STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Anita D. Fouts,
 

Defendant Below, Petitioner FILED
 

February 26, 2016 vs) No. 15-0363 (Harrison County 13-C-265) RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

Denny L. Stout and Terry J. Stout, OF WEST VIRGINIA
 

Plaintiffs Below, Respondent 

MEMORANDUM DECISION 

Petitioner Anita D. Fouts, by counsel Michael D. Crim and Richard R. Marsh, appeals the 

March 26, 2015, order of the Circuit Court of Harrison County that denied her motion for 

judgment as a matter of law, or in the alternative, motion for new trial. Respondents Denny L. 

Stout and Terry J. Stout, by counsel Charles G. Johnson, filed a response. Petitioner filed a reply. 

This Court has considered the parties= briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

The parties are the children of Jenevieve and Hubert Stout. In 1980 Jenevieve and Hubert 

Stout acquired title to a 276- acre tract. In November of 2003, Hubert and Jenevieve executed 

reciprocal wills. The will of Hubert Stout bequeathed some personal property and the marital 

home to Denny Stout, the oil and gas to Anita Fouts, and the residue to the three children 

equally. 

Respondents Denny Stout and Terry Stout lived in the Harrison County area near their 

parents, while petitioner worked and lived in Ridgewood, West Virginia until 2007, when she 

lost her job. Petitioner then returned to live in Harrison County, and her mother died in 

September 2007. Immediately following her mother’s death, petitioner moved in with her father. 

The will of Jenevieve Stout was entered into probate on October 3, 2007. 

Following the death of Jenevieve, the relationship between Respondent Terry Stout and 

Hubert Stout deteriorated rapidly. At the time petitioner returned to live with her father, her 

brother, Respondent Terry Stout, and his son, Ben Stout, assumed a large role in the day to day 

operations of their father’s farm. First, a heated argument occurred between Ben and Hubert 

Stout, regarding allegations of improper care of the farm equipment. In late spring 2008, 

Respondent Terry Stout testified that Hubert Stout accused him of not taking care of all of the 

animals. Respondent Terry Stout contends that Hubert told him that the accusations came from 

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his sister, Petitioner Anita Fouts. As a result of both arguments, Respondent Terry Stout and his 

son stopped working on the family farm, and Respondent Terry Stout became estranged from his 

father. 

Respondent Denny Stout worked the farm until he was medically forced to retire due to a 

heart condition. Evidence at trial suggested that petitioner and her father doubted Denny=s 

medical condition. Denny stayed in touch with his father until his death. Hubert Stout died 

March 20, 2013. 

Petitioner submitted her father’s will to probate on or about April 5, 2013. The appraisal 

of the estate listed $150,539.00 of personal property; a WesBanco checking account containing 

$81,296.61; Wes Banco Certificates of Deposit in the amount of $43,345.80, $95,213.72 and 

$67,854.90. The probated will of Hubert Stout specifically bequeathed the three certificates of 

deposit to petitioner. The checking account was to be divided between petitioner and Respondent 

Denny Stout, each receiving $40,148.30, resulting in a total cash benefit to petitioner of almost 

$250,000. Petitioner was also left all of the property lying north of the public highway, while 

Denny and Terry were given the property south of the road, excluding the marital home which 

was given to Denny. At trial, Terry Stout, Denny Stout and Ben Stout testified that the land they 

received was much poorer quality than the property received by Anita; although petitioner 

countered that the acreage received by Denny and Terry was not out of proportion to the acreage 

received by petitioner. 

The new will was prepared by petitioner, who claims she prepared it at her father=s 

request in January 2009. Petitioner took her father to the Harrison County Assessor=s Office, and 

spoke two to Assessors who agreed to witness the will. Petitioner testified that her father did not 

want her to use an attorney to prepare the will. Terry Stout testified that his parents carefully 

considered the previous will, for approximately three or four years before the same. 

Respondents filed a petition to set aside the 2009 will on the grounds of undue influence. 

On October 23, 2014, the circuit Court of Harrison County held a trial on the matter and the jury 

found in favor of respondents. Petitioner filed a Renewed Motion for Judgment as a Matter of 

Law, or in the alternative, Motion for New Trial, to which respondents replied. The circuit court 

denied that motion on March 26, 2015. Petitioner appeals that order, and the jury verdict which 

set aside the second will on the grounds of undue influence. 

