their brother and father had been to attorney Lycan's office to get a deed signed, and asked if she wanted to come to the office to see the deed. Cherry S. went to the Lycan office with Sandy M., and they collected the deed from Ms. Harrison. Cherry S. testified that she saw the deed, and that the deed had been signed by the father and notarized. She stated that she knew the father wanted the respondent to have the disputed property and that she and her sister
The respondent also called as a witness his nephew (and the father's grandson) Mason S. Mason S. testified that his aunt Sandy M. was informed about the executed deed by Ms. Harrison and that Sandy M. schemed that "[o]ne day, we can get money [out] of all this because we've got his [the respondent's] driveway."
The respondent testified that the father suffered a stroke in 2015,[9] which, as the undisputed evidence of record shows, was after the father had executed both the deed to the disputed property and his will.[10] A guardianship/conservator proceeding was instituted and, according to the petitioners' brief, the father was recognized as a protected person in 2018. During that proceeding, the father's will was read, at which time the respondent realized that there was no mention of...
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