Petitioner=s essential claim is that there was insufficient evidence to sustain the jury=s 

verdict. AThis Court appl[ies] a de novo standard of review to the grant or denial of a pre-verdict 

or post-verdict motion for judgment as a matter of law.@ Norfolk S. Ry. Co. v. Higginbotham, 228 

W.Va. 522, 526, 721 S.E.2d 541, 545 (2011). With regard to an insufficient evidence claim, this 

Court held, 

“[i]n 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 

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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.” Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 

(1983). 

Syl. Pt. 3, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). Further, “[w]hen a case 

involving conflicting testimony and circumstances has been fairly tried, under proper 

instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of 

the evidence or without sufficient evidence to support it.” Syl. Pt. 4, Laslo v. Griffith, 143 W.Va. 

469, 102 S.E.2d 894 (1958). With these standards in mind, we turn to petitioner=s argument. 

Petitioner first argues that the evidence presented at trial was insufficient to sustain the 

jury verdict, when viewed in the light most favorable to the plaintiffs. In support of this position, 

petitioner cites five Afacts@. First, petitioner complains that respondents presented no evidence 

that the will was not Hubert Stout=s creation. Second, petitioner asserts that the witnesses to the 

will provided no testimony that Hubert Stout was unwilling or pressured to sign the will. Third, 

petitioner contends that the changes in the 2009 will were due to a change in the family dynamic. 

Fourth, petitioner argues that the other witnesses called by respondents did not present any 

evidence of undue influence by petitioner, and fifth, petitioner asserts that the witnesses called by 

petitioner support the lack of isolation of Hubert Stout, and petitioner=s conclusion that 

respondents caused the change in the family dynamic, which led to the amendment of the will. 

In response, the respondents argue that there was sufficient evidence to establish that the 

second will was not Hubert Stout=s own creation. The will drastically changed the bequest to 

respondents, and the land bequeathed to respondents was of poorer quality than the land 

bequeathed to petitioner. Respondents point to petitioner=s admission that she Adrafted@ the will, 

and found two witnesses, with whom petitioner was personally familiar, to witness the will. 

Respondents also note that petitioner admitted that she may have had a hand in the breakdown of 

the relationship between Respondent Terry Stout and petitioner=s father, and that based on the 

evidence presented at trial the jury found that petitioner had a hand in the breakdown of the 

relationship between respondents and her father. 

We agree with respondents, and find that there is ample evidence to support the jury=s 

verdict, and that the circuit court did not err in denying petitioner=s motion for judgment 

notwithstanding the verdict. 

“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 insufficient to sustain the verdict, it is the obligation of this Court to 

reverse the circuit court and to order judgment for the appellant.@ Syllabus Point 

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1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994). 

Syl. Pt. 1, Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995). The 

evidence supports respondents= contention that Jenevieve and Hubert Stout purposefully and 

methodically considered their original will and that father’s new will significantly reduced the 

inheritance of respondents. There is also evidence that petitioner interfered in the relationship 

between Hubert Stout and respondents, and that she openly questioned whether Respondent 

Denny Stout was actually disabled, implying to Hubert Stout that he purposely chose not to help 

with the family farm. While Hubert Stout was within his rights to change his will, based upon the 

evidence regarding the change in family dynamic, as well as the substantive changes to the will, 

we find that the jury verdict is not unreasonable, when the evidence is viewed in the light most 

favorable to respondents.1 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 26, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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Petitioner also claims that a finding of undue influence is improper, as respondents’ case 

is based solely on circumstantial evidence, and that pursuant to Ritz v. Ball, 219 W.Va. 189, 192, 

79 S.E.2d 123, 126 (1953) and Lawyer Disciplinary Bd. v. Ball, 219 W.Va. 296, 633 S.E.2d 241 

(2006), there is sufficient evidence to support a theory other than undue influence, and therefore 

the jury verdict is invalid. We disagree that respondents’ case was only based upon 

circumstantial evidence. The parties presented direct evidence that petitioner interfered with the 

relationship between Hubert Stout and petitioner, and petitioner admitted at trial, that she may 

have contributed to the breakdown in the relationship between Respondents Denny Stout and 

Hubert Stout. Accordingly, we find this argument lacks merit. 

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